void, because it is an attempt to delegate to an individual a power to control, appropriate, supervise, and interfere with county improvements and property. (Blood v. Woods, 95 Cal. 85; El Dorado County v. Davison, 30 Cal. 521; Const., art. XI, sec. 13; Waterloo etc. Co. v. Cole, 51 Cal. 384; San Francisco v. Spring Valley Water Works, 48 Cal. 494.)

Reddick & Solinsky, and Garber, Boalt & Bishop, for Respondent.

The state has, in its sovereign capacity, original and plenary authority and control, through its legislature, over all public highways, including city streets, and can vacate them at pleasure, or delegate such power of vacation to municipalities or other appropriate local authorities. (Polack v. San Francisco etc. Asylum, 48 Cal. 490; San Francisco v. Spring Valley Water Works, 48 Cal. 493; Hoadley v. San Francisco, 50 Cal. 265, 274; Brook v. Horton, 68 Cal. 554; Thomason v. Ruggles, 69 Cal. 465; People v. Marin County, 103 Cal. 223, 232; El Dorado County v. Davison, 30 Cal. 520; People v. Horsley, 65 Cal. 381; Blood v. Woods, 95 Cal. 85; Philadelphia etc. R. R. Co's case, 6 Whart. 25; 36 Am. Dec. 202; Wellington's case, 16 Pick. 87; 26 Am. Dec. 631, 641, and note; Paul v. Carver, 24 Pa. St. 207; 64 Am. Dec. 649, 650; Elliott on Roads and Streets, 661.) And the legislatures not only possess, but can delegate to counties, municipalities, etc., ample power to convert free public roads into toll roads. (Elliott on Roads and Streets, 55; Angell on Highways, 2d ed., sec. 8; Cartr v. Clark, 89 Ind. 238, 239; State v. Hampton, 2 N. H. 22; Wright v. Carter, 27 N. J. L. 76; Benedict v. Goit, 3 Barb. 459; Nolensville etc. Co. v. Baker, 4 Iumph. 315; Panton etc. Co. v. Bishop, 11 Vt. 198, and cases cited; Attorney General v. Detroit etc. R. Co., 2 Mich. 138; Ireland v. Oswego etc. Co., 13 N. Y. 526; Chagrin etc. P. R. Co. v. Cane, 2 Ohio St. 419; Callison v. Hedrick, 15 Gratt. 244; State v. Hampton, supra.) A legal toll road is a public highway differing from other such high

(People v.

Pol. Code,

ways only in the mode of their maintenance. Davidson, 79 Cal. 166; Blood v. Woods, supra; sec. 2619; McMullin v. Leitch, 83 Cal. 239.) The act of 1893 is not void. The power conferred by it has nothing to do with "county improvements and property,' as a public road is not a county improvement or property, the state holding them for public use subject to legislative control. (People v. Marin County, supra; Philadelphia etc. R. R. Co's case, supra; Hoadley v. San Francisco, supra; Thomason v. Ruggles, supra.)

BRITT, C.-The County Government Act, as revised in 1893, provides that the county board of supervisors have jurisdiction and power to grant licenses and franchises for taking tolls on public roads or highways "whenever, in their judgment, the expenses necessary to operate or maintain such public roads or highways as free public highways is too great to justify the county in so operating or maintaining them"; the licensee being required to keep the road in reasonable repair. (Stats. 1893, p. 359.) The controlling question in this case is whether such provision conflicts with the constitution of the state.

The board of supervisors of Calaveras county, acting professedly under said statute, on July 3, 1893, passed an ordinance granting to the plaintiff, Blood, license to take tolls at rates prescribed in the ordinance for the term of one year on a certain public highway in said county known as the "Big Tree and Carson Valley Toll Road," the expense necessary to maintain said public road as a free public highway being, in the judgment of the board, too great to justify the county in so maintaining it. Blood took possession of the road, and assumed the right to collect the tolls thereon fixed by the terms of the ordinance. Defendant drove a flock of three thousand sheep over the road, and refused to pay the tolls demanded for their passage; plaintiff thereupon. brought this action, and recovered judgment for the amount demanded-thirty dollars-in the court below.

