101 P. 419 | Cal. Ct. App. | 1909
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *118
Petitioner was, on August 3, 1908, complained against for a misdemeanor in violating an ordinance of the county of Lassen requiring a license to be paid for raising, grazing, herding and pasturing sheep and lambs within said county; a warrant of arrest was issued by a justice of the peace and was duly served by arresting the defendant (petitioner here) and bringing him into the magistrate's court on said day, whereupon he was committed to the custody of the sheriff of Lassen county "pending the calling of his case for trial" and was by the sheriff taken into custody. Petitioner thereupon, to wit, on August 5, 1908, presented his petition to this court, alleging his imprisonment under said commitment, and the writ was ordered to issue directing the sheriff to produce the prisoner and have him in court on August 14, 1908, "and that in the meantime said petitioner be released on bail in the sum of $100.00 cash." In his return the sheriff states that petitioner was committed to his custody by virtue of the commitment and was detained by virtue thereof; "that upon the service of said writ the said L. L. McCoy was admitted to bail in the sum of $100.00 cash as ordered by said writ, and that since such time the said L. L. McCoy has not been in, and is not now by me imprisoned or detained." The matter came on to be heard on August 14, 1908, and was fully argued. It appearing, however, that the issues presented were such as to require evidence to be taken the court accordingly so ordered and appointed a commissioner for that purpose. The further hearing was continued until October 31, 1908. Meantime, the commissioner, without objection of respondent, proceeded to take testimony, of which there are several hundred pages, and many exhibits. For the first time, at the hearing, October 31st, the point was made by respondent that the case is moot and the writ must be dismissed. Citing Ex parte Schmitz,
Section 1 of Ordinance No. 82, passed January 11, 1908, by the Lassen county board of supervisors, for the violation of which the petitioner was arrested, provides that "Every person, association, firm or corporation engaged or engaging in the business of raising, grazing, herding or pasturing sheep or lambs within the county . . . must annually, at the time of engaging in said business each year, procure a license therefor from the license tax collector of said county, and must file the affidavit hereinafter provided for and pay a license fee or charge of five cents for each sheep or lamb raised, grazed, herded, or pastured within Lassen County by such person. . . ." Section 2 provides that in order to procure the license the person must file with said license tax collector, with the. application, an affidavit showing the number of sheep and lambs then or thereafter to be raised, grazed, herded or pastured within said county; whether said sheep or lambs are or have been infected with scab or any other infectious or contagious disease, and if so, when and where they were located when so infected; the portion of the county in which they are to be grazed, etc., during the current year; whether the applicant has previously raised, herded, grazed or pastured *121
sheep or lambs in said county, and, if so, in what part thereof; when, where and by whom said sheep and lambs have been "dipped"; when the applicant will engage in said business in said county. If it appears from said affidavit that such sheep or lambs are suffering from an infectious or contagious disease, the tax collector must refuse to issue such license, otherwise he shall, upon payment of the fee above provided for, issue the license. Section 3 provides that the collector may, whenever he may deem it expedient, verify the statements made in the affidavit, "in such manner as he may deem best," and if he finds that any false statements have been made in the affidavit, he must report the same to the district attorney, "and the cost of making such examination and investigation shall be a county charge to be allowed as other claims against the county." Section 4 provides that every applicant for a license must, upon demand of the license collector, corral or confine his sheep and lambs in such manner as to enable the license collector to make said examination, "and any person . . . refusing to comply with such demand will be guilty of a misdemeanor." Section 5 makes it the duty of the collector to file and examine all affidavits for licenses and to collect the license fee. Section 6 makes it "unlawful for any person . . . to bring within said County of Lassen any sheep or lambs known to be suffering from any infectious or contagious disease." Section 7 makes it unlawful for "any person . . . engaged in said business of raising . . . sheep or lambs within the county of Lassen to allow or permit the dead body of any sheep or lamb owned, controlled or possessed by them to remain within five hundred yards of any public highway or inhabited dwelling or running stream of water within said county," and it is made the duty of such person to bury or otherwise dispose of the carcass of such sheep or lamb. Section 8 makes it unlawful for any person ". . . to corral or allow their sheep or lambs to rest or remain on any public highway within said county of Lassen." Section 9 makes it "unlawful for any person . . . to erect or maintain sheep corrals, or tanks or other appliances used for the purpose of dipping sheep or lambs within two hundred yards of any public highway . . . or within one-half a mile of any public school building, village or town in said county." Section 10 makes it "unlawful for any person . . . to herd, *122
