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cution, though such statute authorizes it to under the act of April 15, 1880 (St. 1880, p. sue and be sued.

62, c. 69). A consideration of the provisions [Ed. Yote.--For cases in point, see Cent. Dig.

of that act, in connection with the previous vol. 2. Agriculture, $$ 7, 8.]

legislation on the subject of agricultural so2. LIMITATION OF ACTIONS ACTIONS - FRAUD - Com

cieties, the provisions of the Constitution of PLAIXT.

The complaint in an action to vacate a 1879, and the subsequent legislation concernjudgment because of fraud in not interposing a ing corporations of the character of the decertain defense does not show a right to more

fendant corporation, clearly shows that the than three years for bringing it, under Code ('iv. l'roc. 8 338, subd. 4, providing that the limita

association is a public corporation engaged tion of three years for relief from fraud does not in carrying on one of the objects committed to begin to run till discovery of the facts constituting the fraud, by the mere allegation that the In 1839 a yeneral law was enacted authorizing

the state government by the Constitution. failure to interpose the defense was not discovo ered till within two months before commence

the formation of local agricultural societies. ment of the action to set aside the judgment;

St. 1839, p. 104, c. 110. Under this act, prior no reason for failure to make the discovery be

to 1880, some 12 societies were formed in vaing given, and it not being stated that any diligence was exercised, or that with reasonable rious parts of the state. Among them was diligence the discovery would not have been one in San Joaquin county, known as the marley sooner.

"San Joaquin Valley Agricultural Associa[Ed. Yote.--For cases in point, see Cent. Dig.

tion.” In 1854 the “California State Agricul. vol. 33, Limitation of Actions, $ 668.)

tural Society" was incorporated by the LegDepartment 1. Appeal from Superior islature. Neither this corporation, nor any Court, San Joaquin County; Paul W. Ben

of the societies formed under the act of 1859, nett, Judge.

was a public corporation, or, at all events, Action by the people, on the relation of

neither of them was a state institution, or Fred J. Post and others, against the San

under the control and management of the Joaquin Valley Agricultural Association and

state, but were either private corporations, or others. From a judgment sustaining a de

quasi public corporations formed to promote murrer to the complaint, plaintiff appeals.

an object in which the general public was inReversed and remanded.

terested and by which the public would be Rehearing denied; Beatty, C. J., dissent

benefited, but for the profit and emolument of

the persons interested therein. Melvin v. U. S. Webb, Atty. Gen., Aug. Muenter, and State, 121 Cal. 19, 53 Pac. 416. Under the Aug. E. Muenter, for appellant. Nicol & Orr Constitution of 1849, the legislative power to and Budd & Thompson, for respondents. appropriate money directly to such institu

tions, and to authorize counties to give them SHAW, J. The court below sustained a pecuniary assistance, was unfettered. It bedemurrer to the complaint, and thereupon came customary at every session of the Legisgave judgment in favor of the defendants, lature to pass laws appropriating money to from which the plaintiff appeals. By the ac- the State Agricultural Society and to each tion the plaintiff seeks to recover from the of the several subordinate societies organized defendants R. W. Russell, Louis Gerlach, under the act of 1859. Appropriations of this James H. Budd, M. A. Moore, Lotta Moore, character were made to the San Joaquin Valand Nellie E. Jordan the possession of certain ley Agricultural Association aforesaid in the tracts of land, and to set aside a judgment years 1861, 1863, 1872, and 1878. St. 1861, rendered in favor of defendants Louis Ger- p. 107, c. 385; St. 1863, p. 522, c. 318; St. lach, R. W. Russell, James H. Budd, and M. 1871-72, p. 442, c. 333; St. 1877–78, p. 332, C. A. Moore against the defendant, the San Joa- 271. The Legislature at almost every session quin Valley Agricultural Association. The from 1860 to 1872 also authorized the county relators are members of said association and of San Joaquin to donate money to said socithe action is prosecuted for said association's ety. Similar aid was authorized to other socibenefit to restore to it the possession of the eties in other counties. In 1853 San Joaquin land and to relieve it from said judgment. county was authorized to issue its bonds to The defendants in possession of the land hold the amount of $20,000, and give or loan the it under a sheriff's sale and deed, made in the money thus raised to that society (St. 1863, enforcement of an execution issued upon the p. 7, c. 4), and in 1865 a special tax was aujudgment. The plaintiff claims that the as- thorized to pay these bonds. sociation is a public corporation created for This was the situation when the present the local administration of a part of the Constitution was framed and adopted in 1879. affairs of the state, and that, as such, its Article 4 of this Constitution contains radproperty is not subject to execution, unless ical measures concerning such legislation. made so by statute, that there is no such Section 22 provides that "no money shall statute, and, hence that the sale and deed ever be appropriated or drawn from the state aforesaid are void. As to the judgment, the treasury for the use or benefit of any corclaim is that it was procured by actual and poration, association, asylum, hospital, or any constructive fraud on the part of the judy- other institution not under the exclusive manment plaintiffs, extrinsic and collateral to agement and control of the state is a state the action in which it was given.

