of necessity is purely for the council, and will not be passed upon by the courts.

2. The mere fact that individuals subscribed money or gave bond to a city to contribute to the expense of laying out a street will not vitiate the proceedings, or prove that the land was taken for the accommodation of private persons, and not for a public use.

3. In proceedings to condemn land, the present market value is the measure of damages, and not its value in use to the owner or to those seeking to condemn.

4. The term "present market value" of land means the price he could obtain after such a reasonable and ample time to sell as would ordinarily be taken by an owner.

5. In condemnation proceedings, a question: "For what purpose could that property be used properly?"-is properly disallowed.

6. In condemnation proceedings the owner is entitled to show the adaptability of the land to the different practical purposes to which it is naturally adapted, but the proof should be limited to showing the present condition of the property, and the uses to which it is adapted, and not extended to speculative inquiries as to possible future uses under altered circumstances.

7. In condemnation proceedings the owner cannot show offers received for the property. Muller v. Railway Co., 23 Pac. Rep. 265, 83 Cal. 240, distinguished.

8. Even if the owner could testify as to offers received for property sought to be condemned, a question whether he received offers was properly excluded, where no time was specified, and he had just testified that he had owned the property for 16 years.

9. The extent of cross-examination to test the knowledge, judgment, or bias of a witness is within the discretion of the trial court.

10. Witnesses testifying as to the market value of land need not be experts in the severe sense of the term, provided they show sufficient knowledge and experience as to values of land in the neighborhood.

11. An objection to the exclusion of evidence will not be considered on appeal, where the statement does not show in what it consisted.

12. Evidence only tending to establish part of an answer which has been stricken out is properly excluded.

13. In an action to condemn land for a street, evidence of irregularities in the proceedings to open the street is properly excluded where irregularities are not alleged in the

answer.

Commissioners' decision. Department 1. Appeal from superior court, Orange county; J. W. Towner, Judge.

Action by the city of Santa Ana against T. J. Harlin to condemn land for a street. From the judgment therein defendant appeals. Reversed.

E. E. Keech, for appellant. Z. B. West and James G. Scarborough, for respondent.

SEARLS, C. The action was brought by the city of Santa Ana, a municipal corporation, to condemn a right of way over certain land of the defendant for the opening of Second street in said city. The cause was tried by a jury, and the damages assessed at $267, for which sum judgment was entered in favor of defendant, as well as a decree that the use of the land for the purposes of a street was a public use, and the taking thereof necessary to such use. The appeal is from this judgment, and from an order dev.34P.no.2-15

nying a motion for a new trial. The final order of condemnation had not been made when the appeal was perfected.

The first error assigned is founded upon an order of the court striking out from defendant's answer certain allegations to the effect that the action is instituted upon the motion and at the request and for the benefit of the Santa Ana & Westminster Railroad Company, a corporation, for the purpose and benefit of said railroad company. Mahoney v. Waterworks Co., 52 Cal. 159, and Dill. Mun. Corp. (3d Ed.) § 596, (461,) are relied upon in support of the alleged error. Under the act of March 6, 1889, (St. 1889, p. 70,) the power to order the opening of streets in municipalities, and the method of its exercise, is conferred upon the city council or legislative department of the municipality. Provision is made whereby those interested and objecting to the improvement and to various of the measures for carrying it out may be heard and their objections passed upon by the council; and when the several steps provided by the statute have been taken, and the resolution and ordinance ordering said work have been regularly adopted, the action of the council is final and conclusive of the necessity of the improvement, and the courts may not adjudicate the question of such necessity in an action or proceeding for condemnation of lands necessary to the improvement. See St. 1889, p. 75, § 18; Tehama Co. v. Bryan, 68 Cal. 57, 8 Pac. Rep. 673; Butte Co. v. Boydstun, 11 Pac. Rep. 781, (not officially reported;) City and County of San Francisco v. Kiernan, (Cal.) 33 Pac. Rep. 720. The question sought to be raised by the portion of defendant's answer stricken out was one going to the public character of the use and the necessity for its establishment, and as such was properly solvable by the city council. It follows that the court did not err in striking out that portion of the answer. City of Pasadena v. Stimson, 91 Cal. 238, 27 Pac. Rep. 604.