graze or pasture sheep or lambs on or over the public highways in said county." Section 11 makes it "the duty of every person . . . engaged in the business mentioned in this ordinance in Lassen County to carry on or conduct said business in such a manner as to cause no injury or damage to any public road or highway . . . that can without inconvenience and without great cost be avoided." Section 12 makes it "unlawful for any person . . . engaged in the business mentioned in this ordinance to drive more than one hundred sheep or lambs at one time on any bridge maintained by said County of Lassen upon any public highway therein." Section
This ordinance was passed pursuant to and, as claimed by respondent, agreeably to the power given to the board of supervisors by subdivision 22, section 4041, of the County Government Act of 1907 (Stats. 1907, at p. 370). See, also, section 3366 of the Political Code (Stats. 1901, p. 635). The power granted to boards of supervisors, by the act of 1907, is: "To license, in the exercise of their police powers, and for the purpose of regulation, as herein provided, and not otherwise, all and every kind of business not prohibited by law, and transacted and carried on within their respective jurisdictions . . . to fix the rate of license tax upon the same, and *124 to provide for the collection of the same by suit or otherwise." Section 3366, Political Code, is couched in the same terms.
It is contended by petitioner: 1. That the license tax imposed by the ordinance in question is not in the exercise of the police powers of the board; 2. That the purpose of the ordinance and license tax is revenue and not regulation; 3. That the amount of the tax imposed is burdensome, oppressive, and unreasonable; 4. That the purported regulatory provisions of the ordinance are burdensome, oppressive, and unreasonable; 5. That many of these purported regulatory provisions are unreasonably and unlawfully discriminating against those engaged in the business sought to be regulated; 6. That the tax imposed upon lambs is burdensome, oppressive, and unreasonable, and is in violation of the act of February 26, 1903, entitled "an act restricting the powers of boards of supervisors in the matter of imposing licenses upon the business of raising, herding, grazing and pasturing sheep." (Stats. 1903, p. 41.) This act forbids the imposition of a license tax greater than five cents per head "on the business of raising, herding or pasturing sheep."
Certain questions arose at the argument which should first be disposed of. 1. It is claimed that the court cannot go beyond the face of the process to determine its validity except to inquire into the jurisdiction of the committing magistrate; that as he clearly had jurisdiction by the terms of the ordinance and as the process is without flaw on its face there is an end of the matter. But this assumes that no infirmity of the ordinance, which is the basis of the imprisonment, can be inquired into on habeas corpus, and this, we think, is too broad a claim.
In Ex parte Hollis,
2. It is also claimed, as a sequence of the foregoing proposition, that the court cannot on habeas corpus take evidence upon disputed questions of fact; that the writ must be granted, if at all, upon the petition and return. Section
3. The contention that the action of the supervisors in adopting the ordinance is conclusive of its reasonableness and particularly as to the amount of the license tax, deserves attention, but we think it is not maintainable. Our reports abound with cases controverting this contention. Among them may be cited Ex parte Frank,
4. But it is contended that the legislature, by implication, conferred authority upon the supervisors to fix the license fee at five cents per head, in the act of 1903 (Stats. 1903, p. 41). It is there provided "that no license or licenses greater than five cents per head shall be imposed by the boards of supervisors of any county on the business of raising, herding or pasturing sheep, and any and all licenses imposed by the board of supervisors of any county on the business in excess of five cents per head shall be and are hereby declared to be void." In the first place, the assumption that the legislature has here granted the power to fix the fee at five cents per head is not warranted by the language of the act, for it is declared to be "an act restricting the powers of boards of supervisors." The act, if construed to give the power to fix the license fee the amount mentioned, is a limitation beyond which they may not go, and is not a grant to fix that amount. But if this distinction has little weight, it still remains true, as we have shown, that the legislature has no power to impose an unreasonable tax, much less has it power to delegate such power to a municipality. Besides, the act of 1907,supra, *128
