*

*

* * *

property necessary to be condemned, and stating the names of the owners. Notice to such owners and a hearing are then provided for, and if, upon such hearing, the court is satisfied that the lands are necessary or proper for the opening of said street, it is to appoint commissioners to ascertain and assess the compensation to be paid for the land condemned, such payment to be made out of the first moneys received under the special assessment provided for by the act; and that, immediately upon the filing of the petition for condemnation, the city and county "shall and may, by its agents, employes, or contractors, enter into and upon" the land, "and proceed to grade and open the same as a public street, as fully, to all intents and purposes, as they might or could do after the confirmation of said commissioners' report, and the actual payment of the compensation therein provided for;" and that "it shall be the duty of the board, within thirty days after the passage of this act, to cause notice of the proposed work to be published, * inviting sealed proposals for the work of grading Market street, and the duty of the superintendent of public streets and highways to enter into a contract with the person to whom the contract shall have been awarded." The act defines the district deemed to be benefited by the work, and makes it the duty of the board of supervisors, after the completion of the work, to appoint commissioners to assess such benefits, and also makes it the duty of the said commissioners to determine the value of the work done upon Market street by the plaintiff under the contract of May 8, 1867, and to add thereto the expenses incurred by plaintiff in building railroad tracks, cars, and other appliances that he may have deemed necessary in the performance of his work, and to allow him interest on the whole amount found due at the rate of 12 per cent. per month from the 8th day of May, 1868, until the filing of the report of the commissioners. The said commissioners were also required to "assess the actual amount due for the work of opening and grading authorized and directed to be done," together with the amounts awarded as compensation for land appropriated and the costs of the proceedings upon the several lots benefited within the district defined, in proportion to the benefit deemed to have accrued to each lot. The act also, in section 22, provides that the tax collector shall, at the end of every 10 days after the receipt by him of said assessment roll, "pay over to the treasurer of said city and county the amount of money collected by him within the preceding ten days upon said assessment; and, as soon as a sufficient sum has been received by said treasurer, he shall pay to the said Connolly the amount of money which may be awarded to him by the commissioners' report as

aforesaid;" and, after paying the other charges as provided for, the said treasurer shall pay over to the superintendent of streets the residue, "and the said superintendent shall immediately pay the same in like gold coin to the person or persons entitled to receive the same, as herein before directed, until the full amount due for said work, as per contract hereinbefore authorized, is paid and discharged."

In November, 1870, proposals for the work to be done under this act of the legislature were advertised for, and upon a bid of plaintiff therefor the contract was awarded to him; and on November 22, 1870, a contract was entered into between plaintiff and M. C. Smith, superintendent of streets. It is recited therein that Connolly has been awarded the contract for the work, under and pursuant to the act of the legislature of April 2, 1870, above referred to; and Connolly agrees with Smith, "as such superintendent, acting under and in pursuance of said act of the legislature, and in conformity therewith, that he will do and perform" the work specified within nine months from the date of the contract, "as provided and conditioned in section 13 of said act." Then follows a provision for Connolly's payment as follows: "And it is agreed and expressly understood by the parties to this agreement that payments for the said work shall be made as provided in section 22 of the said act hereinbefore referred to, and that the said superintendent of the said city and county of San Francisco shall not be otherwise made liable therefor than is provided in and by said act." Pursuant to this contract the plaintiff commenced, and on November 22, 1871, completed, the work to be done thereunder, and the same was accepted by the superintendent of streets. As required by the act, a petition was filed, and proceedings had in the county court, and the said court determined that the lands described in the petition were necessary for the opening of the street, and appointed commissioners, as directed, to ascertain and assess the compensation to be paid to the owners thereof. Subsequently these commis-. sioners made their report as to the ownership and compensation to be paid for said lands. In due course, also, the three commissioners to asses. the benefits and to determine the amount to be awarded to the plaintiff under his first contract, and the amount due for his work under his second contract, as required by the act, were appointed and organized as a board. To these commissioners the plaintiff presented his claims under both contracts, and the same were allowed for certain specified sums. The report of the commissioners to the county court was by that court set aside on March 6, 1873, and it was "ordered that no further proceedings be had in the premises, on the ground that no valid assessment could be made under the act." From this order

an appeal was taken to this court, where the order was affirmed in January, 1875. In re Market St., 49 Cal. 546. On March 17, 1884, plaintiff presented to the board of supervisors of defendant his claim for the amounts alleged to be due him under his said contracts, and demanded in writing payment thereof, but the board rejected the claim, and refused to pay the same, or any part thereof. Thereafter, on April 3, 1884, plaintiff commenced this action to recover the amount so claimed to be due, with interest.

