no necessity to go that far in the case at bar. Here the alleged acts tended directly to intimidate customers, and did intimidate them. That in such a case the threatened acts will be enjoined has been frequently held. In Allis Chalmers Co. v. Reliable Lodge (C. C.) 111 Fed. 264, the court said: "That a conspiracy existed among a number of these officers and members to stop and thereby injure the business of complainant by intimidation and violence is evident. * ** * These being the facts in the case, the law is clear and emphatic. The jurisdiction being 'established, is there any doubt as to whether the court should, in this case, grant the temporary injunction prayed for? I am clear there is not. As now presented, the court must grant the writ in broad and unmistakable terms, commensurate with the exigencies of the situation, as shown by the facts and evidence upon this proceeding. To do so will work no hardship, nor will it even hamper the actions of any law-abiding person. Indeed, no one without purpose to commit an unlawful act could be affected thereby." In United States v. Haggerty (C. C.) 116 Fed. 510, the court said: "This court, however, has heretofore, upon repeated occasions, recognized the power of the court to issue injunctions in cases where there is a combination and conspiracy upon the part of any class of people to prevent them from interfering with the business of others." In Frank v. Herold (N. J. Ch.) 52 Atl. 152, the court said: "Now, then, I think it is quite clear from what I have said that these defendants had no right to use the means which are forbidden by the restrained order now brought in question to prevent these operatives from continuing to work for the complainants, and that in doing so they are inflicting an injury upon the complainants, in respect to their private rights, precisely the same as they would if they broke, interfered with, or clogged the engine that drove their machinery, and that for such injury the complainants are entitled to a legal remedy by action. Now, this being so, the next question is, what right have the complainants here in this court asking for the restraining power of the court? Why, the answer to this is two-fold: First, it is quite clear that the relief in damages to be recovered in an action at law is entirely inadequate. It is quite absurd to say that they can sue each of these persons, and recover damages against them in separate suits, for every little act which, in the aggregate tends to result in injury. And, in the second place, the injury is continuing and irreparable, and not capable of admeasurement according to legal principles. So that at law the remedy is entirely inadequate. It is. therefore, a clear case for the interposition of a court of equity to exercise its preventive remedy. and that is the particular sphere at this day of a court of equity, as contradistinguished from a court of law." There are many other

cases to the same effect decided in England and in many of the American states. Appellants cite Davitt v. American Bakers' Union, 124 Cal. 99, 56 Pac. 775; but in that case it was merely held that the complaint was defective because it dealt wholly in "generalities, presumptions, and conclusions," and stated no "specific overt acts" done for the purpose of carrying out the alleged conspiracy. That case, therefore, does not apply to the case at bar, for here the specific acts are alleged.

Appellants make the bare statement, without argument, that "an injunction in this case is also specifically forbidden by Pen. Code, p. 581." The section of an act of the Legislature there referred to (Act March 20, 1903; St. 1903, c. 235, p. 289) is somewhat difficult of construction; but, in the first place. it cannot, in our opinion, be construed as undertaking to prohibit a court from enjoining the main wrongful acts charged in the complaint in this action, and, in the seeond place, if it could be so construed, it would to that extent be void, because violative of plaintiff's constitutional right to acquire, possess, enjoy and protect property.

It is contended by appellants that the judgment rendered in this case is too comprehensive, and enjoins them from doing some acts which are not within the averments of the complaint, or within the principle, even if conceded to be correct, upon which the court below based its conclusion. We think that this contention must be sustained, to the extent, at least, as is hereinafter stated. Some parts of the judgment seem to enjoin appellants from the mere expression of an opinion at any time or place as to plaintiff and its business, which would, at the worst, consist only of slander, which could not be reached in this form of action and seem to restrain them from doing other things which do not appear to be connected with or incidental to the main acts and threatened acts done at and in front of plaintiff's said places of business as above stated. The judgment must therefore be modified, so as to eliminate those objectionable parts.

