this way only can an intelligent and working scheme be found. in the charter as adopted. Any other construction would lead to confusion and to a limitation upon the authority of the park directors and other appointed boards which is clearly intended to be vested in them, so that they may be held responsible for the proper management and control of the affairs of the municipality placed under their jurisdiction.

It is urged in the briefs filed by the respondents, board of park directors, that the civil service provisions of the charter do not apply at all to the park employees. Meritorious as we think this contention is, still in view of what we have said we do not consider it necessary to pass upon that particular question. Whether the civil service provisions apply or not, the power of amotion is placed by the charter in the park board; and as it is not claimed that any of the civil service provisions of the charter were violated as to the mode followed in removing appellant, it follows that the order of the trial court should be sustained. It is ordered that the order appealed from is affirmed.

Lennon, P. 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 February 11, 1918.

[Civ. No. 2279. First Appellate District.-December 15, 1917.] LE ROY M. EDWARDS et al., Respondents, v. LEWIS S. GEAR et al., Appellants.

PROMISSORY NOTE-SETTLEMENT OF SUIT-IGNORANCE OF REAL PARTIES

IN INTEREST-SUFFICIENCY OF EVIDENCE.-In this action to set aside the settlement of an action on a promissory note, which settlement was made between the plaintiff in the action and the defendant therein, without the knowledge of the owners of the note or of counsel for either party, it is held the evidence sustains the finding that the defendant had knowledge that the plaintiff was not the true owner of the note and that it had been assigned to him merely for the purpose of collection,

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Daniel C. Deasy, Judge.

The facts are stated in the opinion of the court.

Edward R. Eliassen, and De Lancey C. Smith, for Appellants.

Le Roy M. Edwards, and L. R. Weinmann, for Respondents.

LENNON, P. J.-Lewis S. Gear, the defendant, gave his note on May 13, 1909, to Wilkie L. Edwards, who transferred the note to his sister, Lulu E. Chase, and his brother, Le Roy M. Edwards. Le Roy Edwards sent the note to the firm of Weinmann, Wood & Cunha, of San Francisco, for collection, and it was assigned to William F. Herron, a clerk in their office, solely for the purpose of collection. Suit was commenced in 1910 in the name of William F. Herron against Gear. Judgment went against Gear for the full amount of the note. Gear appealed and pending the appeal offers of settlement by Gear were referred to Edwards and by him refused.

While the appeal was pending Gear and Herron met and entered into an agreement of settlement of the case on April 30, 1914, without the knowledge or consent of Edwards, Lulu Chase, or the counsel on either side. At the time of the settlement the judgment of the lower court, together with interest and costs, had grown to a sum in excess of three thousand dollars. Gear settled with Herron for one thousand dollars, but did not report the settlement or pay any of the proceeds thereof to Edwards and Chase, the owners of the note. The agreement of settlement was not placed of record. Herron appeared on November 20, 1914, before this court and argued the case of Herron v. Gear, which seven months before had been settled. Gear appeared at the same time by his attorney, but no intimation was given that the case had been previously settled. The judgment was affirmed. On March 12, 1915, Chase and Edwards, having learned of the settlement, commenced an action to set aside the same upon the ground that it was procured and executed through the joint fraud of Herron and Gear. Injunctive relief was also sought by the complaint in the action to enjoin the satisfaction of the

judgment in the case. The court below rendered and entered judgment for the plaintiffs, from which the defendant Lewis S. Gear and the defendants Ada P. Gear and Anna P. Linnell, who were sureties on the appeal bond in the original case, have appealed.

The only point made in support of the appeal worthy of discussion is the insufficiency of the evidence to support the judgment. In this behalf it is conceded that if the evidence shows that Gear knew, prior to his attempted settlement with Herron, of the judgment that the plaintiffs were the actual owners of the note and that Herron held it only for the purpose of collection, then Gear's settlement with Herron was a fraud upon the plaintiffs and the judgment was proper.

A first reading of the transcript satisfies us that there was ample evidence adduced at the trial of the case to support the finding of the lower court that Gear knew that Chase and Edwards were the real owners of the note and that Herron held the note for collection only.