institution, nor shall any grant or donation 1. The association is a corporation formed of property ever be made thereto by the state." Certain exceptions were made rela- known as agricultural associations (St. 1880, tive to the support of orphans which are im- p. (.2, c. 09). In many respects these statutes material to the present discussion. Section were similar, and both were obviously pass29 was as follows: "The general appropria- ed to carry out the same public policy and tion bill shall contain no item or items of achieve the same general result. The generappropriation other than such as are required al purpose of the first-mentioned act is shown to pay the salaries of the state officers, the ex- by the duties enjoined on the state board, penses of the government, and of the institu which were "to collect and disseminate all tions under the exclusive control and man- kinds of information calculated to educate. agement of the state.” Section 31 took from and benefit the industrial classes, develop the the Legislature the power to give, lend, or resources, and advance the material interests authorize the giving or lending of the state's of the state," and to obtain and publish "such credit, or that of any county, city, and coun- suggestions and recommendations as experity, city, or township, or other political corpo- ence and good policy may dictate for the inration or subdivision of the state, in aid of provement and advancement of the agriculturor to any person, association, or corporation, al and kindred industries." The general municipal or otherwise, or to pledge the cred- | purpose of the district associations was deit thereof in any manner whatever, for the clared in the latter act to be “the improvepayment of the liabilities of any individual, ment of the material industries of the state." association, municipal, or other corporation In every legislative year thereafter, until whatever, or to make or authorize the making, 1903, the general state appropriation act has of any gift of any public money or thing of contained items appropriating from the state value to any individual, municipal or other treasury various sums of money to the State corporation whatever. These limitations di- Agricultural Society thus constituted, and to vested the Legislature of all power to make each of the several district agricultural assoappropriations of money to any private or qua- ciations that became organized under the si public corporation or to make any gift to any act here involved. In 1895 the items relatmunicipal or public corporation not under the ing to these district agricultural associations exclusive control and management of the state. were vetoed by the Governor. The LegislaIt also deprived the Legislature of the power ture of 1903, and succeeding Legislatures, to authorize counties to make donations, or have, perhaps wisely, refused to appropriate gifts or pledges of credit to such associa- inoney for these associations. tions. The Constitution does not give to any

In the case of selvin v. State, supra, it department of the state governnient any pow

was held that the State Agricultural Society, er whatever to engage in private business or

as incorporated by the act aforesaid, was enterprise or to manage and control private

neither a private nor quasi public corporacorporations or quasi public corporations for

tion, but was a public corporation, an agency private profit, although such corporations may of the state to carry out one of the functions, be carrying on enterprises or performing

of the state government, and that as such, functions which are for general public bene

in the absence of a permitting statute, it was fit and which tend to promote the general

not subject to suit by a private person. It welfare. Our state government has no such

was said in the opinion that the Legislature

of

such public corporations in section 1 of article general welfare in that manner or by that

, ,

general diffusion of knowledge and intelligence governmental powers, and by means of agencies which constitute part of the state govern

being essential to the preservation of the

rights and liberties of the people, the Legisment. These previously existing societies formed no part of the state government, and

lature shall encourage by all suitable means

the promotion of intellectual, scientific, morhence further aid to them by appropriations

al, and agricultural improvement.” Whether of money from the state was impossible.