The judgment, after the first paragraph thereof, is amended and modified, so as to read as follows: "Now, therefore, it is ordered, adjudged and decreed that the Stablemen's Union, Local No. 8,760. of San Fransisco, T. F. Finn, T. J. White, and all and each of the defendants herein, and each of their officers, members, agents, clerks, attorneys, and servants, be, and they are hereby, enjoined and restrained from interfering with, or harassing, or obstructing plaintiff in the conduct of its business at any of its said places of business No. 432 Pine street, No. 232 Sutter street, and No. 965 Sutter street, in the city and county of San Francisco, state of California, by causing any agent or agents, representative or representatives, or any picket or pickets, or any person or persons, to be stationed in front of or in

the immediate vicinity of said places of business, with a placard of transparency having on it the words and figures as alleged in the complaint herein, or any placard or transparency (having words or figures) of similar import, and from, at said places of business, or in front thereof, or in the immediate vicinity thereof, by means of pickets or transparencies, or otherwise, threatening or intimidating any person or persons transacting or desiring to transact business with said plaintiff, or being employed at said place or places by the plaintiff." And as thus amended and modified the judgment will stand affirmed.

We concur: BEATTY, C. J.; SHAW, J.; LORIGAN, J.; SLOSS, J.; ANGELLOTTI, J.; HENSHAW, J.

(149 Cal. 392)

Ex parte WEBER. (Cr. 1,331.) (Supreme Court of California. July 9, 1906.) 1. CONSTITUTIONAL LAW-UNIFORMITY-PROTECTION OF CHILDREN.

Pen. Code, § 272 (St. 1905, p. 759, c. 568), provides that any person having the care, custody, or control of any child under 16 years of age, who exhibits, uses, or employs, or in any manner, or under any pretense, sells, apprentices, gives away, lets out, or disposes of any such child to any person, for or in any business, exhibition, or vocation, injurious to the health or dangerous to his life or limb, or for the vocation, occupation, service, or purpose of singing or playing on musical instruments, rope or wire walking, etc., shall be guilty of a misdemeanor; but that the act shall not prevent the employment of such child as a singer or musician in any church, school, or academy, etc. Held, that such act was not unconstitutional for nonuniformity, in that it discriminated against children under 16 years of age, in favor of those over such age. 2. SAME.

Such section was also not objectionable as making an unfair discrimination in favor of the employment of children as singers or musicians in churches, schools, or academies.

In Bank. Habeas corpus on application of Henry Weber. Writ denied.

W. F. Williamson, for petitioner. W. H. Langdon, Dist. Atty., and R. W. Harrison, Asst. Dist. Atty. (Jno. M. Ehleman, of counsel), for respondent.

SHAW, J. The petitioner was arrested and confined for an alleged violation of section 273 of the Penal Code. The return shows that he is in custody upon two separate complaints relating to different children. Each complaint charges that the defendant did willfully and unlawfully take, receive, hire, employ, and use a certain male child, naming him, under the age of 16 years, in the business of scaling the boilers of a steamer, the said business being then and there dangerous to the life and limb of said child. The petition for a writ of habeas corpus is based upon the proposition that the law under which the complaint was

*

**

Section 272, so far as material, is as follows: "Any person having the care, custody, or control of any child under the age of sixteen years, who exhibits, uses, or employs, or in any manner, or under any pretense, sells, apprentices, gives away, lets out, or disposes of any such child to any person, for or in any business, exhibition, or vocation, injurious to the health or dangerous to the life or limb of such child, or in or for the vocation, occupation, service, or purpose of singing, playing on musical instruments, rope or wire walking, dancing, begging, or peddling, or as a gymnast, acrobat, contortionist, or rider, in any place whatsoever, or for or in any obscene, indecent or immoral purpose, exhibition, or practice whatsoever, or for or in any mendicant or wandering business whatsoever. or who causes, procures, or encourages such child to engage therein, is guilty of a misdemeanor. * * Nothing in this section contained applies to or affects the employment or use of any such child, as a singer or musician in any church, school, or academy, or the teaching or learning of the science or practice of music; or the employment of any child as a musician at any concert or any other musical entertainment, on the written consent of the mayor of the city or president of the board of trustees of the city or town where such concert or entertainment takes place." St. 1905, p. 759, c. 568.

Section 273 is as follows: "Every person who takes, receives, hires, employs, uses, exhibits, or has in custody, any child under the age, and for any of the purposes mentioned in the preceeding section, is guilty of a like offense, and punishable by a like punishment as therein provided." St. 1905, p. 759, c. 568.