The power of the legislature over the highways of the state is adequate to secure their establishment, maintenance, and discontinuance, and this power may be exercised through the instrumentality of subordinate bodies, such as the county board of supervisors (Polack v. San Francisco Orphan Asylum, 48 Cal. 490; Brook v. Horton, 68 Cal. 558); the legislature being thus ordinarily competent (as said recently in the case of a street, San Francisco v. Burr, 108 Cal. 460) to deal with or dispose of a highway at its pleasure, defendant has the onus of showing some provision of the organic law which is contravened by the statute; for that purpose he cites section 13, article XI, of the constitution, by which the legislature is forbidden to delegate to any special commission, private corporation, company, association, or individual, power to control any county, city, town, or municipal improvement or property; his contention being, as we understand it, that the statute assailed permits the grant to an individual of the power to control "county improvements and property." Among several objections to this view which occur to us we need specify only that the argument, if good for anything, proves too much; for all toll roads are still public highways, the property in which pertains to the state (People v. Davidson, 79 Cal. 166; Kellett v. Clayton, 99 Cal. 212); and the result of defendant's proposition would be to forbid the establishment of toll roads altogether because of the assumed interference by the holder of the franchise with public property. The court said in Wood v. Truckee Turnpike Co., 24 Cal. 474, that all the interest the turnpike company had in its road arose from the right and power to collect tolls as a compensation for building a public road for the public good. If the legislature may allow the taking of tolls as compensation for building a road, it seems necessarily to follow that it may allow a like franchise as compensation for keeping it in repair-which is the purport of the statute now under view; and such is the rule, although the result may be to take away a previous right

in the public to pass toll free. (Panton Turnpike Co. v. Bishop, 11 Vt. 198; see Cooley's Constitutional Limitations, 6th ed., 671; Elliott on Roads and Streets, 55, and the cases cited in those works.)

Defendant claims that the case is ruled by Blood v. Woods, 95 Cal. 78, where it was held that the board of supervisors of a county has no authority to grant a franchise to collect tolls upon a free public road. But that case went upon the ground that no such authority had been delegated to the board; it was decided before the passage of the act of 1893, which, we may suppose, was enacted with Blood v. Woods, supra, in view, and for the purpose of conferring the power there held to be wanting; the case has no bearing on the present question except to show what the law was before that statute.

The judgment should be affirmed.

HAYNES, C., and BELCHER, C., concurred.

For the reasons given in the foregoing opinion the judgment is affirmed.

HARRISON, J., GAROUTTE, J., VAN FLEET, J.

[L. A. No. 93. Department One.-May 8, 1896.]

LOUISA S. AVERY, RESPONDENT, v. A. C. MAUDE, APPELLANT.

FORECLOSURE OF MORTGAGE-ATTORNEY'S FEES-PLEADING EVIDENCE.The complaint in an action to foreclose a mortgage need not aver, nor need the plaintiff prove as a condition precedent to the recovery of attorney's fees, that the plaintiff had employed an attorney to prosecute the action, or the amount agreed to be paid such attorney; but it is sufficient to show at the trial that the percentage allowed in the mortgage for attorney's fee is a reasonable fee in the case, and, if there is no countershowing, the court is justified in awarding that amount. ID. JUDICIAL NOTICE-PRESUMPTION OF EMPLOYMENT OF ATTORNEY. The court will take judicial notice that the attorney for the plaintiff, whose name is signed to the complaint for the foreclosure of the mortgage, is an attorney of the court; and his signature to the complaint authorizes the presumption that he has been employed by the plaintiff to prosecute the action, and that the plaintiff has become liable to pay him a reasonable fee for his services.

APPEAL from a judgment of the Superior Court of Kern County. A. R. CONKLIN, Judge.

The facts are stated in the opinion of the court.

Gorham & Pendegast, for Appellant.

Plaintiff was not entitled to attorney's fees except for such amount as she might have actually paid, or engaged to pay; and as it was neither alleged nor proved that plaintiff had ever employed any counsel to prosecute the action, or paid, or promised to pay, any amount whatever as counsel's fees, the judgment in respect to counsel fees is erroneous. (Carriere v. Minturn, 5 Cal. 435; Sichel v. Carrillo, 42 Cal. 493; Boob v. Hall, 107 Cal. 160; Monroe v. Fohl, 72 Cal. 571; Hewitt v. Dean, 91 Cal. 5; Patterson v. Donner, 48 Cal. 380; Bank of Woodland v. Treadwell, 55 Cal. 380; Prescott v. Grady, 91 Cal. 518.)

H. C. Campbell, and T. W. Lockhart, for Respondent.

The right to counsel fees on foreclosure, when stipulated for in a mortgage, is an absolute right, and the only effect of the statute is to compel the court to exercise its discretion, and not to allow the full amount stipulated for, unless, in its discretion, that amount is considered reasonable. The right is an incident to the proceeding, and need not be alleged. (Carriere v. Minturn, 5 Cal. 435; Monroe v. Fohl, 72 Cal. 568; Rapp v. Spring Valley Gold Co., 74 Cal. 532; Granger's Business Assn. v. Clark, 84 Cal. 201; White v. Allatt, 87 Cal. 248; Mulcahy v. Buckley, 100 Cal. 490.)

THE COURT.-This action was brought for the foreclosure of a mortgage, and judgment was rendered therein in favor of the plaintiff for the amount of the note secured by the mortgage, and also in a certain. amount for counsel fees. The defendant has appealed from that portion of the judgment allowing counsel fees, and urges in support of his appeal that it was not alleged in the complaint, or shown at the trial, that the plaintiff