meda, State of California," and provides as follows: "We, the undersigned, residents and freeholders of the hereinafter described district, to be known as 'Fruitvale Sanitary District,' bounded and described as follows, to wit, [then follows a description of the bounds of the proposed district,] do respectfully petition your Hon. Board that, in conformity with an act to provide for the formation, government, operation, and dissolution of sanitary districts in any part of the state,

** you do call an election within said district for the purpose stated in said act." The first section of the act referred to in the petition reads as follows: "Whenever twenty-five persons in any county of the state shall desire the formation of a sanitary district within the county, they may present to the board of supervisors of such county a petition signed by them, stating the name of the proposed district, and setting forth the boundaries thereof, and praying that an election be held as provided in said act. Each of the petitioners must be a resident and freeholder within the proposed district." St. 1891, p. 223.

The desire to form a sanitary district is made manifest by filing a petition as provided by the statute. Beyond this expression of the desire of the petitioners it was unnecessary to go. The statute having prescribed the manner by which the desire for a sanitary district is to be shown, no other or further evidence of such desire is required, and, had the petitioners expressed affirmatively their desire in the premises, it would have added nothing as evidence to the force of their petition. They stated "the name of the proposed district" in their petition. It was according to that instrument to be known as the "Fruitvale Sanitary District." This was clearly a sufficient designation of a name for the proposed district.

The petition is signed by 36 names, and, according to the agreed statement of facts, "each and all of the thirty-six persons who signed said petition were then residents of, but only twenty-five of them were freeholders within the boundaries of, the proposed sanitary district." The law is complied with in that respect when 25 petitioners, as in this case, sign the petition, each of whom is a resident and freeholder within the proposed district. The object of the statute is to have that number of petitioners thus qualified, and the addition of others wanting in these essential qualifications does not vitiate the petition.

Within 30 days after filing the petition, and on, to wit, October 3, 1892, the board of supervisors of Alameda county, in regular session, acted upon the petition, and by resolution provided for an election in said sanitary district to be held on the 8th day of November, 1892, for the purpose of determining the question of the formation of a sanitary district within said county of Alameda, to be known and designated as the

"Fruitvale Sanitary District," and for the election of officers of said district, etc., setting out the boundaries of the district, defining the officers to be elected, etc., as provided by section 2 of the act hereinbefore referred to, and provided for posting and publishing a copy of the order for four weeks, as in said act provided. It is objected that this order was not posted for four successive weeks prior to the election, as by section 3 of the act provided. The evidence on this subject is "that on the 4th day of October, 1892, a copy of the order last above mentioned was posted for four successive weeks prior to the 8th day of November, 1892, (the date fixed for the election,) in three public places within the limits of the proposed sanitary district, and a copy of said order was published," etc. The language of the statute is: "A copy of such order shall be posted for four successive weeks prior to the election," etc. This language is frequently used in statutes directing the publication of notices, while in the matter of posting the usual direction is that it be posted at least, etc., specifying some given time before a fixed date or event. The evidence of posting is perhaps somewhat obscure, but the inference is fairly deducible that the notice was posted on the 4th of October, 1892, and remained posted for four successive weeks prior to November 8, 1892. The statute does not in terms provide that the four successive weeks of posting shall be the four successive weeks next preceding the election, and the evidence of posting, being a literal compliance with the letter of the statute, is regarded as sufficient. The election was held on the 8th day of November, 1892, at which a majority of the voters voted in favor of the formation of a sanitary district, and by a like vote a sanitary assessor and five members of the sanitary board were elected, pursuant to the call of the board of supervisors, and as provided in the statute. On the 18th day of November following, the board of supervisors canvassed the votes of said election, and as a result, after reciting a compliance with the statute, ordered that the sanitary district be established, defining its boundaries, and declared P. H. Blake duly elected as sanitary assessor, and P. L. Barrett, C. D. Bennett, A. C. Fay, J. H. W. Riley, and A. Schroyer duly elected as the sanitary board of said Fruitvale sanitary district, they severally having received a majority of the votes cast for said several offices. On the 14th day of November, 1892, the said officers so afterwards declared elected met and organized by the election of said J. H. W. Riley as president and said C. D. Bennett as secretary. It is objected by appellant that this organization was premature and unauthorized, and, as there is no evidence that a president and secretary have since been elected, there are no duly authorized officers of the board. The statute provides

