"distribution or transmission of merchandise or messages." At all events, in view of the rule that a statute must be liberally construed to the end that it may be declared constitutional rather than unconstitutional (People v. Hayne, 83 Cal. 117, 23 Pac. 1, 7 L. R. A. 348, 17 Am. St. Rep. 211; 26 Am. & Eng. Ency. of Law, 640), we would not give the description of forbidden occupations this narrow construction in order to make the law invalid. The decision of the Legislature that the specified occupations are more injurious to children than others not mentioned, and hence the subject of special regulation, and that they constitute practically all the injurious occupations in which children are employed at all, and therefore the only cases in which regulation is needed, is not so manifestly incorrect, not so beclouded with doubt concerning its accuracy, as to justify the court in declaring it unfounded and the law, consequently, invalid.

There is a proviso to this clause of the section, to the effect that if either parent of such child makes a sworn statement to the judge of the juvenile court of the county that the child is over 12 years of age, and that the parent or parents are unable, from sickness, to labor, such judge, in his discretion, may issue a permit allowing such child to work for a time to be specified therein. There is no force to the objection that this discriminates against orphans and aban doned children. The exception allowed by the proviso is not made for the direct benefit of the child, but for the sick parent. It is a burden put upon the child because of the special necessity of his case which justifies the different provision respecting him. The Legislature deems the necessity of allowing the child to work to aid in the support of the sick parent sufficient to outweigh the benefits which would otherwise accrue from the education and protection of the child during such inability. If there are no parents whose necessities the child's labor could alleviate, the reason for this exception is wanting. The provision seems a reasonable one in view of the conditions upon which, alone, it can apply. There is a further proviso or exception, to the effect that any child over 12 years old may work at the prohibited occupations during the time of the regular vacations of the public schools of the city or county, upon a permit from the principal of the school attended by the child during the term next preceding such vacation. This does not, as counsel contends, give the principals of the public schools the exclusive power to give the contemplated permits. Its true meaning is that the permit is to be given by the principal of the school which the child has attended, whether the school is public or private, but that it can extend only to the time of the public school vacation. This act was approved February 20, 1905. Its provisions relating to attendance upon

schools, and those of section 1 of the act of March 24, 1903 (St. 1903, p. 388, c. 270), with the amendment of March 20, 1905 (St. 1905, p. 388, c. 333), to said section 1 must be considered together. The act of 1903, in effect, requires all children to attend, either the public schools, or a private school, during at least five months of the time of the sessions of the public schools. The amendment of March 20, 1905, extends the time of such compulsory attendance, so as to embrace the whole period of the public school session. Therefore, if the parents, guardians, or custodians of a child choose to send it to a private school, is must attend thereon at least during the time the public schools are in session. A permit may then be obtained for it to work during the vacation of the public schools, if its interests or necessities so require, without subjecting it to conditions substantially dif ferent from those affecting the children attending the public schools. There is no discrimination. The Legislature has the power to make such reasonable regulations as these with respect to the time of the vacations of schools, whether public or private, in the interest of the public welfare and the welfare of the children.

A third clause of section 2 declares that no child under 16 years of age shall work at any gainful occupation during the hours that the public schools are in session, unless such child can read English at sight, and write simple English sentences, or is attending night school. The first clause of section 2 provides that no minor under 16 shall work in any mercantile institution, office, laundry, manufacturing establishment, or workshop, between 10 o'clock in the evening and 6 o'clock in the morning. Section 5 (page 15) of the act further provides that nothing in the act is to be construed to prevent the employment of minors at agricultural, viticultural, horticultural, or domestic labor, during the time the public schools are not in session, or during other than school hours. The petitioner's contention with respect to the first and last clauses of section 2 is that they constitute such important parts of the statute that it cannot be presumed that the Legislature would have adopted the other parts thereof if it had been aware of the invalidity of these particular provisions, and hence the whole act must fall. We cannot accede to this proposition. They are separable and independent provisions, and are not so important to the entire scheme as to justify us in concluding that the Legislature would have refused to adopt the other parts without these, and thereby to declare the entire statute invalid. Nor can it be conceded that these provisions are invalid. The principles already discussed apply with equal force to the first clause of the section. The proviso concerning illiterate children is a reasonable regulation to prevent those having control of such children from working

Nor does it appear from the affidavit that the newspaper contained anything that could have possibly prejudiced the reader against the defendant or his case. All that affirmatively appears from the affidavit is that a juror read in the paper "reports of the progress of the trial." Being a juror, he knew all about "the progress of the trial" and it could not hurt him to read what he already knew.

