*1 F. No. 16809. In Bank. June 1943.] [S.
MERCURY HERALD COMPANY (a Peti- Corporation),
tioner, etc., v. MAURICE County Auditor, MOORE, Respondent. *2 Douglas for Petition Zingheim M. Chesley
Francis A. and ers. General, Linney, H. H. As- Kenny, Attorney
Robert W. Attor- Kragen, Deputy Attorney General, Adrian A. sistant County (Los Angeles), O’Connor, ney General, Counsel J. H. Counsel, Paul McCarthy, A. Smith, County Deputy A. Curtis (Redwood City), City City Attorney Wilson, A. At- Ernest torney (San Amici Mateo), Kirkbride &Wilson as Curiae on Petitioners. behalf of Fitzgerald, Attorney (Santa Clara),
John P. District Respondent. Deputy Attorney, Avilla, Leonard R. District for TRAYNOR, J. proceeding Petitioner seeks this County mandamus Santa compel the auditor of Clara in payment publication issue warrant of a claim for the redemption pursuant notice terminate to section 3574 of Taxation the Revenue Code.
The real published described notice was 29, 1935, county sold nonpayment on June for for required taxes 1934-35. The tax law at that time col lector to publish an annual on list year past paid. taxes If re were the taxes unpaid prac mained was sold the state. The running tical effect of such to start was *3 five-year period (Crocker Scott, of redemption. P. ; Cal.App. 314].) In re Seick, 102]
If the property years, was not or redeemed within the five if taxpayer 20, the April 1936, failed to elect on or before pay (Pol. Code, to taxes in installments sec. 3817c(3); 20, April 1940, Code, extended to Pol. sec. 3817c (7), 1939, 9) property Stats. ch. deeded to state. was (Pol. 3785.) Code, Thereafter, see. under the law in effect property question when the in to was deeded the state on 1, July 1940, property could be the tax sold collector public super auction the direction the board of county visors and of the the authorization State Con troller, if notice of sale to last was mailed assessee at 21 days days least but proposed not more than 28 before the sale, published and notice thereof once a week for three weeks starting days at least 21 (Pol. Code, before the sale. secs. 3833-3834.25.) If dispose state the property did it subject redemption. (Pol. remained secs. (3), Code 3817c 3780.) Legislature
In 1941 the for provided the termination of redemption upon execution of the deed to the as property to all districts, assessment distressed 1, (Rev. deeded to after the state on and June 1942. and Tax. ex Code, 3511.3, 3511.5.) If secs. the deed to was case, notice of 1, 1942, present before June as in the ecuted one termination to the last assessee within must he mailed year 1942, 1, after June six months default or within after two plan payments, under a installment whichever 3572.) (Rev. The tax col Code, is later. and Tax dates sec. right of publish must termination of lector also the notice of pub redemption newspaper general once circulation or, posting con county, none, by if in three lished spicuous places county, every assessee for whom no toas known, to unknown property address is for all assessed days after The within 10 publication owners. must be made 3574.) Code, If the is (Rev. notice mailed. and Tax. see. property payments commenced not redeemed or installment re sending notice, within after four months 3575.) demption (Rev. Code, and Tax. sec. terminated. 1941, legislation pro Since the became effective June in motion cedure that be set for it established could not year or more. plan part classify provisions integral
These are an also rehabilitate tax-deeded provided for of a Com- appointment Land Classification economics, property mission real agricultural familiar with classify tax- regional taxation, planning, conservation and use, for public deeded desirable suitable private 47, Stats. 1st Extra ownership, (Chap. land. waste expe- Session, 131.) p. seeks The statute Stats. to the tax rolls. To that dite restoration of real provides end for the of the termination tax-deeded land while facilitate use rehabilitation of quickly at a better of it enabling dispose state to more price. of the
It is
that the termination
contended
question impairs the
here
*4
relationship,
no
obligation
contractual
of a contract. There is
(Southern
state.
Service
taxpayer and the
however, between the
1, 11
County, 15
o.,
Angeles
Cal.2d
P.2d
[97
Ltd. v. Los
C
350; Spurrier
318,
Neu
Washburn, 20
v.
963]; Perry
Cal.
v.
position
338].) The
of the
Cal.App.
P.
miller, 37
683 [174
into
con
purchaser who enters
a
of a
taxpayer the
The tax
property.
in purchasing
tract with
tax leads
the
pay
failure to
payer’s own
273
sovereign power
exercise of the
to collect the tax.
land
an
938, 85
(Wood
Lovett, 313
362,
371
S.Ct.
