sion of the constitution, and the first section declares: "The board of supervisors, town council, board of aldermen, or other legislative body of any city and county, city or town, are hereby authorized and empowered, and it is made their official duty to annually fix the rates that shall be charged and collected by any person, company, association or corporation for water furnished to any such city and county, or city or town, or the inhabitants thereof. Such rates shall be fixed at a regular or special session of such board, or other legislative body, held during the month of February of each year, and shall take effect on the first day of July thereafter, and shall continue in full force and effect for the term of one year, and no longer." In this statute the board of supervisors alone is designated as the body whose official duty it is to fix the rates, and there is no reference to any approval of their act by the mayor, or any limitation upon the manner in which they shall act; and for the purpose of determining whether their act is valid we have only to look to their organization and invoke the general rules of construc tion for determining how an organized board may execute a power conferred upon it.

For the foregoing reasons, as well as those presented by Mr. Justice MCFARLAND, the judgment should be reversed, and the court below directed to dismiss the proceedings.

We concur: DE HAVEN, J.; FITZGERALD, J.

PATERSON, J., (concurring.) I concur in the judgment, and in the construction placed upon section 1, art. 14, of the constitution, by Mr. Justice MCFARLAND. I think, however, that the judgment is not objectionable on the ground that it seeks to interfere with the exercise of the discretion of the board, or any member thereof, or that, conceding the theory of the petitioner to be correct, the writ must run against the mayor as well as the board. The record shows that, after the mayor refused to approve the ordinance and return the same with his objections thereto, the board of supervisors refused to entertain the objection, and refused to take any action whatever with respect thereto. If the mayor had a right to act in the premises, it was the duty of the board of supervisors to consider his objections, and it is in no way an interference with their discretion to say that they must act in some manner upon them. When they have acted, of course that is the end of the matter; their discretion cannot be controlled by the court. If it be conceded that the mayor is a part of the power which must fix the water rates, he is not necessarily a party to a proceeding of this kind. He acts independently, and upon his own responsibility. This he has done. The board alone refuses to perform its duty, according to the theory of the petitioner, and I see no reason why a writ, in such a case,

should not run against that branch of the law or order making power. As the mayor, however, is not a part of the power which fixes water rates, under the provision of the constitution, the questions as to whether the judgment is directed against the proper parties, or whether it interferes with the exercise of discretion, are unnecessary to the decision in this case.

BEATTY, C. J., (concurring.) I concur in the judgment upon the ground that the true construction of the constitution is that ordinances fixing water rates are to be passed as legislative acts of the particular municipality are generally passed, and not as they are passed in exceptional cases provided by act of the legislature. To hold otherwise would be to admit the power of the legislature and boards of freeholders to adopt charters under which, with respect to all other subjects of legislation, a reasonable discretion and freedom of action would be left to the legislative body, while with respect to water ordinances the legislative body would be so hampered and restricted that the fixing of rates would be practically impossible, thus accomplishing the confiscation of the property of water companies. The board of supervisors of San Francisco is the legislative body as to all subjects of legislation, with a few special exceptions, and its acts do not generally require the approval of the mayor. Water ordinances must be held to fall under the general rule, and not within the exception.

(100 Cal. 26)

SHANKLIN v. HALL. (No. 19,075.) (Supreme Court of California. Oct. 10, 1893.) REVIEW ON APPEAL-REAL-ESTATE AGENT-PAROL CONTRACT-MEMORANDA OF AGREEMENT.

1. Though an order for a new trial is made on an erroneous ground, yet, if the order can be justified on grounds of error in law occurring during the progress of the trial, it should be affirmed.

2. Plaintiff cannot recover on an oral agreement to use his knowledge and influence to enable defendant to sell or exchange certain land; such agreement being within Civil Code, § 1624, subd. 6, providing that an agreement authorizing or employing an agent c broker to purchase or sell real estate for compensation or a commission shall be void, if not in writing.

3. Letters written by defendant to plaintiff long after the alleged performance of the contract cannot be relied on as containing sufficient memoranda to satisfy the statute, when they do not state the agreement alleged in the complaint, nor refer to any of its terms.

In bank. Appeal from superior court, Los Angeles county; J. W. Towner. Judge.

