supra. Although Hill owned all the stock, and there were no lawful trustees, still the corporation existed as a legal entity, and with it, not with Hill, plaintiff had to deal. Russell v. McLellan, 14 Pick. 69; Ang. & A. Corp. (10th Ed.) § 771.

If notices were necessary, they had to be given to the corporation through its proper officers, if such it had. If it had them not, plaintiff should not be compelled to suffer for defendant's fault. Defendant had power to enter into the contract in question, and plaintiff's right of action for its breach continues until the liability is discharged. Defendant cannot render itself unable to receive notice and then be heard to complain because notice is not given. But Hill was the only party in interest, and if he and the persons employed by him were not agents of defendant, then it had none. The evidence shows that plaintiff gave all the notice it had power to give, and under the circumstances we are satisfied the court did not err in finding that plaintiff duly demanded of defendant that it should make the necessary repairs.

Objection is made, also, to the finding that the defendant received all the benefits of the contract from March 16, 1875. We are not prepared to admit that this finding was necessary in order to establish defendant's liability; still it is correct. It is said that Hill received the benefits of the contract, because he owned the stock and managed the property and business upon his own authority and for his sole benefit. But he did so only by reason of his ownership of the stock. The title to the real and personal property was in the corporation. The right, under the contract, to use the 25 inches of water was in defendant. Primarily, the benefits accrued to the defendant, and secondarily to Hill, because he owned all the stock. Hill took all the profits, because no one else had any stock. If his right to use the water from plaintiff's ditch had been questioned, he would have had to produce his stock as the foundation of his title. He had no other.

The judgment and order appealed from are affirmed.

BELKNAP, C. J., dissenting. The only cause of action set forth in the complaint is in assumpsit, for money paid for the use of the defendant. No evidence was introduced tending to sustain this cause of action, but the plaintiff recovered judgment for the damages which, upon the proof, it appeared to have sustained by reason of defendant's failure to keep a water ditch in repair. The statute provides that if the defendant has answered, the court may grant any relief consistent with the case made by the complainant and embraced within the issue. But the right upon which the plaintiff recovered is distinct from that averred in the complaint and is not embraced within the issue. "For no facts are properly in issue unless charged in the bill, and of course no proof can be generally offered of facts not in the bill; nor can relief be granted for matters not charged, although they may be

apparent from other parts of the pleadings and evidence, for the court pronounces its decree secundum allegata et probata." Story, Eq. Pl. § 257; Carpentier v. Brenham, 50 Cal. 549.

I cannot adopt the suggestion that the words "to defendant's use," and "the defendant promised to pay the same," be treated as surplusage, because they are material to the cause of action pleaded. For these reasons I dissent from the judgment.

(2 Cal. Unrep. 440)

SUPREME COURT OF CALIFORNIA.

MULLALLY v. IRISH-AMERICAN BENEVOLENT SOCIETY. (No. 8,717.) Filed February 17, 1885.

BENEVOLENT ASSOCIATION-LIABILITY FOR SICK BENefits-BurdEN OF PROOF. In an action against a benevolent association for the recovery of sick benefits, the burden of proof is on the plaintiff to establish a by-law, rule, or custom rendering the society liable for such sick benefits.

Department 1. Appeal from the superior court of the city and county of San Francisco.

H. A. Powell and Edgar M. Wilson, for appellant.

M. C. Hassett, for respondent.

BY THE COURT. The court below found: "The widow is not entitled, under the constitution or by-laws of said society; (defendant,) to recover benefits for sickness due to a member at the time of his death; nor is such widow entitled to recover such benefits under any rule or custom prevailing in said society." It was for the plaintiff to establish the existence of some provision of the constitution, or of some by-law, or (at least) of some rule or custom, which, on the facts proved, made it the duty of defendant to pay to plaintiff the amount of benefits for sickness due to deceased at the time of his death. The court below was justified in finding that plaintiff failed to establish either such provision of the constitution, or such by-law, or such rule or

custom.

Judgment and order affirmed.

(66 Cal. 448)

Ex parte MOUNT, on IIabeas Corpus. (No. 20,063.)

Filed February 23, 1885.

1. MUNICIPAL CORPORATIONS-POWER TO LICENSE.

The power to license and regulate all vehicles, business, and employments is a valid police power or regulation, which may be delegated by the legislature to municipalities.

2. SAME-CHARTER OF OAKLAND-CONSTRUCTION OF CONSTITUTION.

The power conferred by the Oakland charter, to the city council, to "license, tax, and regulate all vehicles, business, and employments as may be required for the public good, and which are not prohibited by law," includes power to pass ordinances requiring licenses to be taken out by every person, firm, or corporation who, at any fixed place of business, sells any goods, wares, or merchandise, and is a valid exercise of such police power. Such power is also conferred by the constitution, art. 11, § 11, which provides that "any city, town, or township may make and enforce within its limits all such local, sanitary, and other regulations as are not in conflict with general laws.

Department 2. Application for discharge on writ of habeas corpus. Metcalf & Metcalf, J. M. Poston, and IV. C. Belcher, for petitioner. C. T. Johns, for respondent.