L.Ed
U.S.
[61
476,
;
;
Hawkins,
by it of tax deprive its deeded as the lands would state the power change to thereof, the method and terms of after it had received title to In the of con the lands? ... absence stitutional limitations, here, legislature and there is none the is dispose way free of the tax state’s deeded lands public deemed it from be the interest. time time to for ... It is clear from all the on reason that authorities and person having redemption the privilege has no disposition by tax lands in its deeded particular way when, here, right of is redemption his not adversely (2 Peterson, v. affected.” See Allen Cal.2d 489. 38 849].) Wash. 599 P. [80 if no
Even
there
distinction between the
were
after,
to redeem
before deed to the state
necessarily
contrary
redemption
method of
be
would not
process
the time of the
due
While the law effect at
of law.
governs
property
sale to the state
when
of the
otherwise, it
provide
not
is settled
does
Legislature may
changes in
method of
make retroactive
Wright, supra;
(Buck
redemption.
Canty, supra;
Fox v.
League
Monroe,
Lovett, supra;
supra;
Baird v.
Wood v.
478].)
power
Texas,
46
This
U.S. 156
S.Ct.
L.Ed.
[22
arbitrary
changes
is not
cannot be
unlimited, however. The
capricious but must
reasonable when measured
be
of the
light
effect
public
of the
interest to
served
be
rights
changes
rights
Those
property
of the
owner.
destroyed by the
purely
be
statutory
are not
cannot
Code,
repeal
(
327;
Pol.
sec.
mere
Southern
statute. Cf.
Co.,
Angeles, supra;
v. West
Penziner
Service
Ltd.
Los
252]; Krause
Co., 10
American Finance
Cal.2d
[74
1327]; Berg
62, 77 A.L.R.
Rarity, 210
P.
Cal.
[293
Alioto,
Traeger, 210
P.
Callet
Cal.
Cal. 323 [292
;
;
P.
Smith,
Cal.
P.
Moss v.
[155
90]
438]
P.
Obispo, 159
v. Bank
San Luis
Cal.
People
934]; Napa
Hos
Ann.Cas.1912B,
L.R.A.N.S.
State
1148, 37
322].) At the time of
Flaherty, 134
pital v.
in private
owner
imposition
property
tax the
being
rights
property,
of the owner
ship, and
will
statute,
abrogated from
cannot be
derived
prescribes
imposed
When the tax
Legislature.
under
payment
and the conditions
terms
By providing
tax.
nonpayment
for
will
taken
after
sale to the state
the event of delinquency,
the state does not take the
outright from the
only
owner but
him
allows
to retain the
title but the
to remove the tax lien and clear his title
It does not follow that because the state
*6
provide
could
complete taking
first instance for a
property
may
impunity
retroactively
that it
with
provide
taking
for such a
giving
the owner
or a fair
notice
opportunity
prevent
(See
property.
forfeiture of his
Wood
Lovett,
362,
U.S.
1404].)
S.Ct.
85 L.Ed.
[61
settled, however,
is
Legislature
that the
may validly
limit the time
existing
within
right may
be exercised
if
period
remaining for its assertion is a reasonable one.
(Alexander,
82;
States, (C.C.A.
Inc. v. United
5th) 128 F.2d
Allen
Peterson, supra;
Howe,
Robinson v.
supra; Muirhead
Sands, supra.)
This rule is akin to
Legis
the rule that the
lature
enact a statute of limitations applicable to exist
ing
causes
or shorten
action
former limitation
if
the time allowed to commence the action
(Se
is reasonable.
curity-First
Sartori,
Nat. Bank v.