Action by W. I. Shanklin against J. H. Hall to recover for services rendered in the exchange of certain land. Judgment was entered for plaintiff, and, from an order granting a new trial, he appeals. Affirmed.

GAROUTTE, J. This is an action to recover for services rendered in the exchange of certain real estate. Judgment went for plaintiff, a motion for new trial was made and granted, and this appeal is prosecuted from the order granting a new trial. The case was tried by the court, and the new trial was granted upon the ground that "the decision was against law." The court made the following findings of fact: "That on the 17th day of April, 1890, the plaintiff and defendant entered into an oral agreement whereby it was agreed between them that plaintiff should use his knowledge and influence on behalf of, and render his services to, defendant, to enable him to sell or exchange the lands mentioned in the amended complaint herein, for which plaintiff was to be paid by the defendant the sum of $450 as soon as the sale or exchange was effected through his (the plaintiff's) knowledge, influence, or services rendered to him, the defendant." The court further found that the plaintiff rendered his services as agreed, and that a transfer of the land was made by virtue of such services of plaintiff. The findings are directly in line with the allegations of the complaint, and the court concluded therefrom that plaintiff was entitled to recover. We think the conclusion of law arrived at by the court erroneous, and that an appeal from the judgment would have resulted in its reversal for that reason. But a motion for a new trial was granted upon the ground that the decision was against law. It may be conceded, from the authorities in this state, that "the decision is against law" when the conclusions of law are not supported by the findings, and that such an error of the court should be reviewed by a direct appeal from the judg ment; yet, if the order granting the new trial can be justified upon the grounds of error in law occurring during the progress of the trial, it should be affirmed. Kauffman v. Maier, 94 Cal. 269, 29 Pac. Rep. 481. If such were not the rule, the moving party would be deprived of his rights to a new trial merely because the grounds upon which the order was made were not sound. Such an injustice is not tolerated by the courts.

2. Upon the trial the defendant objected to oral evidence of the express contract alleged in the complaint, on the ground that the sixth division of section 1624 of the Civil Code requires such contract, or some note or memorandum thereof, to be in writing, and subscribed by the party to be charged, or by his agent, and, therefore, that oral testimony was incompetent. The court overruled the objection, and admitted testimony of an oral contract, to which defendant excepted. This matter was material, and as the decision of it, if erroneous, was

to have the question considered, and the decision of it reviewed on this appeal, although the trial court expressly based the order granting the new trial on the distinctly different ground that "the decision was against law." Among the contracts declared invalid, if not in writing, etc., by section 1624 of the Civil Code is: "6. An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission." The contract set out in the complaint is embraced in the findings of the court which we have quoted, and it appears to possess all the elements essential to bring it within the purview of the statute. It is not necessary, in the sense of the statute, that he should have been authorized to execute a conveyance of defendant's real property. Bouv. Law Dict. "The duty assumed by a broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made." Zeimer v. Antisell, 75 Cal. 509, 17 Pac. Rep. 642; Sibbald v. Iron Co., 83 N. Y. 382. And this is what plaintiff was employed to do, and precisely what he avers he did in performance of the agreement on his part. As additional authority for the application of the statute to this case, see McCarthy v. Loupe, 62 Cal. 299; Myres v. Surryhne, 67 Cal. 657, 8 Pac. Rep. 523. The case of Wilson v. Morton, 85 Cal. 598, 24 Pac. Rep. 784, is not in point. In that case the plaintiff was not employed to purchase or sell, or to assist in the purchase or sale of real estate. An objection to the evidence should have been sustained, and this ruling of the court in this regard was an error of law which may be reviewed upon this appeal.

Counsel for appellant contend that certain letters written by defendant to plaintiff long after the alleged performance of the contract by plaintiff contain memoranda sufficient to satisfy the statute. But those letters do not state the agreement alleged in the complaint, nor refer to any of the terms thereof. The complaint contains a count upon an implied contract to pay the reasonable value of the same services alleged in the special count, but this count seems to have been abandoned. Nothing is claimed under it here, and the judgment is evidently based upon the special count. Let the order granting the new trial be affirmed.

We concur: HARRISON, J.; MCFARLAND. J.; DE HAVEN, J.; FITZGERALD, J.

(100 Cal. 142) MILLS et al. v. FLETCHER et al. (No. 18,150.) (Supreme Court of California. Oct. 18, 1893.) MINING CLAIMS-EJECTMENT.