act necessarily involves the right to assess property for municipal purposes, and hence falls within the prohibition of section 12 of article 11; and, further, that the act under consideration attempts to delegate to a special commission power to levy taxes, and to make, control, and supervise municipal improvements, and exercise municipal functions within cities and towns, in violation of section 13 of said article 11. People v. Lynch, 51 Cal. 33, and Yarnell v. City of Los Angeles, 87 Cal. 603, 25 Pac. Rep. 767, are cited in support of this contention. Those cases relate to the power of the legislature to interfere by direct legislation in the municipal affairs of Sacramento and Los Angeles, respectively. The vice of the argument on the part of appellant lies in the fact that it presupposes that the act under consideration must include cities and towns, and must interfere with their municipal functions. There is no suggestion that the Fruitvale sanitary district embraces within its boundaries any city or town, or that the powers to construct sewers, etc., to assess and levy taxes, in any way interferes with or affects any such municipality. To the legislature is confided the entire power of the people to make laws not granted by the federal constitution to congress or inhibited by that of the state constitution. In passing upon the constitutionality of the statute, we are not required to imagine some possible contingency in which its provisions may conflict with the constitution or with other statutes, but to determine whether, in its general scope and in the manner provided for its enforcement, it is within the province of the lawmaking power. The act of March 7, 1887, to provide for the organization and government of irrigation districts, has been repeatedly held constitutional, (Irrigation Dist. v. Williams, 76 Cal. 360, 18 Pac. Rep. 379; Irrigation Dist. v. De Lappe, 79 Cal. 351, 21 Pac. Rep. 825; In re Madera Irr. Dist., 92 Cal. 296, 28 Pac. Rep. 272; 675;) yet we can imagine the formation of an irrigation district under that statute with its boundaries confined to the limits of an incorporated city or to those of a swamp-land district, where irrigation would be productive of injury, and of no benefit. Should such a case arise, it may well be that it would be held that the facts showed that the case was not within the reason of the law, and hence not subject to its provisions. It would not, however, follow that the law was unconstitutional. here it may well be that if, in the formation of a sanitary district, an incorporated city or town shall be included in which the authority conferred upon the sanitary board is delegated to the municipality, it will be held that the law under consideration was not intended to apply to such city or town. The illustration is only used by way of comparison to show that the act is not unconstitutional for the reason indicated by ap pellant, and not to indicate an opinion upon

So

a case which may never arise. The statute in question is one coming clearly within the purview of the legislative power. All laws affecting the peace, good order, morals, and health of the community come within the "police power" of the legislative department of the state. Ex parte Shrader, 33 Cal. 279. It has been said: "There is also the general police power of the state, by which persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state, of the perfect right in the legislature to do which (in the absence of constitutional restriction) no question ever was, or, upon acknowledged general principles, ever can be, made, so far as natural persons are concerned." Redfield, C. J., in Thorpe v. Railroad Co., 27 Vt. 140. With the advance of civilization and the increase of knowledge upon the subject of hygiene, the importance of sanitary laws is coming to be better understood, and their necessity more fully appreciated. Referable, as they are, to a conceded branch of the power vested in the lawmaking department of the government, few constitutional questions can arise over their exercise except such as relate to the mode of its exercise and the extent of its application. The well-considered and elaborate case of In re Madera Irr. Dist., 92 Cal. 296, 28 Pac. Rep. 272, 675, disposes of and affirms the constitutionality of nearly every question involved in this case, and a further discussion of the subject is not deemed necessary. No point is made as to the regularity of the bonds, or as to the validity of the assessment, or levy of the tax in the sanitary district, except for the reasons hereinbefore specified. I am of the opinion the judgment of the court below should be affirmed.

We concur: BELCHER, C.; TEMPLE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment of the court below is affirmed.

(4 Cal. Unrep. 237) SMITH v. LOS ANGELES & P. R. CO. (No. 19,252.)

(Supreme Court of California. Sept. 27, 1893.) ESTOPPEL-VOID ORDER COLLATERAL ATTACKRES JUDICATA.

1. Where an order appointing a receiver of a corporation is void, a judgment creditor of the corporation does not, by intervening in the action for the purpose of enforcing his judgment, waive all objections to the order, and thereby lose the right to levy on the corporate property.

2. A void order may be attacked in any proceeding.

3. An order denying a motion to vacate a void order does not validate such void order. In bank. Appeal from superior court, Los Angeles county; J. W. McKinley, Judge.

