this state and the board of supervisors of a county. The one has all legislative power not limited or denied to it by the constitu. tion, while the other has no power whatever except such as is specially granted to it. In regard to a body like the board of supervisors, it would depend upon the proper and reasonable construction to be given the language of the grant of power, rather than upon the absence of some specific language of restraint or limitation. In adverting to the effect of the Amendment of 1874, we think some weight is due to the fact that the amend ment does not purely consist of an omission of the words that each assembly district shall contain, as nearly as may be, an equal number of inhabitants." The whole section was recast, and the words omitted formed part of the sentence providing for the exclud ing of aliens, and persons of color not taxed. There is no doubt the amendment was in fact proposed and adopted in order to do away with the exclusion of persons of color. If, however, the meaning of the section were thereby altered to the extent of abrogating the necessity of dividing assembly districts, as nearly as might be, equally with regard to population, it would be our duty to follow the constitution, and to make no merely judicial amendment to it. We do not think this was the effect of the amendment. Upon an examination of the whole section, we think that a construction of it which requires the board of supervisors to divide the assembly districts so that they shall contain, as nearly as may be, an equal number of inhabitants, to be composed of convenient and contiguous territory, and in the formation of which no town shall be divided, is not only authorized, but required, by the general sense of the language of the section. The section commences with these words: "The assembly shall consist of one hundred and twenty-eight members, elected for one year. The members of assembly shall be apportioned among the several counties of the state, by the legislature, as nearly as may be, according to the number of their respective inhabitants, excluding aliens, and shall be chosen by single districts."

herein provided. No town shall be divided of such different bodies as the legislature of in the formation of assembly districts." It is now argued that because of the simple omission of the affirmative provision that the assembly districts shall contain, as nearly as may be, an equal number of inhabitants, the whole subject is within the jurisdiction of the supervisors, and that such board is granted absolute, uncontrolled, and entire discretion over this matter. In this view we find ourselves unable to concur. We can perceive no reason for reversing, in the case of counties entitled to more than one member, the general principle upon which representation in the legislature is governed by the Constitution of 1846. We recognize the fact already adverted to that there is in the constitution a special direction to the legislature, in so many words, and upon certain conditions not here material, to form the senate districts so that they shall contain, as nearly as may be, an equal number of inhabitants; and there is also a like direction to apportion members of assembly among the several counties of the state, as nearly as may be, according to their respective inhabitants, and that the direction, in specific terms, contained in the 5th section of article , as originally adopted in 1846, to so divide :ssembly districts as that they shall contain n equal number of inhabitants, is omitted in the section as amended and adopted by the people in 1874. Notwithstanding all this, however, we still think that the language of the amendment does not substantially alter the meaning of the section before the amendment, except in the case of persons of color. By the amendment they are no longer to be excluded from the count in making up the number of inhabitants. We must bear in mind, when construing the meaning of the section as it now stands, that the policy of the state, ever since it has existed as a state, has been in the line of a direct representation of inhabitants, as distinguished from their representation through corporations of a quasi political character. In carrying out this idea of representation by population, we see that specific directions are given the legislature in the constitution, and we can never believe that it was ever the intention of the people that absolute discretion should be confided Stopping here, the meaning would seem to to an inferior body, like the board of super be reasonably plain. As the members of asvisors, while the legislature itself was to be sembly were to be apportioned among the bound, in set terms, to make divisions upon several counties, as nearly as may be, accorda recognized basis of population. Power to ing to their population, and were to be chosen make a division being granted to the legis- by single districts, those districts, in the ablature, it might be claimed that, in the ab- sence of language making some other provis sence of any limitation, it would have the ion, would, by force of the language actpower to divide according to its discretion.ually used, be subject to a division upon the But in the case of inferior bodies, like boards of supervisors, who have no legislative power excepting what is specifically granted, the power to divide being given, the implication would be strong that it was only a power to divide equally; and, if power to divide in the discretion of such a board were claimed, the grant would have to include such power in express terms, for it would not be implied from a general power to divide, or from the absence of some express limitation. This difference of construction would arise because of the difference in the nature of the powers

principle of equality of population, as nearly as might be, so as to conform to the evident intent to be gathered from the language thus far contained in the section. This would be, as we think, the natural and plain implication; and in the absence of any other lauguage, qualifying or affecting it, we think it would be just as effectual as if stated in so many words. Considering the manner in which our state has provided for representation in the past, and its continued adherence to the plan of representation by population, this implication becomes still stronger and

