It will be observed that the constitutional inhibition runs, not against the legislature of the state, but against the cities, towns, etc., against the several local governments enumerated.

If, therefore, the legislature shall create offices and fix the salaries to be paid to them from the local treasuries, or devolve other indebtedness or liabilities upon the city within its legislative power and without their volition, it only remains for the municipal authorities. to comply with such laws of the state.

The debts and liabilities of which complaint is made in the case at bar are but the ordinary debts created by the municipality itself, and are of the kind which must be paid out of the revenues of the current year, or the constitutional provision is meaningless.

We think the whole question involved is met and decided in favor of appellant in San Francisco Gas Co. v. Brickwedel, 62 Cal. 641, Shaw v. Statler, 74 Cal. 258, Schwartz v. Wilson, 75 Cal. 502, and McBean v. Fresno, ante, p. 159.

Inasmuch as there was no injunction granted in the case, and as the fiscal year during which the threatened tax was to be levied and collected has passed, it is highly probable the case has ceased to be important. The principle, however, still remains, and this, together with the question of costs, has been regarded as of sufficient importance to demand a determination in brief form.

We are of opinion the complaint states a cause of action and entitles the plaintiff to the relief demanded; we therefore recommend that the judgment be reversed and the court below directed to overrule the demurrer, with leave to defendants to answer.

VANCLIEF, C., and BRITT, C., concurred.

For the reasons given in the foregoing opinion the judgment is reversed and the court below directed to overrule the demurrer, with leave to defendants to an

swer.

MCFARLAND, J., TEMPLE, J., HENSHAW, J.

[Sac. No. 42. Department Two.-May 5, 1896.]

W. H. MCKENZIE, RESPONDENT, v. SCOTTISH UNION AND NATIONAL INSURANCE COMPANY, AP

PELLANT.

FIRE INSURANCE-EXPRESS WARRANTY-WATCHMAN-STOPPAGE OF MILL. Where a policy of fire insurance upon a sawmill contained an express warranty that during such time as the mill was idle, or not in operation, one or more watchmen should be on duty constantly day and night, and that if the mill should be shut down for more than thirty days, notice should be given to the company, and permission to remain shut down obtained and indorsed on the policy, else it should become null and void, upon breach of such warranty by failure to keep a watchman on duty during the night when the mill was idle, and keeping it shut down more than thirty days prior to loss by fire, without notice and permission as required by the terms of the policy, there can be no recovery upon the policy for such loss. ID.-MATERIALITY OF STATEMENT OR PROMISE-PERFORMANCE OF PROMISE. Where there is an express warranty the question whether the fact stated or stipulated for be material to the risk or not is of no consequence, one of the very objects of the warranty being to preclude all controversy about its materiality or immateriality, or reasonableness, and, if the warranty be a statement of fact, it must be literally true, or, if it be a stipulation that a certain act shall or shall not be done, it must be literally, or at least substantially, performed, and it is immaterial to what cause noncompliance is attributable. ID.-CODE PROVISIONS-EFFECT OF NEGLIGENCE-BREACH OF WARRANTY. Although under the Civil Code, in the absence of an express warranty, an insurer is not exonerated by the negligence of the insured, or of his agents, nor by breach of an immaterial provision, yet the policy may declare that a violation of specified provisions shall avoid it, and mere negligence cannot abrogate the provisions of the code upon the subject of breach of warranty.

ID.-INSUFFICIENT SERVICE OF WATCHMAN.-To have a watchman who in the night-time only visited the insured mill twice, and who, during the rest of the night slept in a house from which the mill was ouly partially visible, is not a substantial or sufficient compliance with a requirement of the policy that a watchman should be on duty constantly day and night.

ID. SHUTTING DOWN OF MILL WITHOUT PERMISSION-SHIPPING OF LUMBER -OPINION EVIDENCE.-Where the evidence shows that the mill was idle and not running for more than thirty days prior to the loss by fire, it is shut down within the terms of the policy, requiring written per mission to remain shut down for more than thirty days, and the opinion of a witness that it was not shut down as long as they were shipping lumber can have no effect as expert evidence to establish the contrary.

ID.-NONSUIT-VERDICT AGAINST LAW.-Where the evidence of the plain

tiff in an action upon an insurance policy shows a noncompliance, or an insufficient compliance, with the terms of an express warranty in the policy, a nonsuit should be granted, and a verdict for the plaintiff is a verdict against law.

APPEAL from a judgment of the Superior Court of Fresno County and from an order denying a new trial. J. R. WEBB, Judge.

The facts are stated in the opinion.

Van Ness & Redman, for Appellant.