Action by Smith against the Los Angeles & Pacific Railroad Company. An applica

tion for an order directing the sheriff to levy on sufficient property of defendant to satisfy a judgment theretofore obtained by plaintiff against defendant was denied, and plaintiff appeals. Reversed.

T. L. Winder and Chapman & Hendrick, for appellant. Anderson & Anderson, for respondent.

PATERSON, J. A receiver was appointed in the case of California Bank v. Los Angeles & Pacific R. R. Co. on September 13, 1889. On October 26, 1891, plaintiff herein filed a petition of intervention in that action, setting forth, among other things, that he had obtained a judgment against defendant herein for the sum of $4,403.30 on October 2, 1891, and that no part thereof had been paid. He prayed that his claim might be allowed against the corporation defendant, and that certain land belonging to the latter be sold, and the proceeds of the sale be applied to the payment of the debts of the corporation in such proportion as the court should determine. On July 11, 1892,

he applied to the court for an order discharging the receiver, on the ground that said order was void, the court having no jurisdiction to make the same. The application was denied, and thereafter he applied to this court for a writ of certiorari to review the proceedings. A hearing was had, and judgment was entered denying the petition on the ground that the petitioner had lost his right to the relief prayed for by reason of his delay in making the application. Smith v. Superior Court, 97 Cal. 348, 32 Pac. Rep. 322. Subsequently, plaintiff applied in this action to the court below for an order directing the sheriff to levy upon sufficient property of the defendant in the hands of the receiver to satisfy his judgment. The motion was denied, and from the order this appeal was taken. Respondent contends that the order should be affirmed for the following reasons: By intervening in the Bank Case, for the purpose of enforcing his judgment, the plaintiff became a party to that action, and has ratified and consented to the appointment of the receiver, thereby waiving all right to question the order by which said receiver was appointed; that this is a collateral attack upon the order appointing the receiver; and that, as between the appellant and the respondent, said order is res adjudicata.

1. It is doubtless true that one may so conduct himself as to be estopped from repudiating the action of a reeciver, although the order by which the receiver was appointed is void. But in this case mutuality, which is one of the essential elements of estoppel, is wanting. The plaintiff herein

could not, by simply intervening in the other case, receive any benefit, and no one, certainly, was prejudiced by his action therein. The receiver was not appointed upon his suggestion. If there be any act tending to validate the order appointing the receiver, such act is the act of the court, and not of this plaintiff; but, as we shall see, the order was void. The action in which the receiver was appointed was brought against the corporation, the principal bondholders, and the trustee of the property mortgaged to secure payment of the bonds; but the clerk certifies that no summons appears among the files of the case, and that no entry of the same appears upon his register of actions, and the record shows that on June 7, 1891, the action was dismissed as to some of the

parties. Inasmuch, therefore, as it appears that the plaintiff therein cannot avail itself of the services of the receiver, to hold that the plaintiff is not entitled to an execution herein is to decide that he has no remedy whatever for the enforcement of his judgment. We do not think that his conduct in the action referred to would warrant any such conclusion. Certainly, the California Bank ought not to be permitted, after practically abandoning the action for all purposes, to put the creditors in such a position that they can obtain no relief, either through the receiver, or by the ordinary processes of law.

2: This is not a direct attack upon the order appointing the receiver, but, the order being void, it may be disregarded. If the order is absolutely void, it is a nullity, and can be attacked in any proceeding. That it is absolutely void was clearly demonstrated when the matter was before the court, in department, in Smith v. Superior Court,

supra.

3. As to the proposition that the order appointing the receiver is res adjudicata, it is sufficient to say, we think, that a court cannot, by an order denying a motion to set aside a void order, give the latter any vitality. If the order is void, it is void,-a mere nullity, and may be treated as nothing. The decision of this court in the certiorari proceeding did not affirm the order of the court below. It declared that order void. It is true the proceedings were dismissed, but laches is the ground upon which the decision went; and the question whether the conduct of the plaintiff, as intervener, estops him from denying the validity of the order appointing the receiver, was not determined.

The order appealed from is reversed.

We concur: De HAVEN, J.; HARRISON, J.; MCFARLAND, J.

(99 Cal. 371) BOARD OF LAW LIBRARY TRUSTEES OF ORANGE COUNTY v. BOARD OF SUP'RS OF ORANGE COUNTY. (No. 19,260.)

