to public use; that an appeal was taken from the order of the court refusing to grant a new trial, but said appeal was dismissed on May 22, 1885, and the judgment thereupon became final; that on June 14, 1885, this defendant was placed in possession of the premises by the sheriff, and has ever since remained in possession, and erected a valuable building thereon. For further answer, the defendant alleged that he was in actual, open, exclusive, and notorious possession of the premises, claiming in good faith to own the same for many years before any action was taken by the city and county of San Francisco, or the state of California, in the matter of laying out, opening, or dedicating the land in controversy as a public street. At the trial, among other matters, the defendant introduced in evidence the judgment roll in the action of A. B. Smith v. The City and County of San Francisco, commenced September 12, 1877, and the writ of restitution under which the defendant was placed in possession, as alleged in his answer. As one of its findings of fact, the court found that the allegations of the defendant's answer, as to the matters therein set forth with reference to the action brought by Smith (the defendant here) against the city and county of San Francisco, were true, but held that the people of the state were not a party to said action, and that consequently the judgment therein rendered was no bar to this action, and thereupon ordered judgment for plaintiff. This identical question was involved in the recent case of People v. Holladay, 29 Pac. Rep. 54, (No. 13,676, filed February 4, 1892,) and there decided contrary to the views held by the trial court in this case. The judgment being a complete bar to the cause of action, it becomes unnecessary to examine other assignments relied upon. Upon the authority of People v. Holladay, supra, the judgment and order are reversed, and the cause remanded, with directions to enter judgment for the defendant.

We concur: BEATTY, C. J.; DE HAVEN, J.; MCFARLAND J.; SHARPSTEIN, J.

HARRISON, J., being disqualified, did not participate in the foregoing opinion.

(93 Cal. 395)

ROLLINS V. WRIGHT. (No. 13,787.) (Supreme Court of California. Feb. 16, 1892.) TAX-DEEDS-NOTICE OF APPLICATION - EVIDENCE -QUIETING TITLE.

1. In an action to quiet title to lands claimed by plaintiff under tax collector's deeds, where the evidence shows that the tax collector presented the certificates of the sales to the county recorder for filing, and that the recorder received them, but did not mark them "Filed" because no fees were paid him, the certificates must be deemed to have been filed, as such filing is a public duty, for which no fees are provided.

2. Pol. Code, § 3785, as amended in March 1885, so as to require notice of an application for a tax-deed, does not apply where the right to a tax-deed had become absolute before the passage of the amendment.

3. In an action to quiet title to land claimed by plaintiff under a tax collector's deed, plaintiff need not show title in the person to whom the land was assessed before the tax-sale, as under Pol. Code, § 3786, the deed is prima facie evidence of the validity of the assessment.

Commissioners' decision. Department1. Appeal from superior court, city and county of San Francisco; JOHN HUNT, Judge.

Action by William Rollins against John A. Wright to quiet title. From a judg. ment for plaintiff, and from an order refusing a new trial, defendant appeals. Affirmed.

John A. Wright and Arthur Rodgers, for appellant. William Leviston, for respondent.

TEMPLE, C. Appeal from judgment and order refusing new trial. This action is to quiet title to lots in San Francisco. Plaintiff claims under tax collector's deeds, and all the questions in the case are as to the validity of such deeds. There are four tax-deeds,-three based on sales made in 1882 for the assessments made in 1881, for the fiscal year ending June 30, 1882, to A. F. Hinchman; the fourth on a sale made in 1880, for an assessment for the fiscal year ending June 30, 1880. The deeds were read in evidence, against defendant's objections, which were as follows, so far as urged on this appeal: First. The certificates of sale were not filed in the office of the county recorder. Second. No notice of the application for the deeds, under section 3785 of the Political Code, was given. Third. The assessment and sale were not for any fiscal year. Fourth. No title or claim of title was shown in A. F. Hinchman, to whom the property was assessed. And it is further claimed here, although such points were not made in the court below, (1) that defendant is a purchaser for value without notice; and (2) the sale was under a local statute which violated section 25, art. 4, of the constitution, and is therefore void. The respondent contends that the tax-deeds are conclusive upon all these points. Section 3786 of the Political Code provides that the deed shall recite, and that the recitals shall be primary (prima facie) evidence of their truth, eight enumerated facts: (1) The assessment; (2) equalization; (3) tax-levy; (4) non-payment of tax; (5) the property was regularly sold; (6) has not been redeemed; (7) grantor was proper officer to execute deed; and (8) when sold to pay tax on personalty, that owner of the property was liable for the tax. The next section makes the deed "conclusive evidence of the regularity of all other proceedings, from the assessinent by the assessor, inclusive, up to the execution of the deed.” The first of the above sections has the effect, as to matters required to be recited in the deed, to shift the burden of proof, but leaves the owner of the property free to establish by proof that such facts do not exist. As to other matters the deed is made conclusive. We see no valid objection to these provisions. If the property owner held property which was liable to taxation, which had been properly assessed, for a tax duly levied, which had not been paid, but allowed to become délinquent, and the property had been sold as required by law and not redeemed, there is no hardship in providing that he shall not take advantage of mere irregularities, which did not affect his substantial rights, to avoid the effect of his delinquency. The matters which he is expressly authorized to dispute enable him to raise every point essential to a just defense. Justice does not require that he should be entitled to interpose pure technicalities. These stringent provisions were made to enable the state to collect its revenues, and property owners owe the duty to the government to pay taxes when due, and are not deprived of any substantial rights when they are limited in their defense to such matters as show

We

that they do not justly owe the tax. cannot do better than to adopt the language of the supreme court of the United States in De Treville v. Smalls, 98 U. S. 525, upon a similar point: "Besides, all possible attack upon the prima facies of the certificate was limited by the express provisions of the act, which enacted, as before stated, that it should only be affected as evidence of the regularity and validity of sale, by establishing the fact that the property was not subject to taxes, or that the taxes had been paid previous to sale, or that the property had been redeemed. This left to the owner of lands subject to the tax every substantial right. It was his duty to pay the tax when it was due. His land was charged with it by the act of congress, not by the commissioners; and the proceeding ending in a sale was simply a mode of compelling the discharge of his duty. All his substantial rights were assured to him by the permission to show that he owed no tax, that his land was not taxable, that he had paid what was due, or that he had redeemed his land after sale. He was thus permitted to assert everything of substance,-everything except mere irregularities. We do not feel at liberty to disregard the plain intention of the acts of congress. We are not unmindful of the numerous decisions of state courts which have construed away the plain meaning of statutes providing for the collection of taxes, disregarding the spirit and often the letter of the enactments, until of late years the astuteness of judicial refinement had rendered almost inoperative all legislative provisions for the sale of land for taxes. The consequence was that bidders at taxsales, if obtained at all, were mere speculators. The chances were greatly against their obtaining a title. The least error in the conduct of the sale, or in the proceedings preliminary thereto, was held to vitiate it, though the tax was clearly due and unpaid. Mr. Blackwell, in his treatise on Tax Titles, says (page 71) 'that, out of a thousand cases in court, [of tax-sales,] not twenty have been sustained.' To meet this tendency of judicial refinement very many states have of late adopted very rigid legislation. The acts of congress we are considering must have had it in view. Hence the stringent provisions they contain. They declare, in effect, that the certificate of the commissioners' sale shall be evidence of compliance with the preliminary requisites of the sale, and that this evidence shall be rebutted only by proof of one or the other of three specified things. There is no possible excuse for not enforcing such statutes according to their letter and spirit."

If this position be correct, the appellant is not in a position to make his first objection.-that the certificates were not filed by the recorder; but waiving for the time this point, and looking into the evidence, it shows that they must be held to have been properly filed, so far as that fact can affect the rights of the purchaser. It was the duty of the tax collector to present them to the recorder for filing. This he did. The recorder received them, but did not mark them "Filed," because no fees

were paid him. It was a public duty for which no fees are provided. They must be deemed to have been filed. Page v. Rogers, 31 Cal. 307; section 1170, Civil Code; Donald v. Beals, 57 Cal. 399; Tregambo v. Comanche M. Co., Id. 506.

