We therefore hold that the tax attaches unless the transfer was made upon an adequate and valuable consideration, to which we now address ourselves. to the exercise of the power of appointment the remaindermen would have taken indefeaor is to be treated as a failure to exercise sible instead of defeasible vested remainders. the power. In either event, the result is the Estate of Dunphy, 147 Cal. 95, 81 Pac. 315. same. If it is to be treated as the exercise of the power of appointment, it is controlled by the views expressed in Matter of Lansing cited below; and, if it is to be treated as a failure to exercise the power of appointment, then the vested defeasible remainders created December 17, 1912, became indefeasible by the decedent's failure to exercise the power of appointment. Matter of Lansing, 182 N. Y. 238, 74 N. E. 882, involved property in which a mother had a life estate with remainder to her daughter, subject to the right of the mother to dispose of the property by the exercise of a power of appointment in her will. At her death the mother left a will in which she exercised the power of appointment by devising the property to her daughter. The court said that"The execution of the power left the title where it was before, and the result is the same as if there had been no power to exercise." Speaking of the effect of the exercise of the power upon the title which the daughter had during the mother's life, the court said: "While the situation was subject to change under the power of appointment, no change was made. Although the power was exercised in form, her title was perfect without it and she derived no benefit from it. The power was to 'dispose of the remainder,' and the remainder was not disposed of but continued where it was. The attempt to execute the power was not effective, because it did nothing. The exercise of a power which leaves everything as it was before is a mere form, with no substance." Matter of Lansing has been approved and followed in similar cases. Matter of Haggerty, 128 App. Div. 479, 112 N. Y. Supp. 1017, affirmed 194 N. Y. 550, 87 N. E. 1120; Matter of Hoffman, 161 App. Div. 836, 146 N. Y. Supp. 898, affirmed 212 N. Y. 604, 106 N. E. 1034; Matter of Chapman, 61 Misc. Rep. 593, 115 N. Y. Supp. 981, 133 App. Div. 337, 117 N. Y. Supp. 679, 138 App. Div. 923, 123 N. Y. Supp. 1110, affirmed 196 N. Y. 561, 90 N. E. 1157, 199 N. Y. 562, 93 N. E. 1118. [2] We therefore hold that the title of the remaindermen dates from December 17, 1912, and that the case is controlled by the statute of 1911, for it is settled law that "It is the vesting in interest which constitutes the succession, and the question of liability to such a tax must be determined by the law in force at that time." Hunt v. Wicht, 174 Cal. 205, 162 Pac. 639, L. R. A. 1917C, 961; Estate of Gurnsey, 177 Cal. 211, 170 Pac. 402; Nickel v. State, 179 Cal. 126, 175 Pac. 641; In re Brix's Estate, 186 Pac. 135. In reaching the foregoing conclusions we have not stopped to consider what or to what extent powers may be validly exercised in this state, for, if the power of appointment [3] On December 17, 1912, the only interest which the ten children had in their father's share in his father's estate arose from the possibility that he might die before the trust terminated and in that event the ten children would take the share. The trust was certainly to terminate on February 1, 1915, and might terminate earlier. The ten children had nothing to surrender but this possibility of ownership, but they did not even surrender that possibility, for the transfer of December 17, 1912, provided that if Albert M. Murphy died before February 1, 1915, the property should go to the ten children. Hence they gave nothing in the transfer of December 17, 1912. Considering that Albert M. Murphy lived till October 19, 1915, he gave the remainders created in the transfer of December 17, 1912, to his wife and children without any valuable consideration at all. Counsel for respondents argue, however, that if the father had died before the termination of the trust of 1905 the effect of the trust conveyance of December 17, 1912, upon the children would have been that the property which they were entitled to after the ternination of the trust of 1905 would be found to be burdened with another trust, the trust of 1912, to endure. Out of this contingent possibility, which never happened, counsel for respondents seek to work out a valuable and adequate consideration for the vested remainders which were conveyed to the remaindermen by the decedent in the trust conveyance of December 17, 1912. This alleged consideration is very unsubstantial, and we cannot regard it as adequate, and might upon analysis find it to be merely nominal. [4] We come now to the third question. Albert M. Murphy was a nonresident of California December 17, 1912, so the transfer is taxable only in so far as he conveyed Cali fornia assets. The record indicates with suf ficient clearness that California assets