Some other points are urged by the appellant, but they are not considered of sufficient importance to warrant special treatment. The judgment and order are affirmed.

(3 Cal. App. 691) RIVERSIDE COUNTY v. YAWMAN & ERBE MFG. CO.

(Court of Appeal, Second District, California. May 31, 1906.)

1. COUNTIES-CONTRACTS-SUPPLIES DUTY TO ADVERTISE.

BIDS

County government act (St. 1897, p. 459, c. 277, § 25, subd. 8) confers express authority on the board of supervisors to furnish a courthouse without requiring competitive bidding, Section 4 (page 452) gives the board general authority to purchase such personal property as may be necessary in the exercise of its powers; and section 25, subd. 21 (page 464), declares that the board shall annually advertise for bids for furnishing the county with stationery, clothing, bedding, groceries, provisions, drugs, medicines, "and all other supplies." Held, that the term "other supplies" had reference to ordinary supplies which the board was required to keep for use and replenish annually, if needed for distribution among the county officers, and did not include furnishings for the courthouse, which the board was authorized to purchase without advertising for bids.

[Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Counties, § 188.]

2. PLEADING-Demurrer-Effect.

A demurrer to a complaint only admits material matters.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 525–534.]

3. COUNTIES-CLAIMS-ALLOWANCE-ACTIONS.

An allegation in a complaint that the board of supervisors had passed upon and allowed a bill for furniture purchased for the courthouse constituted an allegation that the board acting in a judicial capacity had determined the correctness of the claim.

[Ed. Note. For cases in point, see vol. 13, Cent. Dig. Counties, §§ 355, 356.]

4. SAME-ALLOWANCE-COLLATERAL ATTACK.

Where a board of supervisors has passed on the validity of the claim against the county, the board's findings on questions of fact cannot be collaterally assailed..

[Ed. Note. For cases in point, see vol. 13, Cent. Dig. Counties, §§ 322, 323.] 5. SAME-RECOVERY OF PAYMENT.

Where the county board of supervisors purchased furniture for the courthouse, paid for the same, and retained and used it, the county was not entitled, without returning the furniture, to recover the amount paid with penalty under the county government act of 1897 (St. 1897, p. 452. c. 277, § 8), declaring that whenever any county officer has drawn any warrant in favor of any other person without being

authorized by the board of supervisors, or by the law, and the same shall have been paid, the district attorney of such county may institute suit to recover the money so paid and 20 per cent. damages for the use thereof.

Appeal from Superior Court, Riverside County; B. F. Bledsoe, Judge.

Action by Riverside county against the Yawman & Erbe Manufacturing Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Lyman Evans and A. A. Adair, for appellant. Gill & Densmore, for respondent.

ALLEN, J. This is an appeal by plaintiff from an order sustaining a demurrer to the complaint and judgment thereon in favor

of defendant.

The material facts involved are these: The board of supervisors of Riverside county purchased, without preliminary publication or competitive bidding, certain furnishings for use in the county offices in the courthouse of that county. The agreed price and value thereof, as shown by a verified claim, was by the district attorney certified as a proper charge against the county. The board allowed the claim, and the same was regularly paid by the treasurer. A grand jury of the county subsequently determined that such payment was without authority of law and directed the district attorney to institute this suit for the recovery of the amount paid, together with a penalty of 20 per cent. Their action and this suit is based upon section 8 of the county government act of 1897 (St. 1897, p. 452, c. 277), which provides: "** Whenever any county officer has drawn any warrant * * * in favor of any other person, without being authorized by the board of supervisors, or by the law, and the same shall have been paid, the district attorney of such county is hereby empowered

**

to institute suit, in the name of the county, against such person or persons, to recover the money so paid, and twenty per cent. damages for the use thereof." And upon the construction of subdivision 21 of section 25 (page 464) of such act, which provides: "The board of supervisors of the several counties shall annually advertise, for at least ten days in a newspaper of general circulation in the county, for sealed bids for furnishing the county with stationery, clothing, bedding, groceries, provisions, drugs, medicines, and all other supplies. All bids shall be on a schedule, showing all articles needed in the several offices and departments, prepared by the clerk of the board, shall state separately the price of each article to be furnished. and any person may bid upon any article separately."