this provision was intended to give this Under these circumstances, and for the

power or not, it is undoubtedly within the manifest purpose of creating such agencies to

power of the state to organize and carry on carry on the same public work, agencies to

such institutions. In the opinion in Re Mawhich money could be appropriated from

dera Irr. Dist., 92 Cal. 313, 28 Pac. 275, 1+ the state treasury by the Legislature, the next

L. R. A. 755, 27 Am. St. Res. 106, the court succeeding Legislature in 1885 enacted two

says: "Whatever tends to an increased proslaws, one declaring the state agricultural so

perity of one portion of the state, or to prociety to be a state institution, organizing the mote its material development, is for the state board of agriculture and charging it advantage of the entire state; and the right with the exclusive management and control

of the Legislature to make provision for deof the state agricultural society as a state in- veloping the productive capacity of the state, stitution (St. 1880, p. 19. c. 00),' the other, the or for increasing facilities for the cultivatact here in question, dividing the state into tion of its soil according to the requirements 11 agricultural districts, to be composed of of the different portions thereof, is upheld by certain named counties, and providing for the its power to act for the benefit of the peoorganization of corporations therein, to be ple in affording them the right of 'acquiring.

powers. It is not organized to promote the found ample authority for the organization or means, but only by and through its public 9 of the Constitution, which declares that, “a

possessingand protecting the property,' , persons, representing a majority of the counwhich is guaranteed to them by the Constitu- ties within one of the districts, were authortion." And again, on page 315 of 92 Cal., ized to form an association for the purposes on page 270 of 28 Pac., 14 L. R. A. 753, 27 of the act. The association was to have perAm. St. Rer. 106: “The means by which the petual succession and certain enumerated Legislature may exercise this power is left powers. Its real estate was to be used for to its own discretion, except as it may be the purpose of holding exhibitions of the live limited by the Constitution. * * * It may, stock and products of the district, "with view too, by general law's, authorize the inhabit- to the improvement of all industries in the ants of any district, under such restric- same." It was to be managed by a district tions, and with such preliminary steps as board of agriculture, consisting of eight it may deem proper, to organize themselves members, who were to be resident citizens into a public corporation, for the purpose of of the district, were to hold office four years, exercising those governmental duties, upon and were to be appointed by the Governor the same principle that it authorizes the in- of the state, who was also authorized to corporation of any municipal corporation fill vacancies. Each member of such boards under general laws." And again (page 317 was required to qualify by taking the oath of 92 Cal., page 276 of 28 Pac., 14 L. R. A. of office of public officers prescribed by sec755, 27 Am. St. Rep. 106): “Although in this tion 3 of article 20 of the Constitution withstate the Legislature is required to provide in 10 days after his appointment. Section such agencies under general laws, it is au- 17 (page (1) of the act is in part as follows: thorized, under its general power of legisla- | "Each association so formed and organized tion, to invest such corporations, when creat- is hereby declared and shall be recognized a ed, with the same powers which, without | state institution, and the board so appointed such restriction, it could itself have exercis- and qualified shall have the exclusive control ed; and in providing for such organizations and management of such institution for and it need confer upon them only such powers. in the name of the state, and shall have the as in its judgment, are proper to be exercised possession and care of all the property of the by them in the discharge of the particular association and shall fix the terms of office functions of government which may be con- and the bonds of the secretary and treasurer, ferred upon them. Being the representatives and determine their salary and duties.” The of the Legislature in the various localities Legislature in subsequent acts assumed to of the state the requirements for organiza- exercise full power over these associations. tion, as well as the powers to be exercised, The original act designated the counties of vary with the character of the purpose for San Joaquin, Calaveras, Fresno, Kern, Verwhich they may be created." The carrying ced, Mariposa. Stanislaus, Tulare, and Tuolout of the purposes prescribed by these stat- umne as "Agricultural District No. 2." By utes regarding agricultural associations is a subsequent acts the district has been chang. matter of general public interest, and would ed and reduced, and in 1893 it was made to tend to increase the productive power of the consist of San Joaquin county alone. St. land, the growth of the state in population, 1893, p. 292. The number of districts in the and the wealth of the people. It is as much state has been increased from time to time, a matter of state concern as are school dis- until there are now 45. St. 1901, p. 301, c. tricts formed to carry on the public schools, 142. In 1891 a new statute was enacted, sanitary districts for the protection and pres- substantially the same as that of 1880, deervation of the health of the inhabitants claring that all associations formed under thereof, reclamation and levee districts to the previous act should be continued in force drain the swamp lands therein or to protect and made associations under the new act. them from overflow, or irrigation districts St. 1891, p. 138, c. 126. In 1897 a similar act to procure and distribute water for irriga- was enacted, and the previously established tion of lands within their limits, all of which associations were continued in force and have been declared to be public corporations made agricultural associations under the or agencies of the state. See cases herein- latter act. This statute also provided that after cited. Although some of these institu- such associations should have the option of tions may be authorized by express provi- converting themselves into stock companies sions of the Constitution, all are not so au- anıl issuing certificates of stock. St. 1897, p. thorized, and the power to create such agen- 304, c. 123. It does not appear that the decies to carry on such operations exists in the fendant association has ever availed itself governinent of the state without a more par- of this privilege. If it had done so, interest. ticular constitutional grant than those em- | ing questions would