clearer. The reading of the rest of the article | which members were elected to the assembly, confirms this view, and renders the implica- by questioning the proper election and quali tion a necessity. The assembly districts are fication of a member so elected,-a very dif. to remain as then (1874) organized until after ferent question indeed, from that under conthe census of 1875, when the legislature is sideration, and one which, if before us, to apportion the members of assembly in the might readily be decided as the learned manner already stated, and the board of su- judges of Massachusetts decided it. Persons pervisors shall assemble on a day named by elected under an apportionment such as apthe legislature, and shall then “divide their pears in this case, and while such apportionrespective counties into assembly districts, ment stands unvacated, we have no doubt, each of which districts shall consist of con- are legally elected members of the assembly, venient and contiguous territory equal to the and, as such, entitled to participate in all number of members of assembly to which the business of that body. In any event, the such counties shall be entitled," etc. Start- house is the judge of the election returns ing with the view that up to the point just and qualifications of its own members, and quoted the article, in effect, implies that those whom the house receives as duly elected these districts are to be, as nearly as may be, must be regarded as rightfully elected, and equal, we find here no word which gives color entitled to take part in the business of the for a different conclusion. house.

All its inhabitants having equal rights, a We construe the present language of the direction to divide a county into the number section, for the reasons already given, as callof districts to which it was entitled, an equal ing for a division into districts, as nearly as division as to population, would be implied may be, of an equal number of inhabitants, from the prior language of the constitution, regard being had to other provisions of the and in order to carry out a perfectly well- section. In redrawing the section for the known and recognized policy of the state. purpose of making a different provision in It would require special language, granting regard to persons of color not taxed, the in terms the right to unequally divide the special provision as to the division of disdistricts, before we should feel that, in giv-tricts so that they should contain, as nearly ing effect to such a division, we did not run as may be, an equal number of inhabitants, counter to the true meaning of the constitu- was omitted because, as we have no doubt, tion. In addition to this, however, the sec- it was thought to be unnecessary, in contion provides for the making and filing by sideration of the language of the rest of the the board of supervisors of a description of section, and we agree in that conclusion. the districts made by the board, specifying The omission remains, therefore, wholly its number, and the population thereof ac- without significance. We are unable to becording to the last preceding enumeration,lieve that there was any intention, by the as near as can be ascertained; and, as thus adoption of the Amendment of 1874, to inconstituted, they are to remain unaltered augurate either a new theory of representauntil another enumeration shall be made, and tion, by counties, or to leave an uncontrolled no town is to be divided in the formation of discretion in these local boards to form asa district. This last condition might, and sembly districts as they should choose, so probably would, have the effect of prevent-long as they did not divide a town, and coning the equality in inhabitants which might stituted a district of convenient and conotherwise be reached in these districts. There tiguous territory. We do not think this is is nothing in the language thus far quoted the effect of the amendment as adopted. which clothes the board with the right to What the people really struck out in 1874 divide these districts without the slightest was the necessity of excluding from the reference to the question of population; and number of inhabitants persons of color not it would seem that by the provision for fil-taxed, when forming assembly districts, and ing a description of the districts as divided, with a statement of the population of each district, an official and conclusive species of evidence was furnished by which to determine how, in fact, the constitutional mandate had been complied with. The opinion of the learned judges of the supreme court of Massachusetts, contained in a communication addressed by them to the house of representatives of that state, and reported in 10 Gray, 613, has been referred to as an authority for the absolute discretion of the body forming the districts. The opinion does not include such a case as this. The question there was whether the house could question the election and return of members from districts divided by the proper authority, and it was stated that it could not, and that the action of the board making the division was conclusive. The question there raised would exist in this state if the assembly should question the conclusive character of a division made by the supervisors, and under

the omission of the language only affected that question. We have no doubt that the boards of supervisors in the different counties are still bound to make divisions with reference to the question of population of the respective assembly districts in their counties.

