The evidence of the defendant is that the plaintiff commenced delivering the wood at defendant's brick-yard three or four months before there was any occasion for using it, and if it was not of the quality which plaintiff had agreed to deliver, it was optional with defendant to refuse to accept it, or to accept and use it; and, in the latter event, pay only its real value. It is not the case of one selling merchandise inaccessible to the examination of the buyer. Id. 1771. Here the wood was delivered on defendant's premises, and accessible to his examination before he used it or paid for it. In fact it is not claimed that he has ever paid anything for it. Under such circum

stances he cannot avoid the payment of its real value.

It is stated in the bill of exceptions that the "plaintiff introduced. evidence in support of the allegations in his complaint, and the defendant introduced evidence denying the same." The exceptions to the rulings of the court on the defendant's attempts to introduce evidence in support of that part of the answer denominated a counterclaim, and the refusal of the court to give instructions based on the theory that the defendant was entitled to compensation for such loss as he might have suffered by his efforts in good faith to use said wood for the purpose of burning bricks, are the only ones which we have to consider. We think none of them are well taken.

CITY OF LOS ANGELES v. WALDRON. (No. 9,257.)

Filed May 27, 1884.

In a proceeding to condemn property for the use of a city, it is not necessary to allege that the property sought to be condemned was necessary for some municipal or public use; the question of the necessity existing at the time of the passage of an ordinance therefor was for the council to determine, and its determination is made manifest by the passage of the ordinance.

In pleading the existence of an ordinance, the complaint, in stating that the council "duly passed and adopted it," is sufficient as stating, in legal effect, that everything necessary to be done by the council, or under its direction, to give it validity, had been done, without stating each particular thing or act.

Doing an act by ordinance is equivalent to doing the same act by resolution.

In bank. Appeal from the superior court of Los Angeles county.

W. B. Stephenson, for appellant.

John F. Godfrey, for respondent.

BY THE COURT. It is insisted on behalf of the respondents that the demurrer to the petition was properly sustained,—

First. Because it is not alleged that it is necessary to take the property sought to be condemned for any municipal or public use. It is alleged "that the council of said city, on the fourth day of November, 1882, duly passed and adopted an ordinance in writing," directing proceedings to be taken to condemn certain property of the respondents for the purpose of widening Main street, between Washington and Adams streets, and "that it is now necessary to condemn said land for public use, agreeably to the provisions of said ordinance." We think this a sufficient allegation of the necessity of taking the land referred to for public use. The question as to the necessity existing at the time of the passage of the ordinance was for the council to determine, and its determination is manifest from the passage of the ordinance.

Second. Because it is not alleged that the ordinance was signed. by the clerk or mayor, (or, if signed by the latter, passed by a fourfifths vote,) was not published in a paper published in Los Angeles, and was not published in English. By the charter of Los Angeles, all these things were necessary to be done in order to give the proposed ordinance any validity; therefore, under section 456, Code Civil Proc., in pleading the existence of the ordinance, the complaint, in stating that the council "duly passed and adopted" it, is sufficient as stating, in legal effect, that everything necessary to be done by the council, or under its direction, to give it validity, had been done, without stating each particular thing or act.

Third. Because the ordinance provides that "if, within twenty days from the publication of this ordinance, the owners of property fronting along Main street, or cross streets forming a junction therewith, within the limits to be assessed, amounting to two-thirds of said. frontage, shall make and file with the clerk of the council a written remonstrance against said proposed improvements, thereupon the same shall not be further proceeded with." The objectionable words are, "or cross streets forming a junction therewith." In the preceding section (2) the council had declared that "the assessment for the payment of the damages sustained by reason of said improvements shall extend on both sides of Main street, from Washington street to Adams street." By section 3 it was only the owners of property within the limits to be assessed who were authorized to remonstrate, and those limits were prescribed by section 2. This appears to us to be sufficiently certain.

Fourth. Because the petition does not show that any ordinance has ever been passed. We think it does. It alleges that the council "duly passed and adopted" the ordinance, a copy of which is set forth in the petition.

Fifth. Because it is made the duty of the common council, by section 8 of article 8 of the charter, to do by resolution what it attempted to do by ordinance. The latter, in our opinion, is the equivalent of the former.

Sixth. Because the property sought to be condemned is not sufficiently described. We think it is.

Judgment reversed, with directions to the court below to overrule the demurrer, with leave to defendants to answer within 10 days after being notified thereof

We dissent. Ross, J.; McKINSTRY, J.

(65 Cal. 282)

COUNTY OF SAN DIEGO v. CALIFORNIA S. P. R. Co. (No. 9,205.)

Filed May 27, 1884.

