precisely the same condition, that the proprietor of one may be guilty of no offense, because he has not been notified by the commissioner to adopt any appliance, the proprietor of the second may be called upon to put into use some appliance at a trifling cost, while the proprietor of the third may have imposed upon him an expense for apparatus amounting to thousands of dollars. In short, arbitrarily and within the declaration, not of the legislature, but of the commissioner, no burden whatever may be imposed upon one institution, while the other, in obedience to this law, may be subjected to a most onerous and even destructive expense. The legislature, as we have said, may require the owners of factories and workshops to put their buildings in proper condition as to sanitation, may require them to provide reasonable safeguards against danger for the operatives, but it may not leave the question as to whether and how these things. shall be done or not done to the arbitrary disposition of any individual. By respondent reliance is placed on the case of Taylor v. Hughes, 62 Cal. 38. In that case section 637 of the Penal Code was under review. It provides that every owner of a dam or other obstruction in any running water of this state who, after being ordered and notified by the fish commissioners, to construct a fish-ladder, or to repair a fish-ladder already constructed on such dam or other obstruction, according to the plans of the fish commissioners, fails to construct or repair such fish-ladder within thirty days after such notice is guilty of a misdemeanor. The application was for a writ of review, in which was set forth the complaint charging petitioner Taylor with a violation of this statute, and his conviction thereunder. The decision of this court, embraced in a single sentence, was to the effect that the application did not present grounds for the issuance of the writ. The distinction, however, between that case and the case at bar is broad. The running waters of the state of California are public property. One who obstructs them obstructs them under license or permission from the state, but only upon such conditions as to their use as the state may impose. It is therefore permissible for the state to impose such conditions upon that use as it may see fit, and in this case the requirement was that the person so obstructing the water should build an appliance to permit the free running of the fish up the stream. Here was no

interference with private property; here was merely a condition imposed by the state upon a private individual as to his use of property, the title to which, and the right of fishery in which, remained in the public. The same broad distinction exists between the case at bar and that of Health Department v. Rector, 145 N. Y. 32,1 also relied upon by respondent. In the latter case, section 663 of the Consolidation Act of the city of New York required all tenement houses to be supplied with sufficient water on each floor, at one or more places, in sufficient quantity, by the owners, whenever they were directed so to do by the board of health, making it a misdemeanor to fail to comply with the directions of the board. Here the only requirement was that a sufficient quantity of water should be supplied on each floor of the tenement building. To answer this law it was necessary only to show that a sufficient quantity of water was sup plied for the health and convenience of the tenants. The direction of the board of health, or its determination that the supply was insufficient, was not conclusive; for, as the court said in sustaining the validity of the law, "The citizen cannot under this act be punished in any way, nor can any penalty be recovered from him for an alleged non-compliance with any of its provisions or with any order of the board of health without a trial. The punishment or penalty provided for in section 665 cannot be enforced without a trial under due process of law, and upon such trial he has an opportunity to show whatever facts would constitute a defense to the charge."

The manifest objection to this law is, that upon the commissioner has been imposed not the duty to enforce a law of the legislature, but the power to make a law for the individual, and to enforce such rules of conduct as he may prescribe. It is thus arbitrary, special legislation, and violative of the constitution.

For the foregoing reasons the police court is directed to annul the proceedings touching the trial, conviction, and judgment against petitioner herein.

145 Am St. Rep. 579.

[S. F. No. 1501. In Bank.-February 10, 19902.]

HENRY SCHAAKE, Appellant, v. EAGLE AUTOMATIC CAN COMPANY et al., Respondents.

PLEADING-DEMURRERS

ΤΟ COMPLAINT CAUSE OF

ACTION-DISAL

LOWANCE OF AMENDMENT-ABUSE OF DISCRETION.-If a complaint states a cause of action, it is an abuse of discretion, apparent upon the face of the record, to sustain demurrers thereto on any ground without granting leave to amend. The fact that the complaint had been once before amended does not justify a refusal of leave to amend in such case.

ID. REFUSAL OF LEAVE IN ORDER SUSTAINING Demurrers-PRESUMPTION-EXCEPTION-REVIEW UPON APPEAL.-Where the order refusing leave to amend a complaint stating a cause of action was inserted in the order sustaining demurrers thereto, it cannot be presumed that the plaintiff asked leave to amend in advance of the ruling. The order is deemed excepted to by force of the statute, and the plaintiff is not required to move to vacate or modify it in order to have the abuse of discretion reviewed upon appeal.

ID. DEMURRER FOR AMBIGUITY AND UNCERTAINTY-AMENDMENT CONTEMPLATED.—A demurrer for ambiguity and uncertainty is in aid of the pleading, and contemplates an amendment in the particulars specified, unless, after several failures, it becomes evident that there is a want of facts, or that the fault cannot be remedied.

ID.-UNCERTAINTY AS TO FACTS WITHIN DEFENDANT'S KNOWLEDGE-DEMURRER IMPROPERLY SUSTAINED.-Where no uncertainty appears other than as to facts within the knowledge of the defendants, they cannot complain thereof, and a demurrer for such uncertainty should not be sustained.