2. Assuming that we have reached a correct conclusion as to the duty of the board to divide the county into assembly districts in the manner just stated, the true meaning of the section still remains somewhat of a problem. It is very plain that a division simply by an arithmetical process is not contemplated, becouse the injunction to refrain from dividing a town would in many cases render such a process wholly impracticable. The further injunction, to make the districts of convenient and contiguous territory, might render it still more impracticable to divide with relation merely to inhabitancy. The main duty which is imposed upon the board is to make the division equal as to popula

3. Tried by the rule just stated, we have no difficulty in coming to the conclusion that the action of the defendants in dividing Kings county into assembly districts cannot be regarded as a compliance with the constitution. It is unnecessary to refer to the division in detail. It is plain that, if the constitutional provision were not in this case intentionally ignored, it was at least not regarded as an

tion, so far as that is attainable, while mak- | the subject of review, by the courts. If the ing cach district of convenient and contiguous division with reference to the facts of conterritory, and keeping the town undivided. venience and contiguity of territory, the inPerfect equality of population cannot, under divisibility of the town, and the number of these conditions, be attained. The proper inhabitants in the various districts, as comdischarge of the duty of division by the pared with each other, do not lead most inboard implies considerable discretion in the evitably to the belief that the board has information of the various districts. The dis- tentionally disregarded the constitutional cretion exercised must be an honest and a fair provision, we think, in such case, its action discretion, arising out of the circumstances should be upheld. We do not intend by this of the case, and reasonably affecting the decision to hold that every trifling deviation exercise of the power of equal division. from equality of population would justify Before examining any division, it would be or warrant an application to a court for rea prima facie presumption that the division dress. Such we think, is not the meaning of actually made in any case was a proper one, the provision. It must be a grave, palpable, and a full compliance with the duty imposed and unreasonable deviation from the standupon the board which made it. This would ard, so that, when the facts are presented, be in accordance with the presumption in argument would not be necessary to convince favor of the due and proper discharge of of a fair man that very great and wholly unficial duty. Nor would the mere fact that necessary inequality has been intentionally the districts were to some extent unequal in provided for. This is as near an exact de population necessarily rebut this presump- finition of the meaning of this section in this tion. The necessity of considering the other regard as I am able to now give. facts provided for by the section, and already alluded to, might reasonably account for many, and even somewhat large, aberrations from the initial point of equal representation. While it is impossible, in the nature of the case, to accurately describe and closely limit the amount of deviation from an equal representation that the practical working of the constitution may in this respect permit, it is, on the other hand, sometimes quite pos-existing rule requiring attention and obedsible to say of a particular example that it does or does not violate the constitutional mandate. We have no trouble whatever in detecting the difference between noon and midnight, but the exact line of separation between the dusk of the evening and the darkness of advancing night is not so easily drawn. A question of somewhat similar nature was before us in People v. Rice, cited supra. The question there related to the amount of discretion reposed in the legisla-ion is so plainly in violation of the constiture in the creation of senate districts, and in the apportioning of members of assembly among the several counties. It was there stated that it was not intended to intimate by the decision then made that in no case could the action of the legislature be reviewed by the courts, and that cases might easily be imagined where the action of the legislature would be so gross a violation of the constitution that it was plain that in strument had been entirely lost sight of, or intentional disregard of its commands, both 4. It is urged that even if the defendants in the letter and in the spirit, had been in- were bound to divide the assembly districts dulged in. If there were an abuse of the with reference to the question of population, discretion, so as to clearly show an open and yet, as they have met, and performed the intended violation of the constitution, we duty of division, and have filed their certitiheld in that case that the courts might inter-cate, such action is in its nature judicial, fere. We did hold that the facts as presented or at any rate it is one which requires large contained no such features, and, although there was no mathematical division, the court refused to interfere with the discretion that had actually been exercised by the legislature. We think, in the case of assembly districts, the duty is at least as plain which governs, the boards of supervisors as that which rests upon the legislature in the case mentioned. It is not every departure from equality in the number of inhabitants that can be interfered with, or that ought to be

ience. No such division could have been made by any public body that intended to be guided by the commands of the constitution in this particular. The variation in districts from a population of 31,000 to that of 102,000 is entirely too great to sustain the claim, if it were made, that there was any attempt to comply with the constitution. Between these two extremes there are many other and great variations. The whole divistution, as here interpreted, that we feel justified in the belief that no body of public officials would have made such a division if they had thought that, in respect to popula tion, there was any constitutional provision which would bind their action. They evidently proceeded upon a mistaken theory as to their power, and so thinking, their action is explicable upon grounds consistent with their integrity, and intention to perform a public duty.