A circumstance showing such knowledge by Gear was the deposition of Herron, taken and offered in evidence in the presence of Gear in the suit of Herron v. Gear on behalf of Gear, and before the settlement, in which Herron stated that Mrs. Chase was one of the parties in interest in the matter and that the note had been assigned to him (Herron) merely for collection. It appears also from Herron's testimony that he in effect told Gear that Edwards was the owner of the note, and Edwards' testimony shows that Gear dealt with him as owner. It further appeared in evidence upon the trial of the present case that Gear himself, prior to the settlement in suit and to the trial of the case of Herron v. Gear, discussed with the attorney for Herron the latter's interest in the note and that during that discussion Gear would not admit "that Herron was the owner of the note . . . except for collection."

It is true that Gear testified that he did not know that Herron was not the owner of the note, but this merely presents a conflict in the evidence. The lower court resolved that conflict against the defendant Gear, and therefore, under the well-settled rule, we will not interfere with the finding of the lower court.

Judgment affirmed.

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

[Civ. No. 2252. First Appellate District.-December 15, 1917.] CLIFFORD MCCLELLAN, Appellant, v. STATE OF CALIFORNIA et al., Respondents.

ACTION AGAINST STATE-RECOVERY OF CORPORATION LICENSE TAXES— CONSENT ESSENTIAL.-An action cannot be maintained by the assignee of a large number of corporations against the Secretary of State and state treasurer to recover sums of money paid by the assignors to the Secretary of State under the provisions of the annual corporation license tax law, without the consent of the state itself, since the state is the real party against whom the relief is sought.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Geo. A. Sturtevant, Judge.

The facts are stated in the opinion of the court.

McClellan & McClellan, for Appellant.

U. S. Webb, Attorney-General, and Raymond Benjamin, Chief Deputy Attorney-General, for Respondents.

KERRIGAN, J.-This action was brought by the plaintiff, as assignee of a large number of corporations, for the recovery of various amounts aggregating the sum of $71,680.50, paid by them to the Secretary of State under the provisions of the annual corporation license tax law.

Demurrers, both general and special, on behalf of the state and the other defendants were interposed, which demurrers were sustained by the trial court upon the ground that the court had no jurisdiction of the subject of the action, for the reason that the plaintiff could not maintain an action against the state without its consent.

The defendants, Frank C. Jordan and Friend W. Richardson, are officers of and represent the state, and the state is the real party against whom the relief is sought; and if the ruling of the trial court is correct, all of the defendants fall within the rule of prohibition.

There is not now, nor has there ever been, any statute of this state authorizing anyone to institute against the state, or any of its officers, an action for the recovery of any fee or

sum of money of the character here involved. The only statute permitting the institution of such suits is the act of February 28, 1893 (Stats. 1893, p. 57). This statute authorizes actions against the state by "all persons who have, or shall hereafter have, claims on contract or for negligence against the state not allowed by the State Board of Examiners."

This action is admittedly neither an action on contract nor because of negligence, but counsel for appellant claims his right of action has foundation irrespective of any permissive act. The substance of his contention is that the rule that a state cannot be sued except with its consent is a common-law rule which originated in the minds of the kings of England in the middle and dark ages, which would not permit the redress of a wrong against the king because of his divine sovereignty; and he argues that the rule has become antiquated and benighted, and has no place in these advanced and modern days; and he insists that an action against the state is no part of sovereignty, and intimates that rulings of courts based on that principle are old and antiquated, entirely erroneous, and that they should have no place in our modern scheme of advanced government and enlightened civilization.

This precise question arose in the early period of the history of our country, and engaged the minds of such publicists as Hamilton, Madison, and Marshall, and the doctrine was given full consideration by the supreme court of the United States in many cases. Various foundations for the principle upon which this exemption of liability from suit is based have been given, the broader reason being that it would be inconsistent with the very idea of supreme executive power, and would endanger the performance of public duties. In the important case of United States v. Lee, 106 U. S. 196, [27 L. Ed. 171, 1 Sup. Ct. Rep. 240], Mr. Justice Miller considered the question of suability of a sovereign from an historical standpoint. (See, also, Chisholm v. Georgia, 2 Dall. (U. S.) 419, [1 L. Ed. 440].) The books abound with discussions and conclusions upon the subject. No useful purpose, however, would be served by a review of those authorities.

Whatever the reason may be it is sufficient to say that it is an established principle of jurisprudence in all civilized