The contention of the petitioner is that these provisions contain an arbitrary and unreasonable classification, and, consequently, are not of uniform operation, and that the act constitutes a special law for the punishment of crimes, where a general law could be made applicable. It is said that only a certain portion of the minor children of the state are affected by the act, namely, those who are under 16 years of age, and that this is an arbitrary discrimination between those who are over that age and those who are under that age; that any child over the age may enjoy his natural privilege of working for his own support as he pleases, while those under that age are prohibited therefrom. There is no sound reason for any such criticism. The same reasoning might be applied to a large number of laws which are universally conceded to be valid and constitutional. The law providing that a male person under 21 years of age is a

minor, subject to the legal disabilities of minority, might be rendered unconstitutional by the same process of reasoning. It is competent for the Legislature to provide regulations for the protection of children of immature years. The growth of a child is gradual and the age of maturity varies with different children. It is impossible for any person to fix the exact time when a child is capable of protecting itself. The legislative judgment in regard to the proper age at which such regulations shall become applicable to the child cannot be interfered with by the courts.

It is also stated that the law makes an unfair discrimination by allowing the employment of children as singers or musicians in churches, schools, or academies. The ground of this objection is that such employment, so far as the court can see, may be as injurious to the health or morals, or as dangerous to the life or limb of the child as those which are prohibited in the law, and that no prohibition is lawful under the Constitution unless it extends to all employments which are equally injurious. In matters of this kind the Legislature has large discretion. It, must determine the degree of injury to health or morals, which the different kinds of employment inflict upon the child, and the corresponding necessity for protecting the child from the effects thereof, and, unless its decision in that regard is manifestly unreasonable, there is no ground for judicial interference. We do not think the law in question so unreasonable as to require us to hold it unconstitutional.

The petition is denied, and the petitioner is remanded to the custody of the officer.

We concur: BEATTY, C. J.; SLOSS, J.; ANGELLOTTI, J.; HENSHAW, J.; McFARLAND, J.; LORIGAN, J.

(3 Cal. App. 591)

JOHNSON v. LEVY.

(Court of Appeal. Third District, California. May 15, 1906. Rehearing Denied by Supreme Court July 12, 1906.)

1. SALES-BILL OF SALE-PROPERTY SOLD.

The bill of sale given by the lessee of a livery stable to the lessor, reciting that the former sells to the latter all his right, title, and interest to and in "the following described personal property." then after the words "to wit" enumerating the property sold, after which are the words, “and all and every kind of property of every name and nature now used in conducting the dray and livery business." transfers only the personalty used in the business, and not the lease.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales. § 184.]

2. DAMAGES-EVIDENCE-CERTAINTY.

Testimony consisting merely of a guess or reasons for a guess, unsupported by data, and on information derived from others of the most general and indefinite character, is insufficient to support a finding as to damages.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Damages, § 502.]

Damages for the wrongful withholding of real property leased for a livery business cannot include profits which might have accrued from the business, could plaintiff have procured teams in lieu of those he had surrendered with which to conduct it; defendant having in no way interfered with plaintiff as regards teams.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Damages, §§ 72-88.]

Appeal from Superior Court, Siskiyou County; J. S. Beard, Judge.

Action by C. E. Johnson against A. Levy. Judgment for plaintiff. Defendant appeals. Reversed.

Jas. F. Farraher, for appellant. Coburn & Collier, for respondent.

MCLAUGHLIN, J. This action involves the right to the possession of certain real property in Dunsmuir, known as the "Lee Livery Stable." The court rendered judgment for plaintiff, and awarded him $300 damages, together with $CO per month as the rental value of the premises during the period of detention, and defendant appeals.

The court found on all of the issues, and the facts gleaned from such findings may be summarized as follows: The owner of the premises leased the same to one Beem for the term of three years, and the latter, about seven months later, assigned the lease to plaintiff, who at the same time purchased certain personal property, consisting of horses, buggies, wagons, harness, robes, blacksmith tools, and stock in and about the stable, from his assignor. At the time of such assignment and sale defendant held a chattel mortgage on the personal property sold, to secure a note for $600, with interest thereon amounting to $50. The verbal terms of the agreement of assignment and sale were to the effect that plaintiff was to execute and deliver to defendant a note for the sum of $650, secured by, sureties, pay $150 in cash, and the balance of $1,500, as provided in a written agreement to be entered into between plaintiff and defendant. Pursuant to the advice of the attorney who prepared the papers. the bill of sale of the personal property was made to defendant, instead of plaintiff, and the other terms of the verbal agreement were carried out. Three days after the execution of the bill of sale, secured note, and agreement, Beem executed and delivered a written assignment of his lease to plaintiff. Plaintiff was placed in possession of the stable and personal property, and remained in possession thereof until the following spring, when he surrendered possession of the personal property to defendant, but refused to surrender the leasehold interest, and expressly agreed with defendant that the latter might keep the personal property surrendered in the stable for one day only. The defendant forcibly took and retained possession of the stable, to plaintiff's damage in the sum of $300, and the further sum of $60