The second point-that no notice was given of the application for the deed, under section 3785 of the Political Code-the defendant is, perhaps, not precluded from making. Whether he is or not need not be decided in this case, for we think no such notice was necessary. Section 3785 was amended, so as to require notice, in March, 1885. Before that no notice was required. Long prior to this amendment the purchaser's right to a deed had become absolute. When the law was amended, the owner had no right to redeem, and the legislature could not deprive the purchaser of his absolute right. Oullahan v. Sweeny, 79 Cal. 537, 21 Pac. Rep. 960, does not hold to the contrary. On the other hand, the intimations are in favor of these views. There the time for redemption had not expired when the amendment took effect, and the court held that it did not have the effect to extend the time for redemption, and said: "It may be assumed, for the purposes of this case, that the leg. islature cannot make an absolute extension of the time." Even if the legislature could do that, it would fall far short of the necessities of this case. Here under the provisions of the statute the time for redemption had fully expired before the amendment, and, if it applies, its effect may be to compel one fully entitled to a deed conveying property worth many thousand dollars to accept in lieu of it a small sum. The cases upon this subject are collected by Cooley in his work on Constitutional Limitations, p. 353. They are not all in accord, but none of them go to the extent requisite to sustain the contention of appellant. The learned author says that "to extend the time for redemption is to alter the substance of the contract, as much as would be the extension of the time for payment of a promissory note." A fortiori would a law give a right to redeem, when, by the law under which the purchase was made, the right to the deed has become absolute.

That

Third, it is claimed that the assessment was not made for any fiscal year. point seems to be the result of pure carelessness. Section 5, art. 20, of the constitution provides that "the fiscal year shall commence on the first day of July.' Of course it would end with the 30th of June.

The fourth point is that no title was shown in Hinchman. No such showing was required. The deed establishes the assessment prima facie. If it were essential to the validity of the assessment that Hinchman should have been the owner, it was incumbent on the defense to negative the fact which had been established by prima facie proof. The defendant was not an innocent purchaser without notice. Reeve v. Kennedy, 43 Cal. 644. As we have seen, the certificates must be deemed to have been filed. If other parties have suffered from the failure of the recorder to do his duty, their remedy must be against

him. The point that the sale was under a local law which contravened section 25, art. 4, of the constitution seems also to be an inadvertence. The law was passed before the constitution was adopted, and not amended until after the tax-sales were made. We think the judgment and order should be affirmed.

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

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

(93 Cal. 401)

FAIRCHILD V. WALL, Street Superintendent. (No. 13,684.)

(Supreme Court of California. Feb. 16, 1892.) MANDAMUS-TO STREET SUPERINTENDENT AWARDING CONTRACT-CITY IMPROVEMENTS.

The Oakland city charter provides that, within 10 days after the first posting and publi cation of an award by the city council for street work, the owners of three-fourths of the abutting lots where the work is to be done, or of the lots which are liable to be assessed for the work, or their agents, may elect to take the work, under a written contract, at the price at which the same has been awarded; and that the superintendent of streets shall, in his official capacity, make all written contracts, receive all bonds, and do all other acts that pertain to the street department. Held, that the superintendent of streets has final discretion in respect to the sufficiency, in number and amount, of the persons to whom the charter gives the right to do the work, and that, after he has entered into a contract with such persons, he cannot be compelled by mandamus to enter into a contract with one to whom the city council has awarded the work.

Commissioners' decision. Department 2. Appeal from superior court, Alameda county; E. M. GIBSON, Judge.

Application of J. A. Fairchild for a writ of mandate to J. S. Wall, superintendent of streets of the city of Oakland, to enter into a contract for street work with plaintiff. From a judgment dismissing an alternative writ of mandate plaintiff appeals. Affirmed.

C. T. H. Palmer, (J. C. Martin and Olney, Chickering & Thomas, of counsel,) for appellant. James A. Johnson and Parker & Eells, for respondent.

