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possessor is not guilty of a violation of the ordinance. The ordinance, however, throws upon the defendant the burden of proving his innocence, and by its terms, unless he shows that his possession is lawful or innocent, his mere possession of the ticket renders him liable to punishment. If there are any circumstances under which the possession of a lottery ticket may be lawful or innocent, a defendant who is charged with the offense of having such ticket in his possession is entitled to the presumption of innocence, and cannot be compelled to establish his innocence by affirmative proof. To the extent that the defendant is required to establish his innocence, the provisions of the ordinance violate his constitutional rights.

It is not sufficient to say that the prosecution may disregard this clause of the ordinance and itself make proof of the criminal intent of the defendant, or show that his possession was not innocent or for a lawful purpose. The ordinance is to be tested by its own terms. It has declared that the offense does not exist "unless it be shown that such possession is innocent or for a lawful purpose." Instead of enacting that the possession with a criminal purpose shall constitute the offense, the city council has industriously provided that the offense is established, unless the possession is shown to be with an innocent purpose. This is a qualification attached to the definition of the offense, and is of necessity to be established by the defendant, since, if it were shown by the prosecution, it would establish the innocence of the defendant, and therefore that no offense had been committed.

Nor can this clause in the ordinance be disregarded as being unconstitutional, and effect be given to the first part alone. The provisions of the ordinance are to be considered as a whole, and it is not to be assumed that the city council would have adopted the first clause without enacting the condition thereto. The connection of the two clauses by the conjunction "unless" shows that they are to be taken together, and that the

first clause does not by itself express the legislative will of the council. It is well established that a statute may be in part constitutional, and in part unconstitutional, and, if the parts are wholly independent of each other, that which is constitutional may stand, while that which is unconstitutional will be rejected; but, as was said in Poindexter v. Greenhow, 114 U. S. 305: "These are cases where the parts are so distinctly separable that each can stand alone, and where the court is able to see and to declare that the intention of the legislature was that the part pronounced valid should be enforceable, even though the other part should fail. To hold otherwise would be to substitute for the law intended by the legislature one they may never have been willing by itself to enact." The same court also said in Spraigue v. Thompson, 118 U. S. 94, where it was sought to apply the rule to certain illegal exceptions in a statute of the state of Georgia: "The insuperable difficulty with the application of that principle of construction to the present instance is that, by rejecting the exceptions intended by the legislature of Georgia, the statute is made to enact what confessedly the legislature never meant. It forces upon the statute a positive operation beyond the legislative intent, and beyond what any one can say it would have enacted in view of the illegality of the exceptions." (See, also, Cooley's Constitutional Limitations, 209-12; Warren v. Charlestown, 2 Gray, 84.)

As we can consider the ordinance only in the form in which it has been enacted, we must hold that it did not authorize the arrest of the petitioner. The petitioner is. therefore, discharged.

GAROUTTE, J., MCFARLAND, J., HENSHAW, J., VAN FLEET, J., and TEMPLE, J., concurred.

[No. 18342. Department Two.-September 5, 1895.]

S. S. BRADFORD, RESPONDENT, v. F. H. WOODWORTH, APPELLANT.

APPEAL-REVIEW OF CONFLICTING EVIDENCE.-Where the evidence is conflicting, the appellate court will not disturb a finding upon the ground that it is not supported by the preponderance of the evidence. SALES AGENCY-PERSONAL LIABILITY OF AGENT.-Where lumber was sold to the defendant to be used in the construction of a quartzmill on a mine in charge of the defendant, who was the president and acting agent of a mining company, and the plaintiff dealt and contracted with the defendant as the owner of the mine, and as the principal in the transaction, in ignorance that the mining company was the owner of the mine, or that the lumber was to be used for the benefit of the mining company, the defendant is personally liable for the value of the lumber sold. ID.-EVIDENCE-MINUTE-BOOK OF CORPORATION-REFERENCE IN DEPOSITION-PROOF OF IDENTITY.-In an action against a defendant who is the president of a mining corporation, to enforce his personal Hability for lumber sold, the minute-book of the corporation referred to in the deposition of the defendant, but not attached to the deposition nor returned with it, cannot be read in evidence without proof of its identity. ID.-JUDGMENTS AGAINST CORPORATION.-In an action to charge the president of a mining corporation as the principal in the sale of lumber, judgments in favor of other parties who had worked upon the mine and building for which the lumber was furnished, obtained against the corporation, and under which the mine and mill were sold under execution, are not competent evidence. ID.—REBUTTAL-EXPLANATION OF TELEGRAM.—Plaintiff may properly be permitted to explain in rebuttal a telegram introduced by the defendant for the purpose of contradicting his testimony.

