that court the appellant must present any defense there may be to its payment out of the assets of that estate.

2. Under the facts set forth in the record it must be held that by the transfer to the appellant of the forty shares of the capital stock of the plaintiff, and his acceptance of the certificates issued to him therefor, he assumed the same liability to the corporation for the unpaid amount thereof that his assignors were under. (Civ. Code, sec. 1531, subd. 2; Webster v. Upton, 91 U. S. 65; Visalia etc. Bank v. Hyde, 110 Cal. 632, [52 Am. St. Rep. 136, 43 Pac. 10]; Walter v. Merced Academy Assn., 126 Cal. 582, [59 Pac. 136].)

It is however contended by him that the plaintiff is not entitled to maintain the present action, for the reason that the above-quoted by-law is invalid, and in support thereof he relies upon the proposition that a corporation has only such power as is given it by the legislature, and that, as in section 303 of the Civil Code, the legislature has enumerated the subjects upon which a corporation may make by-laws, it has impliedly declared that it cannot make a by-law upon any other subject.

A by-law of a private corporation is a rule or law adopted by it for its internal government, and to regulate the conduct and prescribe the rights and duties of its members towards itself and among themselves in reference to the management of its affairs. Although the authority to enact such by-laws is frequently declared in the charter of the corporation, or by some general law, yet the authority to enact them does not depend upon such declaration, but is an inherent right which, in the absence of some positive legislative restriction, is incident to every corporation. The legislature may prescribe the formalities to be observed in their enactment, and may limit the scope and subjects for which they may be enacted; but in the absence of any restriction by the legislature, the propriety or character of the by-laws is to be determined by the corporation itself, subject, however, to the condition that they must be reasonable and not contravene or be inconsistent with its charter or any existing law of the state. Accordingly, the legislature of this state, in defining the inherent powers of a corporation in section 354 of the Civil Code, has declared that "Every corporation, as such, has power: . . . 6. To make by-laws, not inconsistent with

any existing law, for the management of its property, the regulation of its affairs, and for the transfer of its stock." This declaration is general in its terms, and sufficiently comprehensive to include the right to enact the abovequoted by-law. By enumerating in section 303 of the Civil Code certain matters upon which corporations may enact bylaws the legislature has not limited the authority to make such by-laws which they would have as an incident inherent in their creation and irrespective of such legislation. (See State

v. Mayor, 33 N. J. L. 57.) Similar provisions in the statutes of Massachusetts (Rev. Stats., ed. 1836, ch. 44, secs. 1, 2) were held by the supreme court of that state to be "not restrictive but directory." (Davis v. Proprietors, 8 Met. 321.)

The case of Child v. Hudson Bay Co., 2 P. Wms. 207, cited by the appellant, is not inconsistent with this rule. The statement of Lord Macclesfield quoted therefrom, that "Where the charter gives the company a power to make by-laws they can only make them in such cases as they are enabled to do by the charter," is to be construed in connection with the facts in reference to which it was made. The company was empow

ered to make by-laws for its government, and for the management and direction of its trade to Hudson Bay, and it was held that it could not under this authority make by-laws in relation to insurance and other projects which parliament hal declared to be illegal. That portion of the by-law, however, which declared that the company should have a first lien upon the stock of any member who should become indebted to it was declared valid; provided such debt was incurred in reference to the business for which the company was incorporated. (See Angell & Ames on Corporations, secs. 326, 356.) In the other case cited by the appellant (Ireland v. Globe Milling Co., 19 R. I. 180, [61 Am. St. Rep. 756, 32 Atl. 921]) the court cited this case as authority for holding that a statute of Maine similar to section 303 of the Civil Code did not authorize the defendant to make the by-law therein involved, but in its opinion upon a subsequent hearing of the same case (21 R. I. 9, [79 Am. St. Rep. 769, 41 Atl. 258]) that court said that it did not question the proposition that a corporation could pass by-laws relative to the regulation of its affairs, although the statute gave no special authority therefor,

but held that the by-law in question was invalid for the reason that it attempted to interfere with private right in matters not pertaining to the business of the corporation.

Article IX aforesaid is moreover not only a by-law for the regulation of the affairs of the corporation, but it is also a contract between the parties signing the same on the one part and the corporation on the other, and may be enforced as such by the corporation. While provisions for regulating the rights of the members of a corporation as between themselves, duly adopted by a majority of the stockholders, may not be enforceable as a by-law upon non-consenting stockholders, yet, if assented to by all, they may be enforced as a contract. (New England Trust Co. v. Abbott, 162 Mass. 148 [38 N. E. 432]; Angell & Ames on Corporations, sec. 342; Clarke & Marshall on Corporations, sec. 642.) Subscribers for the stock of

a corporation may agree among themselves to pay the amount of their subscription either in a single installment or in such sums and at such times as the same may be called for. Such a contract will be a waiver of their right to insist that the corporation shall levy assessments therefor as provided in the Civil Code, and may be enforced against them by the corporation according to its terms. (West v. Crawford, 80 Cal. 19, [21 Pac. 1123; Marysville Electric Light Co. v. Johnson, 93 Cal. 538, [27 Am. St. Rep. 215, 29 Pac. 126]; Kohler v. Agassiz, 99 Cal. 9, [33 Pac. 741].)