It is insisted that furnishings for a courthouse are "other supplies" within the meaning of the law, and that there being no publication or bids therefor, or schedule prepared as provided, the purchase and payment was therefore without authority of law. We are

of opinion that from a reading of the whole

subdivision It is apparent that the term "other supplies" has reference to ordinary supplies which the board is required to keep for use and replenish annually, if needed, for distribution among the county officers; that furniture for courthouse is not in the contemplation of such act ordinary supplies. This construction is accentuated by subdivision 8, sec. 25 (page 459), of the same act, which confers express authority upon the board to erect, rebuild, or furnish a courthouse, and with reference to which furnishing no publication or competitive bidding is expressly required. In addition, the board by virtue of section 4 (page 452) of the act is given au thority generally to purchase such personal property as may be necessary in the exercise of its powers. This construction of subdivision 21 is in line with the construction given by the Supreme Court of subdivision 8 in McGowan v. Ford, 107 Cal. 183, 40 Pac. 231 where it was held that repairing and altering a courthouse, or improving the grounds around it, was not included in the subdivision having reference to the publication and bids for the erection and construction of a building; the doctrine of which case being that the general power to contract may be exercised unless there is an express mode provided by statute. Nor have we involved here any such question as was involved in Swasey v. County of Shasta, 141 Cal. 394, 74 Pac. 1031, in which it was held that the erection and construction of a fence around a courthouse was included in the term "building," no doubt upon the theory that the building, fence, and property became real estate and was, in effect, one holding and a single entity. This cannot be said of the furniture in a house. Nor does the dictum in the case last mentioned affect the question here involved; the statement there being that "ordinary county supplies shall be bought after advertisement." The board of supervisors of a county, then, in the absence of statutory restrictions, may purchase personal property in the open market in like manner as other purchasers, and, unless there be some mode of purchase which shall be held the measure of their power, such purchase is not without authority of law, and warrants issued therefor are not issued without authority of law.

It is insisted, further, that the demurrer to the complaint admits that a part of the furniture purchased and paid for had not been delivered when the board approved the bill. A demurrer only admits matters material. The allegation of the complaint that the board had passed upon and allowed the bill is an allegation that the board, acting in a judicial capacity, had determined its correctness. It was the peculiar province of the board to pass upon the questions of fact involved in this purchase, and having determined the same it cannot be assailed collaterally. County of Alameda v. Evers, 136 Cal. 133, 68 Pac. 475. The same observations may be made with reference to the

form in which the claim was presented. It affirmatively appears from the complaint that the board of supervisors has purchased, paid for, and retained the use of certain personal property, and a court is asked to compel restitution with penalty in favor of such purchasers. The Legislature never contemplated conferring such power upon a public corporation when it enacted section 8 of the county government act. The right there sought to be conferred was to recover money paid without authority of law. To say that one who receives property under a contract with the owner and retains and uses it is not authorized by law to pay for it would be to say that a public corporation may take and use property for public purposes without compensating the owner, provided they can once get possession of it under the guise of a contract; and to say that they may recover the purchase price actually paid without tendering back that which they have received would be to say that our Legislature intended to discourage common honesty as applied to public corporations, and that the courts were to be made "handmaidens of iniquity." We think, therefore, that this contract was valid in its inception, that the payment was regular, and that under no circumstances could the county recover this money while retaining the fruits of its bargain.

Order and judgment affirmed.

The appellate court will not set aside an order of the trial court granting a new trial, unless it appears that it was erroneous, or that there has been an abuse of discretion.

Appeal from Superior Court, Los Angeles County; D. K. Trask, Judge.

Action by Lyman Newton against the United Electric, Gas & Power Company. From an order granting defendant's motion for a new trial, he appeals. Affirmed.

Edwin A. Meserve, A. S. Longley, and J. P. Chandler, for appellant. Cochran, Williams & Phillips, and Hunsaker & Britt, for respondent.

