tax sale, invoked by counsel for respondent, has no application here. Section 3804 was enacted to do justice in a class of cases where, but for its provisions, the application of the doctrine of caveat emptor would work a hardship to citizens who had paid money which it was inequitable for the county to retain. I am of the opinion that the doctrine of caveat emptor has no proper appliIcation to that class of cases in which the attempted sale of real property for taxes is absolutely void by reason of the tax having been previously paid. This view is sustained by a large number of the late authorities, but for present purposes the question is not of moment, the inquiry being directed to plaintiff's right of recovery under the statute.

It is urged by respondent that the Code, by providing that the board of supervisors may by order provide for refunding taxes, etc., paid more than once, made it optional with that body whether to do so or not, and that the board, in this instance, having refused to refund, its action is conclusive upon the plaintiff. Where the public interest or private right requires that the thing should be done, then the word "may" is generally construed to mean the same as "shall." People v. Supervisors of Livingston Co., 68 N. Y. 119. Where the statute directs the doing of a thing for the sake of justice, or the public good, the word "may" is the same as the word "shall." Rex v. Barlow, 2 Salk. 609. Where a statute directs a thing to be done for justice's sake, "may" means "shall." Silvey v. U. S., 7 Ct. Cl. 334. Where persons or the public have an interest in having the act done by a public body, "may," in such a statute, means "must." Phelps v. Hawley, 52 N. Y. 27; People v. Supervisors of Otsego Co., 51 N. Y. 401. See Estate of Ballentine, 45 Cal. 696. In Supervisors v. U. S., 4 Wall. 435, a statute of Illinois provided that the board of supervisors "may, if deemed advisable, levy a special tax," etc. Mr. Justice Swayne sums up the authorities on the question as follows: "The conclusion to be adduced from the authorities is that where power is given to public officers, in the language of the act before us, or in equivalent language,-whenever the public interest or individual rights call for its exercise,-the language used, though permissive in form, is in fact peremptory. What they are empow ered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless." Applying the rule enunciated in the foregoing cases, and it is apparent that a sound and just rule of construction requires the permissive word "may," in section 3804, supra, to be construed as "shall."

There is a further contention by respond

ent that the section only applies to taxpay ers, as such,-a class to which plaintiff does not belong. Property taxes are levied upon, and become a lien upon, property. If the property is sold, it is to the person who will take the least quantity of the land, and pay the taxes and costs due. Section 3773, Pol. Code. "If the purchaser does not pay the taxes and costs before ten o'clock A. M., of the following day, the property, on the next sale day, before the regular sale, must be resold for the taxes and costs." Section 3774, Pol. Code. After receiving the amount of the taxes and costs, the collector must make out, in duplicate, a certificate. Pol. Code, § 3776. The purchaser at a tax sale pays the taxes as effectually as could have been done by the owner without a sale; and if they have been previously paid by the owner of the property, and it is therefore sold for the same tax, and the taxes again paid by the purchaser, it is a payment more than once, within the purview of the statute, for which the purchaser or his assignee may recover from the county, as provided in section 3804. It follows from this conclusion that the complaint demurred to states a cause of action against the defendant, and that the state of California is not a necessary party defendant.

There is no allegation in the complaint that the state has received any portion of the tax in question. To presume it to have done so for the sole purpose of passing upon the constitutionality of that portion of section 3804, Pol. Code, which provides the mode by which taxes of the character in question, when paid to the state, shall be refunded to the county, would require us to go outside the record, in quest of a proposition which may never arise in the case.

The further point is made by the demurrer that plaintiff's cause of action is barred by the provision of section 41 of an act of the legislature of the state of California entitled "An act to establish a uniform system of county and township governments," approved, etc. The section in question requires all claims to be presented to, and filed with, the clerk of the board of supervisors, within one year after the last item in the account or claim accrued. The tax in question was paid by the assignor of plaintiff on the 7th day of March, 1890. Neither plaintiff nor his assignor was aware that the tax had been paid more than once until September 10, 1891, when the tax collector refused to deliver the tax deed. The claim was presented to the board of supervisors October 8, 1891, and rejected October 14, 1891. The fourth subdivision of section 338, Code Civil Proc., provides: "An Action for Relief on the Ground of Fraud or Mistake. The cause of action in such case not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." (1) The claim of plaintiff under the statute was inchoate