After the resolution of intention passed by the city council, declaring its intention to open and extend Second street, and the ordinance or resolution providing for the proposed work, were introduced in evidence, and plaintiff had rested its case, defendant offered in evidence all the proceedings and records in the matter of opening Second strect, for the alleged purpose of proving: (1) That the jurisdictional facts required by section 6 of the act of March 6, 1889, had not been proven, and did not exist. (2) That there was no street superintendent; that none was ever appointed; that the person attempted to be appointed was not eligible, and did not qualify, and that he was at the time of the attempted appointment and pretended service a member of the board of trustees of the city of Santa Ana. (3) That no publication of notice was ever made, as required by section 3 of said act. Objection was made to the introduc

the facts and circumstances have been shown, the question at last is, what is it worth in the market?" It will be seen from the foregoing quotation, which is regarded as a correct exposition of the law on the subject, that as to some of the questions seeking to elicit the value of the property for a specific purpose the rulings of the court below were correct. It should, however, it is thought, have permitted a full and free investigation as to the adaptability of the land to the varied practical purposes to which it is naturally adapted. Railroad Co. v. Pearson, 35 Cal. 247. Such proof should be limited to showing the present condition of the property, and the uses to which it is adapted, and may not be extended to speculative inquiries as to possible future uses under altered circumstances, which may or may not arise.

There was no error in the ruling of the court excluding an answer to the following question, propounded to defendant when testifying as a witness in his own behalf: "Question. Have you ever received offers for this real estate property?" The witness had just testified that he owned the land described in the pleadings, and had resided there 16 years. The question as to whether he had received offers for the property was, in effect, to ask him if he had received such offers at any time in 16 years. The general rule in estimating the market value of property is that "it is not competent for the owner to prove what he has been offered for his property, (Railroad Co. v. Pearson, 35 Cal. 247,) or what persons who have been looking for similar property were willing to give for it," (Railroad Co. v. Keith, 53 Ga. 178; Lewis, Em. Dom. § 446. See, also, WaterWorks v. Drinkhouse, 92 Cal. 528, 28 Pac. Rep. 681. A case apparently at variance with the general line of decisions is to be found in Muller v. Railway Co., 83 Cal. 240, 23 Pac. Rep. 265, in which the court held a similar question admissible, saying: "Bona fide offers for property afford some test as to its value, and are, we think, admissible," quoting Harrison v. Glover, 72 N. Y. 451. The case quoted was not in relation to the market price of land, but related to a subject so different as to lend no support to the case there under discussion. If the doctrine of Muller v. Railway Co. can be upheld, it must be only as an exception to a general rule applicable only in peculiar cases, of which the present is not one. Again, if the binding force of Muller v. Railway Co. be admitted, the question put to defendant was improper, in not confining the witness to a period near the time at which the value was to be ascertained.

Upon cross-examination, where great latitude is allowed for the purpose of testing witnesses, questions of this character are conceded on all hands to be allowable. The questions put upon cross-examination of defendant's witnesses and objected to were proper. Great liberality is properly extend

ed in such cross-examinations; and for the purpose of testing the knowledge, judgment, or bias of the witness the liberality is wisely exercised. In such cases, and for such purposes, much must be left to the discretion of the trial court, and it is only for an abuse of discretion that its action should be impugned. The witnesses Pinther, Ames, and Blee should have been allowed to testify as to the market value of the property. They were not experts in the severe sense of the term, but showed such knowledge and experience as to values of land in that neighborhood as entitled the defendant to their opinions. Railroad Co. v. Bunnell, 81 Pa. St. 426; Robertson v. Knapp, 35 N. Y. 92; Railroad Co. v. Hawk, 39 Kan. 638, 18 Pac. Rep. 943; Shattuck v. Railroad Co., 6 Allen, 117; People v. Sanford, 43 Cal. 32; Town Co. v. Neale, 78 Cal. 77, 20 Pac. Rep. 372. For the errors indicated the judgment and order appealed from should be reversed, and a new trial had.

We concur: TEMPLE, C.; BELCHER, C.

HARRISON and DE HAVEN, JJ. For the reasons given in the foregoing opinion the judgment and order appealed from are reversed, and a new trial ordered.

PATERSON, J. I concur, and recommend to the court below for its guide the decision in Town Co. v. Neale, 88 Cal. 50, 25 Pac. Rep. 977, where the whole subject was carefully considered by this court in bank.

(99 Cal. 526)

In re SHORTRIDGE. (No. 15,288.) (Supreme Court of California. Sept. 11, 1893.) NEWSPAPERS-PUBLISHING TESTIMONY-CONTEMPT.

1. Code Civil Proc. § 125, providing that in certain actions the court may direct the trial of any issue of fact to be private, and exclude all persons except the officers of the court, the parties, their witnesses, and counsel, does not authorize the court in such a case to forbid publication of the testimony.

cer

2. The finding that a publication was an unlawful interference with the proceedings of the court, within Code Civil Proc. § 1209, defining contempts, is not conclusive on tiorari, where it appears that the publication could not possibly have had that effect. In bank.

