an order denying a new trial, defendant ap- to, except in the particulars otherwise propeals. Affirmed.

vided for in this act." As the act is silent

as to the time as to which the valuation shall be placed upon the property, we must look to the provisions of the Code of Civil Procedure for a rule applicable to the case. Section 1249, Code Civ. Proc., provides: "For the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the summons, and its actual value, at that date, shall be the measure of compensation for all property to be actually taken." Appellant, however, vigorously contends that the provisions of this section are inapplicable. He insists that the word "rules," as used in section 6 of "the street opening act," refers to those rules only which govern pleading and practice as prescribed in the Code of Civil Procedure. The meaning of the word "rules" is of wide and varied significance, depending upon the context. In a legal sense it is synonymous with "laws." In re Higbee, 4 Utah, 19, 5 Pac. 693; Watts v. Holland, 56 Tex. 54; Hunt v. Common Council, 45 N. J. Law, 279. The phrase "rules of the Code of Civil Procedure," as used in section 6 of said act, means the laws or provisions of said Code. By its terms the section does not provide that the action shall be governed by the rules of

SHAW, J. Defendant was the owner of certain real estate lying between Central avenue and Naomi avenue in the city of Los Angeles, through which the city, under and in accordance with the provisions of the street opening act of 1903 (St. 1903, p. 376, c. 268), initiated proceedings to open ThirtyFifth street. Pursuant to ordinance duly passed this action was instituted by the city attorney to condemn the land required for use in opening of said street. The complaint was filed therein, and summons issued on June 16, 1905. On March 15, 1906, the referees appointed to ascertain and fix the compensation to be paid to defendant for the land sought to be condemned filed their report, wherein and whereby they fixed the value of said property as of the time of the issuance of the summons in said action, to wit, June 16, 1905. Upon the hearing had by said referees for the purpose of ascertaining the facts necessary to enable them to fix such value, they refused to receive or consider evidence touch-practice and procedure prescribed in said ing the value of the property at other than the time of the issuance of said summons. To this report defendant in due time filed exceptions, assigning as grounds therefor the action of said referees in so excluding evidence of value, and confining their inquiry to June 16, 1905, as well as the fact that they had not allowed defendant interest upon the value so fixed from said 16th day of June, 1905. Upon the hearing had thereon defendant claimed the property had greatly enhanced in value since the date of the issuance of summons in the action, and offered evidence tending to prove that the value of the property in February, 1906, was 25 per cent. greater than on June 16, 1905. The court excluded this evidence, and confirmed the report of the referees, and rendered and caused to be entered an interlocutory judgment in accordance therewith. The appeal is from this judgment, and an order denying the defendant's motion for a new trial.

Appellant contends that he is entitled to the value of the property as of the time when the referees made their report rather than as it stood at the time of the issuance of summons in the action, and that, if the value is fixed as of date June 16, 1905, then he is entitled to interest thereon to the date of payment. The street opening act of 1903 does not, in terms, specify the time as of which the value of property shall be fixed, but section 6 of the act provides that "said action shall, in all respects, be subject to and governed by such rules of the Code of Civil Procedure now existing, or that may be

Code; and, in the absence of such limitation, it is to be governed by the rules or laws of said Code applicable to the action which are not otherwise provided for in the act. Had it been the intent of the Legislature to limit the effect of such provision to the rules of practice, such intent would undoubtedly have found expression in the act itself. See sections 1256, 1257, 1262, Code Civ. Proc. To give the section the narrow and limited interpretation contended for would do violence to section 37 of the act, which calls for a liberal construction of its provisions to promote the objects thereof. We think it clear that it was the intent of the Legislature that section 1249, Code Civ. Proc., should constitute the rule for ascertaining the amount of compensation and damages to be paid for and acquired by proceedings had under the provisions of the street opening act of 1903. Even in the absence of statutory provision upon the subject, the authorities bearing upon the question are by no means uniform in decision. No good purpose could be subserved, however, by citing or discussing these cases. Suffice it to say, that in this state we have a provision of law which, if constitutional, excludes all consideration of other than the value of the property at the date of the issuance of the summons in the action.

But appellant contends that this section 1249, Code Civ. Proc., is contrary to the provisions of section 14, art. 1, of the Constitution of California, and therefore unconstitutional. Counsel has with great industry

The judgment and order are affirmed.