It

until September 10, 1891, when the collector furnished him the official evidence that the tax had been previously paid. Prior to that time he possessed no evidence that a deed would not be forthcoming upon demand. was his demand for a deed, and the refusal by the collector to deliver it, for the cause specified, viz. that the tax had been paid before the sale, that gave him a right to recover from the county. (2) Conceding, however, that we are wrong in the foregoing proposition, plaintiff's cause of action in this case, where the claim was evidently founded in a mistake by the collector, is, under subdivision 4 of section 338, Code Civil Proc., to be deemed as accruing on the 10th day of September, 1891, the date when the mistake, and the facts connected therewith, were first discovered. To hold otherwise would be to hold that the county could, through its collector, for whose acts, within the scope of his powers, it is liable, unlawfully collect taxes from two or more persons upon the same property for the same fiscal year, and then, by withholding the facts for a year, escape liability. This cannot be regarded as within the intention of the lawmaking power. I am of opinion the judgment should be reversed, and the court below directed to overrule the demurrer to the complaint.

1. Under Act March 19, 1889, authorizing cities to issue bonds for public buildings, and designating the city council as the body to decide on the necessity of calling an election to vote on the subject of issuing bonds, the city of Oakland may issue bonds to build schoolhouses, though its charter vests the government of the school department in a board of education, and authorizes the board to "build schoolhouses," but does not authorize it to contract debts exceeding in any one year the revenue provided for that year.

2. Pol. Code, $8 1880-1887, providing for the issuance of school-district bonds by the supervisors of a county to build schoolhouses, do not limit the power conferred upon a city by Act March 19, 1889, to issue its own bonds for the same purpose, though section 1576 makes each incorporated city a school district. In bank. Appeal from superior court, Ala. meda county; W. E. Greene, Judge.

Action by J. L. Wetmore against the city of Oakland and others to determine the validity of city bonds issued for the purpose of building schoolhouses. The bonds were adjudged valid, and plaintiff appeals. Affirmed. v.33P.no.14-49

Edw. C. Robinson and E. A. Holman, for appellant. James A. Johnson, Davis & Hill, and James W. Goodwin, for respondents.

HARRISON, J. The legislature of this state, at its session in 1889, passed an act approved March 19, 1889, authorizing the incurring of indebtedness for municipal improvements, and issuing bonds therefor by cities, towns, and municipal incorporations, (St. 1889, p. 399,) the first section of which declares that "any city, town, or municipal corporation incorporated under the laws of this state may, as hereafter provided, incur indebtedness to pay the cost of any municipal improvement, or for any purpose whatever requiring an expenditure greater than the amount allowed for such improvement by the annual tax levy." By the next section of the act it is provided that whenever the legislative branch of the municipal corporation shall determine that the public interest or necessity demands the acquisition, construction, or completion of any municipal buildings or other municipal improvements, whose cost will be too great to be paid out of the ordinary annual income and revenue of the municipality, it may call an election for the purpose of determining whether bonds of the municipality shall be issued for such improvement, and if the proposition shall receive the vote of two-thirds of the voters voting at such election such bonds may be issued. September 23, 1891, the council of the city of Oakland passed an ordinance by which it declared that the public interest and necessities of the city of Oakland demanded the acquisition, construction, and completion of certain municipal buildings and improvements in that city for public school purposes, viz. certain designated schoolhouses, and that the cost thereof would be too great to be paid out of the ordinary annual income and revenue of the city; and afterwards passed an ordinance that the question of issuing bonds therefor to the amount of $400,000 be submitted to the voters of the city at a special election to be held for that purpose. At that election, more than two-thirds of the voters having voted for the issuance of the bonds, suitable ordinances were passed by the council, and bonds of the city to the amount of $400,000 were issued and sold prior to Jaruary 1, 1893, and the proceeds placed in the city treasury. In June, 1893, the appellant having challenged the validity of these proceedings, an agreed case was submitted to the superior court of Alameda county, under the provisions of section 1138, Code Civil Proc., for the purpose of having a determination by that court of the validity of the bonds. The superior court adjudged that they were valid obligations of the city of Oakland, and from its judgment this appeal has been taken.

