a final order affecting a substantial right. State v. O'Day, 41 Or. 495, 69 Pac. 542, and cases cited. Counsel for defendant insists, however, that, the demurrer to the complaint of Sears being sustained, the substitution of the state by the amendment is the commencement of a new suit, and that the order was final as to the Sears complaint or suit. No authorities are cited by defendant in support of his position. Whether the amendment is one authorized by the statute is not the question, but whether the court lost jurisdiction of the defendant by the substitution. The effect of the amendment is to eliminate Sears because he was not a necessary or proper party, and it is final as to him; but the defendant is claiming no relief against him, and is not affected thereby. Granting leave to plaintiff to amend his pleading is within the power of the court, and, even though such power was exercised erroneously, yet the order is not void. The action of the court in sustaining the demurrer to the complaint did not terminate the jurisdiction of the court. B. & C. Comp. § 101, provides: "If the demurrer be sustained, the court may in its discretion allow the party to amend the pleading demurred to." Id. § 102, provides: "The court may, at any time before trial, in furtherance of justice, allow any pleading * to be amended by adding the name of a party, or by striking out the name of any party." While the court has jurisdiction of the case, the order allowing the amendment is one within its jurisdiction, even if erroneous.

*

in determining the motion to dismiss the appeal, it is necessary to determine the merits as to the substitution, then this motion must be denied. Whether the order was error or not, it is not appealable, unless it terminates or disposes of defendant's rights in the subject of the suit. Many courts have discussed the right to such substitution, usually brought to the appellate court upon the appeal from final judgment, and it was always treated as a matter within the jurisdiction of the court, and not affecting the merits. Such are the following cases: Davis v. Mayor of New York, 14 N. Y. 506, 67 Am. Dec. 186; Dubbers v. Goux, 51 Cal. 153; Vinegar Bend Lbr. Co. v. Chicago T. & T. Co.. 30 South. 776, 131 Ala. 411 (cited by defendant on the merits); Johnson v. Martin, 54 Ala. 271; Campbell & Zell Co. v. Barr Pumping Eng. Co., 182 Mass. 304, 65 N. E. 396; Wells v. Stombock, 59 Iowa, 376, 13 N. W. 39; McCall et al. v. Lee, 120 Ill. 261, 11 N. E. 522; Lake Erie & West. Ry. Co. v. Town of Boswell, 137 Ind. 336, 36 N. E. 1103; and many other cases might be cited. In Chicago, K. & W. Ry. Co. V. Butts, 55 Kan. 660, 41 Pac. 948, it is held that an order of substitution is not a final

order, and therefore not appealable. To the same effect are Bossler v. Johns, 2 Pen. & W. (Pa.) 331; Welch v. Allen, 54 Cal. 211; Hall v. Vanier, 7 Neb. 397; Grant v. Los Angeles & Pac. Ry. Co., 116 Cal. 71, 47 Pac. 872. In Chicago, K. & W. Ry. Co. v. Butts, supra, it is held that the order of substitution was error, but not appealable, and it was reviewed upon the appeal from the final judgment. If the order of the court was made in a matter beyond its jurisdiction or in relation to a matter of which it had not acquired jurisdiction, then it might be appealable; as to the adverse party to that proceeding it would be final. But error in an interlocutory order within the jurisdiction is not sufficient to render it void or operate as a final order. In Hume v. Bowie. 148 U. S. 245, 252, 13 Sup. Ct. 582, 584, 37 L. Ed. 438, the court had before it a question involving the same principle. In that case a motion was made to vacate a decree rendered at a previous term and to grant a new trial, which motion was allowed by the court below. It was insisted by respondent that the order was not final, and therefore not appealable. Mr. Chief Justice Fuller says: "This case comes before us on a motion to dismiss the writ of error for want of jurisdiction, upon the ground that the judgment brought here by the writ is not a final judgment. The question involved is one of power, for if the court had power to make the order, when it was made, then it was not a final judgment, as it merely vacated the former judgment for the purpose of a new trial upon the merits of the original action. If the court had no jurisdiction over that judgment, the order would be an order in a new proceeding, and in that view final and reviewable." And in Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 727, the same identical question arose, in which it was held that. if there was no jurisdiction, then the order was final: otherwise. not. In Philipps v. Negley, 117 U. S. 665, 671, 6 Sup. Ct. 901, 903, 29 L. Ed. 1013, it is held: "If. properly considered, the order in question was an order in the cause, which the court had power to make at the term when it was made, the consequence may be admitted that no appellate tribunal has jurisdiction to question its propriety. * *The vacat

ing of a judgment and granting a new trial, in the exercise of an acknowledged jurisdiction. leaves no judgment in force to be reviewed. If, on the other hand, the order made was made without jurisdiction on the part of the court making it, then it is a proceeding which must be the subject of review by an appellate court." The same is held in Deering v. Quivey, 26 Or. 556, 38 Pac. 710. Although these cases all relate to motions to vacate judgments, they determine what con stitutes a final or appealable order. How can it be said that an order is final when it does not terminate the suit or in any manner end the litigation as to the subject-matter or

