the words "under a four-inch pressure;" which, under all the circumstances, I think to be a correct construction of those findings. The parol evidence tending to prove the capacity of the ditch, and the quantity of water actually diverted during the adverse user, prior to the former action, was properly admitted as an aid to the action, since there is no evidence that 100 feet, by miners' measurement, is not equal to the 450 cubic feet per second, to which in this action the defendant was adjudged to be entitled. No attempt appears to have been made at the trial of this action to reduce the "450 cubic feet per second" to miners' feet, nor to reduce the 100 miners' feet to cubic feet per second. The find-construction of the former judgment, ing that defendant acquired its right to the water under and in conformity with the laws of this state, (Civil Code,) and that the water was to be measured by inches or feet, under a four-inch pressure, plainly indicate that the miners' rule of measurement, adopted by the Civil Code, was intended. Yet these were disregarded as meaningless, because inconsistent with the words "cubic feet per second;" and thereby the findings of fact were made inconsistent with each other, and inconsistent with the judgments in both actions. Why not, rather, reject the words "cubic feet per second," and thereby make the findings of fact consistent with each other, and consistent with both judgments? These ends are sufficient of themselves to turn the scale in favor of rejecting the words "cubic feet per second.' But there is another circumstance which may be considered favorable to this construction, and which consists of the acts of the defendant, by its agents, under and immediately after the posting of its notice in accordance with section 1415 of the Civil Code, claiming “14,400 cubic inches per second under a four-inch pressure. Instead of constructing a small ditch of a capacity to carry merely 14,400 cubic inches per second, equal to about 8% cubic feet per second, the defendant proceeded to construct a ditch of about 20 miles in length, and of sufficient capacity to carry 777,600 cubic inches per second, equal to 450 cubic feet per second, being of about 50 times the capacity required to carry 14,400 cubic inches per second, yet, presumably, of no greater capacity than required to carry 14,400 min. ers' inches. Through this ditch defendant continued to divert water to its full capacity, without interruption, for more than five years before the commencement of the former action. These acts show that, by its notice under the Code, the defendant intended miners' inches, and not cubic inches; and the findings of the court in the former action must have been so intended, and should be so construed. It cannot reasonably be presumed that in the former action the court intended to award to the defendant 11 times as much water as it claimed in its answer; yet, by the construction contended for, that court awarded 100 cubic feet per second, which is more than 11 times 14,400 cubic inches per second,-the quantity claimed by the answer. No doubt the intention of the court was to give defendant the equivalent of the number of inches claimed, (14,400,) reduced to feet, (100;) and, construing them to mean miners' inches and miners' feet, the reduction was correct, but, if cubic inches and cubic feet were intended, it was wildly erroneous. The effect of the findings and judgment in the present action is to reject the words "cubic fcet per second,” in the former findings, and to give effect to which, upon its face, is ambiguous and uncertain as to the quantity of water awarded to defendant in that action, and it could have had no other effect prejudicial to the plaintiffs. Gray v. Dougherty, 25 Cal. 266; Garwood v. Garwood, 29 Cal. 521; Water Co. v. Richardson, 72 Cal. 598, 14 Pac. Rep. 379. The objection to this evidence improperly assumed that the former judgment was too plain to admit of construction, and that the effect of this evidence was to contradict it. I think the judgment and order should be affirmed. Weconcur: BELCHER, C.; FITZGERALD, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed. DE HAVEN, J. I concur in the judgment affirming the order appealed from. (94 Cal. 387) Ex parte GREEN. (No. 20,925.) (Supreme Court of California. April 30, 1892.) MUNICIPAL ORDINANCE-VALIDITY-IMPRISONMENT FOR NONPAYMENT OF FINE. Act March 13, 1883, empowered the city of Pomona "to pass ordinances not in conflict with the constitution and laws of the state or of the United States," and to punish the "violation of any ordinance" by "fine or imprisonment or both," the fine not to exceed "three hundred dollars" and the imprisonment not to exceed three months. Const. art. 11, § 11, authorizes any city to make and enforce all police and other regulations not in conflict with general laws. Pen. Code, § 1215, provides that if a judgment is "for imprisonment, or a fine and imprisonment until it be paid, "the defendant must be "de tained until the judgment is complied with.' Held, that an ordinance