it now stands, that Josenhans occupied such a position in the premises as made notice to him notice to the city. Whatever notice was involved in the conversation between him and Hamilton related to something that was yet to be done, and not to what had been done, and it is urged that it could not be notice that the thing was actually done. Strictly speaking, it probably cannot be said to have been notice of the thing actually accomplished; but, being an expression of intention to do a thing, we think it was such notice as at least emphasized the duty of an inspection to discover what was really done, and it is for the jury to say whether that duty was neglected. If no inspection was ever made of the premises after the receipt of notice of intention to place this boiler under the sidewalk as an attachment to the building, then, without other testimony, the jury would be justified in finding that no objection was made by the city, and that it consented thereto. There is testimony in the record to the effect that no inspection of the premises was ever made by any city official either during the progress of the work or after its completion. The work of placing the boiler and making the alterations was done in December, 1898, and the explosion occurred in March, 1899. Under all the circumstances, we think it cannot be said, as a matter of law, that the city had no notice of the existing conditions; and, for further purposes of this opinion in the consideration of the motion for nonsuit, it must be held that there was sufficient evidence to go to the jury upon that subject. With knowledge of the conditions brought home to the city, what is the status of the case, without further testimony? It is a well-settled principle that a traveler upon a public highway has a right to assume that it is safe for ordinary modes of travel. This principle is well stated in Williams on Municipal Liability for Torts (section 128) as follows: "In the absence of anything that would suggest to the mind of a man of ordinary prudence a peril of travel, a person who is passing along a public highway is not bound to anticipate danger, but has a right to assume that the municipal authorities have made the way reasonably safe for public travel in the ordinary modes. And he may indulge in this assumption as well when he is traveling in the nighttime as when he is traveling by daylight. A person may walk or drive in the darkness of the night,' says Chief Justice Hunt in Davenport v. Ruckman, 37 N. Y. 568, 573, 'relying upon the belief that the corporation has performed its duty, and that the street or the walk is in a safe condition. He walks by a faith justified by law, and if his faith is unfounded, and he suffers an injury, the party in fault must respond in damages.'" Applying the above rule to the case at bar, we find, as the evidence stands, that the appellant was walking upon a public highway of the respondent city, entirely unconscious of any present danger, when he was instantly subjected to great danger by a violent explosion from a source concealed immediately under the highway upon which he walked. In City of Abilene v. Cowperthwait (Kan. Sup.) 34 Pac. 795, a lot owner had made a dangerous cellarway under a sidewalk and street in front of his house, which he covered with a trapdoor. It remained in that condition for about two months, when a person traveling over the sidewalk stepped upon the trapdoor, which broke down and precipitated him into the excavation below, causing severe personal injuries. It was held that the city could not relieve itself from responsibility because the dangerous opening was made by a lot owner, and, further, that it was the duty of the city authorities to supervise the work of covering the cellarway, and to cause the use of suitable precautions to prevent accidents. Under similar circumstances, it was held in Morris v. Woodburn (Ohio) 48 N. E. 1097, that the injured party may elect to sue either the party creating the nuisance, or the city for its tort in failing to discharge a duty imposed by law. This court said in Saylor v. City of Montesano, 11 Wash. 328, 333, 39 Pac. 653, 654: "That this particular portion of the street was not in a safe condition was demonstrated by what actually happened thereon. Respondent not only had a right to drive over any portion of the street, but a right to expect that all portions of it were in a safe condition for ordinary use." In Hume v. Mayor, etc., 74 N. Y. 264, injuries had been received from a wooden awning constructed in the street. The court, at pages 274, 275, of the opinion, said: "Regarding, then, the ordinance referred to as still in force as is claimed by the defendant, it appears that it required that the erection should be made under the direction of the street commissioner. If under the direction of that officer, or through his neglect to supervise it, it was constructed in a negligent and insecure manner, and injury to an individual ensued, the city would be liable for such negligence. Wendell v. City of Troy, 39 Barb. 337, and Id. *43 N. Y. 261. And this liability would exist even if the defect were not patent. Id. If the erection was made without authority from the city, and without the approval or direction of the street commissioner, then it was an unlawful erection in the public streets by an individual for his private purposes, which the jury have found to be obviously unsafe and dangerous to persons using the street, and which it was the duty of the officers of the city to cause to be removed, after having