WINGARD, A. J., DISSENTING. It does not appear except inferentially that I dissented from the decision in the case of Maynard v. Valentine, 2 Wash. Ter'y Rep., 3, but I did dissent therefrom, and I dissent from the majority opinion in this case.

SUPREME COURT OF CALIFORNIA.

No. 8717.

MULLALLY v. IRISH AMERICAN BENEVOLENT SOCIETY.

Department One. Filed February 17, 1885.

BENEVOLENT SOCIETY-EXPENSES OF ILLNESS-BURDEN OF PROOF---In an action against a benevolent society to recover for the expenses of an illness of one of its members, the burden of proof is on the plaintiff to establish the liability of the society.

APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the defendant, and from an order denying the plaintiff a new trial.

H. A. Powell and Edgar M. Wilson, for the appellant.

M. C. Hassett, for the respondent.

THE COURT. The court below found: The widow is not entitled, under the constitution or by-laws of said society (defendant) to recover benefits for sickness due to a member at the time of his death; nor is such widow entitled to recover such benefits under any rule or custom prevailing in said society."

It was for the plaintiff to establish the existence of some provision of the constitution, or some by-law, or (at least) of some rule or custom, which-on the facts proved-made it the duty of defendant to pay to plaintiff the amount of benefits for sickness due to deceased at the time of his death. The court below was justified in finding that plaintiff failed to establish either such provision of the constitution, or such by-law, or such rule or custom. Judgment and order affirmed.

'No. 20,063.

EX PARTE MOUNT ON HABEAS CORPUS.

Department Two. Filed February 23, 1885.

LICENSE-POWER OF MUNICIPALITY OVER-CHARTER OF OAKLAND.--The power conferred upon the city council of the city of Oakland, by the act of April 24, 1862, of licensing, taxing and regulating all such vehicles, business and employments as the public good may require, and as may not be prohibited by law," includes the power to pass an ordinance requiring a license to be taken out by every person, firm or corporation, who, at any fixed place of business, sells any goods, wares or merchandise. Such power is a valid police power or reg ulation, which the legislature might delegate to the municipality.

THE SAME CONSTRUCTION OF CONSTITUTION.-Such power is also conferred by section 11, article XI, of the constitution, providing that " any city, town or township may make and enforce within its limits all such local sanitary and other regulations as are not in conflict with general laws."

PETITION for a writ of habeas corpus. The opinion states the facts.

Metcalf & Metcalf, John M. Poston and William C. Belcher, for the petitioner.

C. T. Johns, for the respondent.

MORRISON, C. J. The petitioner alleges that he is unlawfully imprisoned and restrained of his liberty by the captain of police of the city of Oakland, and the officer, in his return to the writ of habeas corpus served on him, shows that he detains the petitioner under a warrant of arrest issued out of the police court of said city. The warrant recites a complaint under oath made against the petitioner, charging him with carrying on the business of selling goods, wares, and merchandise at a fixed place of business, in the city of Oakland, without first taking out a license to do so, in violation of an ordinance of the city providing for and requiring such license. In his application for a discharge, the petitioner makes the following points, and urges the following grounds:

1. That the city of Oakland has no power to collect or require a license from any kind or class of business, except such as are specified in section 5 of the charter of 1862.

2. That so much of section 5 as purports to authorize a license upon vendors of goods, wares, and merchandise, etc., is unconstitutional and void and confers no power.

3. That if the power to require or collect a license exist, it cannot be enforced by penalty of fine and imprisonment.

In answer to the foregoing points made by the petitioner, respondent contends that the power to pass the ordinance and fix the license imposed in the present case, is vested in the municipal authorities, first, by the charter of the city of 1862, and, second, by sections 11 and 12, of article XI, of the constitution of 1879.

By the act of April 24, 1862, amendatory of a previous act incorporating the city of Oakland, it is provided, in the section enumerating the powers and duties of the city council, that "they shall have power of licensing, taxing, and regulating all such vehicles, business, and employments as the public good may require, and as may not be prohibited by law."

And by section 52, p. 353, of the same act, it is provided that "licenses shall be discriminating and proportionate to the amount of business."

It is claimed that section 4 of the act simply provides that the city council shall have power to make regulations for licensing, taxing and regulating all such vehicles, business and employments as the public good may require," but that it contains no express grant of power, either to issue or grant, or to require a license to collect any money or tax therefor. But we are of opinion that the power of regulating or to "make regulations" was sufficient, and that it carries with it and includes the power to pass an ordinance requiring a license to be taken out, as was done by the ordinance in question.

By section 4 of the act, power is conferred on the city council to affix penalties to the violation of any and all ordinances; such penalties shall be by fine, not exceeding one hundred dollars, and in case the fine is not paid, then they may direct that the person may be imprisoned at the rate of one day for every two dollars of the fine imposed, etc.

Acting under the foregoing provisions of the law of 1862, the council of Oakland passed an ordinance providing that "every person or firm or corporation who, at any fixed place of business, sells any goods, wares or merchandise, whether on commission or otherwise (except such as are sold by auctioneers under license), must obtain from the license collector a license and pay therefor the amount of money to be determined and regulated by the amount of sales made or business transacted." The ordinance then proceeds to graduate the amount of license required to be paid in proportion, and according to the amount of sales or business transacted by the person or firm.