FOOTE, C. This action is to obtain a writ of mandamus to compel the defendant to enter into a contract for street work with the plaintiff, to whom, it is claimed, a contract for street work had been awarded by the city council of the city of Oakland, to which tribunal such authority is delegated by the charter of that city. A demurrer was filed to the affidavit upon which an alternative writ of mandate was issued, which reads thus: "Now comes J. S. Wall, superintendent, etc., defendant, and makes return to the alternative mandamus, and demurs to the affidavit upon which the same was issued herein, upon the grounds that the same does not state facts sufficient to constitute a cause of action, or to entitle the petitioner to the relief asked for, or to any relief." The demurrer was sustained, and, the plaintiff declining to amend the affidavit, judgment of dismissal of the alterna

tive writ of mandate, and that the order to show cause be discharged, and that the plaintiff take nothing, etc., and for costs in favor of the defendant, was duly given and made, from which this appeal is taken.

It appears from the affidavit in mandamus that the plaintiff claims to have been awarded a certain street contract by the Oakland city council, and that the superintendent of streets, whose duty it is to enter into such contracts by and on behalf of the city, refuses to do his duty in the premises. It is also stated in the affidavit that the reason assigned by the superintendent why he will not do so is "solely because be, in his official capacity as street superintendent, had already received from other persons, purporting to be the owners of three-fourths or more of the frontage of lots and lands liable to be assessed for said work, the said sum of $67.30, advanced by them to him for payment of said incidental expenses, and had already executed with said persons, as owners, a contract for said work, in which he had fixed the periods of time for beginning and completing the work, and had received from them a bond for said work; and therefore would not perform said acts a second time, except under mandate of a court." The part of the sections of the charter of the city of Oakland under which the authority on the part of the superintendent of streets exists to enter into a contract with owners of frontages of lots and lands upon a street where work is to be done, even after the city council has awarded a contract such as is claimed by the plaintiff to bave been awarded to him by that body, reads thus: "The owners of three-fourths of the frontage of lots and lands upon the street whereon said work is to be done, or of the lots and lands which are liable to be assessed for said work, or their agents, and who shall make oath that they are such owners or agents, shall not be required to present sealed proposals or bids, but may, within ten days after the first posting and publication of said notice of said award, eléct to take said work and enter into a written contract to do the whole work at the price at which the same has been awarded." St. 1889, p. 162. "Sec. 6. The superintendent of streets is hereby authorized, in his official capac ity, to make all written contracts and receive all bonds authorized by this act, and to do any other act, either express or implied, that pertains to the street department under this act," etc. St. 1885, p. 151. The affidavit for the mandamus does not, as we read it, declare that the affidavits mentioned in section 5 of the act of 1889, as amended, (page 162 of those acts,) were not made, nor does it declare anything material, positively, except that three-fourths of the owners, etc., "did not elect to take such work, and enter into a written contract to do the whole work at the prices at which the same had been awarded, or to file with the street superintendent any bond therefor, as required by law in case of such election." The main idea prevalent in the affidavit, and in the argument of the appellant, seems

to be that the street superintendent did not contract with three-fourths of the owners of the frontage of lots and lands on the street where the work was to be done, and that such owners did not elect to do the work; that, as a matter of fact, they did not, in numbers and amount of ownership, as the statute requires, elect to do the work, or enter into a legal contract therefor with the superintendent of streets. Therefore the appellant claims the right, in this proceeding, to show this fact, and thereby to control the action of the street superintendent by mandamus, and force him to enter into a contract, and accept the bond of the plaintiff as the awardee of the contract from the city council.

