should be rendered. But, as I have shown, the act attempted to be regulated by the statute under consideration does not affect any right given or duty imposed upon the court by the constitution, or any act nee essary to the performance of its constitutional duties or functions. The act to which the statute relates, not being a constitutional one, might not only be regu lated by the legislature, but might be entirely taken away. The constitution of this state gives all legislative power not denied to the legislature, while that of the United States gives only such as is named. Const. Cal. art. 4, § 1; Baker v. City of Cin

to grant rehearings, are fully exemplified in the proceedings in this case and their results. When the case was submitted on oral argument the court consisted of six members, who alone were competent to participate in a decision. The cause was affirmed, the court standing four to two. In the mean time a newly-appointed justice had become a member of the court. He was incompetent to participate in the decision of the case, although a member of the court at the time the decision was rendered, because of the fact that he was not present at the argument. Const. art. 6, § 2. His competency to act upon a petition for a rehearing is a matter of serious ques-cinnati, 11 Ohio St. 534, 542. Therefore, as tion. But, conceding his competency, he • did not hear the argument. The petition for a rehearing must, under the practice of this court, be heard ex parte. The respondent could not be heard, and need not be notified of the application. As to a part of the court, therefore, the judgment was vacated and set aside without any opportunity given him to be heard, and, in my Judgment, in a manner not authorized by law. The positive hardship, not to say injustice, of such a proceeding, must be apparent. The judgment having been set aside, a rehearing was had, and the cause was reversed, the court standing four to three; so that, so far as mere numbers were concerned, the decision was weaker than before, there being the same number in favor of the conclusion reached, and a greater number dissenting, than on the former hearing.

But they say that all this may be so, but this court has always acted to the contrary, and has twice decided this statute to be invalid. So far as the past conduct of the court is concerned, it could not repeal a valid statute by disregarding it, and as to the decisions referred to they do not decide that the statute is invalid. They simply overrule motions made to set aside orders made granting rehearings. On what grounds we are not informed. It is not held that the court is not bound by the statute. If the statute was unconstitutional, the point should have been decided in order to bind the court in the future. Perhaps the court decided the motions on the same ground that is urged now, viz., that, as the court had uniformly acted upon the theory that the statute was invalid, therefore it was invalid. If so, I think the court should not hesitate to overrule those cases; but, as they neither lay down a rule of law nor attempt to pass upon the construction of the statute or declare its invalidity, there would seem to be no necessity for overruling them. The only case in which this statute has been even mentioned by the court has recognized the validity of the statute, and left the question whether the court has the inherent power to grant a rehearing an open one. Hegard v. Insurance Co., 72 Cal. 535, 14 Pac. Rep. 180.

The case of Houston v. Williams, 13 Cal. 24, is greatly relied upon by the appellant, but in my judgment that case, when properly understood, has no bearing on the question presented here. There the statute directly affected the constitutional power and jurisdiction of the court by providing the manner in which its decisions

a general rule, to hold a law unconstitutional it must appear to be a plain violation of some provision contained in the constitution of this state or in the constitution of the United States. Hagar v. Board, 47 Cal. 222; Baker v. City of Cincinnati, supra; Braddee v. Brownfield, 2 Watts & S. 271; Beauchamp v. State, 6 Blackf. 299; Doe v. Douglass, 8 Blacki. 10; People v. Gallagher, 4 Mich. 244. There may be exceptions to this rule, but, in my opinion, this case does not present one of them. Where a court is exercising a jurisdiction conferred upon it by statutory enactment, and not by the constitution, its powers are limited by the statute by virtue of which it acts, and its powers, thus conferred, are subject to be limited or entirely taken away by the legislature. U.S. v. Knight, 1 Black. 488. So it is uniformly held that the legis lature of the states have full power and control over the jurisdictions of the court, so long as the statutes enacted for that purpose do not conflict with the constitution. Ex parte Bank, 1 Ohio St. 433. The only authority given this court to grant a rehearing of a case decided in bank is conferred by the section of the Code under consideration, and in my judgment the court should be bound by its limitations and restrictions.

The distribution of the powers of the government into three departments-lezislative, executive, and judicial-does not place either department above the law, nor make either independent of the other. MeCauley v. Brooks, 16 Cal. 10, 39. In the case cited Mr. Justice FIELD, speaking for the court, said: “The third article of the constitution reads as follows: The powers of the government of the state of California shall be divided into three separate departments, the legislative, the executive, and | judicial,—and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except in the cases hereinafter expressly directed or permitted.' There is nothing in this distribution of powers which places either department above the law, or makes either independent of the other. It simply provides that there shall be separate departments, and it is only in a restricted sense that they are independent of each other. There is no such thing as absolute independence. Where discretion is vested in terms, or necessarily implied from the nature of the duties to be performed, they are independent of each other, but in no other case. Where discretion exists, the

