San Francisco Law Journal.

VOL. I.

FEBRUARY 2, 1877.

Current Topics.

No. 23

THE following communication, discussing a late decision by Judge Wright, has been received by us :

EDITORS S. F. LAW JOURNAL:- In your comments upon the decision of Judge Wright, of the County Court of this city and county, In re Needles vs. Pearson et al., you say: "The court held, also, that it is incumbent upon the plaintiff to prove the incorporation of the company by the introduction of the certificate. By this is meant, not a certified copy of the articles of incorporation, but the certificate that is sent by the Secretary of State to the trustees of the company."

It is evident, I think, that there must be a mistake in your understanding of the decision as to its purport on the point referred to. To substantiate my assertion it is not necessary to look beyond section 297 of the Civil Code, as amended by the Legislature of 1873-4 :

"Section 297. A copy of any articles of incorporation filed in pursuance of this chapter, and certified by the Secretary of State, must be received in all the courts and other places as prima facie evidence of the fact therein stated.'

This section went into effect July 1, 1874. When the requirements of this section have been met by the plaintiff, is is plain to see that the burden of proof lies with the defendant, if he deny the existence of the corporation as shown by such certified copy of the articles of incorporation. Section 289 of the Civil Code reads: "The instrument by which a private corporation is formed is called 'Articles of Incorporation.' Under our law, a

copy of an original instrument of record, duly certified, is primary evidence, in effect, of its contents. The certificate of the Secretary of State that articles of incorporation had been filed would be but secondary evidence of the matter to be proved. See, also, section 358, Civil Code.

SAN FRANCISCo, January 29, 1878.

F. W. VAN REYNEGOM.

It will be observed, by reading our comments upon the decision, that we expressed no opinion of our own, nor even intimated one concerning the correctness of the judgment of the court. We only gave the conclusion of the court

upon the question of proof of incorporation. If we had been called upon to express an opinion concerning it we should have said that a certificate of the Secretary of State to a copy of the articles of incorporation filed with him, with all indorsements thereon, would be sufficient. But we were reviewing the decision only for the purpose of giving the judgment of the court.

Though we differ with the learned judge, there are good reasons for his holding, and we are informed his opinion was made after much deliberation.

What construction should be given section 297 was the very question under consideration. The plaintiff contended that he had complied with the statute by introducing a certified copy of the articles of incorporation. Defendants contended that this certi ed copy was evidence only of the "facts therein stated," and as the fact of complete incorporation was not stated therein, there was no evidence as to the incorporation-the fact to be proved.

The theory of the defense was that the issuance of the certificate by the Secretary of State to the trustees was an essential feature in the act of incorporation, and unless it be proved that this certificate was issued, proof of incorporation has not been made. It will be seen, by reading section 296, that when the certified copy of the articles has been filed with the Secretary of State he is to issue to the corporation, over the great seal of the State, a certificate that a copy of the articles containing the required statement of facts has been filed in his office; and thereupon the persons signing the articles, and their associates and successors, shall be a body politic and corporate by the name stated in the certificate.

It is contended, and so held by the court, that the issuance of this certificate is a prerequisite to the incorporation, and it must be shown that such a certificate was issued-that the certificate itself is the best evidence and must be produced. It being in the hands of the trustees a subpena duces tecum may be asked for, compelling them to produce it. Should they make affidavit that they had not read such a certificate, then we presume the testimony of the Secretary that he had made such a certificate would be sufficient. In our opinion there arises a legal presumption that the Secretary issues the certificates he is commanded by the statute to issue, and should the trustees proceed to transact business before the actual issuance of the certificate, it is a wrong that they can take no advantage of. We deem the certificate no prerequisite to an incorpo

ration.

THE following decision in relation to the trial of mining debris cases was filed in the Uuited States Supreme Court on Tuesday, the 28th inst. : "Little York Gold Mining and Water Co. vs. Keyes. Error to the Circuit Court for the District of California. The question in this case is, whether grants made by the United States of placer mines, as such, involve the right to discharge refuse earth and gravel produced by working the mines, called tailings, into a neighboring stream (in this case Bear river), inasmuch as mines can not be worked except by means of such discharge of streams of water, loaded with such refuse. The immediate question was upon its removal from a State to a federal court. It is here held that the motion to remove is not within the statute, because it does not appear upon record as made that the suit really involves a controversy as to the construction or effect of a federal law. Affirmed. The Chief Justice

delivered the opinion. Justice Bradley dissented. He holds that the general question presented sufficiently indicates its federal character.

IN Shearer vs. Bliven, reported in our last number, we confused our items in making memoranda of several cases, and were misled into the belief that the judgment of the court below was affirmed, when it was reversed. The profession is safe enough, however, from any error we may make in this re ard, as our journal is now widely spread and read with much interest, and any error made will surely be pointed out to us, though it should escape our vigilance.

IN United States vs. Mann, just decided by the Supreme Court of the United States, it was held that a bank officer who refused to permit a collector to come into the bank and look over the checks which had been paid in, to see if he could find any which had no stamp on, did perfectly right, and was liable to no penalty for his action.

A BILL introduced by Mr. Frye, of Maine, making all persons charged with crimes and offenses competent witnesses in their own behalf, in the courts of the United States, has been passed by the House of Representatives. It is in the following words: "In the trial of all indictments, informations, complaints, and other proceedings against persons charged with commission of crimes, offenses, and misdemeanors in the United States Courts, territorial courts, courts martial, and courts of inquiry, in any State or territory, including the District of Columbia, the person so charged shall, at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him.”

