be denied. The power of the supervisors to appoint petitioner depended on there being a vacancy in the office; and an office becomes vacant on the happening of any of the events enumerated in section 996, Pol. Code, among which the event relied on in this case is not mentioned. The enumeration in the Code must be held to be exclusive. People v. Tilton, 37 Cal. 621; Stratton v. Oulton, 28 Cal. 51; People v. Bissell, 49 Cal. 411.

In Mitchell v. Crosby, 46 Cal. 97, this court said: "When the Code mentions assessors it must be construed as meaning district assessors as well as county assessors, so long as the present district assessors remain in office," which would be until the happening of one of the events enumerated in section 996, Pol. Code, or the election and qualification of their successors. Id. § 876.

Thus far we have assumed that the act of February 10, 1874, was constitutional. Counsel for petitioner insists that it was not. It was passed while the late constitution was in force, and if, during that period, it or a similar act was held to be constitutional, the question must now be regarded as settled. In People v. Central P. R. Co. 43 Cal. 398, the constitutionality of an act which provided for the election of district assessors for Placer county was attacked on the same grounds that the constitutionality of the act under which township assessors for Alameda county were elected is now attacked, and was held to be constitutional. In People v. Placerville & S. V. R. Co. 34 Cal. 656, it was held that in El Dorado county, which was divided into revenue districts corresponding to the several townships, the authority of each assessor was limited to the district within and for which he was elected; implying that within their respective districts they had the power to assess property. These cases are in our opinion decisive of the question.

As the right of the petitioner depends (1) on there being such an office, as that which he claims to have been appointed to fill, at the date of his alleged appointment; and (2) on there being a vacancy in the office at that date,-it follows from the foregoing that his application. for a writ to compel the respondent to draw his warrant on the treasurer for the payment of his (petitioner's) salary as "County Assessor" must be denied.

Application denied.

We concur: MYRICK, J.; Ross, J.; McKINSTRY, J.; MORRISON, C. J.

THORNTON, J. I concur in the judgment in this cause, and in the opinion except as to that portion which relates to vacancies in office. and the effect attributed to section 996, Pol. Code. I am of opinion. that an office is vacant which has never had an incumbent legally elected or appointed; and becomes vacant where the term fixed by law of the incumbent thus legally elected or appointed has expired, though he may hold over until his successor is elected or appointed

and has qualified. If this is not so, the term of certain officers is extended by an act of the legislature (section 996, Pol. Code) in direct violation of the last clause in section 9, art. 11, of the constitution. There may be other cases where an office becomes vacant in the sense of the words "becomes vacant" employed in article 5, § 8, of the constitution, not mentioned above, or defined in section 996. The question discussed in the portion of the opinion to which I cannot give my assent, does not arise in the case, for when it is said, as it is in the opinion, that "the petitioner's alleged appointment was made prior to the first day of January, 1885, and before any provision of the act of March 14, 1883, creating a county office in Alameda county had taken effect," the question as to vacancy is determined, and that by holding that there was no vacancy at that time.

ROBINSON V. BOARDMAN. (No. 10,046.)

JUDGMENT REVERSED.

Filed June 6, 1885.

On authority of Rosborough v. Boardman, ante, 261, judgment reversed. In bank. Appeal from the superior court of Alameda county. W. R. Davis and E. C. Robinson, for appellant.

J. C. Martin and G. P. Hall, for respondent.

BY THE COUrt. This case is the reverse of that of Rosborough v. Boardman, ante, 261. Here the writ is prayed to compel the defendant to audit the claim of the plaintiff for his salary as a district assessor of Alameda county. The court below denied the application, which, according to the views expressed in the opinion filed in Rosborough v. Boardman, supra, should have been granted. Judgment reversed and cause remanded, with directions to the court below to issue the writ as prayed.

(67 Cal. 120)

MCCRARY V. BEAUDRY. (No. 9,895.)

Filed June 10, 1885.

1. WATER-TAKING FOR DISTRIBUTION AND SALE-PUBLIC USE-MANDAMUS. Water appropriated for distribution and sale is, ipso facto, devoted to a public use, and a party who conforms to the requirements of the person so appropriating, and offers to pay the fixed rate for the water, is entitled to enforce his right to be furnished with water by mandamus.

2. AFFIDAVIT FOR MANDAMUS-OMISSION OF TITLE OF ACTION.

An affidavit for mandamus may be treated as a complaint, and still, to all intents and purposes, have the effect of such an affidavit. The fact that such affidavit lacks the title of the action or proceeding in which it is issued, will not invalidate it as such.

Department 2. Appeal from the superior court of the county of Los Angeles.

Walls & Lee, for appellant.

J. F. Godfrey, for respondent.

SHARPSTEIN, J. This is an appeal from a judgment that a writ of mandate issue as prayed in the affidavit of plaintiff. The affidavit was properly treated as a complaint, which was demurred to by defendant on several grounds, the principal one of which is that it did not state facts sufficient to constitute a cause of action. The complaint shows with reasonable certainty that the defendant obtained from the city of Los Angeles permission to lay water-pipes in the streets of said city, for the conveyance of water for his use and that of the citizens residing in what is known as "the hilly section" of said city, "to whom he might sell or give water." That after obtaining such permission, the defendant laid pipes in said streets and through them conducted water to said section, which he sold to the residents of said section, of whom the plaintiff was one, at certain monthly rates, which the plaintiff paid until November, 1884, when the defendant, without any valid excuse for so doing, shut the water off from the plaintiff's premises and refused to turn it on again. Appellant insists that the facts alleged are not sufficient to impose on him any duty or obligation to furnish the respondent with water.