Upon the transfer to the appellant from the original subscribers of his forty shares of stock, and the issuance to him by the plaintiff of certificates therefor, on the back of each of which the above by-law was printed, he was informed of the condition upon which he became a stockholder, and of the extent and character of his ability for the unpaid portion of the capital stock. With full notice of the by-law, he acknowledged in writing that he had received the certificate subject thereto, and by also subscribing his name to the book of by-laws he thereby agreed to the provisions contained in them, and thereafter held the stock on the same conditions and subject to the same obligations as did his assignors. (Visalia etc. R. R. Co. v. Hyde, 110 Cal. 632, [52 Am. St. Rep 136, 43 Pac. 10].) His admission to the privileges of a member of the corporation, with the right to participate in its proceedings and to receive dividends upon his shares of stock, was a suffi

cient consideration for the agreement thus made by him with the corporation.

3. The appellant further contends that, assuming that he is under this liability to the plaintiff, the present action for a personal judgment against him cannot be maintained, but that under the provisions of section 726 of the Code of Civil Procedure, the only remedy of the plaintiff is for a foreclosure of its lien upon his shares of stock. The limitation upon the form of action which is declared in section 726 extends only to "mortgages," but the provision in the aforesaid by-law giving the corporation a lien upon the shares of a stockholder for the amount of the par value thereof which may be unpaid does not constitute a mortgage. A lien on personal property may exist in many forms other than by way of mortgage, and although every mortgage is a lien, it is not every lien that is a mortgage. The essential element of a mortgage is a transfer or conveyance of the mortgaged property from the mortgagor to the mortgagee; but the stockholder does not by virtue of this by-law transfer or convey any property to the corporation, but merely agrees that the corporation may have a lien upon his interest in its property as collateral security for his indebtedness to it. The corporation may enforce the payment of that indebtedness without any foreclosure of this lien. (Sonoma Valley Bank v. Hill, 59 Cal. 107.)

The judgment is affirmed.

Cooper, J., and Hall, J., concurred.

[No. 92. Third Appellate District.-June 20, 1905.]

In Re J. W. FINLEY, on Habeas Corpus.

CRIMINAL LAW-MALICIOUS ASSAULT WITH DEADLY WEAPON BY CONVICT FOR LIFE-DEATH PENALTY-CONSTITUTIONAL LAW.-Section 246 of the Penal Code, imposing the death penalty upon a person undergoing a life sentence in the state prison who, with malice aforethought, commits an assault upon the person of another with a deadly weapon, or by any means or force likely to produce bodily injury, is constitutional, and does not inflict any cruel or unusual punishment nor deny the equal protection of the law.

ID.-DOUBTS RESOLVED IN FAVOR OF VALIDITY.-No statute is to be declared unconstitutional unless its conflict with the constitution is clear, substantial, and incapable of reconciliation; and every presumption and intendment aids, and every doubt is to be resolved in favor of, the validity of the statute assailed. ID-EXCEPTIONAL PENALTIES FOR EXCEPTIONAL CRIMES.-The legisla ture may attach exceptional penalties to crimes which are exceptional in their nature or attended by exceptional circumstances. ID.-DEATH PENALTY NOT CRUEL NOR DISPROPORTIONATE TO OFFENSE -The death penalty is not cruel per se; and cannot be said to be disproportionate to the offense punished by section 246 of the Penal Code.

ID.-EQUAL PROTECTION OF THE LAW-CLASSIFICATION.-The equal protection of the law is not denied where there is a proper classification, and every one who stands in the same relation to the law is treated equally in the same manner under the same circumstances and conditions.

APPLICATION for Writ of Habeas Corpus to the Sheriff of Sacramento County.

The facts are stated in the opinion of the court.

Samuel T. Bush, H. C. Ross, and W. F. Renfro, Amicus Curiae, for Petitioner.

A. M. Seymour, District Attorney, for Respondent.

MCLAUGHLIN, J.-Application for writ of habeas corpus. The petitioner, while undergoing a life sentence in the state prison at Folsom, was indicted for the crime defined in section 246 of the Penal Code, and is now confined in the county jail of Sacramento County awaiting trial for said crime.

The section upon which the indictment is based reads as follows: "Every person undergoing a life sentence in a state prison of this state, who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means or force likely to produce great bodily injury, is punishable with death."

It is contended that the indictment is void and the restraint under it illegal, for the reason that section 246 contravenes sections 6, 11, and 13 of article I and subdivision 2 of section 25 of article IV of the constitution of the state, and the fifth, eighth, and fourteenth amendments to the constitution of the United States.