County of Mono v. Flanigan
Before: Henshaw
Synopsis
License Tax—Business of Raising and Pasturing Sheep—Transportation Through County.—One who is engaged merely in transporting a herd of sheep across a county to his ranch in another county, and is not engaged in the business of raising, grazing, and pasturing sheep within the county, is not liable to a license tax upon that business.
Id.—Action for License Tax—Trial—Challenge of Juror—Relationship to Interested Officer.—Upon the trial by jury of an action to recover a license tax upon such business, a juror who is shown to be the brother of an officer employed by the county to collect such taxes, who by the terms of his employment is directly and beneficially interested in the enforcement of the license tax in question to the extent of ten per cent of the recovery, is properly challenged and excused for cause.
Id.—Pleading—Alleged Dates of Business—Limiting of Evidence.— Under a complaint in such action which charges the defendant with having engaged in the business of raising, grazing, and pasturing sheep within the county between the first day of June and the third day of July, the date of the filing of the complaint, the court properly limited the evidence to the acts of the defendant between those dates.
Id.—Amendment of Complaint—Subsequent Cause of Action.—The cause of action to enforce a license tax must be limited to business conducted by the defendant before the commencement of the action. No amendment to the complaint can be permitted to charge the defendant upon a cause of action arising after the commencement of the action.
Trial by Jury—Challenges for Cause—Construction of Code—Consanguinity or Affinity to “Party”—Beneficial Interest.—Subdivision 2 of section 602 of the Code of Civil Procedure relating to trial by jury, which makes “consanguinity or affinity within the fourth degree to any party” a ground of challenge of a juror for cause, is to be liberally construed. It is not in- - tended thereby to require that the “party” shall be in name a party to the litigation, but the provision is meant to cover the case of relationship to any party shown to he directly and beneficially interested in the result of the litigation, by any participation in the recovery.
Id.—Challenge of Juror for Actual Bias—Disallowance—Discretion—Review Upon Appeal.—It is only where the evidence adduced upon the challenge of a juror for actual bias is such as plainly and clearly to show the bias of the juror, and the case' is one in which the law manifestly leaves nothing to the conscience or discretion of the court, that the action of the court in disallowing it is reviewable upon appeal; and where such state of facts is not established, the ruling of the trial court will not be disturbed.
HENSHAW, J.
Plaintiff brought its action against defendant to recover the sum of five hundred and fifty-one dollars, the amount of a license tax which it averred was due to it from defendant under the terms of an ordinance of the county exacting a license from all persons engaged in the business of “raising, grazing, and pasturing sheep" within the county. The cause was tried before a jury, which rendered its verdict for defendant. Judgment for defendant was entered in accordance with the verdict and from the order of the court refusing its motion for a new trial the county appeals. The complaint charged that the defendant “between the first day of June, 1897, up to and including the third day of July, 1897, was engaged in the business of raising, grazing, and pasturing sheep, to wit, about ten thousand head of sheep." Upon the trial the validity of the ordinance was not assailed. The defense, however, was that the defendant did not come within its provisions, and that he was engaged merely in transporting his sheep across the county of Mono to his ranch in Sierra county as expeditiously as possible. If such was the fact, and there was sufficient evidence to sustain the contention, defendant was not compelled to pay the license tax.
(County of Inyo v. Erro,
119 Cal. 119.)
Many minor points are made upon the appeal touching the impanelment of the jury and the admission and rejection of evidence. All have been considered, but only such as seem to merit attention will be here noticed. L. A. Murphey was challenged for cause by defendant, the challenge was allowed, and he was excused. It appeared that Murphey was a brother of E. A. Murphey, an executive officer of the county of Mono, employed to enforce, and actively interested in enforcing, the sheep license ordinance, under a contract with the county whereby he was to receive ten per cent of the license fees paid, including ten per cent of the proceeds of this particular case. The challenge was properly allowed. Section 602, subdivision 2, of the Code of Civil Procedure makes consanguinity or affinity within the fourth degree, to any party to a cause, a ground of challenge. This provision has received, and should receive,
[108]
a liberal construction. It is not necessary that the party in interest should be in name a party to the litigation. It is sufficient if it be shown that he is immediately, directly, and beneficially interested in the result of the litigation. Thus it has been held a good ground of challenge where a juror is related to a stockholder in a corporation which is a party to the litigation
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