Old Method New Method Right 1. redemption ter- year’s 1. delay One before by minated procedure sale at opera- became
time proper tive. notice. by
2. Four notice months’ Twenty-one termination; 2. days’ mail notice before
by by mail publication. by publication with- notice days
in 10 after notice mailed. Right 3. redemption con- by Right tinues until must terminated 3. sale; by required state not be terminated June re- property if sell. pay- deemed or installment begun before that ments time. delay year procedure unquestionably of a in the new
operates advantage taxpayer. Likewise, to the a four-
months’ advantageous twenty- notice is more to him than a days’ difference, one notice. As for the third provided could that all have tax-deeded sold 1, 1943, June since it determine free to what shall or (Bray shall not Jones, be sold and Cal.2d when. 364]; Irrigation Joaquin South San District v. Neumiller, supra; Canty, supra; Buck v. Trust Co. Merchants’ supra.) Wright, Wright, Cal. 149 Fox v. . redemptioner’s From the standpoint there little if provision to choose anything between such in question. objection one Any that the termination must be Irriga- holding Joaquin is met San South having Neumiller, supra, tion District person that the privilege particular has no to a kind disposition normally of tax-deeded The state would to sell it to the rolls. While seek to return tax may delay doing taxpayer so the under old method any certainty con- rely delay could not on such with fidently Any hope might had bide his time to redeem. he have waiting of redeeming advantageously by spec- rested on mere grounded- ulation as do. It was not to what would *7 any legal unqualified right to sell right, for the state had right of any price time and for and thus terminate redemption. (Buck Wright, supra; v. Canty, supra; Fox v. supra.) Monroe, Baird v. v. Joaquin Irrigation
It in District was South San held of method Neumiller, supra, can receiving title disposing after property of tax-deeded irrigation thereto, by municipality, selling the to a property for district, district, public corporation reclamation or other and agreed upon be price upon such terms as and right likewise thereby redemption. can terminate of to by selling right property of terminate the prop- to administer tax-deeded public corporation created erty. property can retain the appropriately Just as the state giving redemption by directly of and terminate if as much notice as he would receive former owner to others. sold the legislation respondent relies the upon
In the cases
redemp-
question
substantially impaired
either
of
only ques-
justification or involved
tion without reasonable
v.
In Teralta
& W. Co.
statutory construction.
Land
tions of
the new
Am.St.Rep. 194],
P.
58
Shaffer, 116
518
Cal.
[48
v.
to redeem. Collier
required
amount
increased the
act
Shaf-
277
fer,
177],
spondent heavily upon sentence, inferring relies this com- parison right the state between the redeem after deed to sells, right until state with the under the old law the the thirty days Johnson case to redeem within after the service a Actually of the no for such the notice. court found basis redemption clearly regarded the of comparison, right for it five-year as too insubstantial after the close the right, existing and meas- against previously the be measured it five-year period, only to also inferior. find ured instead give formerly right re- would inconsistent now to garded right formerly -as insubstantial value as the same regarded case, impaired. sentence in Johnson Even if the from context of the respondent, relied lifted were literally facts before court no bear- and read would have ing upon ease, right redemption present where the under act, person the old law was terminated third title to the property, without but itself as holder (South Joaquin Irrigation District v. San absolute title. Neumiller, right supra.) The Johnson case involved basic prospective loss owner receive notice of the not terminate the his The notice did title to did, gave warning as sale but if the owner did re- would be terminated rest until law the owner could secure deem. “Under old He then intention to for a deed. apply notice of he received the new law his thirty days redeem. Under had which to any cut off at moment after could be statutory personal expiration period, noti- . . That these to him circumstances worked fication . rights owner had substantial ’’ right in impairment clear. sale seems date of the striking is in contrast the absence of case the Johnson present case. proof impairment mandate issue. writ of peremptory aLet J., Schauer, Gibson, J., concurred. C. concurring. I agree
EDMONDS, J. that a tax existing procedure in an for the payer has no vested (Wood Lovett, 362, 371 U.S. of taxes. collection 1404]; League Texas, U.S. 938, 85 L.Ed. S.Ct. 478].) There is no contract between 475, 46 L.Ed. S.Ct. vary him of. latter will not that the method and the state *9 (Wood 371; League Texas, collection. Lovett, supra, p. 158.) changing Nor a supra, p. statute the procedure does for unpaid the collection with process taxes conflict the due clause the Fourteenth to the federal Amendment Consti merely (League tution operation. because it is retroactive in supra, 371.) Texas, p. 161; Lovett, supra, p. Wood v. For these has Supreme reasons the United Court States constitutionally impose upon state held that a interest by delinquent subsequent taxes a law enacted to the time (League supra.) their Texas, accrual. does, however, process prevent
The due clause taking liberty from property one’s unreasonable arbitrary ownership of real private property manner. The normally statutory grant, does exist a virtue of the owner is entitled to notice of fact that his property obligations will be forfeited if in his he is state. under legislation, Prior the enactment of the 1941 governing taxes, the law the collection of the landowner was rights immediately only certain in his property informed upon it pay would be taken if he failed to the taxes levied due; rights upon when that certain additional would be taken payment next obligations during default in of his tax years, five and his pay title forfeited if did ac he crued amounts before for was sold taxes (Rev. 6, 7.) Code, pts. although to another. & Tax. And no requires constitutional limitation the state to abide tax, these procedural conditions the collection of the due process must, altering give that it procedure, demands adequate taxpayer notice of so as to afford the opportunity fair prevent forfeiture of his (Wood Lovett, supra, 371; League supra, p. Texas, p. 158; and Savings Hill, see Trust & Co. v. Brinkerhoff-Faris 1107].) U.S. 673 S.Ct. 74 L.Ed.