ing questions would arise concerning its braced in section 1 of article 4. In re Ma- status and its character as a corporation dera Irr. Dist., 92 Cal. 307. 28 Pac, 272, 14 L. which are not presented as the case stands. R. A. 755, 27 Am. St. Rep. 106.

All these considerations conclusively demThe provisions of the act providing for onstrate that these associations are public district agricultural associations clearly agencies of the state, within its exclusive evince an irtention to make them public management and control, and charged with corporations. The entire state was divided the performance of a part of the functions of into agricultural districts. Fifty or more the state government. Such corporations in

this state have always been held to be public corporations. Dean v. Davis, 51 Cal. 410; People v. Reclamation Dist., 53 Cal. 348; People v. Williams, 56 Cal. 617; People v. Larue, 67 Cal. 528, 8 Pac. 84; People v. Reclamation Dist., 117 Cal. 119, 48 Pac. 1010; S. F. Sav. Union v. Reclamation Dist., 141 Cal. 613, 79 Pac. 374; Hoke v. Perdue, 62 Cal. 516; l'eople v. Levee Dist., 131 Cal. 30, 63 Pac. 676, holding reclamation districts and levee districts to be public corporations; Hughes v. Ewing, 93 Cal. 417, 28 Pac. 1067; Estate of Bulmer, 59 Cal. 131; Kennelly v. Miller, 97 Cal. 432, 32 Pac. 558, declaring school districts to be public corporations; Turlock I. D. v. Williams, 76 Cal. 368, 18 Pac. 379; Irrigation Dist. v. DeLappe, 79 Cal. 333, 21 Pac. 823; People v. Selma, etc., Dist., 98 Cal. 208, 32 Pac. 1047; Crall v. Poso Irr. Dist., 87 Cal. 145, 26 Pac. 797; People v. Turnbull, 93 Cal. 632, 29 Pac. 2:24, holding irrigation districts to be public corporations; In re Werner, 129 Cal. 567, 02 Pac. 97, declaring sanitary districts to be public corporations. These institutions are public corporations “formed for the government of a portion of the state" as defined in section 281 of the Civil Code, but, as is pointed out in Dean v. Davis, supra, “to constitute a public corporation, it is not essential that it shall exercise all the functions of government within. the prescribed districts. * It is but an instrumentality of the state, and the state incorporates it that it may the more effectually discharge its appointed duty." See, also, Dillon on Mun. Corp. $ 25.

The case of Downing V. Indiana State Board of Agriculture, 129 Ind. 113, 28 X. E. 123, 614, 12 L. R. A. 661, holding that institution to be a private corporation, is cited as opposed to these views. There is, however, a marked distinction between the laws of Indiana organizing that corporation and our statutes and constitutional provisions above referred to. There was in that case no necessity for making the institution a public corporation in order to authorize the making of appropriations to carry on the same. And the intention that it should be a public corporation under the management and control of the state was not manifested by the provisions of the statute there under consideration as it is by the terms of our statute. The property of such corporations or stage agencies, wbich is used to carry on the purposes for which such institutions are formed, is so far public property that it cannot be taken in execution and sold thereon to enforce payment of a judgment, unless the state has manifested its assent thereto by a law permitting it to be done. S. F. Say. Union v. Reclamation Dist., 144 Cal. 618, 79 Pac. 374; Hensley v. Reclamation Dist., 121 Cal. 96, 33 Pac. 101; Skelly v. School Dist., 103 Cal. 0.32, 37 Pac. 613; Emeric v. Gilman, 10 Cal. 410, 70 Am. Dec. 742; Mayrhofer v. Board, 39 Cal. 110, 26 Pac. 646, 23 Am. St. Rep. 51; Witter v. School Dist., 121 Cal. 350, 53 Pac.