The proposition presented by the appellant in support of bis appeal is that the mu

The

nicipality of the "city of Oakland" has no power tɔ issue its bonds for the construction of schoolhouses, for the reason that the management of its schools is vested in a board of education, and that any bonds to be issued for school purposes must be authorized by that body. The city of Oakland is governed by a freeholders' charter, which was approved by the legislature February 14, 1889. St. 1889, p. 513. Under this charter the legislative power of the city is vested in a council of 11 members, and the government of the school department is vested in a board of education consisting of 11 members. board of education is by the charter vested with authority to "build schoolhouses" upon plans approved by it, but the work of building the schoolhouses is to be carried on through the medium of a board of public works. It is, moreover, expressly declared in the charter (section 131) that the board of education "shall not have power to contract any debts or liabilities in any form whatsoever against the city, exceeding in any year the income and revenue provided for the school fund for such year." By section 149 of the charter it is provided that "whenever the council shall determine that the public interest requires the construction or acquisition or completion of any permanent municipal building * the cost of which in addition to the other expenditures of the city will exceed the income and revenue provided for in any one year, they may by ordinance submit a proposition to incur a debt for such purpose, and proceed therein as provided in section 18, of article 11, of the constitution of this state and general law." By this section of the charter the same authority is conferred upon the council to create a bonded indebtedness as is given by the aforesaid act of the legislature, but the act of the legislature prescribes the steps to be taken, and is the "general law" under which it is necessary for the council to proceed in incurring such indebtedness. The provisions of the act of March 19, 1889, are general in their character, and give to every municipal corporation incorporated under the laws of this state the power to create a bonded indebtedness for any of the purposes authorized by the act. The indebtedness is not to be incurred, nor are the bonds to be issued, until after the voters of the municipality have so directed; but, as it is the vote of the electors which determines that they shall be issued, it is immaterial to them what officers of the city carry out this vote. The act itself designates the legislative branch of the municipality as the body to determine in the first instance whether the public interest or necessity demands the construction or completion of the building or improvement, and also designates that body as the agency of the corporation through whose acts the indebtedness is to be created and evidenced. There is no particular mode provided by which the council

shall ascertain this fact, but, in a matter which pertains to the public schools, the fact would naturally be ascertained by direct communication with the board of education, or by a request from that board, and, inasmuch as that board has no power to issue the bonds of the city, it is but natural to assume that it would manifest its wishes to the council. The question, however, is not how the council shall ascertain whether the public interest demands the improvement, but whether it has any power to issue the bonds after it has so determined, irrespective of the mode of ascertaining it. Although the board of education has been intrusted with the management of the schools, and it is the body designated in the charter to build the schoolhouses, there is nothing inconsistent with this provision for the legislature to designate the council as the body to give inception to the indebtedness and issue the bonds therefor. The power to build or improve the schoolhouses which is vested in that board is distinct from the power to borrow money with which to build or improve them. The board of education, as such, is forbidden by the charter from incurring any indebtedness beyond the annual income for school purposes, and as the constitution permits such indebtedness by any municipal corporation only after a vote of the electors therefor, it is competent for the legislature to designate the agent or body of the municipal government which shall act for it in carrying out the will of its electors, and for this purpose the legislative branch of that government would most naturally be selected.

That the education of the youth is properly included within the functions of a municipal government cannot be denied. A municipal corporation is but a branch of the state government, and is established for the purpose of aiding the legislature in making provision for the wants and welfare of the public within the territory for which it is organized, and it is for the legislature to determine the extent to which it will confer upon such corporation any power to aid it in the discharge of the obligation which the constitution has imposed upon itself. The constitution has declared (article 9. § 1) that, "a general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral and agricultural improvement." In furtherance of this duty the legislature has made provision in the Political Code for a system of public schools throughout the state; and in the municipal government act, which was enacted in 1883, providing for the organization of municipal corporations, it has included a school department for the first five of the several classes of municipal corporations therein provided for. In each of the freeholders' charters