as to defendant? An order that may be deemed a decree is defined in B. & C. Comp. § 547, supra, as one "which in effect determines the action or suit so as to prevent a judgment or decree therein"; but no such effect results from this order. Mr. Chief Justice Moore, in Marquam v. Ross, 47 Or. 375, 78 Pac. 698, 83 Pac. 852, 86 Pac. 1, reviews the Oregon cases as to what are final orders, and construes B. & C. Comp. § 547, supra, and concludes: "It will be seen that the original adjudication of the right involved within the issues is the judgment or decree from which an appeal lies." In State v. Security Savings Co., 28 Or. 410, 417, 43 Pac. 162, it is held that, where the right to the relief sought is determined, it is final and appealable. "An order or decree is final for the purposes of an appeal when it determines the rights of the parties, and no further questions can arise before the court rendering it except such as are necessary to be determined in carrying it into effect." In Basche v. Pringle, 21 Or. 24, 26 Pac. 863, Mr. Justice Bean says an appealable judgment "is one which concludes the parties as regards the subject-matter in controversy in the tribunal pronouncing it."

From these authorities it is clear that, if the ruling had the effect to finally terminate defendant's rights or interest in the subject of the suit, it was final as to him, even though it did not determine the merits of the case, or if it was made without jurisdiction; that is, in a case or as to matter not within the power of the court it would be final, even though only an interlocutory order.

In this case the defendant's rights are not concluded by the ruling. Neither is the order one made without jurisdiction, and the appeal is premature, and must be dismissed.

The amendment to Const. art. 11, 6, adopted November 3, 1896, inserting "except in municipal affairs," in the provisions that cities and towns and all charters thereof adopted by authority of the Constitution shall be subject to and controlled by the general laws and Constitution, and Const. art. 11, § 82. being an amendment adopted November 3, 1896, providing that it shall be competent for all charters formed under the authority given by Const. art. 11, 8, to provide for the constitution, jurisdiction, etc., of police courts, the manner, time, and terms for which the judges thereof shall be elected or appointed, and for the compensation of the judges, etc., do not affect the power of the Legislature to provide for justices' courts in cities and towns as part of the state system of justices' courts.

2. MUNICIPAL CORPORATIONS - LEGISLATIVE CONTROL-CONSTITUTIONAL PROVISION.

Under Const. art. 11, § 6, as amended, the provisions of freeholders' charters are supreme

as to all matters which the Constitution authorizes to be provided for therein, and are exempt from any control by any subsequent act of the Legislature.

3. SAME-CITIES OF FOURTH CLASS.

Under Const. art. 11, § 82, being an amendment adopted November 3, 1896, providing that it shall be competent in all charters formed under the authority of Const, art. 11,

8, to provide for constitutional regulation, government, and jurisdiction of police courts, and for the compensation, etc., of judges there of, the provisions of Code Civ. Proc. § 103, requiring a city of the fourth class to furnish the city justice of the peace a suitable office in which to hold his court, does not apply to a city of the fourth class whose charter provides for a police court.

Sloss, J., dissenting.

In Bank. Mandamus by George B. Graham against the mayor and board of trustees of the city of Fresno. Application denied.

Geo. B. Graham, in pro. per. D. S. Ewing (Frank Karke, of counsel), for defendants.

ANGELLOTTI, J. The city of Fresno is a city organized under a freeholders' charter framed and adopted under the provisions of section 8, art. 11, of the Constitution of this state, and approved by the Legislature on January 28, 1901 (St. 1901, p. 832, c. 9). According to the federal census of 1900 it has a population of more than 10,000 and less than 15,000, and therefore, if we assume that the provisions of the general classification act, as amended March 5, 1901 (St. 1901, p. 94), apply, it is a city of the fourth class within the meaning of section 103, Code Civ. Proc. Its charter provides for a court to be known as the "police court of the city of Fresno"; the same to consist of one judge to be elected at the general municipal election, who shall receive a salary from and be furnished with a courtroom by the city, which court shall have exclusive jurisdiction in all prosecutions for violations of city ordinances and actions for the recovery of fines, etc., and the enforcement of obligations or liabilities created by the city ordinances, and, within the city limits, concurrent jurisdiction with township justices' courts in all matters wherein said justices' courts may have jurisdiction. Sections 61, 61, 62, 68, 200, 221, Charter. Under these provisions, a police court has been established and is now being maintained in the city; one H. F. Briggs being the judge thereof. The city of Fresno constitutes a portion of the third judicial township of the county of Fresno. At the general state election held November 6, 1906, the plaintiff, George B. Graham, was elected "city justice of the city of Fresno," and qualified in the manner required of justices of the peace. He claims that it is the duty of the defendants to furnish him, as such city justice, with a suitable office wherein to hold his court. Defendants have refused to comply with his demand in this regard. and plaintiff has instituted this proceeding to obtain a peremp

tory writ of mandate compelling such compliance.