The defendant by its answer denied most of the averments of the complaint, and alleged that the causes of action set forth therein were barred by the provisions of sections 337, 338, (subd. 1,) 339, (subd. 1,) and 343, Code Civil Proc., and also by the provisions of section 90 of the consolidation act.

The case was tried by the court without a jury, and, among other things, the court found that the action was barred by the provisions of each of the sections of the Code pleaded, and also by the provisions of the section of the consolidation act pleaded; the findings upon these issues being numbered 12-16. Judgment was accordingly entered that the plaintiff take nothing by his action, from which judgment, and an order denying a new trial, he has appealed.

The only specifications of the particulars in which the evidence is alleged to be insufficient to justify the findings above referred to are as follows: "The defendant having failed to give to the plaintiff the warrant and assessment agreed upon in the first contract, and having failed to pay, or cause to be paid, the sum for the second contract, in this findings 12-15 are not supported by the evidence. There being no evidence, either on the part of the plaintiff or the defendant, that the claim sued upon in this action was one of the class mentioned in section 90 of the consolidation act, finding 16 is not supported by the evidence." Under these specifications the findings and judg ment cannot be disturbed. The first contract was never completed by the plaintiff, and he therefore never became entitled to any warrant and assessment thereunder. Mahoney v. Braverman, 54 Cal. 570; Fanning v. Schammel, 68 Cal. 428, 9 Pac. Rep. 427; Raisch v. City of San Francisco, 80 Cal. 1, 22 Pac. Rep. 22. The amounts awarded the plaintiff by the commissioners, and due him under the second contract, were to be paid as provided in the act of April 2, 1870. Those amounts became due and payable when the work was completed and accepted by the superintendent of streets in November, 1871, and, if any personal liability on the part of the defendant to pay them thereafter arose, because no valid assessment for their payment was or could be issued, that liability became fixed and certain as early at least as January, 1875, when the decision of this court in the case of In re Market St.,

supra, was rendered. The statute of limitations then, if not before, began to run, and the causes of action were barred long before the complaint was filed in 1884.

There is another ground, also, on which the decision of the court below might have been safely rested. By the terms of each of the contracts the plaintiff expressly agreed to the exemption of the defendant from any liability thereunder, and thereby, as against the defendant, waived all legal claims to the money now sought to be recovered. These agreements were made and still are binding on the plaintiff, and he cannot now escape their consequences. Conlin v. Board, (decided July 21, 1893,) 33 Pac. Rep. 753.

In view of what has been said, it is not necessary to consider the other points discussed by counsel. The judgment and order must be affirmed, and it is so ordered.

INCEST-CONSENT-NEW TRIAL.

Where, on a trial for "attempt" to commit incest, the evidence, without any conflict, showed that defendant, both by solicitation and overt acts, attempted to have carnal connection with his daughter; that the attempt proceeded to the extent of contact of sexual organs, lacking only penetration to complete the act; and that it was without the daughter's consent, and against her will and active resistance,-an order granting a new trial on the ground that the crime charged could not have been committed without the consent of the daughter will be reversed on appeal.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; D. J. Murphy, Judge.

John Gleason was convicted of an attempt to commit incest. From an order granting Re him a new trial, the people appeal. versed.

Atty. Gen. Hart, for the People. Carroll Cook, for respondent.

