as to the meaning of the language used in article 8, and if we could say the same of section 32, which is before us, we should, of course, apply the same rule.

But it follows, we think, from what has been said, that the meaning contended for by appellant is not necessarily implied in the language of section 32; and if there be a fair doubt as to the true construction of that section, we should refrain from declaring that the legislature and the governor have exceeded their authority in the passage and approval of the act of March 10, 1885, appropriating money to pay the indebtedness incurred under the so-called drainage act of April 23, 1880.

The doctrine has been so often enunciated it has passed into an aphorism, that statutes will not be declared unconstitutional if there is a fair doubt as to their validity. The judicial department will not hesitate to interfere with the work of a co-ordinate branch of the government when the latter goes beyond its constitutional limitations, but the ground of interference must be plain and substantial. Again, it is not a universal rule, as claimed by appellant, that an unconstitutional law is void ab initio, and absolutely wanting in all binding force, and a nullity. There is at least an exception, viz.,-that an act duly passed or approved has the force of law to protect citizens dealing with public officers under its provisions up to the time that it is declared unconstitutional: Sessums v. Botts, 34 Tex. 335. And if a decision that an act is unconstitutional be afterward overruled, the statute will be deemed to be valid for the whole period: Pierce v. Pierce, 46 Ind. 86. It has been held that an act creating an office, though unconstitutional, is sufficient to give color of title, and that an officer acting under it is an officer de facto: Duff's Appeal (Commonwealth v. McCombs), 56 Pa. St. 436; Clark v. Commonwealth, 29 Id. 129. But whether this be supported by the weight of authority or not, "nothing is better settled," it is said in State v. Douglass, 50 Mo. 596, "than that the acts of an officer de facto (although his title may be bad) are valid so far as they concern the public, or the rights of third persons who have an interest in the things done. Without this rule, the business of a community could not be transacted. . . . . It would cause a suspension of business till every officer's right de jure was established": State v. Carroll, 38 Conn. 462; 9 Am. Rep. 409; Harbaugh v. Winsor, 38 Mo. 327; Wilcox v. Smith, 5 Wend. 231; 21 Am. Dec. 213; People v. Salomon, 54 Ill. 39; Ex parte Strang, 21 Ohio St. 610. It must be remembered that the act

of April 23, 1880, was judicially declared unconstitutional solely on the ground that under article 3 of the constitution the legislature could not delegate to executive officers such legislative powers as it had attempted to confer by that act. This was the only ground upon which the minds of a majority of the members of the court met: People v. Parks, 58 Cal. 645. It has never been claimed seriously that the work contemplated by the act was beyond the power of the legislature to provide for in some manner. If the legislature had defined the boundaries of the several districts, instead of delegating the power to the judgment of the governor, surveyor-general, and state engineer, and had provided, in the manner it did provide, for the appointment of the three directors who were authorized to let, and who did in fact let, the contracts for the work, the result might have been different. The act has not been declared to be and is not necessarily unconstitutional in all of its parts. It is true, this court held that the directors had no authority to contract, but the creation of the office of director by the act, the appointment by the governor of three directors, and the ostensible authority conferred upon them by the act to contract, furnish some color of right to do the thing attempted by them.

I do not wish to be understood as saying that the directors were officers de facto, with color of authority sufficient to bind the state, notwithstanding the unconstitutionality of the act under which the contract was let, and without regard to the provisions of section 32 as to "express authority of law." I cite the cases upon the effect of the acts of officers de facto simply to show that an unconstitutional law is not always and for all purposes a nullity, so far as the rights of a citizen are concerned, and refer to the history of the case simply in illustration of my conclusion that after a citizen has dealt with the state under circumstances like those shown here, the case does not come within the purview of section 32, and the legislature is not prohibited thereby from authorizing the payment to him of such reasonable sums as shall to it seem proper. It is unnecessary to say whether in all cases an act duly passed and approved would be "express authority of law" within the meaning of that section. There may be statutes palpably violative of principles so plain and well understood as to be no authority or protection at all; but as to that I express no opinion.

Judgment affirmed.