of said city might pro vide that a violation thereof should be punished by imprisonment "for ten days and by fine of one hundred and fifty dollars," and that, in default of payment of the fine, defendant should be im. prisoned "until the fine be satisfied in the proportion of one day's imprisonment for every two dollars of such fine remaining unpaid. " MCFARLAND and PATERSON, JJ., dissenting. Ex parte Rosenheim, 23 Pac. Rep. 872, 83 Cal. 390, distinguished. In bank. Petition of Green for a writ of habeas corpus. Petitioner remanded. Westerman & Broughton, for petitioner. SHARPSTEIN, J. The return of the city marshal of the city of Pomona shows that he holds the petitioner in custody in the city jail of said city under and by virtue of a commitment issued out of the recorder's court of said city, which recites that petitioner was convicted in said court of the crime of misdemeanor, committed in said city, and upon such conviction said court ordered and adjudged that for said offense petitioner be imprissued in the city jail of said city of Pomona for a period of 10 days and fined $150, and that, in default of the payment of said fine, he be imprisoned in said city jail in the proportion of one day's imprisonment for each and every $2 of said fine until the said fine be wholly satisfied, not exceeding 75 days, and that he be discharged on payment of such proportion of said fine as shall not have been satisfied by imprisonment at the rate prescribed. Then follows the command to said marshal to take and imprison petitioner in said jail 10 days, and also in the proportion of one day's imprisonment for each and every $2 of the fine not otherwise satisfied, not exceeding 75 days, and to discharge petitioner upon payment into court of such remaining portion of said fine as shall not have been satisfied by imprisonment at the rate above prescribed. The misdemeanor of which petitioner was convicted consisted of a violation of section 1 of ordinance 89 of said city, which provides, among other things, that "every person convicted of violating this section of this ordinance shall be punished by imprisonment in the city jail of the city of Pomona for ten days, and by fine of one hundred and fifty dollars, (and the judgment of fine shall direct that, in default of payment of such fine, or any part thereof, defendant shall be imprisoned in the jail of the city of Pomona until the fine be satisfied in the proportion of one day's imprisonment for every two dollars of such fine remaining unpaid.)" If that provision of the ordinance be valid, the judgment, commitment, and imprisonment of petitioner are legal beyond any question. And the contention of petitioner's counsel is that the ordinance, so far as it imposes any imprisonment for a failure to pay a fine, is invalid. All the powers of a corporation are derived from the law and its charter, and it cannot enlarge, diminish, or vary its powers by ordinance or by law. The city of Pomona derives its powers from an act to provide for the organization, incorporation, and government of municipal corporations, approved March 13, 1883, under which that city is incorporated as a city of the fifth class. Power is conferred by that act upon the board of trustees of said city, "to pass ordinances not in conflict with the constitution and laws of the state or of the United States. To impose fines and penalties and forfeitures for any and all violations of ordinances, and for any breach or violation of any ordinance to fix the penalty by fine or imprisonment or both; but no such fine shall exceed three hundred dollars nor the term of such imprisonment exceed three months. To do and perform any and all other acts and things necessary and proper to carry out the provisions of this chapter, and to exact and impose within the limits of such city all other local, police, sanitary, and other regulations as do not conflict with general laws." The power to impose fines is clearly conferred, but no mode is provided for their collection. We think in such a case it is clearly within the power of a municipal corporation to adopt any reasonable mode for the enforcement of the payment of any fine that it is au thorized to impose. We think this power is clearly implied in the power to impose a fine. The payment of fines has always been enforced by imprisonment. Section 1215 of the Penal Code provides that, "if the judgment is for imprisonment, or a fine and imprisonment until it be paid, the defendant must forth with be committed to the custody of the proper officer, and by him detained until the judgment is complied with." The provision of the ordinance for the enforcement of the payment of a fine by imprisonment is not in conflict with any general law. In this country, courts have often affirmed the general incidental power of municipal corporations to make ordinances, but have always declared that ordinances passed in virtue of the implied power must be reasonable, consonant with the general powers and purposes of the corporation, and not inconsistent with the laws or policy of the state. 