Certiorari to superior court, Santa Clara county; W. G. Lorigan, Judge. Contempt proceedings against Charles M. Shortridge, publisher of the San Jose Mercury, for publishing certain testimony in disobedience to an order of court. Judgment of guilty. Shortridge brings certiorari. versed.

Re

John E. Richards, Samuel M. Shortridge, and D. M. Delmas, for petitioner. Frs. E. Spencer, D. W. Burchard, and N. Bowden, for respondent.

PATERSON, J. When the case of Price v. Price an action for divorce-was called for

trial in the superior court of Santa Clara county, the court was advised that the eviJence would probably be of a filthy nature, and thereupon made an order directing "that during the trial all persons be excluded from the court room except the officers of the court, the parties, and their counsel." It was further ordered "that no public report or publication of any character of the testimony in the case be made." On the following day the petitioner herein caused to be published in the San Jose Mercury, a newspaper of which he was the editor and publisher, an article referring to the order of the court and containing what purported to be the testimony of the witnesses. Upon an affidavit setting forth the facts stated, the court made an order commanding Shortridge to appear and show cause why he should not be adjudged guilty of contempt. Mr. Shortridge, in his answer and at the hearing, disclaimed any intention to reflect upon the court or show any disrespect therefor, and claimed that in publishing a fair and true report of the testimony and proceedings he was simply exercising a constitutional right with which the court could not interfere by order or otherwise. Thereafter an opinion was filed showing that the learned judges of the court, sensible of the delicate position they occupied in determining the scope of their own judicial powers, had given the subject most careful consideration, and holding it to be their duty, in support of the honor of the state and the dignity of the court, to punish the respondent for violating the order. A judgment was entered adjudging Shortridge guilty of contempt of court, and ordering him to pay a fine of $100. Thereupon the petitioner herein applied for a writ of certiorari, which was granted, and, the matter having been heard and submitted, we are now called upon to determine whether the court exceeded its jurisdiction in adjudging the petitioner guilty of contempt on the facts stated. In support of the order under consideration, counsel for respondent rely upon two propositions, namely: First, that the order was authorized by sections 125, 1209, subsecs. 5, 9, Code Civil Proc.; and, second, that the publication was an interference with judicial proceedings which the court had the inherent power to punish as a contempt.

1. The sections referred to read as follows: "Sec. 125. In an action for divorce, criminal conversation, seduction or breach of promise of marriage, the court may direct the trial of any issue of fact joined therein to be private, and may exclude all persons except the officers of the court, the parties, their witnesses and counsel; provided that in any cause the court may, in the exercise of a sound discretion during the examination of a witness, exclude any or all other witnesses in the cause." "Sec. 1209. The following acts or omissions, in respect to a court of justice or proceedings therein, are contempts

(5)

of the authority of the court: Disobedience of any lawful judgment, order or process of the court. (9) Any other unlawful interference with the process or proceedings of a court." It may be well to note that petitioner was not a party, a witness, or an officer of the court, and that no order was made excluding the witnesses from the court room. The question, therefore, whether a witness, party, officer, or other person. over whom the court has acquired jurisdiction may be punished for disclosing testimony when the trial is had with closed doors, and the question whether it is a contempt for a newspaper to publish the evidence after an order has been made excluding the witnesses from the court room during the trial, must be eliminated from the consideration of the case. The court planted its conclusion squarely upon the ground that "the evident purpose of the act was that in cases of divorce * the entire evidence should not be produced before the public," saying: "Of course, the main purpose of this enactment was to promote public morals. How the public morals can be promoted by detailing to the world the testimony in low and filthy divorce cases, or blazoning forth the injuries that some poor, unfortunate girl may have suffered, or by heralding the connection of good and respectable and moral people where they are unfortunately and unwillingly as witnesses, is something that the court cannot understand, and which the legislature unquestionably intended to prohibit.