that has been approved by it an educational department has been established, and provision made for education, and for the exercise of municipal functions in reference thereto. As schoolhouses are essential aids in the promotion of education, their erection is but incidental to the maintenance of the schools, and falls as completely within the functions of a municipal government as does the erection of a hospital for its indigent poor, or buildings for its fire engines; and the schoolhouses, when so erected, are as fully municipal buildings as are its engine houses and hospital buildings. Danielly v. Cabaniss, 52 Ga. 222; Horton v. Commissioners, 43 Ala. 598. In Board v. Fowler, 19 Cal. 24, the validity of a reservation by the Van Ness ordinance of certain lots for school purposes was involved, and the supreme court said: "The school department of the municipality is only a part of its government. A reservation of property for school purposes is not a disposition of it for the benefit of third persons, but a keeping of it for its own purposes. The resolution amounts only to the setting apart of property of the town for a particular town purpose, and in this respect is not different from a similar act, if such had been done, declaring that the plaza should be reserved as a public garden, or a lot for a jail, or a house for the holding of courts." See, also, Board v. Martin, 92 Cal. 209, 28 Pac. Rep. 799.

The provisions of sections 1880-1887 of the Political Code for the issuance by the supervisors of the county of school-district bonds whenever the electors of the district shall vote therefor, to pay for the building of schoolhouses in the district, do not limit or qualify the power conferred by the act of March 19, 1889, upon an incorporated city to issue its own bonds for the same purpose, notwithstanding the provisions of section 1576 of the same Code, making such incorporated city a school district. Each of these acts is a general law upon a subject within legislative power, and, if there is any inconsistency between them, that which is later in date must prevail over the earlier act. There is not, however, any inconsistency between the two acts. The bonds authorized by these sections of the Political Code are different obligations from those issued by the municipal corporation under the act of March 19, 1889. A school district has not, like an incorporated city, any financial officers, nor has it been intrusted with the power of assessment and taxation which is conferred upon an incorporated city, and for these reasons as well as others the legislature would naturally intrust to the supervisors of the county, as being the body having the financial supervision of the school district, the function of issuing and ́ providing for the payment of school district bonds; and as by the constitution bonds cannot in any case be issued except upon

the vote of two-thirds of the qualified electors of the district voting upon the question of their issuance, the agency by which they might be executed would seem immaterial, and there would be little likelihood of an issuance being authorized to be made for the same purpose by each agency. It is, however, unnecessary to determine whether the power to issue bonds conferred by these sections of the Political Code exists in favor of the school district as a corporation, as well as of the incorporated city which constitutes the school district, or whether it has been superseded by the power conferred upon the city, as the bonds in question are those of the municipal corporation, and not of the school district; but, even if it should be conceded that the power to issue bonds for the same purposes rests in the supervisors at the instance of the school district, and also in the city itself, the bonds which are authorized by the Political Code are to be issued in the corporate name of the school district, which by section 1575 of that Code must be " district of

county," whereas the bonds in question are those of the municipality of the city of Oakland, and their validity is to be determined by the power of the municipal corporation to issue them.

The question presented in Kennedy v. Miller, 32 Pac. Rep. 558, was the right of the treasurer of the city of San Diego to demand from the county treasurer the custody of certain public school moneys apportioned to the school district of San Diego, which had been derived from sources outside of the municipality, and not through any agency of the city, viz. the state school fund and taxes levied by the supervisors of the county, and it was held that they were moneys whose custody had been placed by the legislature with the county treasurer. The power of the city to raise money within its own territory for school purposes by tax or otherwise, or to retain the custody or make the disbursement of any moneys which might be raised from taxes levied by its council, did not arise in that case. On the contrary, we said that "the city is a corporation distinct from that of the school district, even though both are designated by the same name, and embrace the same territory. The one derives its authority directly from the legislature through the general law providing for the establishment of schools throughout the state, while the authority of the other is found in the charter under which it is organized;" and it follows that the acts of each corporation are to be measured by the authority under which they are performed, and their validity determined by a comparison with that authority. We hold, therefore, that the city of Oakland had the power, under the provisions of the act of March 19, 1889, to issue the bonds in question, and, as it was conceded at the argument that all the pro

-CORPORATIONS-ULTRA VIRES.