SMITH, J. The following is the opinion of the trial judge referred to in the decision of the court:

"In this case the facts are briefly these: Defendant maintains a transformer, which is attached to cross-beams. The cross-beams are fastened to piers under the approach to the Long Beach wharf and pavilion. The transformer and cross-beams are about 14 feet from the ground. From the shore side,

two wires run to the transformer carrying a large voltage of electricity. Two wires run from the transformer, carrying a much lower voltage, to supply lights for the wharf and pavilion. At the time of the injury complained of, the plaintiff was employed by the city of Long Beach to sweep the wharf and pavilion, and perform other duties in line with such work. Early in the morning of the accident, plaintiff's attention was attracted to the fact that smoke was coming from one of the cross-beams. Plaintiff thereupon placed some boxes alongside of a small shack standing near, and by the aid of these boxes climbed upon the flat roof of the shack. A woman, who had attracted plaintiff's attention to the smoking cross-beam, passed him a small bucket of water which he threw at or upon the beam. Thereupon plaintiff fell or was thrown from the shack to the ground. He was soon in a partially unconscious condition. An examination, made soon afterwards, showed a loss of skin upon the backs of his hands and an injury to his back. One of the issues was whether these wounds were bruises caused by his fall from the shack to a board walk or whether they were electric burns. The plaintiff's theory of the case is that when he threw the water upon the crossbeam, a circuit was formed thereby, through the agency of the water, electricity then escaping at the cross-beam, was conducted to the plaintiff and through him and the shack to the ground. It was a wooden shack, and it is hardly supposable, though admitting this to have been a damp, foggy morning, that the wooden shack could have been a sufficiently good conductor of electricity to have completed the circuit so that plaintiff could have been shocked, even if it be assumed that the electricity would leave the cross-beam, and travel to plaintiff through the medium of a column of water or through the air saturated with water the distance from him to the beam. But plaintiff testified that as he was climbing up, he received quite a severe electric shock when he first put his hand upon the shack. If this is true, it would seem that the shack was 'grounded,' for, had it been 'grounded,' there could have been in it no accumulation of static electricity from a leakage of the service wires that ran into it. And if it was not 'grounded,' plaintiff, when standing upon it, could not have received through his body a current from the crossbeam either by the agency of the water or otherwise. But it seems quite improbable that the electricity would leave the crossbeam to take a path afforded by such a poor conductor as a column of water. even if it be conceded that, for an instant, there was a continuous column of water from the bucket to the cross-beam, which is also improbable. And it seems still more improbable that the electricity would travel to plaintiff through a column of aqueous atmosphere, created by the agency of the water thrown toward the beam. The injuries found upon the plaintiff's body

are as well explained as bruises suffered in consequence of his fall as electric burns. Further, assuming that defendant was negligent in not properly insulating its wires, it is a grave question whether it can be said, as a legal proposition, that plaintiff's injuries (if he was injured in consequence of an electric shock) were a natural and probable consequence of defendant's negligence.

"Barrows on Negligence, at page 13, says: "The tendency of the courts would seem to be that, negligence being established, the person guilty of it is liable for its consequences whether they be such as he could or ought to have forseen or not.' It has been held that one negligently causing a fire is liable only for damages or injuries caused by the fire, and that he is not liable for personal injuries received by persons in voluntarily attempting to extinguish the fire. As to this matter the cases of Liming v. Ill. Cent. R. Co., 81 Iowa, 246, 47 N. W. 66, and Pike v. Grand Trunk R. Co. (C. C.) 39 Fed. 255, may be cited as illustrating the conflicting views of the courts. But while courts have differed as to what are 'natural and probable' consequences of negligence in given cases, the principle that consequences of negligence to be actionable must be 'natural and probable' has not been denied. In this case, while the evidence may justify the conclusion that it is possible that plaintiff received an electric shock, it falls far short of showing a probability of such result under like circumstances. And a remotely possible consequence resulting through the agency of an unusual and peculiar set of cooperating circumstances fails to satisfy the requirements of a definition of a natural and probable consequence. In this case, the wires were suspended 14 feet from the ground, and were securely fastened. There was no apparent danger of anyone coming in contact with them in their position high above the ground and several feet below the plank walk overhead. There was no negligence in placing or securing these wires in their place. And as the only explanation of the very slight charring of the cross-beam, on the morning of the accident, is to be found in the fact that one of the insulators, on this beam, was broken, I think it should be held that plaintiff's injuries (conceding them to have resulted because of an electric shock) are not a natural and probable consequence of the breaking of this insulator. And I so hold, not upon the theory that in attempting to extinguish what he believed to be an incipient fire, plaintiff acted as a mere volunteer, but upon the theory that it was his right and duty to extinguish any fire that he believed might spread and injure or destroy the wharf and pavilion. And I do not find that plaintiff was guilty of any contributory negligence. Shearman & Redfield on Negligence, § 679.

"But I do not think the evidence shows that defendant was negligent. The only substantial fact in the case upon which to predicate negligence is the fact that an insulator upon