Plaintiff's claim is based on section 103, Code Civ. Proc.; the general section providing for justices' courts, their number in townships and cities, their election, etc. That section, after providing for the justices of townships, to be elected at a general state election, provides that: "In every city or town of the third and the fourth class there must be one justice of the peace,

to be elected in like manner by the electors of such cities or towns respectively." It further provides that such justice of the peace of cities or towns shall have the same jurisdiction, civil and criminal, as justices of the peace of townships, and also jurisdiction of all proceedings for the violation of any ordinance of a city, and all actions for the recovery of any licenses required by any ordinance of the city, and shall exercise all powers, duties, and jurisdiction, civil and criminal, of "police judges, judges of the po- | lice court, recorder's court, or mayor's court within such city." It further provides that every city justice of the peace in any city or town of the fourth class shall receive as his sole compensation a salary of $1,500 per annum from the salary fund of such city or town, and shall be provided by the city authorities with a suitable office in which to hold his court, and requires him to pay into the city or town treasury all fees chargeable by law for services rendered by him.

Prior to the adoption of certain constitutional amendments in 1896, it was established that, by reason of section 1, art. 6, providing that the judicial power of the state shall be vested in certain courts therein named, "justices of the peace, and such inferior courts as the Legislature may establish in any incorporated city or town, or city and county," section 11 of the same article providing that the Legislature shall determine the number of justices of the peace to be elected in townships, incorporated cities or towns, or cities and counties, and shall fix by law the powers. duties, and responsibilities of such officers, and section 13 of article 6 providing that the Legislature shall fix by law the jurisdiction of any inferior courts which may be established in pursuance of section 1 of the article, and fix by law the powers, duties, and responsibilities of the judges thereof, the whole matter of the establishment and regulation of justices and other inferior courts in cities and towns, and the compensation of the judges thereof, was in the hands of the Legislature, and that such laws as section 103, Code Civ. Proc., constituted a valid exercise of the legislative power. People v. Cobb, 133 Cal. 74, 65 Pac. 325; People v. Sands, 102 Cal. 12, 36 Pac. 404; Coggins v. City of Sacramento, 59 Cal. 599; Jenks v. Council, etc.. 58 Cal. 576; Bishop v. Council, etc., 58 Cal. 572. In Bishop v. Council, supra, a writ of mandate was granted to com

pel the city authorities to furnish such a city justice, elected at a general state election, with a suitable office. In Jenks v. Council, supra, a similar writ was granted requiring the payment of the salary of such a justice from the city treasury. In Coggins v. City of Sacramento, supra, an action by a city justice against the city for salary and office rent, was sustained, and by People v. Sands, supra, and People v. Cobb, supra, it was thoroughly established that such justices are to be elected in the same manner as other justices of the peace, at a general state election, and that vacancies in the office are to be filled in the manner prescribed by the state law. It was further established that a police court created by the provisions of a freeholders' charter was not a court created by the Legislature, and therefore that it was not competent to provide therefor in such a charter. People v. Toal, 85 Cal. 333, 24 Pac. 603; Ex parte Ah You, 82 Cal. 339, 22 Pac. 929; People v. Sands, supra. Defendants' claim is that by reason of certain constitutional amendments made in the year 1896, not only is the charter provision for a police court of the city valid and effectual, which is admitted, but that the provision of section 103 of the Code of Civil Procedure for a city justice of the peace cannot be held applicable, and especially that the provisions of said section for the payment of a salary to such justices from the city treasury and the furnishing of an office at the cost of the city are without force as to said city. The constitutional amendments relied on are: First, the municipal affairs amendment of section 6, art. 11; and, second, section 81% of article 11. The latter section adopted November 3, 1896, so far as applicable, is as follows: "It shall be competent in all charters framed under the authority given by section eight of article eleven of this Constitution, to provide. in addition to those provisions allowable by this Constitution, and by the laws of the state, as follows: (1) For the constitution, regulation, government, and jurisdiction of police courts, and for the manner in which, the times at which, and the terms for which the judges of such courts shall be elected or appointed, and for the compensation of said judges and of their clerks and attaches."