APPEAL from a judgment of the Superior Court of Tuolumne County. G. W. NICOL, Judge.

The minute-book referred to in the opinion of the court was the minute-book of the Yosemite Mining Company referred to in the deposition of the defendant, in whose deposition was embodied excerpts from the minute-book. The judgments referred to in the opinion were judgments in favor of third parties, who had worked upon the mine and in building the mill, for such work and labor against the Yosemite Mining Company, as a corporation, upon which judgments the mine. and mill were sold under execution. Further facts are stated in the opinion of the court.

J. D. Redding, and J. F. Rooney, for Appellant.

The finding that plaintiff contracted with the defendant is against the evidence, and the fact that he charged the account to the Rising Sun Mine and made out bills against the Rising Sun Mining Company was evidence that he did not give credit to the defendant personally. (Foster v. Persch, 68 N. Y. 400; Swift v. Pierce, 13 Allen, 136; Champion v. Doty, 31 Wis. 190.) When a person knows or has sufficient information fairly to infer the existence of an actual agency, although the name of the principal is not disclosed, the agent is not liable. (Wright v. Cabot, 89 N. Y. 574; Hogan v. Shorb, 24 Wend. 462; Maanss v. Henderson, 1 East, 335; Bliss v. Bliss, 7 Bosw. 345; Baring v. Corrie, 2 Barn, & Ald. 137.)

F. W. Street, for Respondent.

When an agent deals with a third person, and does not disclose the principal, the agent is personally liable (Murphy v. Helmrich, 66 Cal. 71; Civ. Code, sec. 2343, subd. 1; Lawson's Rights, Remedies, and Practice, secs. 107, 108; Thomas v. Moody, 57 Cal. 215; Puget Sound Lumber Co. v. Krug, 89 Cal. 237; Holt v. Ross, 54 N. Y. 472; 13 Am. Rep. 615; Cobb v. Knapp, 71 N. Y. 348; 27 Am. Rep. 51; Bickford v. First Nat. Bank of Chicago, 42 111. 238; 89 Am. Dec. 436-41; Baldwin v. Leonard, 39 Vt. 260; 94 Am. Dec. 324, and note to decision; Welch v. Goodwin, 123 Mass. 71; 25 Am. Rep. 24; Story on Agency, secs. 266, 326.) The book offered in evidence was not identified as the recorded book referred to in the deposition, and was incompetent and immaterial to show facts not stated in the deposition. The judgments were properly excluded, the plaintiff being neither party nor privy thereto. (Black on Judgments, sec. 600; Greenleaf on Evidence, sec. 523.) The judgments could not be used to impeach the plaintiff. (Code Civ. Proc., sec. 2051.) The evidence being conflicting, the findings must be sustained.

TEMPLE, J.-Appeal from the judgment and from an order denying a new trial.

This action was brought to recover the value of lumber alleged to have been sold by plaintiff to defendant to be used in the construction of a quartz-mill on the Rising Sun Mine.

The answer denies all the material allegations of the complaint, and avers that the lumber was sold by plaintiff to the Yosemite Mining Company--a corporation incorporated in the state of Illinois.

The court found that the lumber was sold to the defendant, but that at the time the defendant was the president of the Yosemite Mining Company, and for that company was in charge of and engaged in the management of the Rising Sun Mine. The court further found as follows:

"That neither, at the time the defendant contracted with plaintiff for the lumber and materials furnished defendant as aforesaid, nor during any of the time plaintiff was furnishing the said lumber and material, did the defendant inform the plaintiff that he, said defendant, was acting as the president of or as the agent of the Yosemite Mining Company, nor did the plaintiff know at or during any portion of the time from September 15, 1883, to and including the second day of April, 1884, that the defendant was the president of or the agent of the Yosemite Mining Company, and the defendant did not, at or during any of said time, inform plaintiff that the said Yosemite Mining Company was the owner of said Rising Sun Mine, or that the lumber and materials furnished and delivered to the defendant as aforesaid were for the said Yosemite Mining Company, and plaintiff did not know during any of said time that said lumber and materials sold and delivered by him to the defendant as aforesaid were for the said Yosemite Mining Company, or that said company was the owner of said Rising Sun Mine. That plaintiff dealt and contracted with the defendant as the owner of

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