1. In ejectment for a mining claim there was evidence that defendants entered on the locus in quo in 1890, and that plaintiffs had

made the requisite annual expenditure on the claim during the preceding year. The cause charged that if the jury found such facts from the evidence, and that defendants unlawfully entered and remained in possession under a hostile claim of title until the action was commenced, then plaintiffs are entitled to recover, regardless of whether defendants made a new location of the claim in 1891 on the ground that plaintiff did not make the required expenditure in 1890. Held that such charge was correct, since plaintiffs were entitled to the whole of the year in which to make the annual expenditure.

2. In ejectment, the verdict of the jury is conclusive as to damages, and the court cannot allow a different sum on finding made by the court.

VANCLIEF, C. Action of ejectment to recover the possession of two adjoining quartz lode mining claims, situate on the public mineral land of the United States, known as the "Hathaway Claim" and the "Peck Claim," each being particularly described in the complaint by metes and bounds; and also to recover $3,000 damages for the severance and removal from said claims of gold-bearing rock. The complaint was not verified. By their answer the defendants deny generally each and every allegation in said complaint contained; “aver that the premises described in plaintiffs' complaint are public mineral lands of the United States, and that plaintiffs have not done any work, or performed any labor, or made any improvements thereon, since December 31, 1889;" and also aver that the cost of mining and milling the gold-bearing rock mentioned in the complaint largely exceeded the value of said rock and the gold and other minerals extracted therefrom. Then, "by way of cross complaint," the defendants aver that they own and possess certain premises known as the "Consolidated Quartz Mining Claim," containing 40-37 acres, and describe it by metes and bounds; then further aver that plaintiffs claim an interest therein adversely to defendants without right, and also that their said "Consolidated Quartz Mining Claim" includes within its boundaries a portion of the premises described in plaintiffs' complaint, but that the boundaries and extent of said portion so included cannot be determined by defendants from said complaint, or by any other means. The prayer of the so-called "cross complaint" is that defendants may be adjudged to be the owners of the premises described in their cross complaint, and that their title thereto may be quieted as against the plaintiffs.

The cross complaint not being verified, the plaintiffs answered it by a general denial, and by a repetition of all the affirmative averments of their complaint; and also disclaimed any interest in the premises described in said cross complaint, except such portions thereof as were within the exterior boundary lines of the claims described in their complaint. The cause was tried by a jury on special issues besides the general issue. The jury found for the plaintiffs on all the special issues, and also returned a general verdict for plaintiffs.

The special issue as to damages was submitted to the jury in the following language: "Question No. 16. How many dollars damages are plaintiffs entitled to recover, if entitled to recover damages at all?" The answer to this was: "One dollar." In addition to the special and general verdict of the jury the court made special findings, all in harmony with the verdict of the jury, unless the following is inconsistent therewith: The court found that defendants took from plaintiffs' claim 1621⁄2 tons of gold-bearing quartz rock. "After said rock had been severed from the realty, said defendants converted the same to their own use, and received as proceeds from the working thereof the sum of $1,922.71. That they expended in and about said rock, after the same had been taken from the ledge in plaintiffs' claim, as necessary expenses in reducing said rock and extracting the gold therefrom, the sum of $807.25. That, in extracting and reducing said rock, defendants expended the sum of $2,750." As conclusions of law the court found that plaintiffs were entitled to recover the ground in dispute, and also to recover from the defendants, Skewes and Fletcher, damages in the sum of $1,015.46, and rendered judgment accordingly. The defendants bring this appeal from the judgment on the judgment roll containing their bill of exceptions.

1. About one-third part of plaintiffs' claim is within section 35 of the government survey, and two-thirds thereof are in section 34. For the purpose of showing an outstanding title, the defendants offered in evidence a patent from the government to the Central Pacific Railroad Company for section 35, which was excluded by the court, and this action of the court is assigned as error by appellants. In the first place, it appears that defendants put in evidence “a map of the premises; which map, it was admitted, correctly delineated the Peck, Hathaway, Standard, and Consolidated locations, and the conflict between them." This map shows that no part of the land in dispute is within section 35. In the second place, it is averred in the answer of the defendants that "the premises described in plaintiffs' complaint are public mineral lands of the United States;" and the answer of plaintiffs to the so-called "cross complaint" is to the same effect. It follows, at least, that the

offered patent was irrelevant to any material issue, and that defendants could not have been injured by its exclusion.