per month, the rental value of the premises during the time defendant so retained possession. This appeal is from an order denying defendant's motion for a new trial.

The principal findings assailed as unsupported by the evidence are those relating to the cash payment and to damages and rental value, and the findings resting on the construction of the written instruments executed between Beem and defendant, and plaintiff and defendant. The sufficiency of the evidence to support the finding that Beem placed plaintiff in possession and assigned the lease to him is also disputed. All other findings are unchallenged and therefore we must accept them as true. We think the evidence is sufficient to sustain all the findings except those relating to damages. "A contract may be explained by reference to the circum-. stances under which it was made, and the matter to which it relates." Civ. Code, § 1647. The circumstances and conditions surrounding and accompanying the execution of the several writings to be construed stand confessed through the unchallenged findings reciting them, and, in obedience to the rule of law above quoted, such circumstances must be considered in determining the intention of the parties and the meaning of the language used. "Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together." Civ. Code, § 1642. "A contract must be so interpreted as to give effect to the mutual intention of the parties, and such interpretation must be reasonable." Civ. Code, §§ 1636, 1643.

The vital question to be answered by the construction of the several writings under consideration is whether plaintiff or defendant succeeded to the leasehold interest of Beem. The written assignment of Beem to plaintiff, indorsed on the lease, needs no construction, and it only remains to consider whether the leasehold interest passed to defendant by virtue of the instrument executed and delivered to him by Beem three days before such formal assignment to plaintiff was executed. By failing to challenge the findings in this regard, the appellant tacitly admits that there was a verbal agreement that the attorney suggested a bill of sale by Beem to defendant, instead of to plaintiff, and that the instrument under consideration was made pursuant to such verbal agreement and suggestion. is being true, it follows that the instrument was intended solely as a bill of sale of personal property, and this intention is very apparent on the face of the instrument itself. It is there recited that Beem sells, transfers, assigns, and delivers unto Levy "all his right, title, and interest to and into the following described personal property." Then after the words "to wit" is inserted an enumeration of the property sold. The clause "and all and every kind of property of every name and nature now used in

conducting the dray and livery business known as the 'Beem Livery Stable,'' ?? upon which the appellant relies, is found at the close of the descriptive paragraph, and is separated from the preceding words by a com

ma.

It is patent from the context that this clause relates to and is qualified by the words "the following described personal property," and that there was no intention to transfer other property than the personalty used in conducting the business. The agreement between plaintiff and defendant is convincing on this point. In that instrument the words "all and every kind of property now used in the conducting of the dray, livery, and feed business of the Beem Livery Stable" are used in describing the property, and yet in that instrument the property to be delivered by plaintiff to defendant in the event of a forfeiture is specifically described in an inventory in which personal property only is listed. While there can be little question concerning the intention of the parties, as gathered from these two documents, all possible doubt vanishes when the language employed is construed in the light of the admitted purpose of the instrument executed by Beem to defendant. Civ. Code, § 1636. But, even if we accept the construction of that instrument contended for by appellant, we are still forced to the conclusion that he had no right to take or retain possession of the realty here in dispute. If it be admitted that the description of the property in the instrument executed and delivered by Beem to defendant is broad enough to include the leasehold interest, then it must also be admitted that the descriptive clause in the agreement between defendant and plaintiff is also broad enough to operate as an assignment of such interest to the latter. this be the fact, and analysis of the two papers leaves no room for a contrary conclusion, then the specific inventory or property to be surrendered under the last-mentioned agreement certainly does not include the leasehold or any kind of an interest in the real property. The plaintiff only agreed to surrender possession of the personal property mentioned in such inventory, and its testimony alone is sufficient to support the finding that he srendered nothing else.