VANCLIEF, C. The defendant was aecused and found guilty of the crime of “an attempt to commit incest" with his daugh ter, aged 14 years and 7 months. On motion of defendant, the court below granted him a new trial, and this appeal is by the people, from an order granting a new trial. The ev idence, without any conflict, shows that the defendant, both by solicitation and overt acts, attempted to have carnal connection with his daughter; that the attempt proceeded to the extent of contact of sexual organs, lacking only penetration to consummate the act; and that it was without her consent, and against her will and active resistance. It appears that the new trial was granted on the ground that the crime charged could not have been committed without the consent of the daughter, and the record shows no other ground upon which the order can be sustained. Conceding that the consent of

both parties to the carnal intercourse is recessary to constitute the crime of incest, it does not follow, as contended by counsel for respondent, that a man may not be guilty of the crime of attempting to commit incest without the consent of the woman with whom he attempts to commit the latter crime. His intent to commit the crime of incest, and his concurrent, overt acts in the use of means adapted to the immediate perpetration and consummation thereof, are sufficient to constitute a criminal attempt to commit the crime of incest, and the failure of such means to effect the purpose intended will not exculpate him. There may be found some conflict of the authorities as to whether mere solicitation to commit incest, adultery, or sodomy is an adequate overt act in the composition of a criminal attempt to commit either of those crimes; but, that such overt acts as were proved in this case are sufficient, there seems to have been no question. This conclusion, I think, is warranted by the text and the authorities cited in chapter 51, Bish. Crim. Law, (8th Ed.) §§ 723-772, especially sections 767 and 768. I think the order should be reversed, and the cause remanded, with directions to the court below to proceed to judgment on the verdict of the jury.

We concur: SEARLS, C.; BELCHER, C. PER CURIAM. For the reasons given in the foregoing opinion, the order, appealed from is reversed, and the cause remanded, with directions to the court below to proceed to judgment on the verdict of the jury.

(99 Cal. 360)

Ex parte GOULD. (No. 21,008.) (Supreme Court of California. Aug. 23, 1893.) CONTEMPT - POWER TO COMPEL ACCUSED TO TES

TIFY.

A proceeding to punish a person for contempt in violating an injunction is criminal in character, and the court has no authority to compel him to be sworn as a witness therein, under Const. art. 1, § 13, which declares that no person shall be compelled, in any criminal case, to be a witness against himself.

In bank.

Application by James C. Gould for a writ of habeas corpus. Writ granted, and applicant discharged from custody.

C. W. Cross and Judge Van Fleet, for petltioner. R. T. Devlin and W. T. Phipps, for respondent.

HARRISON, J. In an action pending in the superior court in and for the county of Yuba, wherein the county of Sacramento is plaintiff, and the petitioner one of the defendants, a writ of injunction was served upon the defendant, requiring him to refrain from doing certain acts therein specified. While this writ was in full force the petitioner was charged before said court with having violated its terms, and was ordered to show

cause why he should not be adjudged guilty of contempt therefor. Upon the hearing of this charge the court required the petitioner to be sworn as a witness, to which he objected upon the ground that he could not be compelled to be a witness against himself in the proceedings, for the reason that they were of a criminal nature. The court, however, overruled his objection, and required him to be sworn as a witness; and he, acting under the advice of his counsel, still declining and refusing to be sworn, for the aforesaid reason, the court adjudged him guilty of contempt, and committed him to the county jail, there to remain until he should purge himself of said contempt by consenting to be sworn as a witness in said case, and to testify therein.

Article 1, § 13, of the constitution of this state, declares that "no person shall be compelled, in any criminal case, to be a witness against himself." Section 1323 of the Penal Code provides that "a defendant in a criminal action or proceeding cannot be compelled to be a witness against himself." Contempt of court is a public offense, and by section 166 of the Penal Code is expressly declared to constitute a misdemeanor, and the refusal of a witness to be sworn is an offense committed in the presence of the court. It is none the less a criminal offense that the statute authorizes it to be punished by indictment or information, as well as by the summary proceedings provided in sections 1209-1222 of the Code of Civil Procedure. By these provisions, the procedure for the investigation of the charge is analogous to the criminal procedure, and the judgment against the person guilty of the offense is visited with fine or imprisonment, or both, -the essential elements of a judgment for a criminal offense. "Contempt of court is a specific criminal offense. It is punished sometimes by indictment and sometimes in a summary proceeding, as it was in this case. In either mode of trial the adjudication against an offender is a conviction, and the commitment in consequence is execution." Passmore Williamson's Case, 26 Pa. St. 19. "Although the alleged misconduct of the defendants occurred in the progress of a civil action, the proceeding to punish them for such misconduct is no part of the process in the civil action, but is in the nature of a criminal prosecution. Its purpose is not to indemnify the plaintiff for any damages he may have sustained by reason of such misconduct, but to vindicate the dignity and authority of the court. It is a special proceeding, criminal in character, in which the state is the real plaintiff or prosecutor." Haight v. Lucia, 36 Wis. 360. In Ex parte Hollis, 59 Cal. 408, it was said: "To adjudge a party guilty of contempt of court. for which he is fined and imprisoned, is to adjudge him guilty of a specific criminal offense. The imposition of the fine is a judgment in a criminal case." See, also, Ex parte Kear