THE Supreme Court of Alabama have lately decided in Ex parte Dement, 6 Central L. J. 11, that a physician, like any other person, may be called to testity as an expert in a judicial investigation, whether it be of a civil or criminal nature, without being paid for his testimony as for a professional opinion, and that, upon his refusal to testify, he may be punished as for a contempt of court. It appears in the case that the witness, who was a practicing physician, after having made an examination, declined to answer whether a certain wound had produced death because “He had not been remunerated for his professional opinion, nor had compensation for professional opinion been promised or secured." He was fined for his refusal by the court, and on his motion to set the fine aside as illegal the question was raised. In this opinion the court, however, say that they do not advance the proposition that a physician or surgeon could be punished as for contempt for refusing, unless paid therefor, to make a post-mortem examination, or undertake any other operation requiring skill and professional training, in order to qualify himself, when required by the court so to do, to testify in a cause.

Two very important decisions of our Supreme Court appear in this number of the JOURNAL: Brady vs. King and Harris vs. The Board of Supervisors. These opinions indicate a very decided purpose on the part of our highest court to guard the rights of tax-payers by enforcing a strict compliance with the rules laid down for the protection of the citizens against frauds. We do not mean

to charge that there has been fraud in either of the cases just decided, but to assert that such strict and careful rulings leave no room for them. Mr. Harris, so far as we know, had a just and equitable claim against the city and county, but should not have insisted that the Board had no discretion in the matter— that they should allow the whole claim without investigation. If the claim was a fraud upon the city and county, then the veto was proper and Mr. Harris can not justly complain; if otherwise, we think he is not barred from insisting before the Board that his claim should be paid, nor will they refuse him payment. It is eminently right and just that all such claims for appropriation out of the public funds should be closely investigated, ahd certainly no one holding a legitimate claim can object. In the matter of Brady vs. King, no doubt exists as to the good to result from the declaration of the principles there made. To have held otherwise would have left the property-owner without one weapon of defense against defective or fraudulent resolutions.

We publish in full in this number a recent decision by the Supreme Court of the United States, to the effect that a coniract for use of a wharf is a maritime one, and as such is cognizable in admiralty, and being one made exclusively for the benefit of a ship or vessel, a maritime lien arises in favor of the wharf, against the ship or vessel, for payment of reasonable and customary charges for such use, and may be enforced by a proceeding in rem or a suit in personam. This will be important to wharf-owners.

We will publish, in our next number, the full opinion in the McGarrahan case. It is claimed by McGarrahan that that the case was disposed of on legal technicalities, and that he has equities enough in his case to gain it. The inti mations of the court, however, do not support this assertion.

Notes of Unwritten Opinions.

In the matter of The Estate of Parkinson, deceased, the Supreme Court has affirmed the judgment of the court below. The following are the facts presented: Parkinson, the father of Louise A. Parkinson, appellant, and husband of Harriet Parkinson, respondent, executed a will on the twenty-second of June, 1869, and on the twenty-sixth of October, 1869, executed a codicil. April 1, 1871, he died. Said will and codicil were admitted to probate. The testator gave by his will certain real estate in Chico and certain real estate in San Francisco, to his daughter, the appellant. The will contains this clause : "And should said property be disposed of by me before my death, then my said daughter, Louise Alice, to have an amount of money equal to the sum said property shall be sold for." The testator did dispose of the property in San Francisco, through his agent, Russell. He afterward executed the said codicil,

in which he gives his daughter Louise Alice all moneys belonging to him, in the hands of said Pursell. At the death of the testator Pursell was insolvent, and the sum for which the property was sold, $1125, was lost to the estate. Upon a final settlement the appellant moved the court to require the administrator to pay her $1125 and interest, as the proceeds of sale of the San Francisco property. The court refused the motion and ordered the remainder of the estate to be paid to the residuary legatee, Harriet Parkinson. Appeal was taken by said Louise A. Parkinson. Appellant claims that under the provision in the will she should have an amount of money equal to the sum said property should sell for in the event the testator sold before his death, she is entitled to that amount in the hands of the administrator. Respondent says that the codicil has destroyed that clause and substituted in its place a specific legacy of the money received for said lands then in the hands of Pursell, and that specific legacy not being among the assets of the testator the legatee loses her legacy.

Supreme Court of California.

[January Term, 1878.]

[No. 4882.]

[Filed January 29, 1878.]

HARRIS vs. SUPERVISORS OF SAN FRANCISCO.

STATUTES, HOW CONSTRUED-TITLE MAY BE REFERRED TO TO AID IN CONSTRUING AMBIGUOUS CLAUSES-WHAT PERMISSIVE-WHAT MANDATORY. By act of March 4, 1870 (Statutes 1869-70, p. 127), the Board of Supervisors were authorized and empowered to appropriate, allow, and order paid, out of the general fund, the sum of $2830.50 to Harris for money expended by him while Assessor, for extra work on the assessment-roll, etc. By the next section the Auditor was directed to audit and the Treasurer to pay the said sum allowed and ordered paid to the said Harris, out of the general fund. HELD, that the act is only permissive and not mandatory; that the Board might inquire into the merits of the demand and allow or reject it, in whole or in part, as justice and equity might require.

Appeal from Fifteenth District Court.

The proceeding was mandamus to compel the Board of Supervisors of the city and county of San Francisco to order paid a demand of plaintiff against the city and county of $2830.50, for money alleged to have been paid by the plaintiff while Assessor of said city and county for extra work on the assessment-roll.

It must be conceded that at that date the Board of Supervisors had no authority to allow or order paid any amount to reimburse the plaintiff. On October 11, 1869, the Board of Supervisors reported in favor of requesting the