discretion in its performance, and for these reasons it cannot be reviewed by the courts. Undoubtedly there is a discretion to be exercised in the division by the board, and with the exercise thereof this court has as little inclination as right to interfere. By the action already taken the relators in these proceedings have been aggrieved. It is true they have suffered no more than any other citizen and resident in the fifth assembly district. But the interest of the relators in

We

the question at issue, although common to, sembly districts. That duty still rests upon all the residents of that district, is neverthe- them, just the same as if they had never atless sufficient to enable them to have a stand-tempted its performance. What they have ing in court, and to invoke its aid in this done is utterly void, and of no effect. behalf. Mandamus is the only remedy in can only interfere so far as to direct them to such a case. Where the thing to be done come together and perform their duty, and does not rest in discretion, and is to be per- make a constitutional division of their formed by a public body or officer, and the county. We are not impressed with the coract is of a public nature, in the execution of rectness of the claim made by the counsel which the public is interested, its perform- for the appellants, that the present division ance may be compelled by mandamus sued is void because of the alleged division of out upon the relation of any citizen of the towns. They claim that certain wards in community having an interest in the per- the city of Brooklyn must still be regarded formance of the act. This has been the law as towns in the county of Kings, and cannot of this state for many years. People v. Hal- be divided. We do not think, in this respect, sty, 37 N. Y. 344. The thing to be done in there is just ground for the claim, yet, inasthis case is to make a valid division of the much as the question need not now be decounty of Kings into assembly districts. cided, because we hold the division void on All the citizens are interested in the per- other grounds, we do not further discuss the formance of that duty. Its performance does subject. not involve any discretion. It must be done. The orders of the general and special terms The manner of its performance is to a large must be reversed, and the motion for a manextent discretionary. The court only inter-damus must be granted, without costs against feres to compel the performance. In this the defendants. The terms of the order, if case we hold that the defendants have failed not agreed upon, will be settled by this thus far to perform their duty to legally di- court upon motion. vide the county of Kings into eighteen asAll concur.

v.

CALIFORNIA SUPREME COURT.

J. W. MAWHINNEY, Respt., SOUTHERN INSURANCE CO. OF NEW ORLEANS, Appt.

(April 24, 1893.)

PPEAL by defendant from a judgment of vor of plaintiff in an action brought to recover the amount alleged to be due under a policy of fire insurance upon a threshing outfit. Retersed.

The facts sufficiently appear in the opinion. Mr. J. P. Meux, with Mr. T. C. Van Ness, for appellant.

Messrs. Church & Cory for respondent. Harrison, J., delivered the opinion of the court:

The defendant made this policy of insurance in favor of the plaintiff's assignor, by which it insured him, to an amount not exceeding $800, for the term of three months from June 2, 1890, against loss or damage

by fire to the following described property, "while located and contained as described herein, and not elsewhere, to wit: Threshing outfit in the field. $800 on one combined harvester, complete, all while owned by assured, and known as 'Barrett's harvesting machine and outfit,' and operating in the grain fields, and in transit from place to place in connection with harvesting, in Fresno county, Cala." The harvester was destroyed by fire June 10, 1890, and in an action upon the policy the complaint alleged that its destruction occurred "while in transit from L street, in Fresno, the place where the same was at the time of said insurance, to the grain fields, for use in connection with the harvest in said Fresno county." This allegation was denied by the defendant, and was the issue upon which the cause was tried. fendant moved for a nonsuit upon the ground that the evidence failed to sustain this allegation of the complaint. The court denied the motion, and, the defendant declining to offer any evidence, judgment was rendered in favor of the plaintiff, from which, and an order denying a new trial, the defendant has appealed.

At the date of the policy the harvester was in a building on L street, in the city of Fresno, where it had been stored since the previous season, and on the next day after the policy was issued it was taken to a blacksmith shop in the city of Fresno, about a quarter of a mile distant, for general repairs, where it remained until it was destroyed, on

NOTE.-The above decision as to insurance on a | garded as important in many cases more or less simi harvesting machine, although strictly applicable lar.

only to the particular facts involved, may be re

I

We concur :

Beatty, Ch. J.; De Ha

ven, J.; Fitzgerald, J.