The petitioner does not dispute the due passage and approval of the ordinance, or that the warrant was properly issued and served, provided the ordinance is a valid one, but he contends that there was no power or authority in the city council of Oakland to pass the ordinance in question, and, secondly, that if the council did have the power to pass an ordinance of the kind in question, it had no power to attach a penalty for the refusal to comply with the same.' It seems to us very clear that the power exercised by the common council, and complained of in this case, was vested in that body by the act of 1862, amendatory of the city charter, and that the delegation of such power by the legislature was constitutional is equally clear. It comes within what is known as a police power or regulation, and is properly vested in the municipality: 1 Dillon on Municipal Corporations, sec. 141; Ex parte Hurl, 49 Cal., 557; Ex parte Newton, 53 Id., 571.

In a recent decision of the supreme court of the United States, not yet officially reported, the question we are now considering underwent a full discussion, and the power here called in question was upheld as a police regulation, within the competency of any municipality possessed of the ordinary powers belonging to such bodies: Barbier v. Connolly, Supreme Court United States, Jan. 5, 1885, 5 Supreme Court Rep., 357.

The

power to fix a penalty for a failure to comply with the ordinance is expressly conferred by section 4 of the act, and it was a proper exercise of power by the muicipality: 1 Dillon on Municipal Corporations, sec. 353.

But we think the second ground relied on by respondent in support of the ordinance is equally strong and unanswerable.

By section 11, article XI, of the constitution, it is provided "that any city, town or township may make and enforce within its limits. all such local sanitary and other regulations as are not in conflict with general laws." Here the delegation of power by the organic

law is very broad and comprehensive, and we have had occasion in several cases to construe the foregoing section of the constitution.

In the case of Ex parte Wolters, 3 West Coast Rep., p. 28, the court said: "It is very clear to us that the foregoing provisions, secs. 11 and 12, art. XI, constitution, give to the board of supervisors the power to regulate the sale of spirituous liquors within the county, and that, therefore, the regulation in question does not violate the constitution." In his concurring opinion, in the above case, justice Thornton uses the following language, in which we agree with him: "In my opinion, sections 11 and 12 of article XI intended to give full power and authority to the local governments over the subject of licenses, whether for the purposes of regulation or revenue, subject to be controlled by general laws."

To the same effect is the decision in the recent case of Ex parte Moynier, 1 West Coast Rep., 782, and other cases maintaining the same view of the law, might be cited, but the foregoing will suffice for the purposes of this opinion.

The writ is dismissed, and the petitioner remanded to the proper custody.

SHARPSTEIN, J., concurred.

THORNTON, J., CONCURRING. I concur in the judgment. It is unnecessary to decide whether the power, with which the city council is by the act of 1862 invested, springs from the police power, or the power to tax and raise revenue. The power is given, and can be amply given, under either source of authority: Constitution, art. XI, secs. 11 and 12.

No. 8,557.

PERINE v. TEAGUE ET AL.

Department One. Filed February 23, 1885.

UNLAWFUL DETAINER-TENANT HOLDING OVER-TENANT AT WILL.-A tenant who entered, and continued in possession of the demised premises auring the term, under a written lease, and paid the rent reserved by the lease, until the term ended, when he refused to surrender the possession and held over against the consent of the lessor, is not a tenant at will; and the lessor may maintain an action of unlawful detainer against him, upon giving the notice provided for in sections 1,161 and 1,162 of the code of civil procedure.

THE SAME PAROL EVIDENCE OF RENEWAL OF LEASE WHEN INADMISSIBLE.--In such action parol evidence showing a renewal of the written lease is inadmissible, when no such issue is raised by the pleadings.

APPEAL from a judgment of the superior county of San Francisco, entered in favor of an order denying the defendants a new trial. facts.

J. C. Bates, for the appellants.

George W. Tyler, for the respondent.

court of the city and the plaintiff, and from The opinion states the

MCKEE, J. This was a summary proceeding brought under section 1,161, C. C. P., by a landlord against his tenants, for an unlaw

ful detainer of leased premises after the expiration of the term for which they had been let.

Judgment for recovery of possession of the premises, treble rents and costs of suit, was entered; and from the judgment and an order denying a new trial, the defendants appeal.

The point which they make on the appeal is, that the judgment is erroneous, because, first, they were tenants at will, in possession under a written lease, void for uncertainty in the description of the premises, and as the tenancy was not terminated by thirty days' notice, as required by sections 789, 790 and 791, C. C., the notice given under sections 1,161, 1,162, C. C. P., was insufficient, and the proceeding was not maintainable; and because, second, the court erred in excluding testimony tending to show a verbal renewal of the lease by consent of the landlord.

1. On the face of the lease there is no uncertainty in the description of the premises; and the court finds: that the defendants entered, under the lease, into possession of the premises, as described in the lease, and continued in possession during the term, paying the rent reserved by the lease, until the term ended, when they refused to surrender the possession and held over against the consent of the lessor. That being the case, there was no tenancy at will, and the notice given to the defendant to quit and surrender possession was sufficient.

2. The evidence offered to prove a verbal renewal of the written lease was properly excluded. The only issues raised by the pleadings related to the tenancy of the defendants in possession under the written lease. There was no averment in the answer of any renewal of that lease, oral or otherwise; there was therefore no issue to which the evidence was relevant.

The evidence justified the findings.
Judgment and order affirmed.

MCKINSTRY, J., and Ross, J., concurred.

No. 8,218.

CHESTER V. TOKLAS ET AL.

Department One. Filed February 23, 1885.

CREDITOR MAY ASSIGN DEBT AND SECURITY.-A creditor, whose debt is secured, upon assigning the same may assign his security.

APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the defendants. The opinion states the facts.

Stetson & Houghton, for the appellant.

Joseph Napthaly, for the respondents.

Ross, J. The plaintiff is the assignee of George W. Chester of whatever right of action or claim he had against the defendants by