actual or implied notice of its existence." In Chicago v. Robbins, 2 Black, 418, 422, 17 L. Ed. 298, Mr. Justice Davis says: "It is well settled that a municipal corporation having the exclusive care and control of the streets is obliged to see that they are kept safe for the passage of persons and property, and to abate all nuisances that might prove dangerous; and if this plain duty is neglected, and any one is injured, it is liable for the damages sustained." In Wells v. City of Brooklyn (Sup.) 41 N. Y. Supp. 143, a show case was maintained on a sidewalk without permission of the municipal authorities; and the city was held liable for injuries caused by its fall, though it had been securely fastened until the day before the accident, when a truck collided with it and broke it loose. The contention was made in behalf of the city that an essential element of its liability was that the obstruction should have been actually dangerous in the first instance, or manifestly likely to become so, in the judg ment of prudent men, and that, if originally it was neither, the fact that it subsequently developed into a menace to public travel did not render the municipality chargeable with negligence for the resulting injury. Upon this subject the learned writer of the opinion says at page 145: "I think this is too limited a view of the rule of law applicable to such a case, both upon reason and authority. When a municipality tolerates for years the continuance of an unlawful obstruction in a public street, which it is in duty bound to remove therefrom, its action is distinctly wrongful. It must bear the natural consequences of that wrongful action. An lawful obstruction in a public highway may prove dangerous to travelers, either from the manner in which it is originally erected, or by reason of accidental or other interference with it by strangers to its erection. Notice to the municipality, therefore, of its presence, is notice that the safety of public travel is endangered, or liable to be endangered. If, under such circumstances, the obstruction is allowed to remain, the municipality takes the risk. If injury ensues, the presence of the obstruction is to be deemed the proximate cause thereof, for the injury could not have happened if the municipal authorities had performed their duty. In that event in the case at bar the show case would not have been on Grand street at all, and could not have been loosened by the collision with the truck, or fallen upon the plaintiff." un In the case at bar, as we have seen, this boiler was being maintained as an attachment to a building, but located within the limits of a public street, under conditions which were in violation of a city ordinance. If the extended side walls, the supporting stone or brick wall laid in cement, and the stronger overhead structure, had been constructed, as required by the ordinance, at places where the space beneath the sidewalk is used, who can say that appellant would have been injured? The defect in the boiler, if there was a defect in the beginning, may not have been patent; but, under the evidence as it now stands, the boiler was maintained and operated there for a period of three months under unlawful conditions. It may therefore have been a nuisance which it was the duty of the city to abate, whether there was any apparent defect in the structure of the boiler or not. Appellant was injured by an unseen instrument exploding within the area of the street over which the city had control. We think, when he had shown those facts, that a prima facie case of negligence was established, and that it devolves upon the city to show that it exercised reasonable care in the premises, in order to overcome the presumption of negligence arising from the fact of the explosion. An explosion being a thing so unforeseen and unexpected in its nature, it is held that negligence will be presumed, if unexplained. There is some conflict in authority upon this subject, but we believe the better reasoning and the weight of authority support the above statement of the law. Some distinction has been made between cases where contractual relations exist between the parties, and those where there is no such relation; it being held that, when such relation exists, proof of the explosion carries with it the presumption of negligence, and makes a prima facie case, when such would not be true if the contractual relation did not exist. We think the better reasoning is with those cases which hold that the presumption arises not only in favor of those sustaining contractual ties, but in favor of all others as well. The duty to exercise reasonable care in the maintenance and operation of instrumentalities and devices liable to explosion runs to all mankind. In support of this view, see the following cases: Judson v. Powder Co. (Cal.) 40 Pac. 1020, 29 L. R. A. 718, 48 Am. St. Rep. 146; Warn v. Oil Co. (D. C.) 61 Fed. 631; Rose v. Transportation Co. (C. C.) 11 Fed. 438; Railroad Co. v. Phillips, 49 Ill. 234; Posey v. Scoville, (C. C.) 10 Fed. 140; Robinson v. Railroad Co., 20 Blatchf. 