version. (Subd. 3, sec. 2368, Civ. Code; 25 C. J. 348.) However, the plaintiff alleged in its complaint that the defendant authorized it to sell the cotton as it did. If true this would relieve it of the charge of conversion, but the court made no finding upon this matter.

We conclude, therefore, that the plaintiff converted the property of the defendant. This being so, the defendant was within his right in setting up that fact as a defense which he did in his answer. The findings do not indicate just what part of the amount for which judgment was rendered was advanced before and what part after the conversion took place. The association would be entitled to be reimbursed for money properly advanced or expended prior to the conversion.

Judgment reversed.

Finlayson, P. J., and Works, J., concurred.

[Civ. No. 4000. Second Appellate District, Division Two.-July 18, 1922.]

A. H. MOORE, Petitioner, v. THE CITY COUNCIL OF THE CITY OF LOS ANGELES et al., Respondents.

[1] MUNICIPAL CORPORATIONS AMENDMENTS TO FREEHOLDERS' CHARTER-TIME OF ADVERTISEMENT-CONSTITUTIONAL LAW.-The legis lative body of a city having a freeholders' charter is not required, under section 8 of article XI of the constitution, to advertise a proposed amendment to the charter within fifteen days after the filing of a petition by electors for the submission of such amendment to a vote of the city electorate, since the element of time was not intended to be included in the word "manner" as that word is used in such section requiring that proposed amendments to a charter shall be advertised "in the same manner" that is proposed for the advertisement of a proposed charter.

PROCEEDING in Mandamus to compel the advertising of a proposed amendment to a city charter. Writ denied.

The facts are stated in the opinion of the court.

Jones & Weller for Petitioner.

Jess E. Stephens, Lucius P. Green and Charles B. MacCoy for Respondents.

FINLAYSON, P. J.-This is a proceeding in mandamus to compel respondents to advertise, within fifteen days from July 5, 1922, a proposed amendment to the charter of the city of Los Angeles. On application made to this court in the first instance, an alternative writ of mandate was issued, and thereafter respondents appeared and filed their answer.

From the uncontroverted averments of the petition and the stipulations of the parties, the following facts are made to appear: On July 5, 1922, a petition, signed by more than fifteen per cent of the registered electors of the city of Los Angeles, requesting the submission of an amendment to the city charter, was filed with the city council and the signatures thereto were duly certified by the city clerk. On the same day, at a regular meeting of the city council, a motion was made to advertise such proposed amendment within fifteen days, but, for lack of the requisite number of votes, the motion failed to carry. Thereafter, on July 13, 1922, at a regular meeting, the city council adopted a resolution whereby it declared it to be its purpose and intention to submit the proposed amendment to the electors of the city not later than the general election to be held next November. Petitioner claims that by the provisions of section 8 of article XI of our state constitution, presently to be quoted, it is the bounden duty of the city council to advertise the proposed amendment not later than fifteen days after the filing of the petition by the electors, that is to say, within fifteen days after July 5, 1922.

Section 8 of article XI of the constitution, in so far as it is necessary to an understanding of the question, reads: "Any city or city and county. may form a charter for its own government, consistent with and subject to this constitution. . . . Any such charter shall be framed by a board of fifteen freeholders chosen by the electors of such city at any general or special election. . . . The charter so framed shall be signed by a majority of the board of freeholders and filed in the office of the clerk of the legislative body of said city. The legislative body of said city shall, within

fifteen days after such filing [italics ours] cause such charter to be published once in the official paper of said city (or in case there be no such paper, in a paper of general circulation); and shall cause copies of such charter to be printed in convenient pamphlet form, and shall, until the date fixed for the election upon such charter, advertise in one or more papers of general circulation published in said city a notice that such copies may be had upon application therefor. Such charter shall be submitted to the electors of such city at a date to be fixed by the board of freeholders, before such filing and designated on such charter, either at a special election held not less than sixty days from the completion of the publication of such charter as above provided, or at the general election next following the expiration of said sixty days. . . . The charter of any county or city and county may be amended by proposals therefor submitted by the legislative body of the city on its own motion or on petition signed by fifteen per cent of the registered electors, or both. Such proposals shall be submitted to the electors only during the six months next preceding a regular session of the legislature or thereafter and before the final adjournment of that session and at either a special election called for that purpose or at any general or special election. Petitions for the submission of any amendment shall be filed with the legislative body of the city or city and county not less than sixty days prior to the general election next preceding a regular session of the legislature. The signatures on such petitions shall be verified by the authority having charge of the registration records of such city or city and county, and the expenses of such verification shall be provided by the legislative body thereof. If such petitions have a sufficient number of signatures the legislative body of the city or city and county shall so submit the amendment or amendments so proposed to the electors. Amendments proposed by the legislative body and amendments proposed by petition of the electors may be submitted at the same election. The amendments so submitted shall be advertised in the same manner as herein provided for the advertisement of a proposed charter [italics ours], and the election thereon held at a date to be fixed by the legislative body of such city, not less than forty and not more than sixty days after the completion of