The position of the defendant seems to be that he has already ascertained the fact that the requisite number of proper owners have elected to do the work, and that he has done his duty under the law, and entered into a contract with them, and cannot legally do as desired by the plaintiff. The rule with reference to the enforcement of the remedy sought here seems to have been announced in the case of Wood v. Strother, 76 Cal. 545, 18 Pac. Rep. 766: "If the determination of the tribunal was intended to be final, it is plain that it cannot be disturbed, either on mandamus, or any other way." The matter to be determined in that case was whether the auditor of the city and county of San Francisco had the right to determine a purely legal question, as a finality; and it was held therein that he did not have such power. 76 Cal. 555, 18 Pac. Rep. 767. In the present instance we do not perceive that the street superintendent had anything to do except to be satisfied that, as a fact, the owners, or their agents, of three-fourths of the frontage on the street where work was to be done elected to do the work ordered on the street on which they fronted; and the section of the statute which gives them this right, before the awardee has any right at all to do the work, has, as we have seen, this provision: "And who shall make oath that they are such owners or agents," who shall elect to do the work. We can see no useful purpose for this clause, unless it be to enable the street superintendent to determine, as a fact, that the persons applying to elect to do the work are the persons who are entitled, under the law, to do it. It would appear that such a requirement is useless, unless it at least is intended to afford the means of ascertaining this fact; and, as an officer is presumed to do his duty, we do not see any sound reason why such a thing may not be confided to his discretion, as a finality. The street superintendent has nothing to do with the awardee of the contract until the "owners or agents" have failed to elect to do the work. All that he can do, in the first instance, is to enter into a contract with those whom the law gives the right to elect to do the street work, and before doing this he is to satisfy himself, from the affidavits required, that they are the owners or agents, sufficient in number or amount to authorize them to do the

PEOPLE V. MCNULTY. (No. 20,659.) (Supreme Court of California. Feb. 19, 1892.) CRIMINAL LAW-SENTENCE-INCREASING PUNISHMENT-CONSTITUTIONAL LAW.

1. Pol. Code, § 329, providing that "the repeal of any law creating a criminal offense does not constitute a bar to the indictment or information and punishment of an act already committed in violation of the law so repealed, unless the intention to bar such indictment, information, or punishment is expressly declared in the repealing act," is a general saving clause; and under it a person who has been convicted of an offense must be punished under the law as it existed at the time of the commission of the offense, though the clause of the act prescribing the punishment has since been repealed by an amendment which increases the punishment.

2. Act March 31, 1891, increasing the punishment for murder in the first degree, is constitutional when construed with Pol. Code, § 329, as it is thereby rendered inapplicable to past offenses, and prospective only in its operation.

HARRISON and DE HAVEN, JJ., dissenting. 28 Pac. Rep. 816, modified.

On rehearing. For former reports, see 26 Pac. Rep. 597, and 28 Pac. Rep. 816.

MCFARLAND, J. The appellant was convicted of murder in the first degree, and sentenced to suffer the penalty of death; and from the judgment and an order denying a new trial he appealed to this court. This court examined and considered all the points made on the appeal, determined that no error had been committed at the trial, and ordered the judgment affirmed. 26 Pac. Rep. 597. Afterwards, however, and before the remittitur went down, upon the suggestion of a difficulty caused by amendments of the law concerning the death penalty which had been enacted by the legislature after the conviction of the appellant, the judgment of affirmance was set aside, and an argument ordered as to the effect of said amendments. The amendments, if constitutional, repealed the former law upon the subject, and contained no express saving clause by which past offenses might be punished under the law as it stood at the time of their commission. But under the authority of the recent decision of the supreme court of the United States in Medley, Petitioner, 134 U. S. 160, 10 Sup. Ct. Rep. 384, the change made by said amendments in the punishment was so material as to render it as against appellant ex post facto, and void under the constitution of the United States; and as the amendments, if constitutional, repealed the former law, there seemed to be no