A district attorney is not authorized to institute a proceeding for the collection of delinquent taxes until after the certification of the delinquent list by the tax collector.

In bank. Appeal from the superior court of San Diego county. W. J. Hunsaker, Will. M. Smith, and Works & Titus, for appellant. M. A. Luce and H. E. Cooper, for respondent.

BY THE COURT. The taxes became delinquent upon the twentysixth day of December, 1882, and the 5 per cent. to be collected on the amount then became due. The present action was brought by the district attorney on the twenty-ninth of the same month, and before the time fixed by law for the certification of the delinquent list. Before the date last mentioned the defendant paid to the tax collector of the county the full amount of the taxes, together with 5 per cent. thereon. It is not urged that the tax collector nad no authority to receive the money, but the district attorney insists that he is entitled to take a judgment in the name of the county for the sum of 10 per centum of the tax. This claim is based upon a provision of a statute (Laws 1869-70, p. 193) which relates to "fees and salary of the district attorney," and reads as follows:

"For services rendered in the collection of delinquent taxes, * * * in each case when the tax exceeds fifteen dollars, ten per centum on the sum recovered and collected, if paid before judgment; and, if not so paid, then fifteen per centum to be added to and to constitute part of the judgment,"

etc.

Without regard to this, or the question as to whether the district attorney was authorized to institute the action without the direction. of the board of supervisors, we think he was not authorized to do so before the certification of the delinquent list.

Judgment affirmed.

THORNTON, J. I concur in the judgment on the grounds stated in the opinion in the department.

(2 Cal. Unrep. 322)

SOUTHMAYD v. BERRY. (No. 7,267.)

Filed May 27, 1884.

Findings held inconsistent with each other, and with the averments in the complaint, and judgment reversed.

Department 1. Appeal from the superior court of Humboldt county.

W. H. Brumfield, for appellants.

Hanna & Steck, for respondent.

BY THE COURT. The findings in this case are indefinite, and are inconsistent with each other, and with the averments of the complaint.

Judgment reversed and cause remanded, with leave to the plaintiff to amend her complaint if she shall be so advised.

On authority of Bush v. Lindsey, 44 Cal. 125; Allen v. Tiffany, 53 Cal. 16; and Chaquette v. Ortet, 9 Pac. C. L. J. 602, judgment reversed.

Department 1. Appeal from the superior court of Del Norte county. This was an action against a guardian by a ward for an accounting. The facts are similar to those in Bush v. Lindsey, 44 Cal. 125; Allen v. Tiffany, 53 Cal. 16; Chaquette v. Ortet, 9 Pac. C. L. J. 602.

Edgar Mason, for appellant.

L. T. Cooper, for respondent.

BY THE COURT. On the authority of Bush v. Lindsey, 44 Cal. 125; Allen v. Tiffany, 53 Cal. 16; and Chaquette v. Ortet, 9 Pac. C. L. J. 602, the judgment is reversed and cause remanded, with directions to the court below to sustain the demurrers to the complaint.

(65 Cal. 269)

Ex parte WALTER. (No. 10,957.)

Filed May 26, 1884.

Under section 11, art. 11, of the constitution, providing that " any county, city, town, or township may make or enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws," a board of supervisors has power to regulate the sale of spirituous liquors within the county.

Department 1. Application for discharge on habeas corpus.

A. L. Rhodes, E. J. Pringle, and Milton E. Babb, for petitioner. A. F. Jones, for respondent.

MORRISON, C. J. The defendant was convicted of a misdemeanor, in violating order 8 of the board of supervisors of Butte county, and fined in the sum of $150. He was charged with carrying on the business of retailing spirituous liquors without having first procured a license for that purpose, as required by order 8 of the board of supervisors of the proper county. It was claimed, on the hearing of the petitioner's application for a discharge on habeas corpus, that the order of the board of supervisors imposing the license in question is in violation of certain provisions of the constitution. We do not think so.

By section 11, art. 11, of the constitution, it is expressly provided that "any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws." It is very clear to us that the foregoing provision gives 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. Writ dismissed and petitioner remanded.

THORNTON, J. In concurring in the opinion in this case, I wish to add that the authority given by the twelfth section of the same article of the constitution (art. 11) is ample. The full power of taxation for county, city, town, or other municipal purposes, is here given, subject to be controlled, it may be, to some extent by general laws passed by the legislature. The power is not confined to taxes on property, as such. The use of the word "assess" does not so restrict

it.

Assess means to fix directly by statute or ordinance, as well as to fix by valuation. See Webster's and Worcester's Dicts., word, "Assess." The general law and the ordinance are both within the limitations of the organic law, and valid. The eleventh and twelfth sections, taken together, put this conclusion beyond a doubt. See In re Stuart, 61 Cal. 375.