were included amongst those conveyed by the deceased in trust on December 17, 1912, and the order from which this appeal is taken is not being defended on the ground that no California assets were transferred at that time. The order appealed from is reversed, with instructions to the lower court to impose the tax provided for in the act of 1911 upon the California assets which were included amongst the properties transferred in trust by the decedent December 17, 1912. One of the ten children died after December 17, 1912, and before the death of his father, Albert M. Murphy, October 19, 1915; but whether the remaindermen taking as a (190 P.) heirs at law or devisees of the will of this deceased son of Albert M. Murphy are to pay the tax, is a matter to be adjusted in the court below. Order reversed.. ANGELLOTTI, C. J., and OLNEY, SHAW, WILBUR, LENNON, and LAWLOR, JJ., concur. (46 Cal. App. 792) SEARCY v. KAY, County Clerk. (Civ. 2178.) (District Court of Appeal, Third District, California. April 5, 1920.) 1. Venue 79-On order changing place of trial, clerk is required to transmit pleadings and papers despite appeal or subsequent motion. Where in wife's divorce action she secured order changing place of trial, under Code Civ. Proc. § 399, the clerk was required to transmit the pleadings and papers to the clerk of the court to which the action was transferred, though defendant husband had appealed from the order changing place of trial, and though plaintiff wife had subsequently moved for additional alimony and counsel fees in the original court. 2. Mandamus 44-Writ will issue to compel clerk to transfer papers as required. Mandamus will issue at the instance of a wife suing for divorce to compel the clerk to transfer the pleadings and papers in the action to the clerk of the court to which it has been transferred on plaintiff's motion, his statutory duty under Code Civ. Proc. § 399. Application for writ of mandate by Mary E. L. Webber, of Napa, for petitioner. PREWETT, Presiding Judge pro tem. This is an application for a writ of mandate directing the defendant, as said clerk, to transmit to the clerk of the superior court of the city and county of San Francisco the files in an action for divorce commenced by plaintiff against one C. L. Searcy, the material events of which occurred in the following or der: (1) September 19, 1919, action commenced in the superior court of said city and county. (2) October 10, 1919, place of trial changed to the superior court of the county of Humboldt on motion of the defendant. (3) After answer and on January 9, 1920, the place of trial was changed back to the superior court of said city and county in order to promote the convenience of witnesses. (4) on the same day the defendant perfect ed an appeal to the Supreme Court from the order changing the place of trial to the city and county of San Francisco. (5) On February 11, 1920, on due notice and affidavit, said superior court of the county of Humboldt made its order allowing to plaintiff certain sums by way of alimony and counsel fees. (G) On March 16, 1920, this proceeding was commenced. (7) Subsequent to the commencement of this proceeding the plaintiff procured the issue of process to compel the defendant, Searcy, to comply with said order for the payment of alimony and counsel fees. The defendant, Kay, refuses to transmit the papers in conformity with said order changing the place of trial. The petition herein contains an allegation that he bases his refusal upon the ground that the appeal from the order changing the place of trial stays all proceedings upon such order. However, in his answer, he expressly disclaims this as a reason. That the appeal does not stay proceedings is placed beyond all question by the language of the Code itself. Section 949, Code Civ. Proc. The defendant pleads in his answer that it became necessary to retain the papers in order to make out and certify the usual copies to be used on appeal. But if this point ever had any force it has long since ceased to constitute a justification. This proceeding was not commenced until more than two months after the appeal was taken. Secondly. The clerk insists that the inauguration of the subsequent proceedings with reference to alimony and counsel fees makes it necessary that he retain the papers for use in the determination thereof. It becomes unnecessary in this proceeding to inquire whether the lower court has jurisdiction to entertain a motion for alimony and counsel fees pending an appeal from an order changing the place of trial, because this application must be decided adversely to the defendant for other reasons. Section 399 of the Code of Civil Procedure requires a clerk, when an order is made transferring the cause to another court, to transmit the pleadings and papers therein to the clerk of the court to which the action is transferred. Commenting upon this section, the court in Chase v. Superior Court, 154 Cal. 789, 99 Pac. 355, says: "The question in the case is