any objection to the acquisition of any additional ground or other property by such corporation. [Amendment approved

March 9, 1897; Stats. 1897, p. 96.]

Sec. 2. All stock in each and every mining corporation in this state shall stand in the books of said company, in all cases, in the names of the real owners of such stock, or in the name of the trustees of such real owners; but in every case where such stock shall stand in the name of a trustee, the party for whom he holds such stock in trust shall be designated upon said books, and also in the body of the certificate of such stock.

Sec. 3. It shall not be lawful for any such corporation, or the secretary thereof, to close the books of said corporation more than two days prior to the day of any election. At such election the stock of said corporation shall be voted by the bona fide owners thereof, as shown by the books of said corporation, unless the certificate of stock, duly indorsed, be produced at such election, in which case said certificate shall be deemed the highest evidence of ownership, and the holder thereof shall be entitled to vote the

same.

Sec. 4. All acts and parts of acts in conflict with this act are hereby repealed.

Sec. 5. This act shall take effect from and after its passage.

Act Cited.

Alvord v. Spring Valley G. Co., 106 Cal. 551, 40 Pac. 27; Granite G. M. Co. v. Maginness, 118 Cal. 137, 50 Pac. 269; Ball v. Tolman, 119 Cal. 359, 51 Pac. 546; Johnson v. Cal. Lustral Co., 127 Cal. 284, 59 Pac. 595; Curtin v. Salmon River etc. Co., 130 Cal. 351, 80 Am. St. Rep. 132, 62 Pac. 552.

Annotation.

Constitutionality of Act.-Act of 1880, which provides for the recovery of one thousand dollars liquidated damages against directors of a mining corporation in an action by a stockholder for a failure to post monthly statement in accordance with the terms of the act, is constitutional and valid. (Miles v. Woodward, 115 Cal. 308, 46 Pac. 1076.)

Act of 1880 does not relate to the business of a mining corporation, nor impose burdens or restrictions upon the domestic corporations in the conduct of their business, from which foreign corporations are relieved, within the prohibition of section 15 of article XII of the Constitution. (Miles v. Woodward, 115 Cal. 308, 46 Pac. 1076.)

The title of this act sufficiently expresses the subject matter to cover the penalty provided in the act for failure of the directors to

cause to be made and posted an itemized account or balance sheet. (Francais v. Somps, 92 Cal. 502, 28 Pac. 592.)

Section 3 of the act of 1880, for the further protection of stockholders in mining corporations, which authorizes the holders of indorsed certificates of stock therein to vote at the election of directors thereof, though the stock is not registered in their names upon the books of the company for a period of ten days, as required by section 312 of the Civil Code, is special legislation, in violation of section 25, article XI of the Constitution, the case being one where a general law can be made applicable. (Krause v. Deerbrow, 127 Cal. 681, 60 Pac. 438.)

This act is not in conflict with Constitution. (Hewlett v. Epstein, 63 Cal. 184.)

Construction of Act.-The act is intended for the benefit of stockholders in mining corporation, and its violation necessarily implies an injury; and in an action by a stockholder under the statute, no actual damage need be shown. (Shanklin v. Gray, 111 Cal. 88, 43 Pac. 399.)

It is a penal statute which prescribes a determinate penalty for neglect of the duty imposed upon the directors; and compensation for the actual damage done to the stockholders was not intended to be given by that act. (Anderson v. Byrnes, 122 Cal, 272, 54 Pac. 821.)

The act is not only penal in its nature, but is also remedial, and of much consequence and value to the stockholders, and it must receive a construction with reference to its beneficent objects as well as to its penal character. (Ball v. Tolman, 119 Cal, 358, 51 Pac. 546.)

It is not unconstitutional, as being a special law, but is to be construed as applying to all mining corporations, and not merely to those which produce bullion from gold or silver bearing ores or quartz. (Miles v. Woodward, 115 Cal. 308, 46 Pac. 1076. To same effect: Ball v. Tolman, 119 Cal. 361, 51 Pac. 546; Anderson v. Byrnes, 122 Cal. 274, 54 Pac. 821.)

Posting of Monthly Account.-Directors are liable under the act of April 23, 1880, for willfully neglecting to have reports of superintendents made up and posted, although a balance sheet is posted. (Eyre v. Harmon, 92 Cal. 580, 28 Pac. 779. To same effect: Shanklin v. Gray, 111 Cal. 92, 43 Pac. 399; Miles v. Woodward, 115 Cal. 314, 46 Pac. 1076; Ball v. Tolman, 119 Cal. 362, 51 Pac. 546.)