Paterson, J.:

the night of June 10th. The plaintiff testi- | case the insurer would reasonably assume fied: The machine had never got to the that the harvester would be under greater grain fields when it was burned, but was left care and watchfulness while it was actually at this shop for the purpose of repairs. operating in the fields, or in transit from helped to take it there. It had never been ta- place to place for such purpose, than if left ken from the shop after being carried there." standing, unhoused and uncared for, in open Barrett, the plaintiff's assignor, to whom the grounds near a blacksmith shop. But whatpolicy was issued, testified that "it required ever may have been the motives for limiting about $175 worth of repairs upon the har- the extent of his risk, he cannot be made liavester to put it in a condition to be used, and ble for a loss that was not covered by the took about two weeks to repair it. I took risk assumed in the policy. the machine straight from Mr. Mawhinney's The judgment and order are reversed. place to the shop, on the other side of the railroad track, about a mile from Mr. Mawhinney's place. It had not been used at all prior to that, when carried to the shop for repairs, and there it stood until it burned. It stood about sixty or one hundred feet away from the shop, with several machines between it and the shop. None were burned, except this one. Neither was the shop burned. I had never carried it into the field, nor put it to any use, after the insurance was procured, nor used it in any way, except to take it to the shop for repairs, and had not taken it from any place with a view of harvesting at that time, and nothing had been done in the way of harvesting that season; only the repairs I have stated. I mean I had taken it to the shop for the purpose of repairs, and with a view of going into the field for harvesting as soon as it was ready, and used it for no other purpose during that season." Upon this testimony the nonsuit should have been granted. The harvester was not "operating in the grain fields," or "in transit from place to place in connection with harvesting," at the time it was destroyed. It had not been used at all in connection with harvesting during that season, and the testimony of Barrett that it required about two weeks to make such repairs as would put it in a condition to be used shows that it could not have been, at the time of the loss, in transit from place to place "in connection with harvesting." The policy purported to be on a "threshing outfit in the field," and its terms did not cover the harvester while it was at a blacksmith shop for repairs, and it cannot be said that while it was at the shop in Fresno, to which it had been taken for the purpose of putting it in repairs for the season, it was in transit "from place to place, in connection with harvesting," any more than if it had been sent to San Francisco for repairs, and had been there destroyed. An insurer is not liable except upon proof that the loss has occurred within the terms of the policy, and when making the policy he is at liberty to select the character of the risk he will assume. If the terms of this risk are distinct, and without ambiguity, the assured cannot complain if the risk assumed does not cover the loss. The locality of the property, as well as its custody, and the incidental care that, by reason of such locality and custody, the property will naturally receive, are elements which enter into a consideration of the risk to be assumed; and, if they are made a part of the conditions of the policy they must be observed by the assured, as fully as any other conditions, before the insurer can be made liable for a loss. In the present

I dissent. The plaintiff testified that the harvesting season in Fresno county commenced about the 10th of June: that the machine was sent to the blacksmith for repairs, which were nearly completed when it was burned. I. N. Barrett testified that the object of taking the machine to the blacksmith shop was to repair it for work in the field; that a contract had been made for cutting grain, and that he had made arrangements to take the machine out to the field on the 11th day of June, or as soon as the necessary repairs were completed; that one contract had been made for harvesting before the machine left plaintiff's place, and another contract after it reached the shop, but no work had been done with it that season. Upon this showing I think the motion for a nonsuit was properly denied. The taking of the machine from the place where it was housed to the shop, and the work done upon it there, were acts done "in connection with harvesting, -as much so as if the machine had already been in operation, and had been returned to the shop for repairs. The plaintiff, when he took it out for repairs, intended, not to return it to the place where it had been stored, but to continue on to the field of operations as soon as the necessary repairs were completed. If the plaintiff had actually entered the field he was to harvest, although he knew that the machine needed repair, and had returned to the blacksmith shop, there would be no question whatever of his right to recover herein. The law did not require of him such a vain thing. Contracts had been made for the harvesting of crops, and the machine was "in transit from place to place, in connection with harvesting," within the meaning of that language, as used in the policy, when it was destroyed by fire. It is evident that by the terms of the provision of the policy quoted the parties intended that, so long as the machine remained in the house or shed on plaintiff's place where it had been stored for the winter, the company should not be liable, but that as soon as it was removed therefrom, and started out to operate in the grain fields, the company should become liable. A machine is not so likely to be burned when in the hands of a crew of threshers as when stored in a hay barn, nor it is so likely to be burned when on the road, or when standing in front of a blacksmith shop for repairs. When plaintiff took the machine from its store