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the non-performance of any act required in order to enforce the payment of the same; but in case of any substantial error or omission in the course of proceedings for collection, all previous proceedings except the levying of the assessment are void, and publication must be begun anew." The complaint contained no allegation that the plaintiff had paid or offered to pay the assessment. The court re fused the injunction, and rendered judgment for the defendant. The further facts are stated in the opinion of the court.
J. C. Bates, for Appellant.
The plaintiff was entitled to have the delinquent sale enjoined. (Taylor on Private Corporations, secs. 297, 547; Portland R. R. Co. v. Graham, 11 Met. 1; Stoneham B. R. R. Co. v. Gould, 2 Gray, 277; Lewey's I. R. R. Co. v. Bol. ton, 48 Ve. 451; 77 Am. Dec. 236; Mitchell v. Mfg. Co., 40 N. Y. Sup. Ct. 406; Joyce on Injunctions, 998; Angell on Corporations, sec. 293; High on Injunctions, sec. 1203; Turney y. Dougherty, 53 Cal. 619; Early v. Doe, 16 How. 616; Hassan v. Rochester, 67 N. Y. 528.)
James A. Waymire, and W. T. Baggett, for Respondent.
The plaintiff is not entitled to an injunction, as he had a complete remedy at law. (Civ. Code, secs. 316, 347.) Injunction will not lie at the instance of a stockholder to restrain a sale of his stock for a delinquent assessment. (Sullivan v. T. C. S. M. Co., 29 Cal. 585; 39 Cal. 459; Smith v. M. B. T: Co., 18 Cal. 112; Angell and Ames on Corporations, sees. 393, 554, 555; Pomeroy's Eq. Jur., sec. 457; Hawes v. Oakland, 104 U. S. 450; Dodge :: Woolsey, 18 How. 331.)
McKINISTRY, J.-The order of the 2d of June directing a sale of the delinquent stock of plaintiff was irregular, and any sale upon thirteen days' notice would have given to the purchaser no title which he could assert against
the plaintiff, should the latter tender him the amount of the assessment, and bring his action to recover the stock within six months. (Civ Code, sec. 347.) But the assessment was valid (Civ. Code, sec. 346), and it was the duty of the plaintiff to pay it. A court of equity properly refused to entertain his application for an injunction to prohibit the sale in the absence of an allegation that he had done, or offered to do, equity. True, if he paid there would be no sale, and he would not need the extraordinary writ; but the jurisdiction of equity does not depend upon the convenience of a party. The statutory remedy is plain, and it was intended by the legislature that this shall be the only remedy in case a valid assessment is not paid.
It may be said the rule thus laid down will encourage sales without the notice which the statute declares to be necessary, and proceedings of the character which are de clared to be void by section 346. But the context shows the sense in which the word "void” is employed. It is intended thereby to declare that the irregular proceedings shall be inoperative to confor an indefeasible title to the stock as against the owner, who shall make tender of the assessment, and bring suit for its recovery within the time prescribed in section 347. As the complaint did not state & cause of action, the suit was properly dismissed.
Judgment and order affirmed
SEARLS, C. J., and Paterson, J., concurred.
(No. 9791. Department One.- April 30, 1898.) THE PEOPLE, APPELLANT, v. CENTRAL PACIFIC
RAILROAD COMPANY OF CALIFORNIA, RESPONDENT.
CENTRAL PACIFIC RAIIROAD COMPANY INTEREST ON BONDS PAID BY
STATE-ACT OF APRIL 4, 1864 LIABILITY OF RAILROAD.--The interest paid by the state of California on the bonds issued in pursuance of the act of April 4, 1864, to aid the construction of the Central Pacific Railroad Company, is not a loan by the state to the company; nor does the act, or the agreement executed by the company in pursuance thereof, give to the company any alternative right to perform the conditions of the agreement, or, at its option, to pay the
amount paid by the state as interest on the bonds. ID.—PENALTY-LIQUIDATED DAMAGES. -The amount mentioned in the
act to be paid by the company lipon its failure to perform any of the conditions imposed upon it by the act is to be treated as a penalty,
and not as liquidated damages. ID.-ACTION FOR BREACH OF CONDITIONS-PLEADINGS.--In an action by
the state against the company to recover damages for the beach of any of the conditions to be performed by it, the coinplaint must specifically allege the facts constituting the breach, and the amount of damage sustained as the result thereof. Tested by this rule, the complaint in question held insufficient on the ground of ambiguity
and uncertainty. PLEADING-DEMURRER-ORDEB SUSTAINING APPEAL.- Where a
plaint is demurred to on several grounds, and the deinurrer is sus. tained by the lower court, the judgment based on the order sustaining the demurrer will be affirmed on appeal, if any of the objections raised by the demurrer were well taken. And this is so, althougb the lower court, in its opinion rendered on the demurrer, bases its order on erroneous reasons.