2. It is contended that the court erred in giving each of the following instructions to the jury: "If you find from the evidence that defendants or their grantors unlawfully entered upon the claims of plaintiffs in the year 1890, and took possession of plaintiffs' tunnel, posted a notice of location upon said claim, recorded said notice of location, and extracted rock and earth therefrom, against the consent of plaintiffs, and under a claim hostile to plaintiffs' title; that thereafter defendants and their grantors kept exclusive possession of said claims until the commencement of this action,-then plaintiffs are entitled to recover possession of the premises in controversy, regardless of whether defendants or their grantors made a new location of said premises in 1891. Defendants could not go wrongfully, if you find that they did so, upon plaintiffs' claim in 1890, take possession thereof, and, while thus wrongfully holding such possession, make a new location of said claims, under the claim that the plaintiffs had not made the annual expenditure for 1890. Plaintiffs were entitled to the whole of the year 1890 in which to make the annual expenditure for that year, provided plaintiffs had made the annual expenditure for 1889, or had resumed work upon said claims in 1890, and prior to the entry of the defendants or their grantors." "The jury is instructed that on each mining claim located after the 10th day of May, 1872, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be performed, or improvements made, during each year, unless such labor is excused by reason of some act of the defendants excusing the performance of such work sufficient for that purpose." plied to the evidence, I think these instructions substantially correct. It is admitted that plaintiffs did the required annual labor on their claims prior to January 1, 1890. If the facts hypothetically stated in these instructions are true, the defendants should not be heard to object that plaintiff's did not do the annual labor required by law during the year 1890, or any subsequent year while they remained in adverse possession, and occupied the only tunnel that was open to the lode, and through which plaintiffs intended to work. Conceding that plaintiffs might have been permitted by defendants to do work on the surface of their claims, there is no evidence that such work, or any work outside of the tunnel occupied by defendants, would have tended to improve or develop their claims, or could have been done to any advantage whatever; and, if not, such work would not have answered the purpose of the law requiring annual labor. But there is no evidence that defendants would have permitted even useless work on the surface.

As ap

3. It is contended for appellants that the verdict of the jury as to the amount of the

damages is conclusive, and not merely advisory, except as against the power of the court to grant a new trial; and I think this point should be sustained. The facts stated in the so-called "cross complaint" constitute a mere answer, and not a cross complaint. So far as material, they are that defendants are the owners of, in the possession of, and entitled to the possession of the demanded premises. The averment that plaintiffs claim an interest in the premises adversely to defendants is unnecessary, since that fact is even more explicitly averred in plaintiffs' complaint, and is put in issue by the general denial in the answer; and the averment that plaintiffs' claim is without right is also included in the general denial of all the allegations of the complaint. It is immaterial what the defendants called their pleading. Its character is to be determined by the court. Holmes v. Richet, 56 Cal. 307; Meeker v. Dalton, 75 Cal. 156, 16 Pac. Rep. 764. The action is an action at law, and the defense is only a legal defense. A verdict and judgment upon the issues raised and tendered by the answer would quiet the title of the prevailing party as effectually as would any form of judgment asked for in the prayer appended to the so-called "cross complaint." It has several times been decided that in actions of ejectment and actions to quiet title, in which the defendant relies upon title in himself, a cross complaint is unnecessary. Wilson v. Madison, 55 Cal. 5; Doyle v. Franklin, 40 Cal. 107; Miller v. Luco, 80 Cal. 261, 22 Pac. Rep. 195; Meeker v. Dalton, supra. Matter constituting a complete defense should not be pleaded as a cross complaint. Hills v. Sherwood, 48 Cal. 386; Jones v. Jones, 38 Cal. 585; Association v. Wagner, 61 Cal. 349. The defendants in this action, being in possession, needed no affirmative relief. A general verdict and judgment thereon in their favor would have been conclusive evidence of their title as against the plaintiffs, and of their right to the possession which they already had.

If the foregoing views, as to the legal nature of the action and defense, are correct, it follows that the court erred in giving judgment for damages in a sum exceeding one dollar. The court should not have disregarded the verdict of the jury, except by ordering a new trial upon the conditions and in the mode prescribed by the Code of Civil Procedure. I think the judgment should be affirmed, except in respect to the damages, in which respect it should be modified by reducing the amount of damages to one dollar.

