stock, or the certificates of stock when fully paid," but not "until all previous calls or installments thereon shall have been fully paid in," nor "unless at least twenty per cent has been paid thereon and receipts issued thereon." This clearly indicates that the stock was not paid up at that time. The subsequent proceedings and transactions and the books of the company repel and destroy all inferences that the stock was issued as paid-up stock, or was, in fact, fully paid. On April 25, 1879, the order for the first assessment of $5 a share was made. It was all paid in full on May 30, 1879. The entry made at the time on the books shows that the entire capital stock had been subscribed for, the names of the subscribers, the number of shares held by each, and the payment by each of them of the $5 assessment on each share held by him. If the stock had been fully paid for previously, as now contended, there would have been a credit in the cash account for $1,000,000 in money paid for the capital stock. But no such credit appears, or ever did appear, and no one has ever claimed that any such payment was ever made. There is no record of the expenditure of such money by the corporation, or of its possession thereof. If that amount of money had been paid to the corporation at that time, there would have been no reason or necessity for any assessment on the stock, or for any issue of bonds. Yet the record shows, as above stated, that calls or assessments on the stock were made and paid monthly from April, 1879, to January, 1880, amounting to $375,000. It also shows that in 1890 the corporation issued bonds to the amount of $484,000, secured by a mortgage covering all of its properties, and that the present assessment was made to raise the money necessary to pay a deficiency judgment entered against the corporation on a foreclosure sale under said mortgage. Also, as already stated, that the stock account carried a charge of $1,000,000 against the stockholders for the aggregate amount owing upon the several stock subscriptions, that this was reduced by the credits for payments on the eight calls made and paid thereon, amounting to $375,000, and that the balance owing from stockholders was thereafter carried on the books at $625,000. It also appears that each of the eight orders or resolutions for the aforesaid calls began with the words: "It is hereby ordered that an assessment upon the subscribed capital stock" be levied. If there had been assessments upon

paid-up stock the word "subscribed" would not have been appropriate, and its use shows that the assessment was understood to be upon subscriptions owing, and not as or for a demand for an additional contribution to the corporate assets. The record indicates that the entire investment of the company did not reach the sum of $1,000,000, which, it is now claimed, was paid in by the stockholders at the beginning of its operations. There is no evidence whatever that the stock was ever sold or offered for sale by the corporation at a price less than its par value, or that the certificates originally issued therefor declared that the stock represented thereby was fully paid for. All the certificates to Rolph were issued prior to July 17, 1902. Up to that time, and afterward until 1905, when section 323 of the Civil Code was amended (Stats. 1905, p. 396), stock certificates were not required to show the amount paid thereon, or that anything had been paid thereon. The findings recite that thereafter, in 1907, in transferring certificates for 356 shares to new holders, the corporation made and issued certificates to the new owner showing on their face that the stock was fully paid. This was not the stock held by Morrow. We are not referred to any part of the record which supports this finding or relates to it. But the evidence we have already mentioned shows that if such statements were made in those certificates, they were not true. This finding was of an evidentiary fact only, and it is not a finding that such stock was fully paid up at that time, nor that any of the certificates held by Morrow in Rolph's name were fully paid up.

For the foregoing reasons we conclude that the judgment of the court below was not in accordance with the law and the facts and that it cannot stand.

The judgment is reversed.

Wilbur, J., Lennon, J., Sloane, J., Lawlor, J., Shurtleff, J., and Waste, J., concurred.

Rehearing denied.

All the Justices concurred, except Lawlor, J., and Wilbur, J., who were absent.

Shurtleff, J., was also absent, and Richards, J., pro tem., was acting.

[S. F. No. 10246. In Bank.-June 5, 1922.]

CONSTANCIA O'BRIEN, Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.

[1] INHERITANCE TAX-RECEIPT-CONSTRUCTION OF ACT.-Section 10 of the inheritance tax law of 1921 (Stats. 1921, p. 1510), forbidding the distribution of any property of an estate unless a receipt for the inheritance tax due thereon, signed by the state controller, shall first be filed in court, applies only to cases where the report of the inheritance tax appraiser shows taxes due upon the property of the estate or some part thereof, or where, after that report is made, other property has been discovered upon which no report has been made. It has no application to cases where the record in the estate itself shows that no tax is due.

APPLICATION for a Writ of Mandate to the Superior Court in and for the City and County of San Francisco to require the signing of a decree of distribution. Dismissed.

The facts are stated in the opinion of the court.