1. The fact that an hotel has a rule to charge a guest a less rate per diem by the week than by the day, and that, if a guest had been there longer than a week, he got the benefit of the rule, does not show that one who had been at the hotel more than a week was a "boarder," rather than a "guest," it not being shown that he had any notice of the rule, or any knowledge of the charges, or that any arrangement for a permanent stay had been made.

2. The fact that one has made a special arrangement at an hotel for board and lodging by the week is not determinative of the question whether he is a guest or a boarder, but merely evidence on the issue.

3. A corporation, after engaging in the hotel business, and assuming the liability of an innkeeper, cannot repudiate its liability on the ground that its acts were ultra vires.

In bank. Appeal from superior court, city and county of San Francisco; F. W. Lawler, Judge.

Action by James W. Magee against the Pacific Improvement Company. Judgment for defendant. Plaintiff appeals. Reversed.

Blake, Williams & Harrison, for appellant. A B. Hotchkiss, for respondent.

HARRISON, J. This action was brought to recover from the defendant the value of certain personal property, lost by the burning of the Hotel Del Monte, April 1, 1887. Judgment was rendered in favor of the defendant, and the plaintiff has appealed. It was held in Fay v. Improvement Co., 93 Cal. 253, 26 Pac. Rep. 1099, and 28 Pac. Rep. 943, upon the facts then before the court, that the defendant, as the proprietor and keeper of the Hotel Del Monte, was an innkeeper; and, as the facts herein are almost identical with those presented with that case, the defendant must in the present case be held to have been an innkeeper, and subject to its liabilities. It is, however, contended by the defendant that in the present case the plaintiff was a "boarder" with it, rather than a "guest," and consequently that its liability as an innkeeper does not exist. The finding of the court upon this issue is as follows: "That plaintiff and her assignor, at the time of the destruction of said house by fire, were inmates of said house under special arrangement for board and lodging by the week for a permanent stay, and at the time of the fire had given no intimation to defendant

of any intention to depart from said house, where they had been for about ten days." The appellant contends that this finding is not sustained by the evidence, and we are of the opinion that her contention is cor rect. The plaintiff testified that there was no special contract made between her and the management of the hotel as to the terms upon which she was received; that she sim ply went into the office, asked for a room, registered, and was assigned to the room; and, instead of there being any testimony in conflict with this statement, it was cor roborated by testimony given on behalf of the defendant by its clerk and manager. The only evidence which it is contended supports the above finding is that it was shown to be a rule of the house to charge a guest a less rate per diem for entertainment by the week than by the day, and that, if a guest remained more than a week, he got the benefit of the rule; that they treated all persons as transient guests until they remained a week, and then they commenced to treat them as boarders, and charged them the weekly rates; and that the plaintiff had been at the hotel about 10 days at the time of the fire. It was not shown, however, that this rule was ever brought to the knowledge or notice of the plaintiff, or that she was ever informed of the rates of charge, the only evidence upon that subject being that she always paid all demands that were made on her for her entertainment; and the defendant's manager testified that nothing was said when they came in about whether they came there by the day or otherwise. There was no evidence whatever that the plaintiff made any arrangement "for a permanent stay," or that there was at any time any thing said or done with reference to the time that she would remain at the hotel. Whether the plaintiff was a guest or a boarder with the defendant was an issue in the case upon which the liability of the defendant depended, and upon which the court should have made an express finding. This question was one of fact to be determined by the court upon all the evidence before it. Whether the plaintiff made a special arrangement respecting her stay with the defendant was only evidence to be considered by the court in determining the ultimate fact whether she was a guest or a boarder. Even if the finding of the court that she had made a special arrangement with the defendant for board and lodging by the week had been sustained by the evidence, that fact would not be determinative of the issue whether she was a guest or a boarder, but would be merely evidence to be considered in determining that issue. Pinkerton v. Woodward, 33 Cal. 597; Hancock v. Rand, 17 Hun, 279, 94 N. Y. 1; Hall v. Pike, 100 Mass. 495.

The proposition of the defendant that, because innkeeping is not enumerated as one