The mill having been shut down for more than thirty days prior to the fire, without the consent of the company, there can be no recovery upon the policy, and the nonsuit should have been granted. (Stone v. Howard Ins. Co., 153 Mass. 495; Day v. Insurance Co., 72 Iowa, 597; England v. Westchester etc. Ins. Co., 81 Wis. 583; 29 Am. St. Rep. 917; Keith v. Quincy etc. Ins. Co., 10 Allen, 228; Herrman v. Adriatic etc. Ins. Co., 85 N. Y. 162; 39 Am. Rep. 644.) There was a breach of the policy warranty stipulating for the presence upon the premises of an active watchman. (Trojan etc. Co. v. Firemen's Ins. Co., 67 Cal. 27; Wenzel v. Commercial Ins. Co., 67 Cal. 438; Rankin v. Amazon Ins. Co., 89 Cal. 203; 23 Am. St. Rep. 460.) Section 2629 of the Civil Code has no application to breaches of policy conditions. It refers to acts on the part of the insured, or his agents, not expressly forbidden. by the policy, whereby the property is destroyed. But, if the acts whereby the fire is caused are in violation of policy stipulations, it is no excuse that they were negligently done. (Chandler v. Worcester etc. Ins. Co., 3 Cush. 328; Waters v. Merchants' etc. Ins. Co., 11 Pet. 219; May on Insurance, 2d ed., 614; 1 Wood on Insurance, 2d ed., 280; Richards on Insurance, 2d ed., 29.)

Frank H. Short, for Respondent.

The testimony is to the effect that the mill had not been shut down for thirty days prior to the fire, and, if shut down at all, for not more than three days prior to the

fire. This issue having been fairly submitted to the jury, and determined in respondent's favor, it is conclusive. (Menk v. Home Ins. Co., 76 Cal. 50; 9 Am. St. Rep. 158; Farnum v. Phoenix Ins. Co., 83 Cal. 246; 17 Am. St. Rep. 233.) If an insured person employs a competent watchman to watch the premises, and the watchman neglects to discharge his duty, the insurance company is still liable. (Civ. Code, sec. 2629; Sierra Milling etc. Co. v. Hartford etc. Ins. Co., 76 Cal. 235; Rankin v. Amazon Ins. Co., 89 Cal. 203; 23 Am. St. Rep. 460; May on Insurance, 341; Murray v. Home Ben. Assn., 90 Cal. 402; 25 Am. St. Rep. 133; West Coast Lumber Co. v. State etc. Ins. Co., 98 Cal. 502-12; People v. Central Pac. R R. Co., 76 Cal. 29-36.) Conditions working forfeitures are to be construed strictly. (May on Insurance, 3d ed., 158, 162-75, 178.) The court cannot declare as a matter of law what is the proper degree of a watchman's care, without adding to the contract of the parties. (May on Insurance, 3d ed., secs. 188, 251.)

SEARLS, C.-Action to recover for loss by fire upon insurance policy.

Briefly stated, the facts are as follows:

"On February 20, 1893, the defendant company executed in favor of one James Karnes its policy of insurance, insuring the said Karnes against loss by fire of a certain sawmill and the machinery therein contained for one year from and after said date. One of the stipulations of the policy was as follows:

"Warranted by the insured that during such time as the within-described buildings or works are idle or not. in operation, whether closed for repairs or during the absence of workmen, or otherwise (except as otherwise herein stated), one or more watchmen shall be on duty constantly, day and night, in and immediately about the said buildings or works, and, if the said buildings or works shall at any time remain shut down for more than thirty (30) days, notice shall be given this company, and permission to remain so shut down be ob

tained and indorsed hereon, or this policy shall be null and void.' Permission granted for the above-described mill to remain idle until May 1, 1893.

"On September 22, 1893, Karnes transferred the insured property to plaintiff, and on September 26, 1893, with the consent of the company, assigned to him the policy of insurance thereon.

"On December 8, 1893, the property was destroyed by fire. The amount of the loss was fixed by appraisal, and the only questions in the case arise out of alleged breaches of the watchman's warranty clause which we have quoted. The facts in this connection are as follows":

The plaintiff took possession of the property under his conveyance of September 22, 1893, in the latter part of October. The mill did not run from the date of plaintiff's purchase until it was burned on the eighth day of December, 1893, but there was a quantity of lumber on hand which had been previously sawed, and which was transferred to plaintiff, and plaintiff had men employed in shipping this lumber.

No application was at any time made by plaintiff, or on his behalf, to the defendant company for leave to have the insured buildings or works described in the policy shut down or remain idle and not in operation, and no consent thereto was made or given by the defendant, or indorsed on the policy.

The plaintiff did inform Mr. Shepard, the local agent at Fresno, that the mill had been shut down. This was shortly after the mill had been shut down. The mill in question was a steam sawmill for sawing logs into lumber, and for making trays, sweat-boxes, etc.

The testimony in reference to the watchman at the mill tends to show that plaintiff was not himself at the mill. He says, on the last of October or first of November, as he thinks, he employed one C. H. Smith to go to the mill, take charge of the property, and watch it generally, and gave him authority to employ men, as he wanted them, to move out the lumber. He was em