1 Dill. Mun. Corp. 253. In addition to the powers enumerated in the incorporating act, the trustees of the city of Pomona are authorized “to do and perform any and all other acts and things necessary and proper to carry out the provisions of this chapter, [the chapter relating to municipal corporations of the fifth class,] and to exact and enforce within the limits of such city all other local, police, sanitary, and other regulations as do not conflict with general laws." We can conceive of nothing more necessary and proper for carrying out the provision empowering the board of trustees to impose fines for violations of ordi. nances than a mode of enforcing the payment of them. Without the power of enforcing the payment of such fines, the imposition of them would be nugatory. The constitution of this state provides that "any county, city, town, or township may make and enforce, within its limits, all such local, police, sanitary, and other regulations as are not in conflict with general laws.” Const. art. 11, § 11. It is not claimed that the ordinauce which petitioner was convicted of having violated conflicts in any manner with any general law. Therefore the power to enforce it is expressly conferred by the constitution, subject, of course, to the rule that the mode of enforcing it be a reasonable one. The whole term of imprisonment fixed by the ordinance is less than three months, and the circumstance that the greater part of the term fixed by the ordinance is conditional is not unfavorable to those who are imprisoned. The option given might, under the incorporating act, have been withheld, and the petitioner have been imprisoned for a louger period than he can be under the ordinance. And yet the petitioner's main objection to the ordinance is that it does not provide for an imprisonment of 3 months, instead of 85 days, with the option of paying a fine, and avoiding 75 of the 85 days of imprisonment. We think the ordinance is clearly within the powers conferred by the incorporating act, and not in conflict with any general law. In Ex parte Rosenheim, 83 Cal. 390, 23 Pac. Rep. 372, a case which seems to be very much relied on by counsel for peti tioner, the court construed a provision of the Penal Code, and held that it did not authorize imprisonment for the nonpay. ment of a fine where the judgment imposed both imprisonment and fine. In that case the judgment was that the defendant be imprisoned for the full term fixed by the Code, and afterwards imprisoned until the fine should be satisfied, at a specified rate per day. We are not now called upon to construe any such provisions of law as were construed in that case. All that we are required to do in this case is to decide whether the ordinance which petitioner was convicted of violating is a valid one. If valid, the legality of the imprisonment of petitioner is unquestionable. We are not satisfied that the ordinance is invalid; therefore the petition is dismissed, and petitioner remanded. We concur: BEATTY, C. J.; HARRISON, J.; De Haven, J. MCFARLAND, J. I dissent. The maximum term of imprisonment prescribed by the ordinance is 10 days, and I do not think that the petitioner can be legally imprisoned longer than that time. The law under which he was tried is not the charter, but the ordinance; and, as that law prescribes 10 days as the maximum term of imprisonment, he cannot, under the general statutory rule, be imprisoned longer than that time under the guise of working out a fine. -the petitioner cannot complain. The legislature has provided that the penalty for battery shall be a fine not exceeding $1,000, or imprisonment in the county jail not exceeding 6 months, or both. Lowrey was convicted of battery, and was sentenced to serve a term of 30 days and pay a fine of $200, with the usual alternative of imprisonment, until the fine should be paid at the rate of one day for every dollar thereof. If he had remained in jail under the judgment, according to its terms, until the fine was satisfied, the imprisonment would not have exceeded the maximum term which the justice might have imposed; and yet we held that the alternative clause was void. Lowrey v. Hogue, supra. I think the same thing should be done here. Ex parte SMITH. (No. 20,926.) (Supreme Court of California. April 30, 1892.) In bank. Petition of Smith for a writ of habeas corpus. Petitioner remanded. Westerman & Broughton, for petitioner. PER CURIAM. This case presents the same general questions which were involved in Ex parte Green, (No. 20,925,) 29 Pac. Rep. 783, the decision in which has just been rendered, and upon the authority of that case the petition is dismissed, and the petitioner remanded. (94 Cal. 399) SAN JOAQUIN LAND & WATER Co. V. 1. By an instrument preliminary to incorporation the subscribers agreed to take the number of shares set opposite their names respectively, and to pay 20 per cent. of the par value of the shares so subscribed to one W. By the same instrument the subscribers appointed defendants and another as their agents and as the agents of the