as to when the action was transferred, or, in other words, was the transfer in fact completed by the order made by the court? The Code provides that the court to which the action is transferred has and exercises over the same the like ju- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes in the superior court of the city and county of San Francisco. There must be a moment of time when the court transferring the case loses jurisdiction, and the court to which it is transferred acquires jurisdiction. When the court to which the action is transferred acquires jurisdiction, the court which made the order transferring it has no power to make any further order in the premises." [1] Proceedings upon the order changing the place of trial are not stayed by the appeal. The duty devolved upon the clerk, at once upon the entry of the order, to transmit the papers to the clerk of the superior court to which the action was transferred. The act of the defendant in appealing from the order changing the venue could not operate to deprive the plaintiff of the benefit of the order of change. No more does the act of the plaintiff in moving for additional alimony and counsel fees. Conceding that the superior court of Humboldt county retained any power or authority in the premises after the entry of its order changing the place of trial, still there can be no question that the superior court of the city and county of San Francisco acquired jurisdiction at once by means of the order of transfer, and its clerk became the only person lawfully entitled to the custody of the papers. If the plaintiff had requested the clerk to retain the papers in his office, she would not be permitted to come into court and insist upon a writ against him. On the contrary, however, she does not ask him to retain them, but she insists that her lawful right to proceed under the order of transfer be conserved by the transfer of the papers to the proper court. [2] Let a peremptory writ issue requiring the clerk to transmit the papers to the clerk of the superior court of the city and county of San Francisco. lading is a written contract, and an action for breach of a contract of shipment in failing to ice the shipment and in permitting an unreasonable delay was not covered by the statute of limitations (Code Civ. Proc. § 339, subd. 1) as to oral contracts. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Bill of Lading; First Series, Written Contract.] 2. Appeal and error 673 (2)—Court cannot know terms of bill of lading when not before it. The court cannot know on appeal that there was any provision in the bill of lading sued on as to the time within which a claim for damages must be presented, where the parties have not furnished any copy of the bill of lading. Appeal from Superior Court, Los Angeles County; Russ Avery, Judge. Action by the Pioneer Fruit Company against the Southern Pacific Company. From a judgment for plaintiff, defendant appeals. Affirmed. Henry T. Gage and W. I. Gilbert, both of Los Angeles, for appellant. Fred R. Levee and James E. Kelby, both of Los Angeles, for respondent. RICHARDS, J. This action was instituted by the plaintiff to recover from the defendant the sum of $2,576.25, damages alleged to have been sustained by the plaintiff in connection with the shipment of a carload of cherries from San Jose, Cal., to Boston, Mass., during the month of June, 1913, and which were consigned by the plaintiff to a corporation known as California Fruit Distributors through the defendant as shipper, upon a bill of lading issued in compliance with the Interstate Commerce Act. The plaintiff's claim was based upon two alleged breaches of the contract of shipment, in that, first, the defendant allowed the car in which these cherries were transported to be insufficiently iced; second, that the defendant permitted an unreasonable delay to occur in the shipment of the cherries, as a result of both of which alleged breaches of the terms of shipment the cherries arrived in Boston in a damaged condition, to the plaintiff's detriment in the sum for which suit was brought. The defendant denied specifically the averments of the complaint as to any breach of its duty as a carrier in the premises, and also pleaded that the plaintiff's cause of action was barred under the provisions of subdivision 1 of section 339, Code of Civil Procedure, and was also barred under the provisions of section 3 of the bill of lading, requiring claims for damages for loss or injury to goods shipped to be made in writing to the carrier at the point of delivery or of origin within four months after the delivery of the property, which (190 P.) claim the defendant avers was not so pre- period of limitations was that provided for sented. Upon the trial of the issues thus the breach of contracts in writing. We find framed the trial court made its findings in nothing in the authorities cited by the apfavor of the plaintiff, except as to the amount pellant which militates seriously against of its