If

The findings relating to rental value and damages are not supported by the evidence. While there is some vague and unsatisfactory evidence tending to show that the value of the rents, issues, and profits was $60 per month, there is no evidence whatever tending in the remotest degree to show that the rental value amounted to that or any other sum. The evidence touching damages lacks every element of certainty. It consists solely of the guess or reasons for the guess. Both the direct and cross-examinations of the plaintiff, and even this is not supported by data or particulars, demonstrate that he had no personal knowledge upon which to base an estimate, and the information derived from

others was of the most general and indefinite character. It is well settled that such evidence will not support a finding as to damages. Hays v. Windsor, 130 Cal. 235, 62 Pac. 395. But, even if this evidence be accorded the utmost weight, it is still insufficient to support the finding. It clearly indicates that the estimated damages consisted of profits which might have accrued from the business, which plaintiff might have conducted if he could have procured horses, buggies, robes, wagons, etc., in lieu of the personal property surrendered. Under no rule of law known to us can damages for the withholding of real property include speculative profits which might accrue from the joint use of real property, the possession of which is withheld, and of personal property which has no relation to the real property or to the controversy. Had defendant unlawfully deprived plaintiff of the possession of the stable, horses, buggies, harness, etc., such damages might have been proper; but in the case presented respondent was simply entitled to damages resulting from the unlawful detainer of the stable.

Pol. Code, § 3495, providing for the sale of school lands, declares that an applicant must make an affidavit that he is a citizen of the United States or has filed his intention to become such, and section 3500 provides that any false statement contained in the affidavit defeats the right of the applicant to purchase the land or to receive any evidence of title thereto. Held, that the fact that an applicant averred that she was a citizen of the United States, instead of that she had filed an application to become a citizen, which was the fact, was not such a defect in the application as would avoid her title based thereon.

5. SAME.

Where an applicant for the purchase of school lands made and filed her intention to become a citizen on the same day that she swore to the affidavit attached to her application, but the application was not filed with the surveyor general for five days thereafter, in which she stated she was a citizen, such facts were sufficient to support a finding that at the time of the making of the affidavit and application and at the time of filing the same the applicant had filed her intention to become a citizen, and that she was a resident, etc.

Appeal from Superior Court, Lassen County; F. A. Kelley, Judge.

Action by James A. Pardee against Antoine B. Schanzlin and the Western Pacific Land Company. From a judgment for defendants, plaintiff appeals. Affirmed.

J. E. Pardee, for appellant. À. D. Burroughs, for respondents.

CHIPMAN, P. J. Action on reference of the surveyor general of the state to determine the right to purchase certain school lands. The court found that defendant Mrs. Schanzlin made application to purchase the land in question on March 2, 1892, and on March 7, 1892, a certificate of purchase was duly issued to her, and that within 50 days thereafter, as required by the statute, on September 5, 1892, she paid the full purchase price of $800 and $3 fee, and on October 27, 1892, certificate of purchase No. 2,081 was duly issued to her, which remains in full force; that by mesne conveyances the defendant company, on March 13, 1902, became the owner of said land and is now entitled to all the rights acquired by the said Schanzlin by virtue of said certificate of purchase; that the land is timbered land and unfit for cultivation; that plaintiff on November 11, 1903, filed his affidavit and application in due form in the office of the surveyor general to purchase said land, and demanded that his affidavit of contest be referred to the proper court for adjudication, which reference was duly made, and on November 17th the action was commenced. Judgment passed for defendant company, from which plaintiff appeals on bill of exceptions.

1. It is claimed that there is no evidence that Mrs. Schanzlin made the affidavit required by section 3495 of the Political Code. This point arose on objection of plaintiff to the introduction of Mrs. Schanzlin's affidavit and application to purchase the land; the claim being that there was no evidence that the affidavit was subscribed and sworn to before any officer authorized to administer oaths. The evidence offered and received consisted of a copy, duly certified by the surveyor general, of the original application of Mrs. Schanzlin, purporting to be sworn to before Alvan Flanders, notary public, with his seal attached, and variously indorsed, showing the action taken thereon in the office of the surveyor general. Courts take judicial notice of the seals of notaries public (Code Civ. Proc. § 1875, subd. 7), and in the