(Supreme Court of California. Sept. 26, 1893.) DELEGATION OF LEGISLATIVE POWER-COUNTIES

ESTABLISHMENT OF LAW LIBRARIES.

1. The legislature has power to provide, in an act establishing law libraries, (Act March 31, 1891,) that counties shall come or remain without the provision of the act, as the boards of supervisors of the respective counties may determine.

2. After the board of supervisors of a county has voted that Act March 31, 1891, establishing law libraries, shall be applicable to such county, it cannot evade the force and effect of the statute by repealing the adopting ordinance, since the county, after once coming within the provisions of the act, is there for all purposes, as fully and completely as if it had passed directly under the provision of the act at the date of its enactment.

3. The setting apart by the county board of supervisors of a few feet, for shelf room for a law library, in a large room occupied by the principal county officers, and by the board of supervisors when in session, where access to the books is obstructed, and rendered greatly inconvenient, by furniture and other articles occupying the room, and where the books cannot be consulted or used with reasonable convenience, is not providing such a library room for the use of the law library as is contemplated by Act March 31, 1891, providing for the establishment of law libraries in the different counties of the state.

In bank.

Application by the board of law library trustees of Orange county against the board of supervisors of Orange county for a writ of mandate to compel the board of supervisors to provide a suitable library room for its law library. Writ granted.

J. W. Towner, for petitioner. James G. Scarborough, for respondent.

GAROUTTE, J. This is an application for a writ of mandate. The matter is before us upon a demurrer to the petition, and the merits of the proceeding may be fully determined by a consideration of the facts relied upon by petitioner for the issuance of the writ. The writ is asked to issue against the board of supervisors of Orange county, requiring them to provide a library room for the use of the law library created under the statutes of this state. See St. 1891, p. 430. The petition alleges the establishment of the library as provided by the statute; that there is no suitable room for the use of said library; that the board of supervisors furnished some shelving, inclosed by doors, upon which the books were placed, in a large room, 100 feet by 25 feet, which was used by the principal county officers of the county for the performance of their official duties, and also for the meetings of the board of supervisors; that said room has no partitions, other than desks and railings; that said shelves are located on one side of said room, and about midway from front to rear thereof, and between the space occu

pied by the county clerk and county auditor; that access to the books is obstructed and rendered greatly inconvenient by furniture and other articles occupying said room; that the books cannot be consulted or used with reasonable convenience, or in any proper or satisfactory manner. The petition further states "that on the 5th day of May, 1891, said board of supervisors duly passed an ordinance, No. 14, and which is in the words and figures following: "The board of supervisors of the county of Orange do ordain as follows: Section 1. The provisions of the act entitled "An act to establish law libraries," of the Laws of 1891 of the State of California, and approved March 31, 1891, are hereby made applicable to the county of Orange.'" It is further alleged that on the 16th day of May, 1893, the said board of supervisors undertook to repeal and annul said ordinance No. 14 by an ordinance, No. 23, which is in the words and figures following: "The board of supervisors of the county of Orange do ordain as follows: Section 1. Ordinance No. 14 of the county of Orange, entitled 'An ordinance making applicable to the county of Orange the act of the legislature of the state entitled "An act to establish law libraries," approved March 31, 1891, is hereby repealed." It is further stated that demand upon the board of supervisors has been made to provide a suitable room for such law library, but the demand has been refused. Section 9 of the act of 1891 provides: "The board of supervisors of any such county shall provide a library room for the use of such library, whenever such room may be demanded by such board of trustees" And section 14 contains the following provision: "And provided further that it shall be discretionary with the board of supervisors of any county to provide by ordinance for the application of the provisions of this act to such county." It will be observed that the board of supervisors, acting under the clause of the section last quoted, brought Orange county within the provisions of the act by passing the ordinance to which reference has been made. To defeat this application for the writ, it is insisted (1) that the act of 1891 is unconstitutional; (2) that the board of supervisors, by ordinance, repealed the prior ordinance bringing the county within the provisions of the act, and by reason of such repeal the county occupied the same position as if no ordinance had ever been passed; (3) the room furnished is sufficient for the purpose contemplated.

We think the legislature had the power to provide in the act that counties should come within or remain without the provisions of the act, as the boards of supervisors of the respective counties might determine. It is not necessary to enter into a discussion of the constitutionality of this law in that regard, for in the recent case of People v. McFadden, 81 Cal. 489, 22 Pac. Rep. 851,