declares that the supervisors shall have power to impose a license tax for the purpose of regulation and not otherwise; and if five cents per head levied as a license tax upon sheep and lambs (the latter not mentioned in the act of 1903) is such excess of that required for regulation as to show that the purpose of the ordinance was not for regulation alone, but was for the purpose of raising revenue, then the act of 1903, so far as it attempts to place a maximum limit of the tax, is inconsistent with the act of 1907 and must give way to it. In other words, the later act forbids the levying of any license tax other than for purposes of regulation, and if it be true that a tax of five cents per head is greatly in excess of any tax required for regulating the business, the act of 1903 furnishes no support to the ordinance. In Ex parte Pfirrmann,
5. It is claimed that if there is any evidence, however slight, upon which the board could base their action, the court will not inquire further, but will deny the writ. The courts have expressed themselves upon this point frequently, but nowhere, so far as we have found, to the effect that "any evidence, however slight," will close the doors against relief by the writ. It has been said that "a clear case should be made to authorize an interference on the ground of unreasonableness." (In re Smith,
We may pause here to observe that the court uses the term "motive" in an entirely different sense from the sense in which the legislature used the word "purpose," that is, in conferring the power to fix a license tax "for the purpose of regulation." The word "purpose" means "that which a person sets before himself as an object to be reached or accomplished; the end or aim to which the view is directed in any plan, manner or execution." (Words and Phrases Judicially Defined.) "The purpose of legislation is to be determined by its natural and reasonable effect, and not by what may be supposed to have been the motives upon which the legislature acted." (People v.Roberts,
But to recur to the particular point under discussion. It seems to us that when under the power of the court evidence is taken, the court must judge of its sufficiency to establish an issue precisely as in other cases except where the validity of a statute is in question, the evidence must clearly show the ordinance *130
to be unreasonable, and where the evidence leaves the court in doubt, that doubt must be resolved in favor of the validity of the ordinance. For example, slight evidence upon an issue of fact favorable to the validity of the ordinance may be overcome by preponderating evidence to the contrary leaving no reasonable doubt of its reliability and weight. "The general rules of the law of evidence relating to the burden of proof and presumption and the admissibility and sufficiency of evidence are ordinarily applicable in habeas corpus
proceedings, although they are not so strictly applied as in actions at law or criminal trials." (21 Cyc., pp. 319, 321-323; 15 Am. Eng. Ency. of Law, p. 197.) What, indeed, would be the use of calling witnesses and taking evidence "to a full and fair examination of the case," as section
6. In the sense in which the term "purpose" is used in the act, evidence is admissible which would tend to show that revenue and not regulation was the object or end to be attained; and also as bearing upon the necessity for and extent and character of the regulation required to be given the business. The court will consider the "circumstances in the light of existing conditions." (In re Smith,
The case of Postal Telegraph Cable Co. v. Taylor,
"To uphold it in such case as this is to say that it may be passed for one purpose and used for another; passed as a police inspection measure and used for the purpose of raising revenue; that the enactment of a police measure may be used as a subterfuge for the purpose of raising revenue, and yet, because it is said to be an inspective measure, the court must take it as such and hold it valid, although resulting in a rate of taxation which if carried throughout the country, would bankrupt the company were it added to the other taxes properly assessed for revenue and paid by the company. It is thus to be declared legal upon a basis and for the reasons that do not exist in fact. . . . Confessedly there has been here no inspection, no expense incurred to provide for one even though not made, and all expenses and liabilities that might fairly and reasonably be incurred on the part of the borough are not one-twentieth of the amount it exacts for an inspection which it has not made. Under such facts it would seem to be plain that the ordinance was adopted as a means for the raising of revenue and not to repay expenses for inspection. Judging the intention of the borough by its action it did not *133 intend to expend anything for an inspection of the poles and wires, and did intend to raise revenue under the ordinance. Courts are not to be deceived by the mere phraseology in which the ordinance is couched."
The supreme court said in Plumas County v. Wheeler,
7. With these principles as our guide let us examine the facts in the case. The county of Lassen may be designated as mountainous, the greater portion of the western part being of high elevation and in the belt of heavy winter snows; is in considerable part timbered and of such climatic conditions as to admit only of summer pasturing and by sheep is generally so used for three to five months of the year, depending upon the seasonal storms. A somewhat similar region is found in a large area of the northern and eastern part of the county, but less timbered, less snow and rain, to some extent a sage-brush country and used for summer and fall pasture of livestock and some portions so used in the winter. Of valleys more or less cultivated, Honey Lake Valley, elevation about four thousand feet, the lowest in the county, and Big Valley, are the principal ones, with here and there small valleys in the eastern and northern parts of the county. The total area of the county is about three million acres, of which a little over six hundred thousand acres are assessed, and of this only about one hundred thousand acres are assessed as agricultural land. The population is centered in and around these valleys. The western, along most of the northern and in the eastern parts of the county few persons have permanent residence — these are essentially summer grazing regions for stock, mostly driven to them in the spring and taken out in late summer. Except in the more thickly inhabited portions of the county, there are very few public roads, and the topography of the country and the settlements in the county *134 admit of and require but few principal highways, and some of these are not made use of by sheep-raisers. The public roads, in large part, are over comparatively level stretches of country along the sides of which sheep spread out and feed as they travel, doing very little, if any, injury to the roads. The places which give rise to most complaint of injury are on mountain grades and along graded hillsides, chiefly by causing dirt and rock to slip or roll into the roadway. Like injury to a considerable extent is caused by driving horses, mules, cattle and goats over the same roads, which are pastured in the county but pay no license tax. Similar injury is also caused to the roadways by livestock of all kinds driven through the county to other counties for pasture and in going to market, which pay no license tax. Petitioner's sheep are driven from the Sacramento valley to his own land in Lassen county and are there pastured and on the public lands, as are a large number which are included in the ordinance, also driven to their ranges and remain there until returned again to the valley, using the highways only in going and returning and some not using the highways at all in Lassen county. It is not claimed that the injury to the roads caused by the sheep is in any sense permanent, for they are restored by no great expense by clearing the rocks and debris from the road after the sheep are driven to the ranges and later after they are driven back to the valley.
The evidence is that about two hundred and seventy-five thousand sheep and lambs are grazed and pastured in the county during a portion of the year. The tax collector reported to the board of supervisors, July 9, 1908, that "six sheep owners in Lassen county pay taxes on 12,825 sheep, leaving 254,700 sheep on which no tax for revenue is received unless by license." Respondent stated in his return that "there are at the present time 275,000 sheep and lambs in said county." He states that at the time the ordinance was passed the average annual number did not exceed one hundred and fifty thousand. The evidence of men engaged in the business and familiar with all the facts shows that the number is and has been for several years about two hundred and seventy-five thousand. The number paying property tax is as above stated, which leaves two hundred and sixty-two thousand one hundred and seventy-five of what may be termed *135 migratory sheep and lambs. It appears from the evidence that some of the sheep which are assessed for taxes in Lassen county are pastured part of the year in that county and some, in order to procure feed, are there taken to Plumas or Modoc county for pasture, for two or three months, in the national forest reservations. These sheep pay a property tax in Lassen county and a license tax there also, and another license tax in Plumas or Modoc county, and a rental license of eight cents per head to the general government, of which the county now gets twenty-five per cent, one-half of which goes to the road fund. The sheep coming into the county from the Sacramento valley remain from three to five months, and while it is impossible for them to remain after the stormy season begins, they must take out a license for one year, and this applies to ninety-five per cent of the sheep pastured in the county; and in some cases the valley sheep are taken for part of the season from Lassen county to Plumas or Modoc for pasture and are there subject to a second license tax for one year. It appears also that the assessment-roll for the county is something near $6,000,000, from which for the year 1907-08 the taxes yielded to the general fund a little over $25,000 and the road fund nearly $24,000. The license tax imposed upon the business of pasturing sheep, having an assessed value of about one-half a million dollars, amounts to more than one-half the general fund or road fund derived from property tax on more than ten times that assessed value. Sheep, not including lambs, which are not assessed in Lassen county or elsewhere, were valued for state and county purposes for the year 1907-08 at $2.50 per head and the rate was $1.80 on each $100, or four and one-half cents per head of sheep, excluding lambs, which the evidence shows are about one-third of the flocks. The license tax, which may be imposed for regulation only, is more than the tax for revenue purposes on sheep and is imposed upon lambs which are not assessed. Excluding lambs as not assessable for state and county purposes and treating them as sheep, the license tax is five cents per head as against three cents for state and county revenue. The principal expense to the county alleged to be caused by this business is for work done on the public roads. The limit of taxes for road purposes is forty cents upon each $100, and Lassen county levied up to this limit. *136 This tax for that purpose would be one cent per head upon sheep and on the number subject to license tax would yield $2,750, whereas the license tax amounts to $13,750. It appeared also that the general road fund is reinforced to some extent from the share of the government rentals paid for grazing of stock on national reservations, of which there are over half a million acres in Lassen county. Numerous license ordinances adopted by the county are not without significance as tending to show the object and purpose of these measures. January 9, 1900, the license tax was fixed by Ordinance No. 51 at three cents per head of sheep, lambs and goats. It contained no regulatory provisions. On April 7, 1900, a similar ordinance, No. 52, fixed the license at five cents for each sheep, lamb or goat. These ordinances were passed when the board had power to license for revenue and were passed for that purpose. On January 7, 1903, after the law was passed limiting the power to license for regulation only (Stats. 1901, p. 635 — Pol. Code, sec. 3366) Ordinance No. 64 was adopted. In its title it purported to be for regulating the business of raising, grazing, herding or pasturing sheep, lambs or goats within the county and imposed a license tax of ten cents per head of each sheep, lamb or goat, but the ordinance did not contain a single regulatory provision. On March 5, 1903, two months later, after the legislature had passed the act of February 26, 1903, limiting the license tax to five cents per head "on the business of raising, grazing, herding or pasturing sheep," Ordinance No. 67 was adopted reducing the license to five cents per head, but the ordinance contained no regulatory provisions whatever. The evidence is that conditions in Lassen county then were the same substantially as now and for years previous and the business was conducted as now. There can be no doubt but that these ordinances were adopted for the purpose of swelling the county revenues and can be given no other interpretation. Ordinance 69 followed along March 10, 1904, and was similar to ordinance 67, but contained in addition some regulatory provisions. No change in existing conditions occurred in the meantime, and so far as the regulatory provisions are concerned the evidence is that no pretense was made of enforcing any of them. Then came ordinance No. 82, January 11, 1908, in question here, which includes sheep and lambs and contains *137 a large number of regulatory provisions. But the evidence discloses no material changes in the conditions in Lassen county relating to the business in all these years, except it may be that the number of sheep grazed in the county has increased to some slight extent. The area of grazing land has not changed nor has the manner of conducting the business. Conditions have not changed and nothing appears to show that for regulation alone the charge should be as great as when the tax was laid for revenue. The simple truth is, as appears from the evidence, that the ordinances have changed in name, but the purpose remains the same — i. e., to obtain revenue.
In Plumas County v. Wheeler,
License collector's commissions ................... $ 850.00 Printing licenses, affidavits, etc ................ 50.00 Expense of enforcing section 2 of ordinance No. 82 ............................................... 1,000.00 Expense of criminal prosecution for violation of the ordinance ..................................... 1,200.00 Damage to public roads ............................ 10,000.00 ---------- $13,100.00
This estimate, the witness testified, was made at the request of the board "for the purpose of the hearing of this case"; not by the board as a basis for its ordinance previously passed. The bills presented in support of the estimate for printing licenses amounted to less than $20. In further support of the item, a bill was presented for publishing the ordinances, $60, which certainly was not pertinent.
The ordinance makes no provision for payment of commissions to the license tax collector, set down at $850. The tax collector receives a salary and is allowed a deputy at a stated salary (Stats. 1907, p. 536), and by section 4126, page 391, it is made his duty to "collect all county licenses." The district attorney and sheriff are also paid salaries, and the statute (sec. 4290, p. 545) provides that "the salaries and fees provided in this title shall be in full compensation for all services and fees of every kind and description rendered by the officers named in this title, either as officers orex-officio officers, their deputies and assistants, unless otherwise provided, and all deputies employed shall be paid by their principals out of the salaries provided in this title, unless in this title otherwise provided." *139
The item of $1,000 is for enforcing section 2 of the ordinance. This section requires the person raising or pasturing sheep in the county to make an affidavit setting forth certain facts; it does not impose any duty on any officer to enforce this requirement. We must look to other sections for that. There is no expense to the county in the act of the sheep-raiser making the affidavit except the trifling cost of the affidavit. Section 3, however, empowers the tax collector, whenever he deems it expedient and "in such manner as he may deem best," to verify the statements in the affidavit and "to ascertain the true facts with relation thereto," and if he finds that any false statement has been made to report the same to the district attorney, and the cost of such examination is made "a county charge to be allowed as other claims against the county." It is contended by petitioner that this requirement of the tax collector falls within his ordinary and statutory duties, and cannot be made a county charge to be assessed against this business and covered by the license tax. There is much force in this contention. The bills presented by the tax collector's deputies, appointed to secure affidavits from sheep-raisers are, however, so inconsiderable a sum, as shown by the evidence, that we may dismiss the estimated item as unsupported. The evidence is that there has never been any attempt at supervision or inspection of the business and no expense incurred in that direction at any time since this or any of the ordinances have been in force. The dipping and doctoring of sheep have been attended to by inspectors appointed under state and national law, and the evidence is that the sheep generally throughout the county have been free from scab — the prevailing trouble among sheep-raisers. The interest of the flock-master compels him to look to this with vigilance.