It is the disposition of every man to protect his fireside. It is his disposition to raise his children up in the moral way. It is his desire to keep all contaminating influences from them, and I think the legislature has wisely and properly placed, in these particular actions, the power in the court to do so, and that the court would be recreant to its duty if it did not undertake to discharge the duty cast upon it." Every one who has the welfare of society at heart will doubtless agree with the learned judges of the court below in their opinion as to the policy of a law which would prevent the publication of such matters as they complained of; but the construction placed upon the provisions of the act quoted above is not, we think, authorized by the language of the section. In this country it is a first principle that the people have the right to know what is done in their courts. The old theory of government which invested royalty with an assumed perfection, precluding the possibility of wrong, and denying the right to discuss its conduct of public affairs, is opposed to the genius of our institutions, in which the sovereign will of the people is the paramount idea; and the greatest publicity to the acts of those holding positions of public trust, and the greatest freedom in the discussion of the proceedings of public tribunals that is consistent with truth and decency, are regarded as essential

to the public welfare. Therefore, when it is claimed that this right has in any manner been abridged, such claim must find its support, if any there be, in some limitation expressly imposed by the lawmaking power, or the right to exercise the authority claimed must be necessarily implied as essential to the execution of the powers expressly conferred. We find no expression in the section referred to upon which such a claim can be based. If the legislature had intended to prohibit the publication of proceedings in cases tried with closed doors, it would have been easy to declare its will in that regard in express terms. It has not done so, and the right claimed is not essential to the execution of the authority conferred by the section. The assumption that the object of the statute was to protect the public from the contaminating influence of prurient revelations often made in actions of divorce, seduction, and criminal conversation is unwarranted. The object of the act is palpable. It was to secure decorum in the conduct of trials involving the relation of the sexes, and to protect witnesses of refined sensibilities from the ordeal which they might otherwise have to pass through in giving testimony of a delicate or filthy nature in the presence of a crowd of vulgar or curious spectators. To give effect to the section no other intention on the part of the legislature is necessarily implied, and, proceedings for contempt being criminal in their nature, no presumption should be indulged. Section 1032, Pol. Code, adds no strength to the position taken by counsel for respondent. What has been said of section 125, Code Civil Proc., is applicable to section 1032, and may be summed up in the proposition that the public have the right to know and discuss all judicial proceedings, unless such right is expressly interdicted by constitutional or statutory provisions, or unless the publication prohibited by the order of the court is of such a nature as to obstruct or embarrass the court in its administration of the law and the execution of the powers expressly conferred upon it.

2. Counsel for petitioner contend with much emphasis that any act of the legis lature or of the court attempting to deprive the people of the right to be informed of judicial proceedings, or to publish or discuss the same, is void. It is said that secrecy and silence in such matters are utterly repugnant to the spirit of our institutions, and opposed to the constitutional declaration of right with respect to free speech and the liberty of the press. Provisions of the Codes are cited showing that the legislature has sought to abridge, rather than to extend, the common-law right of the courts to punish for contempt. Most of them relate purely to questions of libel, but one of thema recent act of the legislature-provides that "no speech or publication reflecting upon or concerning any court or any officer

thereof shall be treated or punished as a contempt of said court, unless made in the immediate presence of such court while in session, and in such manner as to actually interfere with its proceedings." St. 1891, p. 7. But we know of no decision which supports the proposition contended for. No authority has been found which denies the inherent right of a court, in the absence of a limitation placed upon it by the power which created it, to punish as a contempt an act, whether committed in or out of its presence, which tends to impede, embarrass, or obstruct the court in the discharge of its duties. It is a doctrine which is admitted in all its rigor by American courts everywhere, and does not need the support of foreign authorities, based upon the fiction that the majesty of the king, represented in the persons of the judges, is always present in the court. It is founded upon the principle-which is coeval with the existence of the courts, and as necessary as the right of self-protectionthat it is a necessary incident to the execution of the powers conferred upon the court, and is necessary to maintain its dignity, if not its very existence. It exists independently of statute. The legislative department may regulate the procedure and enlarge the power, but it cannot, without trenching upon the constitutional powers of the court, and destroying the autonomy of that system of checks and balances which is one of the chief features of our triple-department form of government, fetter the power itself. In Arkansas the legislature sanctioned the power of the court to punish as contempts certain enumerated acts, and no others. The court held that the sanction was merely declaratory of the common law, and that the prohibitory clause was entitled to respect as an opinion of a co-ordinate branch of the government, but was not binding upon the courts. State v. Morrill, 16 Ark. 384. This decision is in line with all the authorities. Although the power is necessarily an arbitrary one to a great extent, it has been exercised by the courts, in this country at least, only as an auxiliary means to attain the ends of justice. If abused by the judges at all, it has been only in the rarest instances. No one has realized more than the judges themselves the fact that a court cannot coerce the respect of the people for itself or its decisions, and the very delicacy of the power has proved to be a safeguard against its abuse. To this alone must be attributed the fact that, although the inherent power referred to has been claimed and exercised by the courts of this country since the organization of the government, the framers of the constitutions in all the states of the Union except Georgia and Louisiana have deemed it unnecessary to place any limitation upon the power of their courts to punish for contempts. Stim. Amer. St. Law, § 582.

Did the article in question tend to embar