We concur: ALLEN, P. J.; TAGGART, J.

er jurisdictions in support of such contention. | cing the action is in no wise abridged. ThereIf the question could be regarded as an fore it cannot, in a legal sense, be said that open one in this state, his able and exhaus- he is damaged until the actua' taking of tive presentation and authorities in support the property. thereof would merit the most careful and painstaking consideration. Inasmuch, however, as the Supreme Court of this state has, since 1882, repeatedly and uniformly held to the contrary, the provision must be deemed immune from attack on constitutional ground. California Southern R. Co. v. Kimball, 61 Cal. 90; Tehama v. Bryan, 68 Cal. 57, 8 Pac. 673; San Jose & A. R. Co. v. Mayne, 83 Cal. 566, 23 Pac. 522; City of Santa Ana v. Brunner, 132 Cal. 234, 64 Pac. 287; Pacific Coast Ry. Co. v. Porter, 74 Cal. 261, 15 Pac. 774; Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585.

Appellant next insists that, at all events, he is entitled to interest on the value of the

land from the date of the issuance of the summons. The contrary has been held in San Francisco & San Joaquin Valley Ry. Co. v. Leviston, 134 Cal. 412, 66 Pac. 473. The same question was discussed by the Supreme Court of the United States in Shoemaker v. United States, 147 U. S. 282, 13 Sup. Ct. 361, 37 L. Ed. 170, under provisions for condemnation proceedings almost identical with those under consideration, and the court, speaking through Mr. Justice Shiras, said: "Interest accrues, either by agreement of the debtor to allow it for the use of money, or in the nature of damages, by reason of the failure of the debtor to pay the principal when due. Of course neither ground for such a demand can be found in

the present case. No agreement to pay the

(10 Cal. App. 375)

Ex parte THOMAS. (Cr. 116.) (Court of Appeal, Second District, California. April, 10, 1909.)

1. CONSTITUTIONAL LAW (§ 81*) - POLICE

POWER.

The courts have not attempted to define the extent of, and limitations upon, the exercise of the police power, but determine whether or not legislation is justified under the police power in the particular cases as they arise.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 148; Dec. Dig. § 81.*] 2. MUNICIPAL CORPORATIONS (8 594*)—Po

LICE POWER-ORDINANCES-VALIDITY-REA

SONABLENESS.

The police power of a state extends to control in a proper manner of its parks, streets, and alleys, and the protection of the rights of the general public therein, and an ordinance making it unlawful to hold a public assemblage, or make public speeches, in any public park, or street, in a defined district within the city, was a valid exercise of its police power; and, in the absence of a showing of unreasonableness in fixing the boundaries as provided thereby, it will be presumed that the council fixed proper boundaries consonant with the purpose of the ordinance.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 594.*]

In the matter of the application of May
Writ
Thomas for a writ of habeas corpus.
denied, and petitioner remanded.

Stephen L. Sullivan and Walter, Pratt &
Ball, for petitioner. Guy Eddie, City Pros.
Atty., for respondent.

PER CURIAM. Habeas corpus. Petitioner prays for her discharge from custody upon the grounds that she is restrained of her lib

charging her with a violation of Ordinance No. 17,192, enacted by the city council of Los Angeles city, her contention being, first, that the city has no power to pass such an ordinance; and, second, that the same is unreasonable.

interest demanded is pointed to, and no failure to pay the amount assessed took place. That amount was not fixed and ascertained till the confirmation of the report. # * * It is true that, by the institution of proceedings to condemn, the possession and enjoyment by the owner are to some extent interfered with. He can put no permanent improvements on the land, nor sell it, ex-erty by reason of an arrest under a complaint cept subject to the condemnation proceedings. But the owner was in receipt of the rents, issues, and profits during the time occupied in fixing the amount to which he was entitled, and the inconveniences to which he was subjected by the delay are presumed to be considered and allowed for in fixing the amount of the compensation. | Such is the rule laid down in cases of the highest authority. Reed v. Hanover Branch R. Co., 105 Mass. 303; Kidder v. Oxford, 116 Mass. 165; Hamersley v. New York, 56 N. Y. 533; Norris v. Philadelphia, 70 Pa. 332; Chicago v. Palmer, 93 Ill. 125; Phillips v. South Park Com'rs, 119 Ill. 626, 10 N. E. 230." Until a citizen is deprived of possession of the property sought to be condemned his right to the use and enjoyment thereof as it stood at the time of commen

This ordinance in general terms makes it unlawful for any person to hold, conduct, or address any assemblage, meeting, or other gathering of persons, or to make any public speech, lecture, or discourse in any public park of the city, or upon any public street or alley within a defined district. No restrictions of any kind or character are sought to be imposed upon any person with relation to any of the streets or alleys outside of such district. The authority of the city of Los Angeles under its charter to make and enforce within its limits all such local, police,

•For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

[Ed. Note. For other cases, see Gaming, of or making bets or wagers upon the prog

amusement, or upon a wager, or for the purpose of making bets. The motion to quash the information should have been granted.