Sections & Taxation 3571-78 the Revenue are ac- Code They cord with principles. arbitrarily deprive these do not delinquent taxpayer remaining prop- of his interest in his erty adequate rights but afford him his notice that will if he terminated does not cure his within default prevent affords him a fair opportunity the forfeiture. requires nothing The Constitution regard. more in this I not, however, legislation am convinced that new has improved the delinquent taxpayer’s position conferred equally advantageous existing him benefits as those Mr. To prior procedure. me,
under the the declaration Traynor patently Justice to this effect inconsistent with classify his policy plan embodies a statement that new by expediting res- rehabilitate tax-deeded through the termina- toration real to the tax rolls continuing right redemption. tion the theretofore *10 Whether a from a conditional of event, might indefinitely and, any may in which continue days’ be is than terminated until after notice less desirable year right redeem one from the unconditional to within legislation effective, question upon the 1941 is date became may place my differ. I con- which reasonable minds therefore ground that judgment upon the new currence the sole procedure regulation is of the method for col- a reasonable lection of taxes the state.
CARTER, concurring. J., The questionpresented for consideration is 3574 of whether section the Revenue Legislature Code, adopted by imposes Taxation right upon more onerous conditions to redeem adoption to such prior from a tax made of im so, Legislature power section, and if did the have the to pose of so affect the of redemption such conditions as to prior covered sales? my impose opinion, said section does more onerous con- to redemption, purports on of as it limit ditions redemption may be made to time within which permitting four months after notice instead the owner any prop- to time until exercise the at being the erty person. is sold to a third Such by the state question as I with consideration of the case, proceed shall impose to the power not the had to whether or prior as to affect tax sales made to the such conditions so adoption of such section. cases, to numerous and it appears has held in
This court weight authority, general that the agreement be in with the on, nor taxpayer is not relationship sovereign and founded rights; obligation of contractual and the create, it does statutory creation, purely is pay taxes the citizen only levied, method assessed and collected be taxes can (Southern Co., Service Ltd. by express statute. provided Perry Wash 963]; P.2d Angeles, Cal.2d Los Neumiller, Cal.App. 318; Spurrier 20 Cal. burn, court been held this 338].) It has also or power agreement upon of taxation is consent not founded but, given rather, proceedings invitum, that tax are has strictly why that as reason all should be proceedings its tax points out Judge Cooley on taxation construed. his work sovereign as and the between the owner power no imposing relationship the tax there is based by redemption owner, remedy contract and “the that as gives general, remedies in sub him, the statute like ject legislative on (Cooley Taxation, discretion.” vol. ed., 3068.) 4th 1561, p. sec. the Political
Section reads follows: Code “Any repealed any time, except when statute be acting Persons provided otherwise therein. under contemplation statute are deemed have acted in of this power repeal.” appears be well settled in this state that the
recovery upon
purely statutory right
can
impaired
abrogated
any right guaranteed by
violation
(Southern
Co.,
federal Constitutions.
Ltd.
Service
Angeles, supra;
Los
Co.,
Penziner West American
Finance
Rarity,
Cal.2d
Krause
Cal. 644
*11
62,
P.
77
1327]; Berg
A.L.R.
210
Traeger,
323
[293
v.
Cal.
495];
Alioto,
P.
Callet v.
210
438];
[292
Cal. 65
P.
Moss
[290
Smith,
v.
171
90]; People
Cal. 777
P.
Bank
v.