905, 66 Am. St. Rep. 33; Whittaker v. Tuolumne, 96 Cal. 100, 30 Pac. 1016; Reclamation Dist. y. Sacramento, 134 Cal. 480, 66 Pac. 668; Ruperich v. Baehr, 142 Cal. 193, 75 Pac. 782; Gilman v. Contra Costa, S Cal. 58, 68 Am. Dec. 290; Ilunsaker v. Borden, 5 Cal. 290, 63 Am. Dec. 130; Sharp v. Contra Costa County, 34 Cal. 290; Hart v. Burnett, 15 Cal. 583; 1 Dillon, Mun. Corp. $ 100; 2 Dillon Mun. Corp. 576, 577.

The statute under which these associations were organized provides that they may sue and be sued. This, however, does not imply that the public property which such association holds and uses for the public purposes which it was created to serve can be seized on execution to pay a judgment recovered in such suit. This is abundantly shown by the authorities last cited. The complaint alleges that the real property in question has always been used by the defendant association for the purpose of holding the exhibitions which the association is required to hold annually by the provisions of the statute, and that it is needed for permanent use for that purpose. By the demurrer this allegation is admitted to be true. It follows that the property was not subject to execution; that the sale and sheriff's deed under which defendants claim title and possession are void; that plaintiff is entitled to recover possession; and that, as to this point, the demurrer was improperly sustained.

2. The right of action of plaintiff to vacate the judgment against the association on the ground that it was procured by fraud is barred by the statute of limitations. The date on which the judgment sought to be set aside was rendered does not expressly appear, but it is alleged that an execution was issued thereon on the 3d day of October, 1900, and consequently it must have been rendered prior to that date. The present action to set aside the judgment was begun on July 14, 1.905, four years and nine months after the execution was issued. By subdivision 4 of section 338 of the Code of Civil Procedure, an action for relief on the ground of fraud must be begun within three years, but the period of limitation does not begin to run until the discovery of the facts constituting the fraud. It is alleged that the failure of the district board of agriculture of district No. 2 to allege, in their answer in the action in which the judgment was rendered, certain facts which it is claimed would have constituted a good defense to said action, was fraudulent, and that it was by means of this fraudulent neglect that the judgment against the association was obtained. The attempt was made to bring the action within the period of limitation above mentioned by the bare averment that the failure to include the socalled defense in the answer "was not discovered by the plaintiff, or the said relators, or any of them, until within two months next before the commencement of this action." This is not a sufficient allegation to excuse the delay. It gives no reason for the failure to make the discovery, and does not starte that any diligence had been exercised, nor does it show that, if reasonable diligence had been exercised, it would not have been discovered sooner. The answer in the action was filed on May 23, 1899, so that the act constituting the fraud, if fraud it was, was actually committed at that time, which was more than six years before the present action was hegun. “It is not enough to assert merely that the discovery was not sooner made. It must appear that it could not have been made by the exercise of reasonable diligence. And that which reasonable diligence would have disclosed plaintiff is presumed to have known; means of knowledge in such a case being the equivalent of the knowledge which it would have produced.” Truett v. Onderdonk, 120 Cal. 589, 53 Pac. 29. “ 'Discovery' and knowledge are not convertible terms, and whether there has been a "discovery of the facts constituting the fraud, within the meaning of the statute of limitations, is a question of law to be determined by the court from the facts pleaded. As in the case of any other legal conclusion, it is not sufficient to make a mere averment thereof, but the facts from which the conclusion follows must first be pleaded. It is not enough that the plaintiff merely aver that he was ignorant of the facts at the time of their occurrence and has not been informed of them until within the three years. He must show that the acts of fraud were committed under such circumstances that he would not be presumed to have any knowledge of them, as that they were done in secret or were kept concealed; and he must also show the times and circumstances under which the facts constituting the fraud were brought to his knowledge, so that the court may determine whether the discovery of these facts was within the time alleged.” Lady Washington Co. v. Wood, 113 Cal. 186, 45 Pac. SOS.

