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SHARPSTEIN, J.—The appeal is from the judgment, and two questions are presented for our consideration :
1. Does the complaint state facts sufficient to constitute a cause of action ?
2. Do the findings support the judgment ?
The action is brought to have a certain deed vacated and set aside, and the record thereof canceled.
The plaintiffsues as the administratrix of Charles Maggini, deceased, and alleges that at a time when he was of unsound mind and incapable of making any contract or transacting any business, the defendant, by taking an unfair advantage of said Maggini's weakness of mind and incapacity to transact business, induced and procured him to give an apparent consent to the execution and delivery of a grant deed for certain premises described in said complaint to the defendant, for the pretended consideration of one thousand dollars; that the deed was given without consideration, and that it is recorded in the office of the county recorder. The objection to the complaint is, that it does not contain a direct, positive allegation that said Charles Maggini executed a deed to the defendant. This is an objection which ought to have been obviated when the complaint was demurred to, if not before; but we are not disposed to treat the objection now as a fatal one. “The court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment shall be reversed by reason of such error or defect.” (Code Civ. Proc., sec. 475.)
Here there is an attempt to allege what should be alleged in plain, positive language. The failure constitutes a defect in the pleading, which, in our opinion, does not affect the substantial rights of the parties. The court found that a deed was executed by said Maggini to the defendant, and a copy of the deed is contained in one of the findings. With nothing outside of
the judgment roll before us, we must assume that all the findings are justified by the evidence.
That being so, we think the substantial rights of the parties were not affected by the defect objected to.
The findings that said Charles Maggini was at the time of executing said deed of unsound mind, and incapable of making a deed, and that he made it without consideration, are in our opinion, sufficient to support the judgment. The finding that defendant took no unfair advantage of said Maggini, and exercised no undue influence over him, negatives some of the allegations of the complaint, but the allegation that at the date of the execution of the deed said Maggini was of unsound mind, and incapable of making a contract, and that there was no consideration for the deed, is found to be true, and that is sufficient to entitle the plaintiff to the relief granted her.
SEARLS, C. J., MCFARLAND, J., MCKINSTRY, J., THORNTON, J., and PATERSON, J., concurred. .
(No. 12543. In Bank.--June 21, 1888.) THE PEOPLE EX REL. E. W. TRAVERS, APPELLANT,
v. A. C. FREESE, RESPONDENT.
PILOT COMMISSIONERS-REMOVAL BY GOVERNOR-OFFICE-APPOINTING
Power.—The board of pilot commissioners for the ports of San Francisco, Mare Island, and Benicia was created by section 2240, article 5, chapter 1, title 6. part 3, of the Political Code, and acquires all its powers from articles 5 and 6 of that chapter, and section 2442 operates as an exception to the general rule established by section 309 of the Political Code. The board is appointed by the governor, with the advice and consent of the senate, and a commissioner can only be removed by the appointing power, and not by the governor
alone. CODE_CONSTRUCTION.—Section 5 of the Political Code furnishes the rule
of construction of those provisions of the code which are continuations of existing statutes, rather than section 4481.
ID.--SUBJECT-MATTER OF TITLE.—The subject-matter of a title of the
code should be ascertained, not so much from the head-lines as from the contents.
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.
Attorney-General Johnson, Page & Eells, George A. Knight, and Oliver P. Evans, for Appellant.
Stanly, Stoney, & Hayes, for Respondent.
The COURT.-This is an action in the nature of quo warranto to oust the defendant from the office of pilot commissioner for the ports of San Francisco, Benicia, and Mare Island, and to instate the relator therein.
The defendant was nominated by Governor Bartlett and confirmed by the senate in January, 1887. In February following he duly qualified, and ha
ever since continued to discharge the duties of the office.
On September 28, 1887, Governor Waterman, who had in the mean time succeeded Governor Bartlett, issued to the relator a commission appointing him to the office, “vice A. C. Freese, removed.”
The relator, Travers, therewith qualified, and on the 3d of October, 1887, presented to the board of pilot commissioners, defendant being present, his commission from the governor, and demanded that he be let into the possession and enjoyment of the office in place of the defendant. Members of the board, defendant included, refused to recognize the relator as a pilot commissioner, or to let him into possession or enjoyment of the office.
The legislature has not been in session at any time since the appointment of the relator.
Section 368 of the Political Code provides: "The following executive officers are appointed by the governor with the consent of the senate: 1. The inspector of gas
2. Directors of the insane asylum. 3. Pilot commissioners." Section 369 of the Political Code provides: “The officers enumerated in the first subdivision of the last section hold their offices for the term of two years; those in the second subdivision, for the term of four years; and those in the third subdivision, during the governor's pleasure.” Section 2440 of the Political Code provides: "There must be appointed by the governor, by and with the advice of the senate, three experienced and competent ship-masters or nautical
[as] a board of pilot commissioners for the ports of San Francisco, Mare Island, and Benicia.” Section 2442 provides: "The commissioners hold their offices during the pleasure of the power appointing them, not exceeding four years from the date of their commissions."
Under section 369, the governor may remove a pilot commissioner at his pleasure, but under section 2442 such commissioner can be removed only by the joint act of the governor and the senate; for where an appointment is made by the chief executive by and with the advice or consent of the senate, the former alone is not the “appointing power.” (People v. Cazneau, 20 Cal. 507; People v. Tilton, 37 Cal. 619.) Sections 368 and 2440 of the Political Code agree that the appointment of pilot commissioner must be by the governor, by and with the consent or advice of the senate; but the question for solution here is, whether such commissioners hold their offices "during the governor's pleasure," as provided in section 369, or “during the pleasure of the power appointing them,” as provided in section 2442. Which of these two sections shall control ? Section 369 is found in part 3, title 1, article 2, of the Political Code. This part of the code provides for the government of the state. Title 1 provides for “the mode of election and appointment and term of office of civil executive officers." It consists of seven chapters, treating of the classification of
public officers, legislative officers, judicial officers, salaries of judicial, ministerial, and other officers, general provisions relating to different classes of officers.
The board of pilot commissioners for the ports of San Francisco, Mare Island, and Benicia was created by section 2440, 'article 5, chapter 1, title 6, part 3, of the Political. Code. The board acquires all its powers from articles 5 and 6 of this chapter. It prescribes the duties, compensation of the members thereof, and regulates their proceedings. If sections 368 and 369 were repealed, the board would not be affected therby. Section 368 refers generally to the power of the commissioners, and a special provision, like section 2442, applicable to a particular board, would seem to operate as an exception to the general rule. Section 2442 is almost identically the same as section 3 of the act of the legislature, approved March 22, 1870, entitled "An act to establish pilots and pilot regulations for the ports of San Francisco, Mare Island, Vallejo, and Benicia,” and must be construed as a continuation thereof, Section 5 of the Political Code provides: "The provisions of this code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments.”
We see nothing in the provisions of section 4481 of the Political Code inconsistent with this view. The subject-matter of a title should be ascertained, not so much from the head-lines as from its contents. The qualifications, appointment, term of office, organization, compensation, and powers and duties of pilot commissioners are the subject-watters of articles 5, 6 and 7 of chapter 1, title 6. The term of office and appointment of pilot commissioners, it is true, is a part of the subject-matter of sections 368 and 369 of title 1, but the provisions of title 6 as to such appointment and term of office are parts of the subject-matter of a subdivision of the code which applies especially and exclusively to the board of