corporation to be formed, with authority to purchase property for the corporation, and to draw from W. the money paid to him, and to use such money in paying for the property purchased. Held, that defendants and their colleague were authorized, as agents of the subscribers, to negotiate for the purchase of property until the formation of the corporation, when their agency for the subscribers would cease, and thereafter they should act for the corporation. PATERSON, J. I dissent. When the leg islature said that violations of the ordinances might be punished by "fine or inprisonment or both" it meant to provide for precisely the same kind of punishment it has provided for in a multitude of cases in the Penal Code, where the court is authorized to impose a fine or imprisonment or both. We have held here in several cases lately that the power to impose a fine or imprisonment or both does not include the power to impose a fixed term of imprisonment and a fine, and also imprisonment for nonpayment of the fine. The judgment may be for a fixed term of imprisonment, and a fine to be enforced by execution; but it cannot be for a fixed term, a fine, and imprisonment in satisfaction of the fine. Ex parte Rosenheim, 83 Cal. 388, 23 Pac. Rep. 372; Lowrey v. Hogue, 85 Cal. 600, 24 Pac. Rep. 995. It seems to me that there is an obvious inconsistency between those decisions and the decision in this case. It is said that the trustees are clothed with general authority to enforce all municipal regulations, and that imprisonment is a common and not an unreasonable mode of enforcing payment of a fine. The same thing could have been said in the Rosenheim and other cases; but the question there considered as it is here-is not as to the reasonableness of the method of enforcing payment or satisfaction of the fine, but the power of the court to impose the additional penalty. I am unable to appreciate the force of the suggestion that, the whole term of imprisonment being less than three months,-the maximum term of imprisonment allowed by the charter, | NERTON, Judge. v.29p.no.11-50 2. Such instrument did not give defendants and their colleague the custody of the money paid to W. 3. In a prior action by W. for the recovery of the 20 per cent. agreed to be paid by the subscribers, to which action the corporation was not a party, any statement in the opinion rendered by the supreme court on appeal thereto, that the corporation had no right to the custody of the money collected by W., was dictum binding neither on the court nor on the corporation. 4. In an action by the corporation against W. for the money collected by him as money held by him for plaintiff's use and benefit, where defendants, who had repudiated their agency for plaintiff, were substituted as defendants for W., the substitution of their coagent also was not necessary for the determination of plaintiff's right to the money. Department 1. Appeal from superior court, San Joaquin county; J. G. SwIN Action by San Joaquin Land & Water Company against F. M. West, for whom J. L. Beecher and George Gray were substituted. Judgment for plaintiff. Defendants appeal. Affirmed. E. S. Pillsbury and W. L. Dudley, (Gordon Blanding, of counsel,) for appellants. Baldwin & Campbell, S D. Woods, and P. W. Bennett, for respondent. HARRISON, J. The controversy involved in this action arises out of the construction to be given to the terms of an instrument executed between the subscribers thereto for the incorporation of the plaintiff, and preliminary to such incorporation. The instrument itself was before this court in the case of West v. Crawford, 80 Cal. 19, 21 Pac. Rep. 1123, and is there set out at length. It was then held that West was authorized to collect in his own name 20 per cent. of the amount that the parties to that instrument had agreed to subscribe to the capital stock of the plaintiff, by reason of their express agree. ment therein to pay it to him. After that decision the subscribers paid this 20 per cent. to West, and at the commencement of this action he had in his hands of the amount so collected by him, $35,861.25, for the recovery of which the plaintiff brought this action, as money had and received by him to and for its use and benefit. After the commencement of the action, West, under the order of the court therefor, paid the money to the clerk of the court, to be held subject to the order of the court, and the appellants were substituted as defendants in his place, and answered the complaint. Upon the trial of the issues the court rendered judgment in favor of the plaintiff, from which the defendants who were substituted for West have appealed. 