MORRISON, C. J. The petitioner alleges that he is unlawfully imprisoned and restrained of his liberty by the captain of police of the

city of Oakland, and the officer, in his return to the writ of habeas corpus served on him, shows that he detains the petitioner under a warrant of arrest issued out of the police court of said city. The warrant recites a complaint under oath made against the petitioner, charging him with carrying on the business of selling goods, wares, and merchandise at a fixed place of business, in the city of Oakland, without first taking out a license to do so, in violation of an ordinance of the city providing for and requiring such license. In his application for discharge the petitioner makes the following points, and urges the following grounds:

(1) That the city of Oakland has no power to collect or require a license from any kind or class of business, except such as are specified in section 5 of the charter of 1862; (2) that so much of section 5 as purports to authorize a license upon vendors of goods, wares, and merchandise, etc., is unconstitutional and void, and confers no power; (3) that if the power to require or collect a license exists, it cannot be enforced by penalty of fine and imprisonment.

In answer to the foregoing points made by the petitioner, respondent contends that the power to pass the ordinance and fix the license imposed in the present case, is vested in the municipal authoritiesFirst, by the charter of the city of 1862; and, second, by sections 11 and 12 of article 11 of the constitution of 1879.

By the act of April 24, 1862, amendatory of a previous act incorporating the city of Oakland, it is provided, in the section enumerating the powers and duties of the city council, that "they shall have power of licensing, taxing, and regulating all such vehicles, business, and employments as the public good may require, and as may not be prohibited by law." And by section 52, p. 353, of the same act, it is provided that "licenses shall be discriminating, and proportionate to the amount of business."

It is claimed that section 4 of the act simply provides that "the city council shall have power to make regulations for licensing, taxing, and regulating all such vehicles, business, and employments as the public good may require," but that it contains no express grant of power either to issue or grant or to require a license to collect any money or tax therefor. But we are of opinion that the power of regulating or to "make regulations" was sufficient, and that it carries with it and includes the power to pass an ordinance requiring a license to be taken out, as was done by the ordinance in question. By section 4 of the act power is conferred on the city council to affix penalties to the violation of any and all ordinances. Such penalties shall be by fine not exceeding $100, and, in case the fine is not paid, then they may direct that the person may be imprisoned at the rate of one day for ever two dollars of the fine imposed, etc.

Acting under the foregoing provisions of the law of 1862, the council of Oakland passed an ordinance providing that "every person or firm or corporation who, at any fixed place of business, sells any goods, wares, or merchandise whether on commission or otherwise,

(except such as are sold by auctioneers under license,) must obtain from the license collector a license, and pay therefor the amount of money to be determined and regulated by the amount of sales made or business transacted." The ordinance then proceeds to graduate the amount of license required to be paid in proportion and according to the amount of sales or business transacted by the person or firm. The petitioner does not dispute the due passage and approval of the ordinance, or that the warrant was properly issued and served, provided the ordinance is a valid one, but he contends that there was no power or authority in the city council of Oakland to pass the ordinance in question; and, secondly, that if the council did have the power to pass an ordinance of the kind in question, it had no power to attach a penalty for the refusal to comply with the same. It seems to us very clear that the power exercised by the common council, and complained of in this case, was vested in that body by the act of 1862, amendatory of the city charter; and that the delegation of such power by the legislature was constitutional is equally clear. It comes within what is known as a police power or regulation, and is properly vested in the municipality. 1 Dill. Mun. Corp. § 141; Ex parte Hurl, 49 Cal. 557; Ex parte Newton, 53 Cal. 571.

In a recent decision of the supreme court of the United States, not yet officially reported, the question we are now considering underwent a full discussion, and the power here called in question was upheld as a police regulation within the competency of any municipality, possessed of the ordinary powers belonging to such bodies. Barbier v. Connolly, 5 Sup. Ct. Rep. 357. The power to fix a penalty for a failure to comply with the ordinance is expressly conferred by section 4 of the act, and it was a proper exercise of power by the municipality. 1 Dill. Mun. Corp. § 353.

But we think the second ground relied on by respondent in support of the ordinance is equally strong and unanswerable. By section 11, art. 11, of the constitution it is provided "that any city, town, or township may make and enforce within its limits all such local sanitary and other regulations as are not in conflict with general laws.' Here the delegation of power by the organic law is very broad and comprehensive, and we have had occasion in several cases to construe the foregoing section of the constitution. In the case of Ex parte Walter, 3 PAC. REP. 894, the court said:

"It is very clear to us that the foregoing provisions (sections 11, 12, art. 11, Const.) give to the board of supervisors the power to regulate the sale of spirituous liquors within the county, and that, therefore, the regulation in question does not violate the constitution."

In his concurring opinion in the above case Justice THORNTON uses the following language, in which we agree with him:

"In my opinion, sections 11 and 12 of article 11, intended to give full power and authority to the local governments over the subject of licenses, whether for the purpose of regulation or revenue, subject to be controlled by general laws."