San
[155
of
Luis Obispo,
The rule by established clearly by these cases is stated this court in the Rarity, case of supra, page 652, Krause v. at follows: Rarity
“The by defendant that contends reason of the of foregoing enactment statute the cause of action of the plaintiffs wiped out; has been that section 377 of the of Code Civil Procedure section 2096 of the and Civil Code been have repealed part by whole the enactment of section of California Act Vehicle and that the rule of law 141% applied to be laid People is down such cases as Bank v. Obispo, San Luis 159 65 1148, Cal. 37 L.R.A. [Ann.Cas.1912B 934, 866]; N.S. 112 P. Wilcox v. Edwards, 162 455 1392, 276]; 123 P. Moss v. Smith, [Ann.Cas.1913C 171 Cal. 90]; 777 P. County Freeman v. Glenn Co., [155 184 Cal. Tel. 705], 508 P. and 33 Chambers, Cal.App. [194 Chenoweth v. 428], By 104 obtaining P. [164 cases the those rule elsewhere 282
has become thoroughly established in the law of this state that right law, when a of action not exist at common does depends solely upon statute, repeal but a statute destroys right unless has to final been reduced saving judgment or repealing unless the statute contains a litigation. In protecting clause in a the case pending solely depended at bar the cause action on the statute. saving pending.” There and action still is no clause is Hospital Napa Flaherty, supra, In the case of State v. page 317, rule is thus stated:
“It a application that, rule where almost universal solely by statute, dependent upon a is created alone, inchoate, the statute and not is still possession, by judgment, final perfected reduced to destroys remedy, appealing repeal of the statute unless saving contains clause.” statute universal appears acceptation be rule of the several and those of clause the federal Constitution obliga prohibiting impairment state Constitutions only tions of created contracts runs contracts conventional quasi-con the mutual consent of and not parties to' obligations procur imposed tractual law v. (Louisiana charged. ing consent party 211, Mayor Orleans, 109 285 27 L.Ed. New S.Ct. U.S. [3 33 763, ; 405 Williams, 131 U.S. S.Ct. Freeland [9 936] 196, at York, 21 193]; L.Ed. Wall. City Garrison v. New 142, 146 Hahlo, 258 612]; Crane U.S. 203 L.Ed [42 [22 Mississippi County, 69 514, 517]; L.Ed. Read S.Ct. (aff’d. 188 U.S. Am.St.Rep. Ark. S.W. 202] [63 Orleans, 38 677]); v. New 849, 47 L.Ed. State S.Ct. [23 26 Okla. Cavett, 168]; Am.Rep. Love La.Ann. [58 P. 35 Ore. ; Portland, Nottage City [58 553] Nicholson, Fla. 849 Am.St.Rep. 513]; Anders 764].) N.W. Smith, 58 S.D. State v. So. fore- reasoning contained persuaded I am prop- liability of the owner tax going authorities that the wholly of contract; it is *12 upon erty predicated not to granted privileges rights statutory all creation and including en- therewith, in connection owner statutory enact- upon are founded rights, of such forcement abrogated entirely limited rights ment. such provisions violating constitutional Legislature without of contracts. obligations impairment prohibiting Respondent most strongly relies upon Teralta the case of & Shaffer, Water Co. v. Land 194], Am.St.Rep. in support of his contention that section
3574 of the Revenue Taxation
being
Act is unconstitutional as
in
impairment
violation
of the
contracts clauses
state and federal Constitutions. While that case contains
language supporting respondent’s
go
position, it does not
as
necessary
far as is
support
respon
to
position
taken
reasoning
case.
dent
this
The
of the Teralta ease was
upon
opinions
based
from
text
decisions
other states and
dealing
rights
writers
with the
purchasers
from the
of tax-deeded lands.
question
There
be no
can
but that
upon
rights
pur
transactions rested
contract and
of the
therein
ordinary
chasers
were contractual and vested under
principles.
common-law
Teralta
The rule announced
sound,
is thoroughly
applicable
case
was not
but
to the set
of facts then before the court. The difference between sales
to the state and
sales
individuals has been discussed
this court
in the
Anglo
case
Bank
Nat.
California
Leland, 9
937],
But
Cal.2d
such distinction was
not drawn in the Teralta
An
case.
examination
the authori
upon
ties relied
they
Teralta
discloses
case
do
support
a rule
applicable
the facts of that
case.
decisions from other states are cited
statement
only
facts,
quotation
with
and,
one
from the cases
hence,
inapplicability
their
particular
facts then before
this
not apparent
court
until such cases are read and
analyzed.
Dearing,
The cases Merrill v.