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deed to the railroad company had never been recorded, and was lost. The plaintiff claimed title by virtue of a sheriff's deed on a foreclosure sale, under a mortgage executed by one Abbott, to whom Campbell had made a deed of the land long after the deed to the railroad company was executed. In the brief of its counsel, appellant claims that the evidence shows that the plaintiff was a bona fide purchaser, without notice of the unrecorded deed from Campbell to the railroad company, and that the findings to the contrary are wrong; and seems to rely mainly upon this point for a reversal of the judgment and order appealed from. It is said the evidence shows that the possession of the railroad company was initiated under a deed of a mere right of way from two persons, Whitmore and Stevens, to whom there was no deed of record from Campbell; that, having taken possession in such manner, and placed such a deed upon record, the railroad company had an apparent possession under that deed; and that such possession, long continued, open, and notorious as it might be, did not and should not have put the plaintiff, when it came to take a deed to the land, upon inquiry as to the true nature of the possession of the railroad company. In other words, the plaintiff contends that the possession of the railroad company was consistent with the deed from Whitmore and Stevens, although, by the record, they were strangers to the title of Campbell, the common source of title, and that the company cannot be heard to say the plaintiff should have inquired diligently as to whether the company held a deed from Campbell of prior date, although unrecorded, to that made to Abbott, from whom the plaintiff claims.

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existence of some right or title in conflict with that he is about to purchase, he is presumed to have made the inquiry and ascertained the extent of such prior right, or to have been guilty of a degree of negligence equally fatal to his claim to be consid ered as a bona fide purchaser." The fact of open and notorious possession for so many years, as in this case, would certainly be sufficient to put a purchaser upon inquiry as to the existence of a deed. 3 Washb. Real Prop. (5th Ed.) 337. The disclosure by the record of a deed which was made by a stranger to the title would not clear up the doubt to a prudent man, desiring to purchase. It would hardly be presumed that a person would have had open and notorious possession of another man's land for years without any disturbance under a deed which amounted to nothing. That kind of possession, under such a deed, is equivalent to an open and notorious pos session, without any deed upon record, and inquiry should be made as to whether a deed from the owner existed. Where there is such possession, held under no record title, it is clear from the authorities that the intending purchaser is at least put upon inquiry as to whether the party in possession has a deed from_the_rightful owner or not. Hellman v. Levy, 55 Cal. 118, and cases cited; Patten v. Moore, 32 N. H.384. It was an easy matter to inquire of those in possession, without any record title from Campbell, under what claim they were in open and notorious possession of hisland; and the mere fact that the parties in possession had a deed upon record which did not appear to be from any one connected with the title did not absolve the plaintiff from this inquiry. The possession of the railroad company, by its agents, as it seems to us, was consistent with its unrecorded deed from Campbell; and the plaintiff should have inquired of them about the actual claim of title by the railroad from the true owner. The plaintiff had no right to believe that the railroad company was maintaining open, notorious, and longcontinued possession of land under a claim of title exclusively derived from one who, by the record, had no title or claim to the land held by the corporation. Fairly considered, with reference to the different defenses set up in the answer, we do not think that the defendants' admissions that they were the successors "in interest" of the railroad company should be held to preclude the court from finding from the evidence, as presented, that the title was still in the railroad company. Neither do we perceive that the court committed prej

The real question in the controversy, then, is whether an open and notorious possession under the deed of one who ap-. parently never had any connection with or conveyance from the real holder of the title is such as that an individual desiring to purchase the land from one who, by the record, seems to be the true owner, may safely do so without any further inquiry as to the true nature of the occupant's possession, and may conclude that he has possession of the true owner's land by no other conveyance than that of one who has no shadow of title to the premises. The position of the appellant is to the effect that no inquiry would be necessary; that the purchaser would have a right to assume that the possession was under one who had no title whatever, was that of a mere trespasser as to the true owner of the land, and that a purchaser might with safe-udicial error in its rulings as to the exty take a deed from the owner. The case of Fair v. Stevenot, 29 Cal. 490, cited by the appellant, does not sustain his contention. The rule as to the matter is very aptly stated in Pell v. McElroy, 36 Cal. 277, where the appellate court quotes affirmingly from the opinion in the case of Williamson v. Brown, 15 N. Y. 354, to this effect: "The true doctrine on this subject is that, when a purchaser has knowledge of any fact sufficient to put him on inquiry as to the

clusion of evidence, of which the plaintif complains. The other matters adverted to do not require special attention; and we advise that the judgment and order be affirmed.

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

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed.

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in

PEOPLE V. BINGHAM. (No. 13,415.) (Supreme Court of California. Dec. 30, 1889.) QUO WARRANTO-JURISDICTION-TITLE OF RE

LATOR.