1. The agreement in question is of that character which is not unfrequently made by the subscribers to a corporation prior to its actual incorporation, and as preliminary thereto,-its object being for their mutual benefit and protection until the organization of the corporate body, and also for the ultimate benefit of the corporation. Upon the formation of the corporation such an agreement, with its advantages and rights, inures to the benefit of the corporation, irrespective of any agreement or want of agreement to that effect, and notwithstanding it may contain special provisions for carrying its own terms into execution. By the express terms of this instrument West was simply "the agent to collect the amount" which should become due to the plaintiff by virtue of the subscription to its capital stock which the parties to the instrument should make in pursuance of their agreement. By the instrument itself the subscribers agreed to "take," i. e., to subscibe for, the number of shares set opposite their names respectively, and "to pay twenty per cent. of the par value of said shares so subscribed, and that they would pay the same' to West in five days after the articles of incorporation were filed. The only money which the subscribers agreed to pay to West was for the stock which they should subscribe for to the plaintiff, and West was simply cousti 399 tuted the agent' for the corporation, to collect the amount which should become 'due' under their subscription, and, after its collection, to hold it for the use and benefit of the corporation. By the same instrument the subscribers appointed the appellants, together with one Shippee, as their agents,' and 'the agents of the corporation so to be formed,' with authority to negotiate for the purchase' of prop. erty for said corporation,' and to draw from West any or all moneys paid to him, and use said money for paying for same.' Giving to this language its reasonable construction, it was an authority to these three individuals, as agents of the subscribers prior to the organization of the corporation, to make negotiations for the purchase of the property, and that, upon the formation of the corporation, their agency for the subscribers should cease, and thereafter they should act for the corporation. They could not be the agents of the subscribers and of the corporation for the same purpose at the same time, inasmuch as the interests of the subscribers as individuals would be adverse to the interests of the corporation. The instrument does not provide that the appellants, with Shippee, should at any time be the custodians of the money collected by West. They were only to "draw" from him such money as they might need to use in paying for any property that they should purchase for the corporation; and, as it is not claimed that they have negotiated for the purchase of any property for the corporation, there was no occasion for them to draw any of the money from West, or for him to deliver it to them. They, as well as West, were at all times after the incorporation of the plaintiff only its "agents," and, having no interest coupled with their agency, it was competent for the plaintiff to remove them at any time, and appoint other agents in their place, or itself assume the custody and disposition of the money. The finding of the court that upon the incorporation of the plaintiff the appellants not only ceased to act as the agents of the subscribers, but that, "before any of the moneys were paid to West, they repudiated such agency, and refused to act under said appointment, and wholly abandoned the same," fully established the right of the plaintiff as against their claim to the custody of the money. The appellants, however, contend that the court below in its judgment disregarded the construction given to the agreement by this court in its opinion in the case of West v. Crawford, supra; and that it was then held that the plaintiff herein had no right to the custody of the moneys which might be collected by West under that agreement. While there is some language in that opinion that upholds this contention, the opinion must be construed with reference to the case then before the court for its determination. That was merely whether West could maintain an action for the recovery of the 20 per cent. agreed to be paid by the subscribers, and his right to maintain such action was upheld upon the ground that the subscribers had made an express promise to pay it to him at a fixed date after the filing of the articles of incorporation. The only parties before the court were West and some of the subscribers, and the ultimate right to the custody of the money was not involved in the action. For the purpose of meeting the argument of the appellants therein that the money belonged to the corporation, and could be collected only by it in the manner provided by statute for collecting assessments, it was stated in the opinion that it did not appear from the agreement that the corporation would ever be entitled to receive the money. It was not intended thereby to preclude the corporation from asserting its right to the money, nor could any statement in the opinion have that effect. The corporation was not before the court, and, as its right to the money had not been submitted by it to this court for determination, it could not be estopped by any statement in the opinion from subsequently asserting such right, and any statement in the opinion respecting its right to the money would be only a dictum, and not binding either upon the court or the corporation. 