Directors of mining corporations are presumed to know at all times the condition of the business and property under their control, and in absence of showing of impossibility to have made and posted the account required by the statute, they cannot avail themselves of any presumption that their duty has been performed, nor can they relieve themselves from liability to a stockholder for liquidated damages under the statute by showing that account was posted after time required by law, and after commencement of action. (Schenck

v. Bandman, 81 Cal. 231, 22 Pac. 654: To same effect: Chapman v. Doray, 89 Cal. 54, 26 Pac. 605; Francais v. Somps, 92 Cal. 505, 28 Pac. 592; Miles v. Woodward, 115 Cal. 315, 46 Pac. 1076; Ball v. Tolman, 119 Cal. 362, 51 Pac. 546.)

Under act of April 23, 1880, it is the duty of every corporation to have an office and a principal place of business, and directors of mining corporations cannot evade liability for failure to post monthly reports at the office of the company by failure to have an office for the transaction of its business. (Chapman v. Doray, 89 Cal. 52, 26 Pac. 605.)

In action by stockholder under act of 1880, a prima facie case is made out by showing that directors neglected, failed, and refused to comply with specified provision of the act, and it is necessary to prove a willful failure or neglect. It is incumbent on defendants to show that the failure was not willful. (Miles v. Woodward, 115 Cal. 308, 46 Pac. 1076.)

Directors are liable under this act for failure to have the reports and accounts made out and posted as required by the act only when there has been a willful and intentional failure on their part so to do. (Eyre v. Harmon, 92 Cal. 580, 28 Pac. 779. Distinguished: Ball v. Tolman, 119 Cal. 358, 51 Pac. 546.)

The case of Eyre v. Harmon, 92 Cal. 580, 28 Pac. 779, in reference to the necessity of a willful and intentional violation of the statute by the directors of a mining corporation, has no application where there is an entire failure of the directors to comply with the statute, and no facts of excuse are set forth, or attempted to be proved other than their ignorance of the statute. (Ball v. Tolman, 119 Cal. 358, 51 Pac. 546.)

A corporation organized under the laws of this state for purpose of mining, and engaged in river mining with a dredger, is within the provisions of the act of April 23, 1880, for the better protection of the stockholders in such corporation, and an itemized account must be posted as required by said act, whether the company is operating profitably or not, by the directors; and, upon their entire failure to do so, they are liable to a judgment at the suit of stockholders, for the sum of one thousand dollars liquidated damages. (Ball v. Tolman, 119 Cal. 358, 51 Pac. 546.)

A balance sheet, according to the understanding of merchants and bookkeepers, showing a summarization or general balance of account for the previous month, but not the particular items going to make the several accounts, is a sufficient compliance of the law. (Eyre v. Harmon, 92 Cal. 580, 28 Pac. 779.)

Where monthly statement required by this act is posted by directors in good faith on the first Monday in month, such directors are not liable for penalty imposed by act merely because the account covers a period longer than the preceding month. (Shanklin v. Gray, 111 Cal. 88, 43 Pac. 399.)

Under section 1 of this act, superintendent of mining corporation must verify monthly statement, and if posted unverified, even though correct, directors are not relieved from penalty imposed by the act. (Shanklin v. Gray, 111 Cal. 88, 43 Pac. 399.)

The fact that a suing stockholder, by reason of his connection with the company, had knowledge of the accounts, and had the means of learning about them after his discharge from its employ, does not excuse a noncompliance of the directors with this act of requiring posting of statements. (Ball v. Tolman, 119 Cal. 358, 51 Pac. 546.)

If stockholders of mining corporation forbear to sue until after several failures of directors to post monthly statement under act of April 23, 1880, have occurred, only one penalty can be recovered up to the time such forbearance ceases and suit is brought. Doray, 89 Cal. 55, 26 Pac. 606.)

(Scofield v.

The act of 1880, requiring directors of a mining company to post in office of company a verified balance sheet for the previous month, and making them liable in the sum of one thousand dollars for failure to do so at action of the stockholders, does not render the directors liable to that penalty for each failure to comply with such requirement. (Loveland v. Garner, 71 Cal. 541, 12 Pac. 616.)