J. F. Bluxome for Petitioner.

THE COURT.-In this case the superior court refused to sign and file a decree of distribution after the same had been prepared, basing its refusal on the ground that section 10 of the inheritance tax law of 1921 (Stats. 1921, p. 1510) forbids the distribution of any property of an estate, unless a receipt for the inheritance tax due thereon, signed by the state controller, shall first be filed in said court. In this case it appears that after the proceeding in administration was begun, the inheritance tax appraiser, regularly appointed to that office, reported to the court an appraisement of the estate in question, showing that the shares of the several parties interested therein were all exempt from inheritance tax and that no inheritance tax was leviable upon any part of the estate. Thereafter this report was submitted to the court and the court made an order approving the same and declaring that no tax was due upon the property of said estate. All this was done in pursuance of the provi

sions of section 16 of said act. These two sections are to be considered together and in such a manner as to be harmonious. There is no difficulty in doing this. [1] Section 10 applies only to cases where the report of the inheritance tax appraiser shows taxes due upon the property of the estate or some part thereof, or where, after that report is made, other property has been discovered upon which no report has been made. It has no application to cases where the record in the estate itself shows that no tax is due. Therefore the court should have signed the decree of distribution.

An alternative writ of mandate was issued herein in accordance with the petition, to compel the court to sign said decree. Upon the service of that writ the court complied with it and makes return accordingly. This makes it unnecessary to proceed further in the case, and the proceeding is dismissed.

Shaw, C. J., Lennon, J., Shurtleff, J., Waste, J., Wilbur, J., Lawlor, J., and Sloane, J., concurred.

[S. F. No. 9593. In Bank.-June 6, 1922.]

G. H. STOKES, Appellant, v. HENRIETTA P. WATKINSON, etc., Respondent.

[1] STREET LAW-STREET IMPROVEMENT ACT OF 1911-AMENDMENT OF 1915—ATTORNEY'S FEE.-Under the Street Improvement Act of 1911, as amended in 1915 (Stats. 1915, p. 1469), where personal demand for payment has been made and there has been a mere failure to pay, as distinguished from a refusal to pay, the amount of the attorney's fee is a matter for the discretion of the court; and where a number of separate suits have been brought to foreclose liens against different lots owned by the same party, which suits have been consolidated by order of court, plaintiff is not entitled to recover the statutory fee of fifteen dollars for each suit, but can recover only one fee, the amount of which is within the discretion of the court, where the evidence does not show that there was a refusal to pay, although there was a personal demand.

Validity of statutory provision for attorney's fees in prosecution involving collection of taxes or special assessments, note, 28 L. R. A. (N. S.) 1062.

APPEAL from a judgment of the Superior Court of Contra Costa County. A. B. McKenzie, Judge. Affirmed.

The facts are stated in the opinion of the court.

Faulkner & Faulkner for Appellant.

Wm. T. Kearney and Edward C. Harrison for Respondent.

WILBUR, J.—The plaintiff brought 331 separate suits for the foreclosure of assessments levied against 331 separate lots owned by the defendant's testator upon an assessment made by the street superintendent of the city of Richmond for the construction of sewers in said city, by which a separate amount was assessed against each lot as provided in the Street Improvement Act of 1911. This appeal by the plaintiff involves his right to a separate attorney's fee of $15 in 43 of these separate cases which were consolidated by the trial court. Before the trial the defendant offered to allow judgment for the full amount of the assessment but without costs or attorney's fees. Upon the refusal of this offer the defendant filed an answer attacking the validity of the assessment. The trial court rendered judgment in favor of the plaintiff for the foreclosure of the street assessment liens amounting to $15.08 on each lot and costs, but only allowed $25 as an attorney's fee, fixing the amount of sixty cents as the attorney's fee upon each separate action. Appellant contends that he should have been allowed $15 as attorney's fee in each of the actions so consolidated, making an aggregate attorney's fee therein of $645. The plaintiff bases his claim to an allowance upon section 27 of the Street Improvement Act of 1911 as amended in 1915 (Stats. 1915, p. 1469). This section authorizes the recovery of the unpaid assessment with interest at ten per cent per annum in a suit brought not less than thirty-five days after the date of the warrant. The provision with reference to attorney's fees is as follows: "And in all cases of recovery under the provisions of this act, where personal demand has been made upon the owner or his agent, but not otherwise, the plaintiff shall recover such sum as the court may fix, in addition to the taxable cost as attorney's