338, 9 Fed. 877; Klepsch v. Donald, 4 Wash. 436, 30 Pac. 991, 31 Am. St. Rep. 936. For the reasons hereinbefore assigned, we think there was such evidence as should have been submitted to the jury, and we therefore believe the court erred in granting the motion for nonsuit. The judgment is reversed, and the cause remanded, with instructions to grant a new trial. prior convictions are charged and proven against him, his punishment shall be fixed at imprisonment for life. The punishment for an attempt to commit robbery, coupled with prior convictions, is one-half the penalty provided for a conviction of robbery coupled with prior convictions: i. e., one-half of life. Held, that the punishment was too uncertain, and the statute prescribing it was void, and the term of imprisonment could not be determined by the use of tables of mortality. Department 1. Appeal from superior court, city and county of San Francisco; William P. Lawlor, Judge. James Burns was convicted of an attempt to rob, and appeals. Reversed. Abraham Ruef and Fabius T. Finch, for appellant. Tirey L. Ford, Atty. Gen., Lewis F. Byington, Dist. Atty., and A. A. Moore, Jr., Dep. Atty. Gen., for the People. GAROUTTE, J. The defendant has been convicted of the crime of attempt to commit robbery. He also pleaded guilty to certain prior convictions charged against him in the information. It is first claimed that there is no such crime in this state as "attempt to commit robbery," but there is nothing in this contention. The Penal Code declares (section 664): "Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable," etc. It is here insisted that defendant, if guilty under the evidence, should have been convicted of the crime of assault with intent to commit robbery. Yet this claim is made in the face of the fact that the court, in People v. Gardner, 98 Cal. 127, 32 Pac. 880, has declared "that all assaults to commit felonies can be prosecuted as attempts." This proposition would seem to be self-evident, for the single difference made by the statute between an assault and an attempt is that in the for. mer there is an additional element of present ability. Necessarily, every assault includes an attempt. This question has been considered at some length in People v. Lee Kong, 95 Cal. 666, 30 Pac. 800, 17 L. R. A. 626, 29 Am. St. Rep. 165, and the court now repeats what is there said: "It is not the purpose of the court to draw nice distinctions between an attempt to commit an offense and an assault with intent to commit the offense, for such distinctions could only have the effect to favor the escape of criminals from their just deservings. And in view of the fact that all assaults to commit felonies can be prosecuted as attempts, we can see no object in carrying the discussion of the subject to any greater length." It is next insisted that the penalty provided by the statute to be enforced against a defendant convicted of an attempt to commit robbery, prior convictions having been charged and proven against him, is absolutely void, as being too vague and indefinite to be enforced by the courts. And this contention presents the important question in the case. By virtue of the provisions of the Penal Code 69 P.-2 In found in sections 213, 664, and 667, if this defendant had been convicted of robbery, then his conviction, in conjunction with the prior convictions charged and proven against him, would have demanded that the court fix his punishment at imprisonment for life. such a case there would be no range for the exercise of discretion. The penalty would be life imprisonment, no more and no less. This appears in the record to be conceded by the trial judge, the attorney general, and counsel for defendant. Such being the condition of the law, it is then conceded by counsel upon both sides that the punishment for an attempt to commit robbery, coupled with prior convictions, must necessarily be one-half of the penalty provided by the law upon a conviction for robbery, coupled with prior convictions; that is, one-half of life. Now, the learned judge of the trial court, by reason of this anomalous condition of the law, was at once surrounded by serious difficulties when the time arrived to render judgment, for that judgment had to be one covering one-half of the period of defendant's life; and, while death is said to be certain, life, upon the contrary, is most uncertain. The trial court, by reason of the peculiar state of the law, and for the purpose of determining the prospective life of defendant, consulted certain mortality tables used by life insurance companies in the conduct of their business, and, taking into consideration defendant's present age (his sound physical condition being an admitted fact), concluded that the remainder of his natural life would amount to 38 years, and thereupon sentenced him to 19 years in the state prison. This court is well satisfied that the practice here followed cannot be sanctioned. The trial court fixed the penalty upon the basis of an average life, and sentenced him to imprisonment for one-half of the period of an average life; yet the law declares the imprisonment should be for a period of onehalf of the defendant's life. These mortality tables indicate averages, and that fact alone proves that a variable proportion of the men coming within any particular class die before the age fixed as the average, and the remainder die after the age so fixed. As to the particular period of time covering the balance of defendant's life, the court knew nothing, and, in the nature of things, could know nothing. Hence the period of 19 years fixed as a penalty is based upon mere conjecture, and the judgment following it cannot be upheld. It is evident that the penalty prescribed by the law, namely, one-half of life, as a punishment for a crime of the class here involved, is so vague and indefinite as to be impossible of enforcement; and the statute providing a penalty of that kind is void for that reason. The case of People v. Gardner, supra, is not