Thus we find that one cases cited case, in but, conclusion reached the Teralta to the extent they go hold applicable all, than that are no further private party, contractual that where tax sale is made to a a involving deed rights case, arise. one and vested And individual, was expressly redemptioner an held that supra.) in by (Negus Yancey, law bound quite apparent, of decisions therefore, that the line It represented by Teralta from a failure case resulted private distinguish sales to the between sales parties, by and that distinction noted this court overruling Anglo requires California National Bank case of the Teralta case. precise problem recently con- involved this case was by Michigan (Baker Supreme
sidered
Court of
v. State
(1940),
763]).
Land
Board
N.W.
Mich.
Office
page
case the court said at
767:
that
206,
1893,
amended,
“Nor
is Act No.
Pub. Acts
as
un
obliga
post
law, impairing
as
facto
constitutional
an ex
contract,
by petitioner.
express
tion of
Under the
as claimed
general
1893,
amended
provisions
property tax law of
of the
325,
1937,
to all lands within
Act No.
Pub. Acts
title
been sold and
borders of the State that had
bid
18-
upon expiration of the
vested in the State
State became
prior
is contended
period
redemption.
that
month
years;
amending
was five
period
act
cutting
amendment,
lesser
off title
owners
time,
retrospectively
cannot
levied
period
apply
to taxes
apparently
amendment.
1 Comp.
before the
Counsel
refers to
3520,
sec.
as amended
Act
Laws
No.
Pub.
requires
taxes
Acts
lands be
years
five
before the
acquire
State can
title.
*14
right
of redemption,
is not
however,
a constitutional
only
right,
by
as permitted
Keely
but exists
statute.
v. Sand
ers, 99
25
441,
327; Dumphey Hilton,
U.S.
L.Ed.
121 Mich.
315,
In conclusion, and to summarize expressed the views foregoing opinion, the relationship sovereign of taxpayer and is purely statutory and not contract, is founded on the and Legislature has power the at its discretion to the mode assessing, levying method of collecting taxes, including the termination the right of redemption owner’s of from delinquent tax sales; that section 3574 of the Revenue Taxation does not any Code constitute a violation of consti- tutional provision and is a legislative valid exercise of the power; that the case of & Shaffer, Teralta Water Land Co. v. 613, Am.St.Rep. 194], other in cases this which purport state to follow the erroneous doctrine announced that case should be overruled, and petitioner that is entitled the writ mandate prayed for petition in its in this case.
SHENK, J. my opinion legislation I dissent.In the under provides consideration a shortening for period the of re- demption by fixed law force at time of the sale delinquent for question taxes. The whether shortening period impairment that is a substantial of the redemption- by er’s cannot be answered citation of cases which that may change declare the method of re- demption. method, period redemption not the but is properly Neither said that the which is involved. be redemptioner amplified given he is because by redemption more when his period notice terminated it is sale to third public declaration than when terminated issue, point person. pronouncement Such a assumes right may namely, redemptioner’s cut off at that law in force at the provided earlier than that time of the time sale to state. Irrigation Joaquin San District Neu-
The case of South majority, on 64], miller, Cal.2d 485 relied dispose only question whether state could involved for cash or on credit. The private tax-deeded lands at its redemptioner no that case was that the had decision lands in disposition by the of its tax-deeded redemption was ad- right of way his particular when expressly recognized affected. This there versely court period question legislative power of the shorten was involved. force at the time the sale The rule the law redemption and that governs taxes shortening is a substantial *15 state from impairment has been law this prop early period. It became has remained rule comply with erty. Tax have voided failure deeds been strength on adjusted been it, real titles have subject, a are legion on the few which it. The cases are Shaffer, 518 following: etc. 116 Cal. Teralta Land Co. Shaffer, 137 Am.St.Rep. 194]; Collier v. Cal. P. 58 [48 177]; 150 201 P. Taylor, P. Cal. 319, 321 Johnson v. [88 [70 ; Ra Am.St.Rep. 181, Biaggi 10 903, 119 L.R.A.N.S. 818] 892]; County Diego San 189 675 P. mont, Cal. [209 734]; Crooks, P.2d Risso Cal. Childs, 217 Cal. [17 Rockhold, County Angeles 1001]; P.2d Los [17 Samuel, King 340,100 149]; 203-205 A.L.R. 2d [44 Johnston, Cal.App. 391]; Cal.App. P. Wet herb ee v. Thornton, Cal.App. Main v. P. 766]. writ denied. peremptory should be J.,
Curtis, concurred.