The act applies to all mining corporations, whether the business of mining is actually carried on feebly or at all, and the directors cannot avoid the penalty on the ground that the itemized accounts cr balance sheets, had they been posted, would have given very little information. (Francais v. Somps, 92 Cal. 503, 28 Pac. 592. To same effect: Ball v. Tolman, 119 Cal. 360, 51 Pac. 546.)

But each failure of directors of mining corporation to post monthly report, under act of April 23, 1880, is a delinquency for which an action may be maintained as it occurs, and recovery of judgment for one failure is not a bar to a second action for a subsequent failure. (Schofield v. Doray, 89 Cal. 55, 26 Pac. 606. To same effect: Shanklin v. Gray, 111 Cal. 96, 43 Pac. 399.)

Judgment on the pleadings sustained in action to enforce penalty imposed on directors of mining corporation for failure to post statement as required by act of April 23, 1880. (Loveland v. Garner, 74 Cal. 298, 15 Pac. 844.)

Findings held supported by evidence. (Beal v. Osborne, 72 Cal. 305, 13 Pac. 871.)

"Mining Ground."-The act of April 23, 1880, is limited in its operation to the "mining ground" of the mining corporation, and the appurtenances connected therewith, and does not apply to other real property of the corporation. (Johnson v. Cal. Lustral Co., 127 Cal. 283, 59 Pac. 595.)

Term "mining ground," as used in act of 1880, includes all appurtenances. A ditch by means of which a mine was operated was an appurtenance. (McShane v. Carter, 80 Cal. 310, 22 Pac. 178.)

Where a mining corporation purchases a mining claim, formal assent of the stockholders is not necessary to the validity of the con

veyance to it, unless it affirmatively appears that the corporation already had mining ground prior to the purchase, and that the purchase is of "additional mining ground. (Granite etc. Co. v. Maginness, 118 Cal. 131, 50 Pac. 269.)

A mortgage on ground owned and mined by a mining corporation, for rock called "lustral" or "paint-stone," which is worked by the ordinary process of mining, and pulverized in a mill, and the product sold to be used in the manufacture of paint, is a mortgage on "mining ground" within the meaning of the act of April 23, 1880, and is not valid unless ratified by the holders of at least twothirds of the capital stock. (Johnson v. Cal. Lustral Co., 127 Cal. 283, 59 Pac. 595.)

The act of April 23, 1880, does not import that a mining corporation's "mining ground'' shall be subject to mineral entry, or shall be valuable for mineral deposits in the sense of the federal statutes relating to public lands, but applies to any ground acquired by such corporation for mining purposes, and subjected by it in good faith to the ordinary process of mining with a view to utilize the product for commercial purposes. (Johnson v. Cal. Lustral Co., 127 Cal, 283, 59 Pac. 595.)

Conveyance of Mining Ground.-Under section 1 of the act of 1880, directors of mining corporations have no power or authority to convey mining ground of corporation, without the consent of holders of two-thirds of the capital stock. A conveyance without such consent does not pass title. (McShane v. Carter, 80 Cal. 310, 22 Pac. 178. To same effect: Pekin etc. Co. v. Kennedy, 81 Cal. 363, 22 Pac. 679; Granite etc. Co. v. Maginness, 118 Cal. 137, 50 Pac. 269.) And a conveyance of real property of mining corporation under its corporate seal, which is not proved to have been ratified by twothirds of its stockholders, as required by section 1 of the act of April 23, 1880, does not pass to the grantee, and will not sustain action in ejectment by such grantee for the land described in the deed, as against third parties without title. (Pekin etc. Co. v. Kennedy, 81 Cal. 356, 22 Pac. 679. See Granite etc. Co. v. Maginness, 118 Cal. 137, 50 Pac. 269.)

An agreement to work upon shares is not within prohibition of section 1, act of 1880, forbidding directors of mining corporation to make a license of corporation property, unless ratified by two-thirds of the stockholders. (Hudepohl v. Mining Co., 80 Cal. 554, 22 Pac.

$39.)

Where it appears that a conveyance of a mining claim was made to a mining corporation at the time of its organization, in consideration of the issuance of its stock to the grantors in the conveyance, it is to be inferred that the corporation then owned no mining ground, and that the conveyance is valid without formal action of the stock holders. (Granite etc. Co. v. Maginness, 118 Cal. 131, 50 Pac. 269.) The general presumption of the power of corporations to buy and sell real estate must prevail in case of a mining corporation,