In

ney, 7 Wheat. 38; Ex parte Crittenden, 62 Cal. 534; New Orleans v. Steamship Co., 20 Wall. 387; In re Mullee, 7 Blatchf. 23; Rap. Contempts, § 21. In Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. Rep. 524, Justice Bradley has given an exhaustive and interesting historical discussion of the power of a court to compel a defendant in a criminal proceeding to give testimony against himself. that case an information was filed against certain property for its confiscation under the revenue laws of the United States, and the claimants, having been directed by the court to produce in evidence certain invoices, for the purpose of establishing the claim of the government, objected thereto on the ground that the statute under which the order was made was in violation of the fourth and fifth amendments to the constitution. It was held that, although the proceeding was in rem, and in the nature of a civil proceeding, yet an action for the forfeiture of property for the violation of law is, in effect, a criminal proceeding, and that the owner of the goods, after making his claim, is entitled to all the privileges which appertain to a person who is prosecuted for a forfeiture of his property by reason of committing a criminal offense, and cannot be compelled to furnish evidence against himself. Personal liberty is, however, more sacred than mere rights of property, and the reasons for protecting the owner of property against being compelled to give evidence against himself in a proceeding for its forfeiture are in the same degree more cogent when his personal liberty is at stake. It was said by Justice Bradley in the case last cited: "Constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be, obsta principiis.'" We hold, therefore, that the court was not authorized to direct the petitioner to be sworn as a witness in the proceeding, and that its order adjudging him guilty of contempt for his refusal, and punishing him therefor, was without authority, and that the petitioner should be discharged, and it is so ordered.

per

SEARLS, C. This is an appeal from a judgment in favor of plaintiff for $350, as an attorney's fee in an action in equity to enforce a pledge upon certain stocks given to secure the payment of a promissory note made by defendant to plaintiff for $3,500. The case comes up on the judgment roll. The promissory note was in the usual form, with this addition: "And I further agree that, in the event of suit being brought against me, then there shall be added to any judgment against me, rendered in said suit, as counsel fees, an additonal sum of centum, in like gold coin, upon the amount of the principal and interest hereof accrued at the time of the entry of such judgment, or if paid before judgment, and after action commenced, then on the amount at the date of payment." The only defense was as to the right of plaintiff to recover the counsel fee claimed in his complaint, and at the trial the amount claimed on the note, less counsel fees, was paid by defendant, and a stipulation filed that such payment should in no wise affect the question of plaintiff's right to recover counsel fees.

The whole right to recover counsel fees, in this state, is founded in statute, or in contract. Sichel v. Carrillo, 42 Cal. 50S; Mascarel v. Raffour, 51 Cal. 242. Section 1 of the act of March 27, 1874, (St. 1873-74, p. 707,) provides that: "In all cases of foreclosure of mortgage the attorney's fee shall be fixed by the court in which the proceedings of foreclosure are had, any stipulation in said mortgage to the contrary notwithstanding." In Monroe v. Fohl, 72 Cal. 568, 14 Pac. Rep. 514, the court doubted the right of the court to fix an attorney's fee, under this statute, in a case in which the mortgage failed to provide for a fee, and that the statute operated to limit the fee which the court could allow in a case where the parties had agreed upon a sum to an amount not greater than the sum so fixed; in other words, that the court can scale the agreed sum down, but not up. The reason given in that case for confining the action of the court to cases in which the parties have provided for an attorney's fee is that the title of the act is, "An act to abolish attorneys' fees, and other charges in foreclosure suits;" thus evincing an intention to abolish, rather

than to provide by law for their recovery. The statute, whatever its construction, only treats of attorneys' fees in actions of foreclosure of mortgages, and has no application to this case, which is an action to enforce the lien created by a pledge of personal property.