2. It was not necessary that Shippee should have been made a party defendant. The action was brought originally against West to recover certain moneys which had been collected and were held by him for the use and benefit of the plaintiff. This money was paid into court, and the appellants were substituted as defendants in place of West, and in their cross complaint they ask that the money be paid to them alone. Inasmuch as West held the money for the use and benefit of the plaintiff, he could not, by paying that money into court, change or diminish the right of the plaintiff to receive it, nor was its right in any respect affected by the substitution of the appellants as defendants in the place of West. The appellants, after having repudiated their agency, cannot claim that Shippee's presence in court was essential to a determination of the plaintiff's right. Shippee and the appellants are in no respect trustees under the instrument for the purpose of carrying into effect any of its provisions. There was no trust created by the instru ment other than such a trust as always exists between a principal and his agent, nor do the moneys in question constitute a trust fund to be disposed of under the directions of a court of equity. They are simply moneys belonging to the plaintiff, and which it has the right at any time to demand from its agent. The judgment and order are affirmed. shall hold his office for four years, and until his successor is elected and qualified, and the term of the office shall commence on the same day as secretary of state, (second Monday, January, 1895;) and by section 5 providing that on the approval of the act, and at any time when a vacancy may occur in the office of attorney general, the governor shall appoint a person to be attorney general, who shall hold the office "until the next general election, when his successor shall be elected and shall qualify as provided for in this act, "-the person appointed by the governor to fill the vacancy will hold only until some one is elected at the "next general election" (June, 1892) to hold for the fractional part of the term. STRAHAN, C. J., dissenting. Appeal from circuit court, Linn county; R. P. BOISE, Judge. Mandamus on the relation of William E. Baker against N. P. Payne, county clerk. Writ allowed. Defendant appeals. Affirmed. J. K. Weatherford and Blackburn & Watson, for appellant. Montanye & Hackleman, F. P. Mays, and G. G. Bingham, Dist. Atty., for respondent. LORD, J. This is a proceeding for a maudamus, brought by the state of Oregon, upon the relation of William E. Baker, who is alleged to be a citizen and vot. er of Linn county, Or., to compel the defendant and appellant, as county clerk of said county, to correct his notices of election for the general election to be held in June, 1892, by naming therein the office of attorney general for the state of Oregon to be filled thereat. Upon the presentation of the petition an order was made by the judge that an alternative writ of mandamus issue, directed to the defendant, commanding him to correct said notices by naming the office of attorney general of the state of Oregon to be filled at said general election, or show cause why he has not done so. Upon the return day the defendant returned said writ, with his answer annexed thereto, in which he denied all the material allegations in said peti. tion, and for a further and separate de fense, in substance, alleged "that, pursuant to the provision of an act of the legislative assembly of the state of Oregon, entitled 'An act to create the office of attorney general, provide the duties, and fix the compensation,' filed in the office of secretary of state February 21, 1891, it was made the duty of the governor of the state of Oregon to appoint a suitable person to be attorney general of the state of Oregon, and that, pursuant to the provisions of the act, his excellency, the governor, did, on or about the 21st day of May, 1891, appoint Geo. E. Chamberlain such attorney general, and that said ap Weconcur: GAROUTTE, J.; DE HAVEN, J. pointee did thereupon qualify and enter (22 Or. 335) STATE ex rel. BAKER V. PAYNE, County (Supreme Court of Oregon. April 30, 1892.) ELECTION OF ATTORNEY GENERAL-CONSTRUCTION OF STATUTE. Under the act creating the office of attorney general, (Sess. Laws 1891, p. 188,) and providing by section 2 that there shall be elected at the general election held in June, 1894, and each fourth year thereafter, an attorney general, who upon the duties of such office, and that he is now the duly-qualified incumbent; that, under the provisions of said act, there is to be elected by the qualified electors of the state of Oregon, at the general election to be held in June, 1894, and every fourth year thereafter, an attorney general, who shall hold his office for the term of four years, and until his successor is elected and qualified, and that the term of the office of attorney general shall commence on the same day as secretary of |