governed by an appointive board of trustees, the section provides that the board of supervisors, instead of annexing the common school district to the high school district, "shall cause to be levied upon the property of such elementary school district a tax. . . computed as follows: From the entire cost of maintenance of the high school for the year, plus the interest and payments on bonds of said high school district for the year, there shall be subtracted," etc. "Said amount shall be levied and collected from such elementary school district in the usual way and shall be paid into the special fund of the high school district." Section 1747 of the Political Code provides that "the board of supervisors of the county whose superintendent of schools has jurisdiction over any high school district must annually, . . . levy a tax for that year . . . for the interest and redemption of all outstanding bonds of such district."

In view of the fact that at the time of the annexation of the common school district to the high school district here in question the high school district had outstanding bonds in the sum of two hundred thousand dollars, it is claimed that if the annexed common school district should incur any liability for payment of any part of the existing bonded indebtedness of the high school district to which the common school district was annexed, the common school district would thereby incur at the time of such annexation a future liability exceeding its income provided for the current year without an election for that purpose, which liability is forbidden to be incurred by the section of the California constitution to which reference has been made. It is argued by appellant that because section 1734b contains no direct provision with reference to property lying within an annexed common school district being taxable on account of the bonded indebtedness of the high school district to which such common school district is annexed and because said section does provide for such taxation on that account where no annexation takes place, and because section 1734a of the Political Code (as added by Stats. 1919, p. 396, sec. 1), which has to do with annexation of common school districts to high school districts under certain prescribed conditions, especially exempt from taxation on account of the payment of bonded indebtedness the property lying within a common school district annexed as in section 1734a provided-it necessarily follows that the provision of section 1747 of the

Political Code applies, which requires a tax to be levied upon all the taxable property in the high school district for the payment of the interest and redemption of all outstanding bonds of the high school district to which the common school district has been annexed; and it is also contended that under section 1747 of the Political Code the property of the high school district includes not only the property which lay within it at the time the bonds were issued, but as well all other territory which was added thereto by reason of the annexation of any and all common school districts.

Assuming, without deciding, that section 1747 of the Political Code applies, and, consequently, that under that section it became the duty of the board of supervisors to levy a tax on all the property in the high school district, including the property in the annexed common school district, to pay "interest and redemption" on all outstanding bonds of the high school district, it does not follow that section 1734b is unconstitutional. That section embraces a plan for annexing a common school district to a high school district, but no provision with reference to the levying of a tax in circumstances such as are here presented. Even though the section under attack were to contain a provision similar to the clause of section 1747 with reference to taxation, the rule of law is that if such provision be severable from the other provisions of the statute, so that the objectionable part being eliminated the remainder of the statute is capable of being carried into effect, and it is clear that the legislature intended to enact such remainder irrespective of the part of the statute claimed to be void, that part of the statute which is free from fault will stand and be considered as though the unconstitutional part were omitted. (Cooley on Constitutional Limitations, 7th ed., p. 246; Hale v. McGettigan, 114 Cal. 112 [45 Pac. 1049]; People v. McFadden, 81 Cal. 500 [15 Am. St. Rep. 66, 22 Pac. 851]; Federal Construction Co. v. Wold, 30 Cal. App. 360 [158 Pac. 340].) The provisions of section 1747, at least so far as the clause here considered is concerned, have been a part of our law since as far back as 1909, whide section 1734b was enacted in 1921. While one of these statutes may in a measure supplement the other, they are nevertheless entirely independent statutes and neither of them is essential to the existence of the other. They are perfectly distinct and separable and each of them contains just and useful provisions

standing alone which are perhaps in nowise obnoxious to any constitutional objection.