The second section of the act makes one an "accessory" who is "willfully a spectator of, or making bets or wagers upon the progress or result of, any such fight." An "accessory," under this section, is not necessarily one who participates in the principal offense. He may be entirely innocent of any participation therein, and the offense of the accessory, as stated in the section, is a substantive offense. If the state relies upon the defendant's being a spectator merely, or upon his having made bets upon the result of the fight, such facts should have been stated in the information, and the court erred in giving to the jury instruction No. 4.

"unlawfully cause, procure, encourage, aid, but only to so engage them for sport or and abet certain dumb animals, to wit, chickens, to fight and engage in combat." Upon the trial the court, in its fourth instruction, charged the jury as follows: "You are instructed that if you find from the evidence beyond a reasonable doubt that these defendants, or either of them, did on or about the 14th day of April, 1907, in the county of Arapahoe, cause, procure, encourage, aid, or abet chickens to fight or engage in combat, or if you find beyond a reasonable doubt that these said defendants, or either of them, were or was willfully a spectator, or made or offered to bet or wager on the result of any such fight or combat, then your verdict should be guilty, as to both or either of said defendants, as you may find." In instruction No. 9 the jury was charged: "If the jury believe that any witness, by reason of his being interested in the result of this suit, testified falsely, then you have a right to disregard the whole of such witness' testimony, except in so far as it is corroborated by the testimony of some other witness whom you believe is telling the truth." The court, in No. 12, instructed the jury, in part, as follows: "The jury are instructed that the law requiring the jury to be satisfied of a defendant's guilt beyond a reasonable doubt, in order to warrant a conviction, does not require that you should be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to es--by this court. In applications for supertablish the defendant's guilt. It is sufficient if, taking the testimony altogether, you are satisfied beyond a reasonable doubt that the defendant is guilty."

Instruction No. 9 is said to be erroneous because the language is not that approved by the appellate courts of this state, in that it does not say that if any witness has willfully testified falsely to any material matter. If a person by reason of his being interested in the result of the suit testifies falsely to any material fact, he willfully testifies falsely, and we find no objection to this instruction.

The court gave in instruction No. 12 the identical language condemned so many times

sedeas we have met this same instruction, and it would seem that after this court has so many times condemned the words found in the instruction concerning the link in the chain of circumstantial evidence, as being erroneous and fatally defective, they would no longer appear in instructions. We adhere to our former decisions, and again declare that the giving of this instruction constitutes fatal error.

For the reasons given the judgment is reversed.

WHITE and BAILEY, JJ., concur.

(45 Colo. 412)

Counsel say that the information does not charge an offense, and insist that, as the information does not charge that the defendants committed the acts charged in the information "for sport or amusement, or upon a wager, or for the purpose of making bets upon the result thereof," no offense is stated. We agree with counsel in their contention. The statute, in plain and unambiguous terms, imposes a penalty upon those who "cause, procure, encourage, aid or abet any dumb animal to fight or engage in combat * for sport or amusement, or upon a wager, or for the purpose or result of making bets upon the progress or result of such fight. * "The Attorney General urges that there can be no other purpose in encouraging chickens to fight than that of sport or amusement, or in making bets on the result. That is probably correct, but the statute does not mention chickens, and, while we can readily discern that there can be no laudable purpose for engaging in cockfighting, there may be a laudable purpose for encouraging dumb animals to engage in combat; and the Legislature, knowing this, could not have intended to make it a crime A stipulation by parties, permitting the for one to engage dumb animals in combat, I trial court to render and enter judgment in vaFor other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

WILSON et al. v. COLLIN et al. (Supreme Court of Colorado. May 3, 1909. Rehearing Denied June 7, 1909.) 1. APPEAL AND ERROR (8 987*)-REVIEWQUESTIONS CONSIDERED.

Where the judgment is reversed for new trial for reasons not affecting the merits, the weight or sufficiency of the evidence should not be decided, as the evidence on the second trial may be different.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 987.*]

2. STIPULATIONS (§ 17*)-PARTIES BOUNDTIME OF RENDERING JUDGMENT-IN VACA

TION.

[Ed. Note.-For other cases, see Waters and state of the record as we have it we would Water Courses, Dec. Dig. § 87.*]

Mills' Ann. Code, § 221, authorizing the affecting the merits, we are compelled to reentry of judgment in vacation, does not author-verse the judgment and remand the cause. Beize the revision of findings in vacation, or the sides, the parties should not be embarrassed substitution of different and contradictory find- by our discussion of the weight or sufficiency ings for those made in term, and such vacation of evidence in this record when, in the event findings will be set aside. of another trial, the evidence then produced may be essentially different.

Bell, Catlin & Blake, for appellants. Story in this case restraining the plaintiffs from in & Story, for appellees.