1. Under Const. Cal. art. 6, § 5, providing that "the superior court shall have original jurisdiction and in all other cases in which the demand amounts to three hundred dollars," and providing that it shall have power to issue writs of quo warranto, it has jurisdiction, in an action in the nature of quo warranto, brought under the provisions of Code Civil Proc. §§ 803, 809, to oust a person from office, and recover a penalty of $5,000 for unlawfully holding such office.

2. The fact that the person against whom the action is brought is a member of the board of supervisors of the city and county of San Francisco, which board, the consolidation act, § 67, p. 16, declares, "shall be the judge of elections, returns, and qualifications of its own members," does not take away the court's jurisdiction. SHARPSTEIN and THORNTON, JJ., dissenting.

3. As Code Civil Proc. Cal. § 803, authorizes the attorney general to bring the action, in the name of the people, on his own information, or on the complaint of a private party, it is not necessary for the complaint to show that the relator is enti tled to the office, or that any one else claims to be entitled to it.

In bank. Appeal from superior court, city and county of San Francisco; F. W. LAWLER, Judge.

Horace W. Philbrook, for appellant. J. D. Sullivan, for respondent.

the legislative department of the state government, is as follows: Each house shall choose its own officers, and judge of the qualifications, elections, and returns of its own members.' The words of the consti tution and of the statute, being identical, should receive the same construction. It is settled beyond controversy that those words of the constitution confer upon each house the exclusive power to judge of and determine the qualifications, elections, returns of its own members; and it follows that the common council of a city to which that section of the act is applicable possesses the like exclusive authority to judge of and determine the qualifications, elections, and returns of its own members. The court, therefore, had no jurisdiction of the action." As to the effect of such language, the opposite conclusion was reached by the court of appeals of New York in a well-considered case. People v. Hall, 80 N. Y. 117. There it was said: "But it is further urged that the clause of the charter, taken without regard to that likeness, gives exclusive power in the first instance to the board. It does not, unless it takes away jurisdiction from the courts, or, in this case, from the supreme court of the state. That court, from its origin, has had general jurisdiction in law and equity. Const. art. 6, § 6. Within that jurisdiction formerly fell the proceedings by quo warranto, and by information in the nature thereof; and now falls the action by which the remedies once got by them are yet reached. The jurisdiction is not taken away by a statute, unless there be express words in it to take it away. It is a maxim in the common law that a statute made in the affirmative, without any negative expressed or implied, does not take away the common law.' 1 Coke (2d Inst.) 199, cap. 20-24; Rex v. Moreley, 2 Burrows, 1040. And see, per COWEN, J., Ex parte Heath, 3 Hill, 52; People v. Turnpike Road, 23 Wend. 222. That rule applies here. There is no word in the clause in the charter that, either in terms or by necessary implication, expresses a legislative purpose to take from the supreme court its jurisdiction, and to make the power of the board exclusive, and its judgment final and conclusive. It creates a cumulative jurisdiction. It enables the board to pass speedily, and by simple proceeding, upon the right to mem

WORKS, J. This action is brought, in the name of the people of the state of California, by George A. Johnson, attorney general, upon the complaint of Charles J. Swift, against the respondent, to oust him from the office of supervisor of the city and county of San Francisco, on the ground that he was not, at the time of his election, a resident of the ward of which he was elected, and to recover the penalty of $5,000 provided for by the statute in such cases. There was a demurrer to the complaint on all of the statutory grounds, which was sustained; but we are informed by the briefs of counsel that the demurrer was sustained on the sole ground that the court had no jurisdiction to hear and determine the cause. This was based upon the ground, which is attempted to be maintained in this court, that by the consolidation act of the city and county of San Francisco the board of supervisors “shall be the judge of elections, returns, and qualifications of its own members." Consolida-bership in it, so that it may not be hamtion Act, § 67, p. 16.

It was held, in an early case, that similar language to this, applied to the common council of the city of Los Angeles, gave to the council the exclusive right to pass upon and determine the election and qualification of its own members, and that the superior court had no jurisdiction of an action, in the nature of a quo warranto, to determine the same question. People v. Metzker, 47 Cal. 525. It was said in that case: "The tenth section of the act of March 11, 1850, to provide for the incorporation of cities, (St. 1850, p. 88,) that act being applicable to that city at the time of the alleged election of the relator, provides that the common council 'shall judge of the qualifications, elections, and returns of their own members.' The eighth section of article 4 of the constitution, relating to

pered in the performance of its functions; and, when it has done so, the board, as composed thereby, is for the time a legal body, and its doings authoritative. The courts of competent jurisdiction are not shut out, however, from inquiring, in behalf of the people, the origin of all authority, into the right of any person who, by the action of the board, in fact holds a place in it, and claims thereby to exercise a public office. The officer is such as to be liable to such an inquiry in behalf of the public; and it needs express and unequivocal words, or an irresistible implication, to take away from the judiciary a jurisdiction always possessed. The supreme court has, by its constitution, control over all inferior jurisdictions, of which the board of aldermen is one. To take away its general superintending power, the lan