For these reasons, we are of the opinion that so far as the action seeks to obtain a vacation of the judgment referred to it is barred by the statute of limitations.

The judgivent is reversed, and the cause remanded.

tiffs were the owners thereof, is that they were tenants in common. 3. DAMAGES-PLEADING.

The averment that the loss of plaintiffs by the destruction of the property was a certain sum is the equivalent of the allegation that they were damaged in said sum. 4. NEGLIGENCE-SUFFICIENCY OF EVIDENCESETTING FIRES.

Evidence as to time and circumstances of setting fire on defendant's land, which spread to plaintiffs' land, held sufficient to authorize a finding of negligence in starting it.

[Ed. Note.-For cases in point, see Cent. Dis. vol. 37, Negligence, § 267.) 5. APPEAL-HARMLESS ERROR.

Error in admitting evidence is harmless : other evidence to the same effect having been admitted without objection.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Appeal and Error, $ 4161.) 6. PLEADIXG-ANSWER-ISSUE AS TO VALUE.

No issue as to the value of the property destroyed is raised by the pleadings; the complaint being verified and specifically alleging the value of each article, and the answer, which denied that plaintiffs were the owners of the property or that fire destroyed it, or that defendant was guilty of any negligence, containing no other denial as to the amount of damages than that "defendant denies that the loss of plaintiffs, by reason of the destruction of the property described in sa id complaint as therein alleged, was $1,025," and not denying that it was of any sum less than that. 7. NEGLIGENCE-PROXIMATE CAUSE-INSTRUCTIONS.

There being evidence that the fire set by defendant on its premises was communicated to plaintiff's land by a sudden whirlwind, which defendant could neither anticipate nor control. it was entitled to the instruction, based on the doctrine of liability only for negligence which is the proximate cause of the injury, that, if it was impossible for defendant to have prevented the fire from getting beyond its control, owing to the sudden rising of the wind after the fire was set', defendant would not be liable, provided due care was taken before the fire was set. 8. APPEAL-RECORD-INSTRUCTIONS.

An instruction appearing in the transcript not authenticated or incorporated in the bill of exceptions, and being no part of the judgment roll, and, moreover, printed only as a part of instructions “requested” by plaintiffs, cannot be considered as having been given, and so covering an instruction requested by defendant and refused. 9. TRIAL-INSTRUCTIONS-PREPONDERANCE EVIDENCE.

An instruction : "By preponderance of the evidence is not necessarily meant a greater number of witnesses, but only such weight of evidence as satisfies the jury of the truth of the allegation to be established"--is sufficient, though Code Civ. Proc. $ 1835, provides that only evidence which satisfies the "unprejudiced" mind will justify a verdict.

Appeal from Superior Court, Colusa County; H. M. Albery, Judge.

Action by W. N. McVay and another against the Central California Investment Company. Judgment for plaintiffs. Defendant appeals. Reversed.

Morrison & Cope and Ernest Weyland, for appellant. Seth Millington, J. W. Goad, and Thomas Rutledge, for respondents.

We concur: SLOSS, J.; ANGELLOTTI, J.

(6 Cal. App. 184) McVAY et al. v. CENTRAL CALIFORNIA

INV. CO. (Civ. 349.) (Court of Appeal, Third District, California.

July 31, 1907.) 1. NEGLIGEXCE-COMPLAINT-IDENTIFYING DESTROYED PROPERTY.

The complaint for negligent destruction of property by fire from defendant's land sufficiently identifies the property by describing it and locating it at the time of the fire on lands owned by plaintiffs in a certain township and county and adjoining defendant's land. 2. PLEADING-PRESUMPTION.

The presumption, from the allegation of a complaint for destruction of property, that plain

BURNETT, J. The nature of the action is shown by the following allegation of the coni

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