The fourteenth amendment to the federal constitution does not affect or in any manner curtail the police power of the state (Barbier v. Connolly, 113 U. S. 27, 31, [28 L. Ed. 923, 5 Sup. Ct. Rep. 357]), and since all owners hold their property subject to such police power and to such reasonable conditions as may be deemed by the governing authority essential to the public safety, comfort, and health, the real question to be determined is whether or not the act is a valid exercise of the police power by the legislature.

Appellants contend that the provision of the statute in question permitting the building to be closed and kept closed against its use for any purpose for one year unless sooner released in the manner provided by law is unduly harsh, unreasonable, and oppressive, and that it is in effect a penalty. In answer to this contention we need only point out that the states of Nebraska, Washington, Minnesota, and Illinois all have red-light abatement statutes similar in substance and form to the act under discussion, and in each of these states this provision of the act has been held constitutional and valid against precisely the same contention made here. (State v. Fanning, 96 Neb. 123, [147 N. W. 215]; State v. Emerson, 90 Wash. 565, [L. R. A. 1916F, 325, 155 Pac. 579]; State v. Gilbert, 126 Minn. 95, [147 N. W. 953]; People v. Smith, 275 Ill. 256, [L. R. A. 1917B, 1075, 114 N. E. 31].)

It is unnecessary to consider the point made by appellants to the effect that the provisions of section 6 of the act in regard to punishment for contempt are void, because they are in the nature of special legislation and in conflict with section 1218 of the Code of Civil Procedure, fixing a penalty for contempts generally. In the first place, appellants are not aggrieved by this section, inasmuch as no contempt was alleged or found to have been committed, and, in the second place, this provision is not a necessary or inseparable part of the act, and may therefore be entirely eliminated and the remainder of the statute be treated as valid. (Davidson v. Von Detten, 139 Cal. 469, [73 Pac. 189]; State Commission v. Chicago Co., 275 Ill. 555, [Ann. Cas. 1917C, 50, 114 N. E. 325].)

This point and the other points raised on this appeal are fully discussed and decided adversely to appellants' contentions in a recent decision of the appellate court of the third district in the case of People v. Barbiere, 33 Cal. App. 770, [166 Pac. 812], and we are satisfied with the reasoning of,

and the conclusion arrived at, by Mr. Justice Hart in that case, and concurred in by his associates.

The case of Chown v. Alexandre comes up on an appeal from a judgment sustaining defendants' demurrer to a complaint, similar in purpose and allegations to the case previously considered.

The only additional point raised in this case involves the constitutionality of the act under consideration to the extent that it provides for and permits the institution and maintenance of the action by an individual citizen in his own name without a showing that he is specially damaged.

In this behalf it is argued that a general law can be made applicable to the present case, and that therefore the act in question is objectionable as special legislation. It is well settled that the legislature has power to determine whether a general law can be made applicable to any given case and to make different laws for different classes of persons, and we may not interfere with its determination upon that question unless the classification is palpably arbitrary. (People v. Mullender, 132 Cal. 217, 221, [64 Pac. 299].) It has been decided that the classification is justifiable and in furtherance of the public policy of the state to suppress houses of prostitution. (Pon v. Wittman, 147 Cal. 280, 292, [2 L. R. A. (N. S.) 683, 81 Pac. 984].)

It is contended that inasmuch as the act provides not merely for the abatement of the nuisance described, but also for the removal and sale of all the personal property used in the maintenance of the nuisance and for the effectual closing for one year of the building or place against its use for any purpose, unless sooner released in the manner provided by law, that the act is penal in its nature, and that, therefore, a proceeding under it constitutes a prosecution within the meaning of section 20 of article VI of the state constitution, and consequently must be conducted in the name of the people of the state.

That the word "prosecutions" in section 20 of article VI of the constitution is used in a limited sense, viz., as signifying only prosecutions of a criminal character, is not questioned, but it is insisted that while the action is in form a civil action in equity to abate a nuisance, in substance it is a criminal prosecution. We do not so construe it. The purpose of the statute as stated in its title is "the abatement and prevention

of such nuisances by injunction and otherwise," and, we think, the provisions of the statute merely effectuate this purpose.

Every presumption is in favor of the constitutionality of the statute (Stubbe v. Adamson, 220 N. Y. 459, [116 N. E. 372, 376]), and the fact that the criminal aspect of the maintenance of houses of prostitution was already fully covered by existing statutes when the statute in question was enacted fortifies the presumption that the legislature intended thereby to provide a remedy for the prevention and abatement of a recognized evil which would in its nature be a civil proceeding rather than a criminal prosecution. (Pen. Code, secs. 315, 316; State v. Gilbert, 126 Minn. 95, [147 N. W. 953].)