SEARLS, C. J., and MCFARLAND and SHARPSTEIN, JJ., concurred.

TEMPLE, J., dissented. He denied that there was any common usage or popular sense in which the word "law" was given any other signification than that of a valid law; and insisted that as the constitutional phrase was "without express authority of law," the word "law" was there used in its technical sense, for it could not be assumed that it was intended that a claim might be authorized by a law which was in itself without authority, and therefore invalid. He further contended that even were there no express constitutional prohibition, the legislature would be without power to authorize the payment of a claim created in violation of the constitution, and in support of this position relied upon Nougues v. Douglass, 7 Cal. 65. He also was of the opinion that the statute under consideration operated as a gift to the beneficiaries, and was therefore forbidden under section 31, article 4, of the constitution, which declares that the legislature shall not have power "to make any gift, nor authorize the making of any gift, of any public money or thing of value to any individual, municipal or other corporation, whatever." Upon this point he said: "It is admitted that the contract is utterly void; that it imposes no legal liability or obligation on the part of the state. The state has received, and will receive, nothing from the parties to whom this money is to be given. True, if the contract had been valid in legal contemplation, the state would have received a consideration in the service performed by reason of the contract, although there was nothing of benefit in it. Now, a gift is something bestowed without return. If this be not something bestowed without return, what is the thing returned? Can there be any other reason for holding this appropriation not a gift except that it would be highly inequitable and unjust not to compensate the respondent for services rendered pursuant to an act of the legislature believed to be valid? In other words, the claim is founded upon a moral obligation, which the state ought to recognize and satisfy. This construction, I submit, virtually repeals sections 31 and 32, article 4, of the constitution. What sense is there in prohibiting the contract, and declaring it void, if the legis lature may nevertheless voluntarily perform the contract on the part of the state? What practical purpose is served by forbidding gifts of the people's money or property, if the legislature can recognize and discharge a moral obligation? The legislature must be the judge of the moral obligation, and would rarely ever care to make a gift where it could not claim the existence of a moral obligation. My brothers deny, as I understand the decision, that they hold any such doctrine. I hope this will prevent the decision from being regarded as a precedent upon this question; but will it? I have shown that, disclaim it as they will, such is the real ground of the decision. Our successors will justly claim that it can be sustained on no other theory. This is the excuse for all relief bills. Can any one deny that the sole purpose of the provisions was to prevent this very legislation? But I do not care to pursue the subject further. The constitution itself directs how laws shall be made, and of course the law meant must be a law passed as in the constitution provided. The whole claim seems to me baseless. A void contract based on a void law, ratified against the express prohibition of the constitution, constitutes a valid claim against the state."

The decision in the principal case was received with surprise by the bar of the state in which it was made, and was generally spoken of as one in which

the equities of persons doing work, and advancing materials under the drainage act of 1880, had proved too strong for the law. The claims existing under the drainage act of 1880 were contracted in unquestioned good faith on the part both of the commission and of the contractors and laborers who sought employment under it, and were such as ought to be paid, if it were possible to so construe the constitution as to permit their payment.

Either unconstitutional enactments must be treated as void, or the attempt to fix any bounds of legislative authority must be abandoned. Legislators, when attempting to exercise an authority interdicted by the constitution, have no more legislative sanction for their act than has a judge in pronouncing judgments with respect to subject-matters over which he has no jurisdiction. In neither case has the act or judgment any legal existence. To enforce this rule may operate harshly and to the prejudice of a few individuals who were so unfortunate as to mistake the law fixing limits to judicial and legislative authority. But not to enforce it is to subject the whole community to laws and decrees against which the fundamental law had guaranteed protection. If it be once established that a law is valid until judicially declared to be unconstitutional and void, then the legislature is invited to pass unconstitutional laws under the judicial assurance that they will operate at least until the judicial machinery, always tardy in action, has been set in motion, and enabled to mark them with the stamp of condemnation. If a statute is unconstitutional, and claims created under it are therefore invalid, how can they be validated by subsequent statute, without announcing a rule of law to the effect that where the legislature has no power to enact a law it may nevertheless enact such law? — that such enactment, though not valid, may, if carried into effect, be followed by a further enactment validating, or at least compensating, the acts done under the first unauthorized enactment? See Phelan v. San Francisco, 6 Cal. 540; Cooley on Constitutional Limitations, 188; Fisher v. McGirr, 61 Am. Dec. 381; Osborn v. United States, 9 Wheat. 868.