The item of $1,200 for expense of criminal prosecutions for violations of the ordinance is largely conjectural. Presumptively, civil actions, if successful, will pay their cost by the fines collected, and if unsuccessful it should not be fastened on the business regulated. The district attorney and peace officers charged with the duty of enforcing the ordinance are entitled to no compensation for such service except that provided by law. The district attorney may incur certain liabilities in the preparation and prosecution of cases which *140
become a county charge under section 22 of the County Government Act (Stats. 1897, p. 595), not, however, relied on here, but it is not reasonable to suppose, and past experience of the county so shows, that any such sum as $1,200 annually, legally chargeable to the business, will be incurred in prosecuting violations of the ordinance. The evidence is that under ordinance number 69, three civil actions and nine criminal actions were commenced in 1907. All these were dismissed by the district attorney as settled, except one in which a fine of $200 was imposed and collected. Two cases were commenced in 1908 under ordinance number 82, a civil and criminal action against petitioner. The district attorney testified that he had actions in contemplation under some of the regulatory provisions relating to dead sheep being left in or near a highway. Such prosecutions, it is claimed, must be made either under section 2737, Political Code, or section
It is contended that many of the regulatory provisions are unlawfully discriminating against those engaged in the said business. The evidence is that a great many sheep, as well as other livestock, pass through the county over its roads to *142
other counties for pasturage and to market, to which these provisions of the ordinance do not apply. It is claimed also that while the county cannot impose a license tax upon such sheep County of Mono v. Flanigan,
Finally, it is contended that the license tax upon lambs is burdensome, oppressive and unreasonable and is violative of the act of February 26, 1903, supra. The evidence is that about one-third of the flocks are lambs, born in March and April. This is especially true of petitioner's sheep and substantially all, for but few sheep are raised in Lassen county. These nursing lambs are but two or three months old when taken to the ranges, and leave when six or seven months old. They are not taxed for state and county purposes, and are not treated as sheep by the national foresters. It appeared by the evidence that in buying and selling sheep, and in transactions relating to the business, lambs are not known as sheep, *143 eo nomine, and are not dealt with as sheep before they are a year old and are then spoken of as "yearlings." The ordinance itself admits the distinction by naming sheep and lambs separately, which would be unnecessary if lambs are regarded as sheep. The act of February 26, 1903, mentions sheep only, and it is not improbable that the legislature had this distinction in mind. The act limits the charge upon the business of raising, herding, grazing and pasturing sheep. It is contended, and it so appeared, that the business of raising sheep consists in raising lambs and producing wool; that raising lambs is a considerable part of the business of raising sheep, to which the act refers; that without taxing lambs the extreme limit, allowed by the act, is imposed upon this business, and that in taxing lambs the ordinance goes beyond the prescribed limit of power.
It is furthermore contended that if there be doubt as to whether the legislature meant to include lambs in the act, the lamb should have the benefit of the doubt because of its tender age and much less value, and because it would be unreasonable to treat it for purposes of licensing or taxation the same as an old sheep. In interpreting the meaning of the word, with reference to taxation for state and county purposes, it is universally interpreted to exclude unweaned lambs just as the young of other animals are excluded. The statute provides that words "are construed according to the context and the approved usage of the language." (Civ. Code, sec.
It is ordered that the petitioner be discharged.
*144Hart, J., and Burnett, J., concurred.