The jurisdiction of courts of equity to restrain and enjoin common nuisances affecting the public generally has never been denied, and is not here disputed. But in this connection it is argued that the statute is invalid because it authorizes an action to abate a nuisance to be brought by an individual citizen without a showing that he is especially damaged. The reason for the rule in this behalf was to prevent a multiplicity of suits, but that is a mere matter of legislative discretion, and questions of policy or expediency in legislation are for the law-making power itself, and not for the courts to determine. (Littleton v. Fritz, 65 Iowa, 488,

[54 Am. Rep. 19, 22 N. W. 641].)

It is well established that the state may confer the right to bring an action to abate a public nuisance upon a private individual in addition to his existing right to bring such actions where there is a special injury to him (State v. Fanning, 96 Neb. 123, [147 N. W. 215]; Littleton v. Fritz, supra), and in this state this power is expressly conferred by section 369 of the Code of Civil Procedure, which states that a person expressly authorized by statute may sue without joining with him the person for whose benefit the action is prosecuted.

The point urged by amicus curiae to the effect that the act is in the nature of a bill of attainder is without merit. The purpose of attainder at common law was to punish, and its consequences were forfeiture and corruption of blood. (2 Jones' Blackstone, sec. 430.) The object of the act in question i not to punish; its purpose is to effect a reformaton in the property itself. Furthermore, there is no forfeiture of

property. The closing of the place for one year with the privilege of sooner releasing it in the manner provided by law is merely a means of abating the nuisance, and that it is a reasonable method for enforcing the judgment of abatement has been decided in several jurisdictions where similar enactments exist. (People v. Smith, 275 Ill. 256, [L. R. A. 1917B, 1075, 114 N. E. 31]; State v. Fanning, 96 Neb. 123, [147 N. W. 215].)

It follows that the judgment in the case of People v. Casa Company is affirmed and the judgment in the case of Chown v. Alexandre is reversed.

Kerrigan, J., and Richards, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 31, 1917.

[Civ. No. 1720. Third Appellate District.-November 5, 1917.] THEODORE H. MINOR, etc., Respondent, v. SAMUEL CARPENTER et al., Appellants.

BURDEN

OF

FORECLOSURE OF MORTGAGE AFFIRMATIVE DEFENSES PROOF. In an action for the foreclosure of a mortgage, the burden is upon the defendant to establish the affirmative matters set up in his answer.

ID. FINDINGS SUPPORTED BY EVIDENCE. In this action for the foreclosure of a mortgage, it is held the findings against the defenses of payment, extension of time of payment, and novation are supported by the evidence.

ID.-EXTENSION OF TIME OF PAYMENT

EVIDENCE-CERTAINTY.-Where

a party depends upon an extension of time to meet his obligation, he must show an agreement for a time certain. ID.-WRITTEN INSTRUMENTS-PAROL EVIDENCE INADMISSIBLE.-Where in an action for the foreclosure of a mortgage, certain written instruments are set up by way of defense, parol evidence is not admis sible to vary their terms.

APPEAL from a judgment of the Superior Court of Siskiyou County, and from an order denying a new trial. James F. Lodge, Judge.

The facts are stated in the opinion of the court.

L. F. Coburn, for Appellants.

Frank M. McGowan, Clifford E. Butler, and Blaine McGowan, for Respondent.

BURNETT, J.-The action was for the amount due on a promissory note and to foreclose a mortgage given to secure the payment of the same.

The complaint is in the usual form, and the genuineness and the execution of the note and mortgage were not denied. The defenses were (1) that the note was fully paid on December 21, 1909; (2) that by virtue of certain instruments in writing set out in the answer "the time for the payment of the debt represented by said promissory note and mortgage sued upon herein was extended and postponed to the time of the expiration of the said bond for a deed, exhibit 'C,' to wit, to the twentieth day of August, 1916"; (3) that exhibit "A" was taken and accepted by plaintiff as a substitution for the said promissory note and mortgage with the intention to extinguish the same, and that "there was a novation of said contract, exhibit 'A,' for said promissory note and mortgage, and that said promissory note and mortgage was thereby annulled, extinguished, and fully paid"; (4) that the execution and delivery of a certain deed was intended "as a full and complete payment of all and every debt of all and every kind, due from said Carpenter to said plaintiff, including the promissory note and mortgage debt involved in this action, that plaintiff accepted said deed as such full payment, and then and there agreed with said Samuel Carpenter to reconvey to said Carpenter the said property described in said deed on the payment by Carpenter to him of the sum of twenty-six thousand four hundred dollars."

The findings and judgment were in favor of plaintiff and the appeal is from the judgment and the order denying the motion for a new trial. Defendant Pentuff, who had taken a bond for a deed of the premises, has filed a stipulation herein that the appeal as to him may be dismissed, so that in considering the cause upon its merits only the interest of the plaintiff and the defendant Carpenter will receive attention. It is not disputed that the burden was upon the defendants to establish the affirmative matters set up in their answers.