1. A resolution to pave and curb a street required the city engineer to furnish the council with estimates. The estimates, in addition to the items of paving and curbing, stated, under the head of "grading," that 66 cubic yards of excavation and 42 cubic yards of embankment would be required. The grading, if taken from the entire surface of the street, would involve the removal of 1 5-7 inches in depth. Held, that it would be assumed, from the small amount of the so-called "grading" required, that the street had been graded, and that the grading mentioned in the estimates was merely the removal of small inequalities in the surface, and therefore an assessment for the paving and curbing was not invalid on the ground that it required grading, which was not mentioned in the resolution.

2. A recital in the record on appeal by defendant, in an action to enforce a street assessment, that plaintiff produced two witnesses who testified that the notice of the improvement "was posted at the time and in the manner required by law, both as to the number of said notices, the place of posting, and the time during which the same remained posted," sufficiently shows that the law as to posting the notice was complied with.

3. A resolution to pave a street, which refers by number to certain ordinances for the manner in which the work is to be done, is sufficient, without reciting the provisions of the ordinance.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; J. R. Swinnerton, Judge.

Action by C. B. Williams, administrator of J. E. Magary, deceased,-substituted as plaintiff in place of his intestate,-against A. Bisagno and others, to enforce a street assessment. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed. Craig & Meredith, for appellants. Jas. H. Budd, for respondent.

HAYNES, C. This action was brought by Magary against the appellants to enforce a street assessment. He obtained judgment in the superior court, and defendants appeal from the judgment, and an order denying their motion for a new trial. After the appeal was taken, Magary died, and his apministrator, C. B. Williams, was substituted in this court. Upon their motion for a new trial, appellants specified three particulars in which they claimed the evidence was insufficient to justify the decision, namely: (1) It appeared from the evidence that the plans and specifications were not in accordance with the resolution of intention, in that they included grading, which work was not included in said resolution of intention. (2) The contract embraced work not within said resolution of intention, namely, the grading of said street. (3) The notice of said work, as posted, did not comply with the law, in that the letters were not an inch long, and said notice was not posted in two or more places." The only error of law

specified is that "the court should have decided in favor of defendants."

The resolution of intention was to order Washington street paved with basalt blocks of the dimensions required by ordinance No. 239 of the ordinances of the city of Stockton, for the entire width of the roadway from one designated point to another, and to order curbing of granite rock, of the dimensions required by another designated ordinance, along the outside of the sidewalks, on both sides of the same street, between the same terminal points. By a resolution of the council, the city engineer was required to furnish the council with plans and specifications, and careful estimates of the cost and expense, of said paving, and of the curbing. This resolution was complied with. The engineer reported, under the head “grading," the following: "There will be a total of 66 cubic yards of excavation and 42 cubic yards of embankment. The embankment must be made from the excavation, and the entire work must be rolled at least twice with the city roller before placing sand upon it." After fully describing the manner in which the paving and qurbing should be done, the "estimate of cost" was given as follows:

13.465 square feet of paving at $.25

606 running feet of curbing at $1.00

$3,366 25 606 00 $3,972 25

These plans and specifications and estimates were approved by the council, and were incorporated in the contract for the work. No estimate was made for grading, nor was any bid made therefor, except as included in the bid for paving, and the assessment and warrant were for paving and curbing. It is clear from the record that the grading mentioned in the specifications was treated throughout as incidental to, and part of, the paving. The grading involved a removal, if taken from the entire surface, of one and five-sevenths inches in depth, or, as the specifications show, an excess of twenty-four yards over what was required to fill the slight inequalities of the street. Such work is obviously incidental to the paving, as much so as putting on the three inches of sand required as a basis for the basalt blocks, and was within the work specified in the resolution of intention. The ordinance providing for the manner in which the pav ing shall be done is not set out, either in the transcript or briefs, nor is there anything in the record to show that the street had not been graded. We think it may therefore be assumed, not only from the silence of the record, but from the small amount of the so-called "grading," that the street had been graded; that the work denominated "grading" in the specifications was merely the removal of inequalities resulting from the use of the street after it was graded, and that the ordinance prescribing the mode or manner of paving provided for the removal