There is another reason why section 1734b, even when construed as a part of section 1747, is not in conflict with the provisions of the California constitution which forbids a board of education or a common school district from incurring an indebtedness or liability greater than its current income for any one year without the assent of two-thirds of its qualified electors as expressed at an election held for that purpose. In order that one may "incur" a debt or a liability one must necessarily perform some act or take some action-in other words, one must do something that will have the effect of bringing upon oneself the debt or liability. In the instant case it cannot be said that the Highland School District did anything by which any indebtedness or liability was incurred against it. If any debt or liability was created as against the Highland School District, it was one which was not of its own choosing or making, but was thrust upon it primarily by the board of supervisors of San Bernardino County, and secondarily by operation of law. The cases are numerous which announce the principle that in such circumstances there is no infraction of the constitutional provision to which reference has been made. In the case of Lewis v. Widber, 99 Cal. 412 [33 Pac. 1128], which involved a consideration of the constitutional provision here in question, the court said: "It is quite apparent, however, that this clause of the constitution (section 18 of article XI) refers only to an indebtedness or liability which one of the municipal bodies mentioned has itself incurred that is, an indebtedness which the municipality has contracted, or a liability resulting, in whole or in part, from some act or conduct of such municipality. Such is the plain meaning of the language used. The clear intent expressed in the said clause was to limit and restrict the power of the municipality as to any indebtedness or liability which it has discretion to incur or not to incur." In Long Beach v. Lisenby, 180 Cal. 56 [179 Pac. 198], the foregoing language is quoted with approval, and in McCracken v. San Francisco, 16 Cal. 632, where a similar provision of a section of the city charter of the city of San Francisco was under consideration, the court said: "We are clear that the provision refers only to acts or contracts

of the city and not to liabilities which the law may cast upon her." In 28 Cyc., at page 1541, where many cases are cited as establishing the principle, it is said: "Limitations on municipal indebtedness do not apply to such liabilities as are cast by law upon the corporation, but only to those created by voluntary act or contracts." The following California cases also support the principle: Welch v. Strother, 74 Cal. 416 [16 Pac. 22]; Federal Construction Co. v. Wold, 30 Cal. App. 360 [158 Pac. 340]; Harrison v. Horton, 5 Cal. App. 419 [90 Pac. 716]; Metropolitan Life Ins. Co. v. Deasy, 41 Cal. App. 674 [183 Pac. 243].

The case of People v. Hanford Union High School District, 148 Cal. 705 [84 Pac. 193], was one in which the board of trustees of a common school district in agreeing that the common school district be annexed to a high school district, as a part of the "terms" of annexation, attempted to bind the common school district by an agreement with the trustees of the high school district to pay "its pro rata of the taxes for the liquidation of interest and bonded indebtedness of said Hanford Union High School District." No election was held for the purpose of procuring the assent of two-thirds of the electors of the common school district. It was held that the order of annexation made by the board of supervisors was ineffectual for any purpose; but that decision is not "out of line" with the other decisions of this state for the reason that it appears the incurred indebtedness or liability on the part of the common school district was the result of an agreement between the two boards of trusteees, and was not such a debt or a liability as was cast by law upon the school district.

It is the conclusion of this court that section 1734b of the Political Code is not subject to appellant's specified objections thereto. It follows that the judgment should be affirmed, and it is so ordered.

Conrey, P. J., concurred.

Curtis, J., being disqualified, did not participate in the foregoing opinion.

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 June 29, 1923.

[Civ. No. 4492. First Appellate District, Division Two.-May 3, 1923.]

FLORENCE REMPEL, Respondent, v. H. R. KELLS et al., Appellants.

PROFITS-UN

In this action to

[1] AGENCY SALE OF REAL ESTATE SECRET AUTHORIZED EXPENDITURES BY BROKERS. recover secret profits, the defendants, without plaintiff's knowledge, having caused the title to the property to be vested in their agent under a purported sale at a given price and thereafter sold the property at an increased price, but having accounted to plaintiff only for the lesser amount, after deducting their commission and the expenses, and there having been no evidence showing any authority in defendants to make alterations and repairs, they having been employed only to negotiate a sale, the trial court properly refused to credit them with amounts claimed to have been expended by them in making alterations and repairs or with a commission on the sale at the increased price.

[2] ID. UNLAWFUL ACTS-INTENT-PRESUMPTION.-In such action, the act of the defendants having been unlawful, it is presumed to have been done with an unlawful intent.

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Wellborn, Judge. Affirmed.

The facts are stated in the opinion of the court.

Farrand & Slosson for Appellants.

Cornelius M. Enns and M. G. Ferrahian for Respondent.

STURTEVANT, J.-The plaintiff, as principal, commenced an action to recover a judgment for secret profits against the defendants as her agents. The plaintiff had judgment in the trial court and the defendants have appealed.

The trial court made findings which are not challenged except as hereinafter stated. The findings refer to certain documents which are pleaded in haec verba in the complaint. For the purpose of brevity we have substituted the document for general reference, and without making any other changes, the findings tell the following story:

1. Fraud and secret dealings or interest of real estate brokers as affecting commissions, note, 45 L. R. A. 33.

62 Cal. App.-6