It appears sufficiently clear that appellant had appropriated water for distribution and sale, and that he had acquired and was exercising the right to collect rates from the inhabitants of the city of Los Angeles for the use of it; and the use of all water appropriated for sale, rental, or distribution is declared by the constitution to be a public use; and the right to collect rates or compensation for the use of water by the inhabitants of any city is a franchise which cannot be exercised except by authority of and in the manner prescribed by law. Const. art. 14. Whenever water is appropriated for distribution and sale, the public has a right to use it; that is, each member of the community, by paying the rate fixed for supplying it, has a right to use a reasonable quantity of it, in a reasonable manner. Water appropriated for distribution and sale is, ipso facto, devoted to a public use, which is inconsistent with the right of the person so appropriating it to exercise the same control over it that he might have exercised if he had never so appropriated it.

In one part of the affidavit it is stated that affiant "has been paying the said Beaudry for said water at the regular rates established and demanded of affint by said Beaudry," and in another "that affiant has been paying said V. Beaudry for water for use on said premises for domestic and irrigating purposes during the eight months last past at the rate of $2.25 per month, and affiant alleges that he has been at all times, and is now, ready and willing to pay to said V. Beaudry the sum of money fixed as the established rate for use of water on said premises, which he alleges was, and is now, the sum tendered as aforesaid, to-wit, the sum of $2.25 per month; and that no greater sum has been, nor is now, demanded by said Beaudry for the use of water on said premises for domestic use and irrigating purposes." Reading the two paragraphs together it appears that the

rate established by appellant for supplying respondent with water was $2.25 per month, which he paid as long as he was supplied with water, and has at all times since been ready and willing to pay.

The facts alleged in the complaint show to our satisfaction that the appellant was in the exercise of a franchise which he could not exercise except by authority of and in the manner prescribed by law, and that the law enjoined on him the duty, resulting from that trust, of furnishing the respondent with water. The writ was issued, according to the requirement of the Code, upon the affidavit of respondent, the party beneficially interested; and such affidavit was as valid and effectual without the title of the action or proceeding in which it was made, "for any purpose, as if duly entitled." Code Civil Proc. § 1046. The affidavit in a case like this may be treated as a complaint, and still remain an affidavit to all intents and purposes. We think the demurrer was properly overruled.

Judgment affirmed.

We concur: MYRICK, J.; THORNTON, J.

SUPREME COURT OF KANSAS.

(33 Kan. 580)

BAKER v. MORRIS.

Filed June 4, 1885.

1. PARENT AND CHILD-LIABILITY FOR NEGLIGENT WRONG OF CHILD. Where a minor son negligently and carelessly shoots and kills a mare belonging to another, the father, who had no connection with the transaction, directly or indirectly, proximately or remotely, is not liable.

2. SAME-PROMISE OF FATHER TO MAKE COMPENSATION.

And where the father afterwards, without consideration and not in writing, promises to pay the value of the mare, held, that such promise does not render him liable.

3. SAME LIABILITY OF CHILD.

In such case the son only is liable.

Error from Greenwood county.
T. L. Davis, for plaintiff in error.

Clogston & Fuller, for defendant in error.

VALENTINE, J. The only question presented to this court for determination is whether the following bill of particulars sets forth facts. sufficient to constitute a cause of action. The bill of particulars reads as follows:

"The State of Kansas, Greenwood County—ss.:

"BEFORE GRANVILLE GRIFFITH, A JUSTICE OF THE PEACE FOR SAID COUNTY.

"W. M. Morris, Plaintiff, v. J. L. Baker, Defendant.

"(Amended bill of particulars.)

"Now comes the above plaintiff, and for cause of complaint against said defendant says that said defendant is justly indebted to him in the sum of seventy-five dollars, as follows, to-wit: That on or about the twenty-first day of December, A. D. 1883, one Frank Baker, a son of said defendant and a minor, did negligently and carelessly fire and shoot off a gun in the direction of the stable of said plaintiff; that said stable contained one mare pony, the property of said plaintiff; that said shot so fired and shot off penetrated the said stable, and struck and killed said mare, said property of said plaintiff; that said mare was of the value of $75, thereby damaging said plaintiff in the sum of $75. Plaintiff further says that, after said death of said mare, said plaintiff requested said defendant to pay for said mare so killed; that defendant agreed so to do, but has failed so to do. Plaintiff therefore says that said defendant voluntarily, and of his own free will, did, immediately after the injuries and damages complained of hereinbefore, come to plaintiff and said he would pay this plaintiff the full value of said mare so killed by his said son, thereby ratifying and confirming the said acts of his son Frank, and thereby becoming responsible to plaintiff for the damages sustained by plaintiff; therefore, plaintiff prays judgment against said defendant for the sum of $75 and costs."

Under the authority of the case of Edwards v. Crume, 13 Kan. 348, the defendant below (plaintiff in error) is not liable, unless by his subsequent promise and supposed ratification he has made himself liable. In that case it is held as follows: