Purrington was in possession as administrator, Robinson averring that his occupancy of the premises was exclusively under the said administrator and as his agent.

So far as these affidavits are concerned, it may be conceded that the affidavit of Clough, being merely on information and belief, leaves the positive allegations of the appellant's affidavits without substantial contradiction. But at the hearing the respondent called and examined both Purrington and Walter T. Robinson, and their oral testimony was decidedly at variance with their affidavits. Purrington testified that as administrator he had not handled any money, nor made out accounts, nor drawn any rents. While he stated that the property was occupied by Walter T. Robinson as his tenant, he also stated that such tenant did not pay any rent; that he did not know why he let Robinson stay; that during the two years of his administration he (Purrington) had never asked for any rent; that he had not paid any of the bills against said property, such as gas and water charges; that he had not paid any taxes; and that he had never taken any steps to get possession of the property. He testified further that he had never been in the house, and that he did not think he had ever spoken to Walter T. Robinson about the possession of the premises. His only explanation of his failure to ask for rent was that he understood that the tenant was not able to pay. Walter T. Robinson testified that he had been living on the property since 1891; that he had been living there with his father until 1897, and had continued to live there since the death of his father; that he had paid the taxes on the property and the water rates; that the administrator had never asked him for any rents; and that the only conversation they had had regarding the property was that the administrator had asked him occasionally whether he was still living on the property, to which he had replied that he was. He had also stated to the administrator that he had paid the taxes. On cross-examination he testified that while he had paid the taxes he had not given the receipts to the administrator, and that when he did pay the taxes he paid them in the name of his wife, Isabelle W. Robinson.

On this testimony we do not see how the court could have failed to come to the conclusion which was reached, namely, that the statements in the affidavits of Purrington and Robin

son to the effect that the latter was holding as tenant of the Caroline A. Robinson estate were collusive and false, and that in fact Purrington as administrator had never been in possession of the premises, either in person or by tenant. Under these circumstances the appellant was not entitled to restrain the issuance of the writ of assistance.

The order appealed from is affirmed.

Angellotti, J., and Shaw, J., concurred.

[S. F. 3783. In Bank.-January 3, 1907.]

CALIFORNIA SHIPPING COMPANY, Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Respondent.

TAXATION-ASSESSMENT OF COMMERCIAL VESSELS-REGISTRY AT DOMICILE OF OWNER.-Vessels employed in foreign or interstate commerce, which had not by the manner of their use acquired an actual situs elsewhere, are properly assessed for taxation at San Francisco, the port of the domicile of their sole owner, where they are registered under the laws of the United States, regardless of the fact that they were outside of the waters of the State from a date preceding the first Monday in March in the year of the assessment and at the time of the assessment and collection of the tax, and that some of them had never been within its waters.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Frank J. Murasky, Judge.

The facts are stated in the opinion of the court.

Charles E. Taylor, and William P. Hubbard, for Appellant.

Franklin K. Lane, City Attorney, Percy V. Long, City Attorney, and W. I. Brobeck, Assistant City Attorney, for Respondent.

ANGELLOTTI, J.-This is an action to recover taxes paid by plaintiff under protest, which had been assessed and levied by defendant for the fiscal year ending June 30, 1903, upon seventeen vessels owned by plaintiff. A demurrer to the

CL Cal.-10

complaint was sustained, and, plaintiff having failed to amend, judgment was given for defendant. Plaintiff appeals from such judgment.

The complaint shows that the plaintiff is a corporation organized and existing under the laws of this state, and was on the first Monday of March, 1902, and ever since has been, the sole owner of all of said vessels. All of said vessels were registered under the laws of the United States at the port of San Francisco, in this state. The allegation as to each of said vessels, relied upon to show that the same was not assessable in this state, is one to the effect that the vessel was not at twelve o'clock M. on the first Monday in March, 1902, or thereafter and prior to the filing of the complaint herein (December 18, 1902), actually within the waters of the state of California, but was at all said times without the waters of such state. As to some of said vessels, it was alleged that the same had never been actually within the waters of this state, while as to others the allegation was that they had not been within the waters since a date preceding said first Monday of March, 1902. As to none of said vessels were facts alleged showing that the same had acquired an actual situs outside of the state of California, or that it was not engaged solely in foreign or interstate commerce. Nor was there any allegation to the effect that the city and county of San Francisco was not the domicile or place of residence of the sole owner of all of these vessels.

The complaint, then, presented the simple case of vessels which had not by the manner of their use acquired an actual situs elsewhere, but which were employed in foreign or interstate commerce, and assessed at the domicile or residence of their sole owner, at which place they were actually registered under the laws of the United States.

That such assessment was proper is fully established by the authorities. (See Olson v. City and County of San Fran cisco, 148 Cal. 80, [82 Pac. 850], and cases therein cited. See, also, Ayer & Lord Tie Co. v. Kentucky, 202 U. S. 409, [26 Sup. Ct. 679], and cases there cited.)

The judgment is affirmed.

Shaw, J., Henshaw, J., Sloss, J., McFarland, J., Lorigan, J., and Beatty, C. J., concurred.

[S. F. No. 4651. In Bank.-January 3, 1907.]

BOCA AND LOYALTON RAILROAD COMPANY, Petitioner, v. SUPERIOR COURT OF LASSEN COUNTY, Respondent.

FORECLOSURE AGAINST RAILROAD COMPANY-CROSSINGS BY ANOTHER COMPANY INJUNCTION-EX PARTE ORDER REMOVING TRACK-DUR PROCESS OF LAW-CERTIORARI.-In an action to foreclose a trustdeed securing bonds of one railroad company, in which another railroad company is defendant, and by answer claimed rights of way for two crossings over the track of the first company, which were in place and operation and superior to the rights of the foreclosing plaintiff, an ex parte order on affidavits removing entirely the track of one of the crossings, as being maintained in violation of a temporary injunction obtained by the foreclosing plaintiff in another suit to enjoin its use, without any notice or other opportunity of the company operating the crossing to be heard prior to its removal, is in violation of the constitutional guaranty that no one shall be deprived of property without due process of law, and will be annulled upon certiorari. ID.-CONSTRUCTION OF CODE VACATION OF EX PARTE ORDER UPON NOTICE PROVISION INAPPLICABLE TO VOID ORDER.-Section 937 of the Code of Civil Procedure, in regard to the vacation upon notice of ex parte orders, is applicable only to such orders as a judge has power to make without notice, and has no application to a void ex parte order outside of the jurisdiction of the court, the effect of which is to deprive a person of property without due process of law.

ID. SUSPENSION OF INJUNCTION-RECONSTRUCTION OF TRACK-RETENTION BY COURT OF RAILS REMOVED QUESTION NOT MOOT-ANNULMENT OF ORDER.-Although the injunction was suspended and the railroad company reconstructed the crossing removed, yet where the court by its agent retained the rails removed, and refused to vacate the order removing the track on motion of such railroad company, the question has not become moot by reason of the reconstruction of the track, and the order removing it will be annulled upon certiorari.

ID.-ABSENCE OF OTHER ADEQUATE REMEDY.-The order complained of directing an agent of the court to remove the track is neither an order granting an injunction nor an order appointing a receiver, and was not appealable; and the petitioner has no other plain, speedy, or adequate remedy which can preclude the remedy by certiorari.

PROCEEDING in Certiorari to review and annul an order of the Superior Court of Lassen County. F. A. Kelley, Judge.

The facts are stated in the opinion of the court.

E. De Los Magee, for Petitioner.

Dodge, Parker & Knight, for Respondent.

ANGELLOTTI, J.-This is a proceeding in certiorari, to review an order of the superior court of Lassen County made July 14, 1906, in an action pending in that court. That action was one brought by the California Safe Deposit and Trust Company, a corporation, to enforce by foreclosure the lien created by a certain trust-deed or mortgage given to secure the payment of bonds issued by the Sierra Valleys Railway Company, and covering the railroad property of such lastnamed company situated in Lassen and Plumas counties. The plaintiff here, the Boca and Loyalton Railroad Company, was made a party defendant in that action, the allegation being that it claimed some interest in the property as purchaser or judgment creditor, or otherwise, which interest was subject to the lien of the plaintiff's trust-deed or mortgage. The relief sought was a sale of the mortgaged property, the application of the proceeds to the payment of the indebtedness, costs, etc., and a judgment against the Sierra Valleys Railway Company for any deficiency that might remain after such application. The Boca and Loyalton Railroad Company, on June 1, 1906, answered in that action, claiming among other things a right of way for two crossings for its railroad over the right of way and track of the Sierra Valleys Railway Company in Plumas County, which crossings had been put in place and were being operated by plaintiff. The claim of plaintiff here was alleged to be superior to the lien of the trust-deed or mortgage, and was based upon an alleged purchase at execution sale, and also upon certain orders made in a condemnation suit brought by said plaintiff in the superior court of Plumas County, which action is still pending. On June 19, 1906, the California Safe Deposit and Trust Company instituted an action in the superior court of Lassen