LIABILITY OF PERSONS ACTING UNDER UNCONSTITUTIONAL STATUTE: See note to Kelly v. Bemis, 64 Am. Dec. 51-55.

COBURN V. GOODALL.

[72 CALIFORNIA, 498.]

ASSIGNEES OF LEASE HOLDING UNDIVIDED INTERESTS THEREUNDER in unequal proportions, as tenants in common, are jointly and severally liable to the lessor for a breach of a covenant to repair or to surrender possession.

EMINENT DOMAIN. — Order of judge putting plaintiff in possession of lands pending proceedings for their condemnation is void.

RETURN OF SHERIFF ON WRIT OF RESTITUTION IS PRIMA FACIE EVIDENCE only of the fact therein stated, in California.

JUDGMENT IN EJECTMENT DOES NOT PRECLUDE PLAINTIFF FROM MAINTAINING a subsequent action to recover damages for withholding possession of the premises, where the record in the former suit shows that all claims for such damages were withdrawn.

JUDGMENT IN EJECTMENT IS NOT CONCLUSIVE AS TO TIME OF QUSTER, when all claims for mesne profits and damages were withdrawn.

LESSOR IRREVOCABLY ELECTS TO TERMINATE LEASE when he brings an action of ejectment against the lessees, or their assignees, to recover the leased premises. Therefore, he cannot recover for rent subsequently falling due, though no judgment has been rendered in the action of ejectment. RIGHT TO SUE FOR BREACH OF COVENANT TO SURRENDER POSSESSION IS NOT WAIVED by a subsequent action of ejectment for the demised premises, in which the recovery of damages is not sought.

IN DETERMINING AMOUNT OF DAMAGES SUSTAINED BY FAILURE TO SURRENDER LEASED PREMISES to the lessor, the amount of profits derived by the defendants from a wharf and chute adjacent thereto is a proper subject of inquiry, providing it is not taken as the measure of damages. It is proper to put the court in possession of all pertinent facts and circumstances from the consideration of all of which the ultimate fact of the quantum of damages can be deduced.

INTEREST IS NOT ALLOWABLE in an action for the breach of a contract, if the damages sought to be recovered are so unliquidated and uncertain that they must be made certain by proof and adjudication.

ACTION by plaintiff, in his own right, and as assignee of his co-lessor, Clark, against the defendants as assignees of a lease, to recover damages sustained by a breach of a covenant therein contained for the surrender of possession at its termination. The lease was made January 1, 1863, by the plaintiff and Jeremiah Clark to James Brennan, who assigned an undivided half to defendant Sudden, who assigned one fourth to defendant Fake. Brennan's remaining half-interest in the lease was assigned to defendant O'Farrell, who assigned one eighth to defendant Goodall, one eighth to defendant Wensinger, and one eighth to defendant Nelson. During the pendency of the action, a dismissal was entered as to defendant Fake, and defendant O'Farrell died. No attempt was made to make his representatives parties to the action. The defendants refused, at the termination of the lease, to wit, October 1, 1872, to surrender five acres of the leased premises known as Pigeon Point. An action of ejectment was brought by the plaintiff against the present defendants and others to recover possession of the lands now in controversy, in which action a wharf and chute built from the shore on the demised premises below lowwater mark into the ocean were claimed to be a part of the premises, on the ground that they had been affixed to the land, or had become an incident or appurtenant thereto. The plaintiff recovered judgment, which, on appeal, was modified by striking therefrom so much thereof as includes the wharf and chute below the line of high water: See Coburn v. Ames, 52 Cal. 385; 28 Am. Rep. 634; and 57 Cal. 201. Subsequently this action was begun, and resulted in a judgment for the