means left by which the appellant could be punished. The main question, therefore, before the court on the first argument was whether the amendments were not unconstitutional in toto, and thus inoperative as a repeal of the former law; and a majority of the court reached the conclusion, upon the views then presented, that it was so unconstitutional, and therefore left the law as it stood before the attempted repeal. The question, however, was of such importance that a majority of the court ordered a rehearing and a reargument. The opinions of both the majority and minority of the court, on the first hearing of the question, were based upon the assumption that the amendment under review stood entirely without a saving clause, either in the amendinent itself or in the general statutory law. Since the rehearing was granted, our attention has been called, for the first time, to section 329 of the Political Code, as constituting a saving clause fully covering the said amendments; and, if it does constitute such a saving clause, then the question presents an entirely different aspect. In that event the legislature could not be held as either intending the new law to apply to past offenses, or as intending to allow past offenders to escape; but, construing the new law as passed with the knowledge and in the light of the permanent saving clause existing in the general body of the law, it is clearly constitutional as to future crimes, while it leaves past offenses to be punished under the law as it was when the offenses were committed. It is quite clear that a general saving clause, if it be clothed in apt language to express the purpose, is as efficient as a special clause expressly inscrted in a particular statute. This proposition is too plain to need the support of authorities; but there are authorities directly to the point. People v. Quinn, 18 Cal. 121; U. S. v. Barr, 4 Sawy. 254; Jordan v. State, 38 Ga. 585; Volmer v. State, 34 Ark. 487; Acree v. Com., 13 Bush, 353; State v. Shaffer, 21 Iowa, 486; State v. Ross, 49 Mo. 416. In the statutory law of a number of the states there is a general saving clause intended to prevent the miscarriage of justice in cases where the legislature should repeal or substantially change a penal statute, and neglect to put a special saving clause into the new enactment. Congress has enacted such a general saving clause, which is found in section 13 of the Revised Statutes; and when applying it, in U. S. v. Barr, supra, the United States district court explains the purpose and effect of such a provision as follows: "This section 13 is a salutary provision, and if it, or something like it, had always been incorporated in the statutes of the states and the United States, it would have prevented many a lame and impotent conclusion in criminal cases, in which the defendant escaped punishment because the legislature, in the hurry and confusion of amending and enacting statutes, had forgotten to insert a clause to save offenses and liabilities already committed or incurred from the effect of express or Implied repeals." The said section 13,

"

and the saving clauses in the legislation of the various states which have enacted them, are all somewhat different from each other, and from section 329 of our Political Code; but they all have the same general purpose, viz., to prevent the mischief mentioned by the United States district court as above quoted, and the language employed in each of them should be construed in the light of that purpose. Some examples of saving clauses in other states are as follows: In Georgia the language employed is: "All crimes and offenses committed shall be prosecuted and punished under the laws in force at the time of the commission of such crime or offense, notwithstanding the repeal of such laws before such triaì takes place.' In Arkansas the language is: "When any criminal or penal statute shall be repealed, all offenses committed or forfeitures incurred under it while it was in force shall be punished or enforced as if it were in force, notwithstanding such repeal, unless otherwise expressly provided in the repealing statute." And in Iowa the language is: "The repeal of a statute does not revive a statute previously repealed; nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed." These examples are sufficient to show the main purpose in view, and the variety of language used to express it.

Section 329 of our Political Code is as follows: "The repeal of any law creating a criminal offense does not constitute a bar to the indictment or information and punishment of an act already committed in violation of the law so repealed, unless the intention to bar such indictinent, information, or punishment is expressly declared in the repealing act." Now, the impression which a first reading of this section naturally leaves upon the mind of the reader is that it is substantially the same as the saving clauses in other states to which we have alluded; and closer inspection of the language used, and full consideration of the objections made to it by appellant, only make that first impression stronger and surer. The stress of appellant's argument is upon the words "law creating a criminal offense;" and the contention is that a law repealing the punishment of an offense is not to be brought within the meaning of a law repealing a law "creating" an offense. (We do not deem it necessary to here quote in full the old and the new law upon which the question under discussion arises. It is sufficient to say that, when appellant committed the crime of which he was convicted, certain sections of the Penal Code provided for the death penalty; and that afterwards, on March 31, 1891, the legislature passed an act by which it amended and re-enacted those sections, and in the sections thus re-enacted provided for what is admitted to be a different and more severe punishment. The sections of the Penal Code which define murder were not changed. The most important sections of the Penal Code thus changed are sections 1217, 1227, and 1229, and the act