APPEAL. from a judgment of the Superior Court of the city and county of San Francisco.
The facts are stated in the opinion of the court.
William M. Pierson, and Attorney-General Johnson, for Appellant.
Garber, Thornton & Bishop, for Respondento
MCKINSTRY, J.--A demurrer to the complaint was sustained, and plaintiffs declining to amend, final judgment Tras entered for the defendant, from which plaintiffs have appealed.
The complaint sets out the act of the legislature of April 4, 1864, “to aid the construction of the Central Pacific Railroad Company,” etc.; and avers that on the fourth day of May, 1864, the defendant made, executed, and delivered an agreement in writing, as required by said act of the legislature, which alleged agreement is also set out at length. It also alleged that the state of California "has duly performed all the conditions mentioned in said act of the legislature by it to be performed,” and has paid the interest on the one million five hundred thousand dollars bonds, as provided in the act; the aggregate of payments of interest being one milliom nine hundred and forty-two thousand, five hundred dollars, and the last of such payments having been made December 31, 1882. The judgment prayed is for one million nine hundred and forty-two thousand five hundred dollars, and interest and costs.
The complaint also avers that since the approval of the act and filing of the agreement aforesaid, and during each and every year since said times, "there have been necessarily transported on and over the railroad of said defendant numerous public messengers of the state of California, and of the various counties of said state, and numerous convicts, and numerous public messengers in charge thereof, going and sent on and over the railroad of said defendant to the state prison of said state; and numerous lunatics, and numerous public messengers in charge thereof, going and sent on and over the railroad of said defendant to the state insane asylum of said state from the various counties and cities and counties of said state; and various materials, and various public messengers in charge thereof, transported on and over the railroad of said defendant for the construction of the state capital building of said state, and various articles intended for public exhibition at the fairs of the State Agricultural Society of said state, transported on and over the railroad of said defendant.
“That at the date of the passage of said act of the legislature and of the execution of said agreement, and since, the said defendant was and has been the owner and in possession of the said south half of section 19, in township 11 north, of range 7 east, Mount Diablo meridian, referred to in said act of the legislature and said agreement, and it has been within the power and ability of the said defendant and its agents at all times since the passage of said act, and the execution, delivery, and filing of the agreement aforesaid, to apply for, accept, and receive a patent from the United States of America for the lands and premises described in said act of the legislature and said agreement, and to execute, acknowledge, and deliver to the state of California a deed in fee-simple for the conveyance thereof.
"Nevertheless the plaintiff alleges that although often requested and required 30 to do, the defendant had willfully and designedly, during all of the time aforesaid refused and neglected to transport or convey over its said railroad free of charge, or without any other compensation than as provided in said act, all or any of the public messengers aforesaid, or all or any of the convicts aforesaid to the state prison of said state, or all or any of the lunatics aforesaid going to the state insane asylum aforesaid, or all or any of the materials aforesaid for the construction of the state capitol building aforesaid, or all or any of the articles aforesaid intended for public exhibition at the fairs of the State Agricultural Society aforesaid, and has, although ofton thereunto requested and required, refused and neglected to apply for, or accept or receive, a patent from the United States for the lands and premises aforesaid, or to execute, acknowledge, and deliver to the state of California a deed for the conveyance thereof in fee-simple, or otherwise."
It is contended by appellants that the questions of "compensation" or of a “penalty” are utterly foreign to the is