ID.-ACTION FOR ACCOUNTING SUFFICIENCY OF COMPLAINT INTEREST IN INVENTIONS-TRANSFER OF CORPORATE RIGHTS-ISSUANCE OF STOCK-PARTIES.—In an action for an accounting, to which two corporations and the stockholders of the first named were made parties defendant, a complaint showing that plaintiffs contracted with the first-named corporation to assign to it all patents and improvements upon machines invented by plaintiff, reserving a percentage upon all profits realized outside of the city and county of San Francisco, and that such corporation, in fraud of the plaintiff's rights, had transferred to the other corporation all of its property and all rights in such patents and improvements without reserve, to be used anywhere without limitation as to place, the sole consideration of which was the issuance of stock in the other corporation to certain named stockholders of the first-named corporation, states a cause of action for an accounting against the first-named corporation, to which such named stockholders and the other corporation were properly made parties defenda

ID. STOCKHOLDERS IMPROPERLY JOINED AS PARTIES-DISMISSAL.-Other stockholders of the first-named corporation, who received no part of the fund to which the plaintiff must look and to which he has a right to resort for the satisfaction of what may be found due upon the accounting, are not proper parties defendant, and the action should be dismissed as to them.

ID.-ILLEGAL TRANSFER OF RIGHTS-DIVISION OF CORPORATE ASSETS TO STOCKHOLDERS.-The transfer by a subsisting corporation of all its property and assets of every kind to another corporation in sole consideration of the issuance of the stock of the latter to stockholders of the former, is, in effect, an attempted distribution to them of all of the property and assets of the corporation making such transfer, in violation of positive statute law. ID.-LIABILITY UPON ACCOUNTING-NOTICE OF PLAINTIFF'S RIGHTS.Where it appears that both the corporation which took the transfer and the stockholders of the corporation which made it had notice of the rights of the plaintiff under the contract with the latter, they took their interests subject to any liability which may be found to exist against the corporation making the illegal transfer, upon an accounting with it under the contract. If the stockholders who receive the consideration cannot make such liability good, the other corporation, which connived at the diversion of the fund applicable to pay the plaintiff's claim, ought to make it good. ID. CAUSE OF ACTION FOR ACCOUNTING-FIDUCIARY RELATION.-The patents and improvements assigned to the first-named corporation by the plaintiff, reserving an interest in certain profits which might be realized by the corporation, created a fiduciary relation, and rendered the corporation a trustee of the plaintiff as to his share of the profits realized; and he is entitled to an accounting thereof. ID. ESTOPPEL OF CORPORATION.-Such corporation, having transferred all of its property, and authorized the delivery of the proceeds of the sales to its stockholders, in violation of the statute, will not be heard to say that it received nothing for which it should account.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Edward A. Belcher,

Judge.

The facts are stated in the opinion of the court rendered in Department Two.

J. C. McKee, and Frank M. Parcells, for Appellant.

E. S. Pillsbury, Olney & Olney, and F. D. Madison, for Respondents.

THE COURT.-This cause was originally submitted and decided in Department.

The opinion then filed contains a very full statement of the case and disposes of most of the points discussed by counsel. We adhere to the conclusions there announced, and readopt that opinion, except in so far as they are modified by what is here said.

We were in error in holding that the complaint was uncertain or ambiguous in the particulars pointed out in the opinion. Upon a more careful examination of its allegations, we perceive that they are to this effect: That 2,883 shares of the stock of the Pacific Sheet Metal Works, valued at $288,800, was the whole consideration given for all the property of the Eagle Automatic Can Company, and that $190,000 of this amount was given for machines, the cost price of which was $160,000. This presents no ambiguity or uncertainty, and there is no other ambiguity or uncertainty of which the defendants can complain. So far as there is any want of certainty in the complaint, it exists only in relation to matters peculiarly within the knowledge of the defendants.

The only fault of the complaint pointed out by the special demurrers is, that certain natural persons-stockholders of the Eagle Automatic Can Company-are joined as defendants, against whom there appears to be no cause of action. The plaintiff has a cause of action against the Eagle Automatic Can Company for an accounting. The stockholders of that company and others to whom the Pacific Sheet Metal Works issued stock in exchange for the property transferred by the Eagle Automatic Can Company are proper parties to this action, because they have received the fund to which the plaintiff must look, and to which he has a right to resort, for the satisfaction of what may be found to be due him from the Eagle Automatic Can Company. They are for that reason interested in the accounting, and ought to be bound by it. The Pacific Sheet Metal Works, for similar reasons, is a proper party. It connived at the diversion from the treasury of the Eagle Automatic Can Company of the fund applicable to the payment of plaintiff's claim, and if he cannot secure payment from those who received the consideration for the sale of the Eagle Automatic Can Company's property, the Pacific Sheet Metal Works ought to make it good.

So far as these parties are concerned, therefore, we hold