The question here must turn upon the contract contained in the promissory note. That contract provides that there shall be added to the judgment, or, if paid before judgment, and after action commenced, to the amount due, as counsel fees, "an additional sum of per centum." In other words, the agreement is for a counsel fee, but the amount thereof is not provided. The contracting parties doubtless had in view the necessity of counsel in the event of proceedings in court to enforce the obligation of the promissory note, and the maker of the note agreed to pay such counsel, in manner and form as quoted. In contracts for services, where the remuneration is not fixed by agreement, a recovery may be had upon a quantum meruit; that is to say, as much as the services are reasonably worth. If the clients of the learned counsel in this case have employed them herein, and agreed to pay them a counsel fee, without specifying the amount to be paid, it will doubtless occur to them that they are entitled to such sum as their services are reasonably worth. In principle, the case at bar does not differ from the example put. The contingency upon which the liability of defendant depended occurred when, at maturity, the note was not paid, and an action was commenced to enforce its collection. The amount of the counsel fee not having been stipulated, the plaintiff, in his complaint, averred that $500 was a reasonable sum. The court, as was Its duty, passed upon the question, and awarded $350 as a proper amount. The evidence is not brought up, and hence we must conclude that it supported the findings upon this issue, and such findings are ample to support the judgment. Rickards v. Hutchinson, 18 Nev. 215, 2 Pac. Rep. 52, and 4 Pac. Rep. 702, was a case almost precisely like the present. The mortgage provided for the allowance of counsel fees "at the rate of per cent. upon the amount which may be found to be due for principal and interest;" and the court said, "The allowance of counsel fees for the foreclosure was authorized by the terms of the mortgage." Alden v. Pryal, 60 Cal. 215, is another case in point, and the ruling was against the contention of appellant here. It is true these last two cases were upon the foreclosure of mortgages, but the decisions turned, not upon that fact, nor upon any statute, but upon the contract which had been entered into by the mortgagors. The judgment appealed from should be affirmed.

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

PER CURIAM. For the reasons given in the foregoing opinion the judgment ap pealed from is affirmed.

(4 Cal. Unrep. 144)

DAW ▼. NILES et al. (No. 19,140.)1 (Supreme Court of California. Aug. 25, 1893.) PAROL EVIDENCE-ILLEGALITY OF CONTRACT.

In an action to foreclose a mortgage given by defendant to secure a note for money loaned to him by plaintiff, defendant may show by parol evidence that at the time of executing the note and mortgage it was agreed, as part of the same transaction, that defendant should pay all taxes levied on the money loaned, or on the mortgage, but that the agree ment was purposely omitted from the mortgage, in order to evade Const. art. 13, § 5, which provides that imposing such an obligation on a borrower shall avoid the contract, as to any interest specified therein, as such parol evidence tends to "establish illegality" of the contract, within Code Civil Proc. § 1856, prescrib ing when such evidence is admissible to affect a writing.

Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge.

Action by George W. Daw against William Niles and John B. Niles to foreclose a mortgage. There was a judgment for plaintiff, and defendants appeal. Reversed.

A. W. Hutton and Minor & Woodward, for appellants. Albert M. Stephens, for re spondent.

VAN CLIEF, C. Action to foreclose a mortgage executed by defendants to secure their promissory note to plaintiff for $10,000, with interest at 7 per cent. per annum, and payable 10 years after date; the interest, if not paid annually, to be compounded. The note further provides that, if the interest is not paid annually, "then the whole sum of principal and interest shall become immediately due and payable, at the option of the holder." The note was given for money loaned. The mortgage, of the same date as the note, (July 1, 1887,) contains a copy of the note, and provides that "in case of default in payment of the same, [the note,] or of any installment of the interest thereon, when due, the mortgagee may foreclose this mortgage, and may include in such foreclosure a reasonable counsel fee, to be fixed by the court, together with all payments made by the mortgagee for taxes onsaid premises, other than the taxes on this mortgage, or the money secured thereby.

The defendants having made default in the payment of interest, the plaintiff exercised his option by electing to consider both principal and interest due, and commenced this action on March 27, 1891. The defendants pleaded as a defense to the action that at the time of the execution of the note and mortgage, and as a part of the same contract and of the same transac tion with the making of the note and mort'Rehearing granted,