We not find in subdivision 1 of section 8% of article 11 any intention to interfere with the power of the Legislature in the matter of provision for justices of the peace for cities and towns. That subdivision is limited in terms to "police courts," and there is no mention whatever therein of justices of the peace or justices' courts. The term "police court" ordinarily refers to an inferior municipal court with a limited jurisdiction in criminal cases only, a court with the power to try certain misdemeanor cases arising from the violation of state law or municipal ordinance, and with the power to conduct preliminary examinations in cases of felony

character would be an invasion of the jurisdiction of the municipality, and inconsistent with the charter provision regarding the subject-matter of city police courts, as to which the plain object of the constitutional provision was to vest entire control in any freeholders' charter city electing to assume such control, and to free any city so doing from legislative control in that regard. As to such cities, the city justice of the peace provided by section 103, Code Civ. Proc., must be held to be the same in all respects as a township justice, simply a county or township officer performing no municipal functions whatever.

The Legislature is not empowered to direct the appropriation of municipal funds for the payment of the salary or office expenses of one who is simply a county or township officer. Municipal funds can be appropriated, under our system, only for municipal purposes. Conlin v. Board of Supervisors, etc., 114 Cal. 404, 46 Pac. 279, 33 L. R. A. 752. The only ground upon which the decisions heretofore cited upholding the provision for the payment of salaries and office expenses of city justices by municipalities can be sustained is that such justices, under the law then in force, in addition to being justices of the peace with the same jurisdiction as township justices, were also city police judges, performing municipal functions. See People v. Sands, supra; People v. Cobb, supra. As we have seen, such is no longer the situation in a city having a police court established under valid provision therefor in its freeholders' charter.

We are therefore of the opinion that the provision of section 103, Code Civ. Proc., requiring a city of the fourth class to furnish the city justice of the peace with a suitable office in which to hold his court, cannot now be held applicable to the city of Fresno.

The application for a peremptory writ of mandate is denied.

We concur: MCFARLAND, J.; HENSHAW, J.; LORIGAN, J.

SHAW, J. I concur in the opinion of Justice ANGELLOTTI. I wish to say, however, that I do not understand that opinion to hold that when a freeholders' charter has created a police court, and vested in it jurisdiction over offenses against city ordinances and suits to collect city license taxes, or any other jurisdiction that could be vested in such police court, such provisions of the charter would have the effect of preventing the Legislature from vesting the same jurisdiction in a justice's court created by general laws under the provisions of article 6 of the Constitution, or that such charter provisions would at all affect the jurisdiction of any such justice's court, whether theretofore or thereafter established. The proposition, as I understand it, is that, when the special charter has provided a police court, it is not competent for the Legislature to charge up

on the city the expenses of any justice's court created by general laws. Whether, in any case, the expenses of such justice's court created under article 6 of the Constitution, could be imposed upon a city operating under a special charter, is a question not decided, and one which does not necessarily arise in this case.

I concur: BEATTY, C. J.

SLOSS, J. I dissent, and think the writ should issue. In my opinion, neither of the amendments of 1896 to article 11 of the Constitution affects the rule declared in Bishop v. Council, 58 Cal. 572, and Jenks v. Council, 58 Cal. 576.

(151 Cal. 474)

CITY OF REDLANDS et al. v. BROOK, City Treasurer. (S. F. 4,775.)

(Supreme Court of California. July 1, 1907.) 1. MUNICIPAL CORPORATIONS-POWER TO ISSUE BONDS-LIGHTING STREETS.

Municipal Incorporation Act 1883 (St. 1883, p. 269, c. 49), § 862, empowers municipal corporations to lay out, alter, improve, etc., streets and other public highways and to drain and light them, etc. Section 866 (page 271) provides that municipal corporations of the sixth class may incur a bonded indebtedness whenever the board of trustees shall deem it necessary to supply a deficiency in the funds applicable to the payment of any expense which they are empowered to incur. Held to give a city power to issue bonds to meet the expense of purchasing electric lighting for streets from a private company and of maintaining the streets and public places.

2. SAME EFFECT OF CURATIVE STATUTES.

Act March 4, 1907 (St. 1907, p. 104, c. 80), to legalize bonds to be issued and sold by municipalities where authority for such issuance had already been given by a vote of more than two-thirds of the electors, operates to legalize such an issue of bonds by a city, although the act under which they were issued had been repealed by implication.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1951.] 3. CONSTITUTIONAL LAW-CURATIVE STATUTES-POWER OF LEGISLATURE.

In the absence of constitutional restrictions, the power of the Legislature to validate past transactions which it could have authorized in advance is restrained only by the necessity of protecting vested rights.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 536.]

4. STATUTES - SPECIAL LAWS CURATIVE STATUTES.

An act to legalize bonds to be issued and sold by municipalities, which embraces all municipal corporations and every case in which not less than two-thirds of the electors voting at a special election called for the purpose have approved the proposed issue of bonds, is not a special law within Const. art. 4. § 25, subds. 14, 18, forbidding special laws giving effect to invalid instruments, or legalizing except as against the state the unauthorized or invalid act of an officer.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, 81.]

5. SAME.

The fact that the law is limited in its application to bonds sold after its passage, and