authority for the prosecution in this case, for in that case a judgment of life imprisonment, in terms, r the crime of rape, was not the only penalty that could have been adjudged against the defendant. Here It is conceded to the contrary. The confusion in the law in this class of cases arises largely by reason of the provisions of section 671 of the Penal Code, which authorize in certain classes of felony-as, for example, robbery-a penalty in terms of life imprisonment. That section, when considered in connection with the provisions of the Code bearing upon penalties therein provided in cases of attempts to commit felonies, coupled with prior covictions, leaves the law in this respect clothed In the garb of an intricate Chinese puzzle. It becomes unnecessary to consider the re maining questions raised upon this appeal. For the foregoing reasons, the judgment and order are reversed, and the cause remanded. CANADIAN & A. MORTGAGE & TRUST A first mortgagee foreclosed his mortgage, making the assignee of a second mortgage a party defendant, bought in the property at the sale, and received a deed of conveyance. Meanwhile, the assignee having failed to pay the taxes due on his second mortgage, his interest therein had been sold for taxes, and bought in by the state. Held, that the first mortgagee could not, after receiving his deed, pay to the state the amount for which such assignee's interest had been sold for taxes, together with costs, etc., and then maintain an action against the assignee to recover the amount of such payment. Department 2. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge. Action by the Canadian & American Mortgage & Trust Company, Limited, a corporation, against Judah Boas. Judgment for defendant, and plaintiff appeals. Affirmed. Vincent Neale, for appellant. Lucius L. Solomons, for respondent. MCFARLAND, J. This is an appeal by plaintiff from a judgment in favor of defendant. The appeal is upon the judgment roll alone. The facts found by the court are these: Appellant was a first mortgagee of the described premises, and respondent was the assignee of a junior mortgage. Appellant brought an action to foreclose his mortgage, making respondent a party defendant, and obtained a judgment foreclosing all respondent's interest in the premises, and decreeing a sale thereof. Appellant bought the property at the sale, having bid the full amount of his judgment, and after the expiration of the period of redemption obtained a deed of conveyance. In the meantime, however, respondent not having paid the taxes assessed on his said second mortgage, his interest in the latter was sold for the taxes, and bought in by the state. The appellant, after his deed made pursuant to the foreclosure, paid to the state the amount for which respondents mortgage interest had been sold for taxes, together with costs, percentages, etc., under section 3817, Pol. Code, and then brought this action to recover said amount from respondent. We see no ground upon which the action could be maintained. There was no contractual relation whatever between appellant and respondent with respect to the money sued for. It is not within any of the provisions of our constitution or statutory law touching the right of a mortgagee, when foreclosing his mortgage, to add to the amount of his foreclosure judgment any moneys which he had paid for taxes on the property which his mortgagor ought to have paid, and which the law expressly allows him to include in his judgment. The judgment and lien created by the tax on respondent's second mortgage interest had been satisfied and removed by the sale to the state. Pol. Code, § 3716. The money paid by the appellant to the state was not for the benefit of respondent, whose entire interest in the property had been first taken by the state for taxes, and afterwards had again been entirely swept away by the judgment of foreclosure. The appellant is in no different position from that of any other purchaser of land who finds his title clouded. The judgment appealed from is affirmed. We concur: HENSHAW, J.; TEMPLE, J. (136 Cal. 375) THOM. LOS ANGELES COUNTY. (L. A. 1,076.) (Supreme Court of California. May 20, 1902.) BOARD OF EDUCATION-COMPENSATION-CONSTITUTIONAL LAW. Pol. Code, 1770, subd. 3, provides that the board of supervisors shall allow each member of the county board of education a compensation of $5 a day for his services. Coust. art. 11, § 5, declares that the legislature, by general and uniform laws, shall regulate the compensation of all county officers in proportion to duties, and for this purpose may classify the counties by population. Held that, conceding members of the county board of education to be county officers, the statute is a general and uniform one, regulating compeusation according to duties, and constitutional. Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; D. K. Trask, Judge. Action by Catesby C. Thom against the county of Los Angeles. From a judgment for defendant, plaintiff appeals. Reversed. Oscar Lawler, Earl Rogers, and Luther G. Brown, for appellant. James C. Rivers, Dist. Atty., and Curtis D. Webur, Chief Deputy, for respondents. COOPER, C. This action was brought to recover for services performed by plaintiff's assignors as members of the board of education of defendant. A demurrer to the complaint was interposed and sustained upon the ground that the complaint does not state facts sufficient to constitute a cause of ac tion. Plaintiff declined to amend, and judgment was entered for defendant. peal is from the judgment. This ap In sustaining the demurrer the court held that the provision of the Political Code fixing the compensation to be paid members of the county boards of education is unconstitutional. The provision is: "The board of supervisors shall allow each member of the county board of education a compensation of five dollars a day for his services." Pol. Code, § 1770, subd. 3. It was held in the court below that the above provision was in conflict with the provisions of section 5 of article 11 of the constitution, which reads: "The leg. islature, by general and uniform laws, shall provide for the election or appointment, in the several counties, of boards of supervisors, sheriffs, county clerks, district attorneys, and such other county, township, and municipal officers as public convenience may require and shall prescribe their duties and fix their terms of office. It shall regulate the compensation of all such officers, in proportion to duties, and for this purpose may classify the counties by population." The section does not mention members of the county boards of education as county officers, neither are they made county officers by any express provision of law to which our attention has been called. It is, however, not deemed necessary in this case to decide the question as to whether or not they are county officers. Conceding, but not deciding, that they are, the law fixing their compensation is in proportion to their duties, and does not contravene the above-quoted provision of the constitution. The legislature may classify for the purpose of regulating the compensation in proportion to duties, but if it can regulate the compensation of any one officer, or class of officers, in proportion to duties, making the measure and mode of compensation applicable to all classes, we see no reason why it may not do so. We know of no case In which the contrary has been held. The members of the board are to be paid $5 per day each for their services. In a county where the services of the board would require only 5 days' time in the year, the members would receive only $25 per year each for services, but if in another county 10 days' time should be required, the members would each receive $50 per year, and in like manner the compensation being in each case in proportion to the duties required of the members. County boards of education have control of the examination of teachers and granting certificates. They have power to revoke certificates; to prescribe a course of study and a uniform series of text-books; to adopt a list of books and apparatus for district school libraries. They have the control and management of the county high schools, the employment of teachers and janitors therefor, and the adoption of a course of study and text-books therein. They are required to provide for the promotion of pupils from year to year, and the conferring of diplomas in certain cases. They also have many other incidental powers, not necessary to be enumerated. It is thus evident that the time occupied by the county boards of education will vary much in different counties, depending upon the number of pupils, of teachers, and of high schools in the county. In each county they are paid a uniform rate in proportion to duties,-the time occupied in transacting the business required of them by law. It is difficult to imagine a more just and equitable regulation of compensation in proportion to duties. If the law had named every classification of counties in the state, and provided that in each class so named the members of the board should receive $5 per day for services rendered, could it be claimed that the compensation was not in proportion to duties? We can see no difference in the application of the present section of the Political Code. It applies to all classes of counties, and regulates the compensation in proportion to duties. In Longan v. Solano Co., 65 Cal. 125, 3 Pac. 463, the court said, in speaking of the above provision of the constitution: "Coun- . sel argues this proposition as if the constitutional provision was that the legislature should regulate the compensation of the officers of the various counties, townships, etc., in accordance with its classification by population. But this is not at all so. The requirement is that the compensation shall be regulated in proportion to duties, and, as a means of doing that, the legislature is authorized to classify the counties by population." In Dougherty v. Austin, 94 Cal. 609, 28 Pac. 834, 29 Pac. 1092, 16 L. R. A. 161, the chief Justice, in speaking of the constitutional provision in question, said: “Indeed, it seems plain to me that the legislature might have satisfied this requirement of our organic law, without any classification of counties according to population, by the simple expedient of adopting a uniform fee bill, and allowing each county officer to retain for his compensation all the fees by him collected, not exceeding a certain amount, and a percentage, computed according to a sliding scale, such as that used in determining the compensation of executors and administrators, upon all higher amounts collected. This is one example of a regulation by which a just correspondence between the duties and compensation of county officers might be maintained without trenching upon the apparent design of the last clause of section 5, requiring provision to be made for the strict accountability of county and township officers for all fees by them collected, and without the necessity of dividing the county into classes." In Kiernan v. Swan, |