said damages, which it fixed at $574. these views, and hence are entirely satisfied The defendant prosecutes this appeal. that this action was commenced in time. [2] As to the second point urged by the ap [1] The main point urged by the appellant relates to the bar of the statute of limita-pellant, to the effect that the plaintiff did not tious under the section of the Code above present a proper claim for damages against quoted. It is argued by it that this is not an the defendant within the time required by the action upon a contract, obligation, or lia- terms of the bill of lading, we find that the bility founded upon an instrument in writing, record does not bear out this contention, and hence that the action must have been since it sufficiently appears that written commenced within two years after the lia- notice of the claim was given by the agent of bility arose, and that, not having been so the consignee to the general freight agent commenced, it is barred under said section of the delivering carrier at the time of the of the Code. In order to support this prop-arrival of the shipment at its destination. osition the appellant argues that the bill of Besides, the parties to this appeal have not lading issued by the defendant to the plain- furnished us with any copy of the bill of ladtiff upon the receipt of these goods for ship-ing involved in this case, and hence we canment was not the contract between the par- not know that there is any such provision in ties, but was only a receipt for the goods it as to the time within which the shipper's orally consigned to the defendant for ship-claim for damages for the breach of its terms ment, and that, such consignment being oral, must be presented. the action must, under said section of the Code, have been commenced within two years. We are unable to adopt this view of the appellant as to the place and function of a bill of lading in a shipping consignment. Section 2126 of the Civil Code defines a bill of lading as "an instrument in writing, signed by a carrier or his agent, describing the freight so as to identify it, stating the name of the consignor, the terms of the contract for carriage, and agreeing" to deliver the freight to "a specified person at a specified place." In the American & Eng. Ency. of Law (2d Ed.) p. 521, the status and function of a bill of lading in relation to a shipment of goods are thus defined: No other points being urged upon this appeal, the judgment is affirmed. We concur: WASTE, P. J.; KNIGHT, (47 Cal. App. 29) SHEEHAN V. BOARD OF POLICE COM'RS, etc., et al. (Civ. 3155.) (District Court of Appeal, First District, Division 1, California. April 7, 1920. Hearing Denied by Supreme Court June 3, 1920.) 1. Municipal corporations 187-Policeman retired on pension has vested right to pension during disability. "Although the primary object and purpose of a bill of lading is to express the terms of a con- Under San Francisco Charter, c. 10, art. 8, tract between the shipper and the carrier, it § 3, relative to police pensions, a police officer partakes of the two-fold character of a receipt placed on the retired list and regularly granted and a contract; that is, it is a receipt as to a pension on proof of disabilities had a vested the quantity and description of the goods ship-right to retain his place on the retired list and ped, and a contract as to the transportation to have his pension continued until his disabiliand delivery of the goods to the consignee or ties should have ceased. other person therein designated and upon the terms therein specified." In the case of Seaboard Airline Ry. v. Luke, 19 Ga. App. 100, 90 S. E. 1041, it was held in relation to an interstate shipment that the bill of lading was the contract between the parties to the shipment, citing Ga., Fla. & Ala. Ry. Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948; while in the cases of Texas, etc., R. Co. v. Williamson & Co. (Tex. Civ. App.) 187 S. W. 354, and N. Y. C. R. R. Co. v. Mutual Orange Distributors, 251 Fed. 230, 163 C. C. A. 386, it was held that the bill of lading constituted the contract for carriage between the parties, for actions for the breach of the terms of which the 2. Mandamus 107-Lies to compel retention of policeman on retired list on pension. A police officer retired on a pension under San Francisco Charter, c. 10, art. 8, § 3, because of disabilities, is entitled to a writ of mandate to compel the board of police commissioners acting as a board of police relief and pension fund commissioners to maintain him in his position as a retired patrolman and to continue to pay his pension. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes nection with a pension, its attempted action, The facts of the case are embraced in the in its capacity as a board of police relief and findings of the court which may be summarpension fund commissioners, in declaring that ized as follows: The plaintiff was appointed a retired policeman's disabilities had ceased, a police officer of the police department of the without any proof or showing on the subject city and county of San Francisco on Septemand contrary to the practically undisputed fact, ber 20, 1895, and continued in active service as was beyond its charter powers, and its acts in so declaring and in ordering him to report for such police officer until August 1, 1899, when duty and in dismissing him for insubordination he was injured in the performance of his duty in refusing to report were void. by being thrown from a horse which he was 4. Mandamus 3(12)-Lies to compel rein-breaking to the saddle under the orders of his statement and payment of police pension superior officer, and which said horse fell upon him, causing severe injuries to his head though certiorari would also lie. Where the San Francisco board of police and side, resulting in a total deafness in his commissioners acting ex officio as a board of right ear and injuries to his brain, producing Thereafter police relief and pension fund commissioners recurring epileptic convulsions. found contrary to the fact that a retired police- the plaintiff presented to the said board of man's disabilities had ceased and ordered him police commissioners his verified petition, acto report for duty and dismissed him for insub-companied by suitable certificates and recomordination in refusing to report, the policeman mendations, requesting his retirement upon a was entitled to a writ of mandate to compel his pension on account of his disabilities, which reinstatement and payment of his pension, his examining physician certified to be perthough he might have applied for a writ of re-manent. The said board on October 6, 1903, view to test the jurisdiction of the board to make such orders. 5. Mandamus 14(1)-Presentation of claim for police pension to auditor and treasurer not condition precedent. made its order granting said petition to the effect that the plaintiff should be retired from further service in the police department until his disabilities should cease, and that he be paid from the police relief and pension fund As under San Francisco Charter, c. 10, art. of said police department a yearly pension of 8, § 9, claims against the police pension fund $600, being one-half the amount of salary atmust be passed on by the board of police re-tached to his rank as a patrolman in said delief and pension fund commissioners, a policeman without a warrant from that board could not apply to the auditor or treasurer for payment of his claim, and presentation of the claim to them under chapter 4, art. 3, § 1, was not a condition precedent to his application for a writ of mandate to compel such board to pay the pension. Geo. Lull, City Atty., and Chas. S. Peery, Asst. City Atty., both of San Francisco, for appellants. partment at the time of his said injuries. On January 11, 1904, the said board of police commissioners, who are also ex officio the board of police relief and pension fund commissioners, caused a subpoena to be issued and served upon the plaintiff requiring him to appear before them on the afternoon of said day, and show cause why he should not be restored to active duty on the ground that his said disabilities had ceased. The plaintiff appeared at the time appointed in response to said subpœna, whereupon he was informed by said board that it had been reported to it that the plaintiff had been for some time prior thereto in the employ of the United Railroads of San Francisco in a professional capacity, viz., that of an attorney at law. The plaintiff admitted that since his retirement from active duty as a police officer he had become an attorney at Charles J. Heggerty and Knight & Heg-law and was employed as such by the United gerty, all of San Francisco, for respondent. Railroads, but stated that his disabilities for service as a police officer had not ceased, and RICHARDS, J. This is an appeal from a that he was still unable to perform the duties judgment in the plaintiff's favor in a proceed- of a patrolman in the department; and he ing wherein he sought and obtained a writ then applied for a hearing before said board of mandate requiring the defendants, as the upon a day set when he could produce wit board of police commissioners of the city and nesses and prove his continuing disability for county of San Francisco, to restore said plain-such service. The board of police commistiff to the position of a police officer of and in sioners refused this application and, therethe police department of the said municipal-upon, sitting as a board of police relief and ity, and also to restore the plaintiff to the pension fund commissioners, ordered the pension roll of the police and pension fund of plaintiff to report on January 12, 1904, to said department, and to pay to said plaintiff Dr. O. W. Jones, the police surgeon, for the his accrued pensions as a retired police offi- purpose of physical examination, and to furcer, amounting to the sum of $4,600. ther report to said board at their regular |