the advertising in the official paper. If a majority of the qualified voters voting on any such amendment vote in favor thereof it shall be deemed ratified, and shall be submitted to the legislature at the regular session next following such election; and approved or rejected without power of alteration in the same manner as herein provided for the approval or rejection of a charter."

As will be observed, it is provided by the constitution that the legislative body of any city for which a proposed charter has been prepared by a board of freeholders and filed with the clerk shall, "within fifteen days after such filing," cause the same to be published once in the official paper of the city, or in a paper of general circulation if there be no official paper, and shall likewise cause copies of such charter to be printed in convenient pamphlet form and give notice by advertising in one or more papers of general circulation that such copies may be had upon application. And it will be recalled that it is further provided that all proposed amendments to any such charter shall be advertised "in the same manner as herein provided for the advertisement of a proposed charter." Whether, as petitioner claims, it is the duty of the legislative body of a city having a freeholders' charter to advertise a proposed amendment to the charter within fifteen days after the filing of a petition by electors for the submission of such amendment, depends upon the meaning to be given to the word "manner," as that word is used in the provision which declares that all proposed charter amendments shall be advertised "in the same manner as herein provided for the advertisement of a proposed charter." is urged by petitioner that the phrase "in the same manner" refers not only to the way or mode whereby the advertising must be done, but also the the time within which it must be done.

Whether the word "manner," or the phrase "in the same manner," includes the element of time, has been answered by the courts both in the affirmative and in the negative. The supreme court of Nevada, in State v. Eureka etc. M. Co., 8 Nev. 15, held, without discussion, that the word "manner," in the statute under consideration in that case, did not mean time. In United States v. Morris, Fed. Cas. No. 15,815, the word was also construed by the court as

not including time. (See, also, Bankers' Life Ins. Co. v. Robbins, 59 Neb. 170 [80 N. W. 484].) On the other hand, Harris v. Doherty, 119 Mass. 142, and State v. McClure, 91 Wis. 313 [64 N. W. 992], are cases in which the word "manner" was construed as including the element of time.

We think that the question is, in every case, one of intent, and that the true rule may be formulated substantially as follows: Whether the word "manner" shall be construed as including not only the way or mode of doing a thing, but also the time of doing it, depends upon the intention of the lawmakers, to be gathered from the context; that is, the "manner" of doing a thing and the "time" of doing it are distinct things, and ordinarily the word "manner' will not be construed as including the element of "time" unless it shall appear from the context that the lawmakers intended that it should. Thus, in State v. McClure, supra, the supreme court of Wisconsin said: "The word 'manner' in a statute may undoubtedly include 'time,' if such seems to have been the intent of the lawmakers." And in Porter v. Brook, 21 Okl. 885 [97 Pac. 645], a well-considered case, the Oklahoma supreme court used this language: "We think the language quoted from United States v. Morris, supra, to the effect that the 'manner' of doing a thing and the 'time' of doing it are distinct things, but that 'manner' may embrace 'time' if such was the intention of Congress, states the correct rule." (Italics ours.)

It must be held, therefore, that the word "manner," in the phrase "shall be advertised in the same manner as herein provided for the advertisement of a proposed charter," does not include the element of time, but refers only to the mode or way of advertising a proposed amendment to a freeholders' charter, unless we can see from the context that the time, as well as the mode of advertising, was intended to be included in the word "manner.”

Petitioner argues that it was intended that the word "manner," as here used, should include the time as well as the mode or way of advertising, because, as he claims, if the word were not construed as including the time of advertising it would be possible for any city council to frustrate the will of the electors by indefinitely postponing the advertisement of a proposed charter amendment, and thus prevent the holding of any election thereon. We do not