In Bank. Appeal from Superior Court, San Diego County; T. L. Lewis, Judge.

Action by Melissa Leatham Nicholson and others against Helen L. Leatham and others. A judgment for defendants was affirmed by the Court of Appeal of the Second District (153 Pac. 965), and plaintiffs apply for rehearing in the Supreme Court. Denied.

A. Lincoln Walker and Ansel Smith, both of Los Angeles, and Luce & Luce, of San Diego, for appellants. Sam Ferry Smith, of San Diego, for respondents.

Appeal from Superior Court, Kern County; Milton T. Farmer, Judge.

Election contest by J. H. Thornber against J. O. Hart. Judgment for contestant, and the contestee appeals. Reversed.

Borton & Theile, of Bakersfield, for appeliant. E. L. Foster and Chas. A. Barnhart, both of Bakersfield, for respondent.

JAMES, J. Appellant, at an election held in the county of Kern in 1914, was declared to have been elected to the office of supervisor. Thereafter respondent, who was the opposing candidate at that election, filed notice of contest, and a recount of the votes of the supervisorial district was had in the superior court. Respondent was successful in that proceeding. The contestee has appealed from the judgment.

ANGELLOTTI, C. J. The application for a hearing in this court after decision by the District Court of Appeal of the Second District is denied. In denying such application we deem it proper to say that, in so far as anything said in the opinion may be supposed to imply that a fiduciary relation on the part of those securing the probate of a will The main contention is that the evidence is essential to the making of a sufficient case was insufficient to support the findings and of extrinsic fraud to sustain an action for a judgment. By the notice of contest first filed decree in equity charging the executor, lega- the contestant set out various irregularities tee, or devisee with a trust in favor of the or acts of malconduct on the part of the defrauded party (see Bacon v. Bacon, 150 board of election, as are permitted under secCal. 481, 89 Pac. 317; Sohler v. Sohler, 135 tion 1111, Code of Civil Procedure, as grounds Cal. 323, 67 Pac. 282, 87 Am. St. Rep. 98), it of contest, but did not specify in the original is not in accord with our view of the law. notice of contest particularly the ground aftNo such distinction is warranted by the au-erwards relied upon, that there had been a thorities. Such a doctrine is not at all es- delay in the opening of the polls in precinct sential to the conclusion reached by the Dis- No. 20 of the supervisorial district. At a trict Court of Appeal, and the opinion filed later date, and after the time had expired sufficiently disposes of the case without ref- within which the proceeding of contest might erence to any such doctrine, and on the the- be instituted, the contestant was allowed to ory that the parties must be deemed to have amend his statement of contest by adding had notice of the proceedings in time to have thereto an allegation as follows: enabled them to assail the will, and that they did not use due diligence in regard thereto. It may be that no such implication as suggested was intended by the learned author of the opinion, but we feel that some language used may be thought by some to be susceptible of that construction.

"That in said precinct No. 20, the said polling place as established by the board of supervisors, as aforesaid, was not opened at the time required by law, and a large number of voters were unable to vote, who had presented themselves at said polling place for the purpose of voting, prior to the opening of said "polling place.'

The appellant objected to the making of We concur: SHAW, J.; SLOSS, J.; LORI- this amendment, both on the ground that it GAN, J.; MELVIN, J.

THORNBER v. HART. (Civ. 1830.)

(District Court of Appeal, Second District, Cal-
ifornia. Dec. 29, 1915. Rehearing Denied
Jan. 28, 1916. Denied by Supreme Court
Feb. 24, 1916.)

ELECTIONS-227-CONDUCT OF ELECTION-
DELAY IN OPENING POLLS-VALIDITY OF
VOTE.

In an election for the office of county supervisor, a delay from 6 a. m. to 7:15 a. m. in the opening of the polls in one large precinct, during which time a number of voters were unable to vote and left the polls, without a showing whether they voted on that day or not, in the absence of fraud, was not so great or considerable as to be inexcusable, or to justify the court on a contest in rejecting the entire vote of that precinct.

[Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 197-200; Dec. Dig. 227.]

was offered too late, and also on the ground
that it in its substance did not sufficiently
set out a ground of contest. Both objections
were by the court overruled. The trial judge
concluded, as shown by the record, that in-
asmuch as malconduct of the officers of elec-
tion in some particulars had been set out
and alleged in the original statement of con-
test, adding to such allegation of malconduct
statements of other acts committed by such
officers would not, in effect, be the making of
a statement of a new cause or ground of con-
test. While section 1117, Code of Civil Pro-
cedure, provides that no statement of the
grounds of contest will be rejected for want
of form, if the grounds are alleged with such
certainty as will advise the defendant of the
cause for which
particular proceeding or
such election is contested, it does seem clear
that the contestee in such cases is entitled to

have stated the particulars in which it is The court further expressly found that charged that malconduct was committed on none of the acts or omissions of the election the part of the officers conducting the elec- officers of precinct 20 were done or permitted tion. In the statement of contest first filed it with any fraudulent design on the part of was not alleged in any way that contestant said election officers, nor for the purpose of would rely upon proof to show there had been affecting the result of the election. The evia delay in the opening of the polls in any dence taken showed that the board of elecprecinct; while he assigned malconduct, he tion officers arrived at the precinct in time particularized in allegations pointing to cer- to open the polls as required by law, but that tain specific acts and things. It is to indulge the key to the building was missing. A great liberality indeed toward the contest- search was instituted for the key, and some ant to concede his right to file the amend- outsider finally found it, and the polls were ment that was made. It is also exceedingly thereupon immediately opened and votes requestionable whether the statement in the ceived. So it appears that the delay in the amendment was sufficient to show such a de-opening of the polls which the court found lay in the opening of the polls as would make a good ground of contest, for the quantity of time embraced within that delay is not stated; it is only stated that the polls were not "opened at the time required by law." In the case of Packwood v. Brownell, 121 Cal. 478, 53 Pac. 1079, the specification of malconduct which our Supreme Court held to be insufficient was:

"That the said board of judges of election of Pitt river precinct did not open the polls at sunrise of said day of election nor keep the polls open for the length of time required by law."

to be without any fraudulent intent or intent to affect the result of the election, but still found to be inexcusable, was occasioned through the failure of the officers to make an entrance into the building or polling place. That the confusion in this regard was inexcusable we think can hardly be concluded from the evidence. As is said in Packwood v. Brownell, hereinbefore cited:

"It must be from the nature and necessity of the case that the Legislature intended that some margin, even though narrow, should be allowed for honest effort to comply with the statute, and did not intend that the vote of any precinct should be invalidated because the polls were not open at the very instant of sunrise. Therefore, further, if any person seeks to take advantage of omission in this regard, he must allege some delay sufficient to show a transgression of the statute inconsistent with an honest and intelligent endeavor to obey its command, or that the violation of its letter on which he relies has operated to obstruct the full and fair expression of the suffrage of the precinct."

In the case just cited the ruling of the trial court, on a motion to dismiss the contest because of insufficiency of the specification, was reviewed, and the judgment reversed. However, it will not be necessary for us to announce a final conclusion on these two propositions, as we think that the main contention of appellant made as to a proposition which involves the crucial finding of the trial judge, must be sustained. The court at the It will be remembered that, for aught that hearing of the contest canvassed the vote cast the findings of the court show, the 21 perin all the precincts of the supervisorial dis- sons or more who left the polls of precinct 20 trict, and rejected the entire vote of precinct before 7:15 o'clock may have returned and No. 20 because there had been a delay of 1 voted during the many remaining hours of the hour and 15 minutes in the opening of the election day. Therefore, if the burden was polls. The result of the tally on the pre- upon the contestant to show that he had been cincts, excluding precinct 20, gave to contest-injured by reason of the alleged failure of ant a majority of 55 votes. Precinct No. 20 was a large precinct. There were residing in it at the time of the election 733 registered voters, and the election returns showed that 549 of these had voted at the election, and that 239 had voted in favor of appellant and 163 in favor of contestant. So that, had the vote of precinct No. 20 not been rejected, the contestee would have had a majority of 11 votes over respondent. The court finds that the polls in precinct 20 were not opened until 7:15 a. m., and that there was not sufficient cause or excuse for the failure to open the polls; that between the hour of 6 a. m. and 7:15 a. m. at least 50 voters came to the polling place of precinct 20 and demanded the right to cast their ballots, and offered to vote, and that:

"Because of the polls not being open for the reception of ballots, a large number, to wit, more than 21, left the polls and were unable to vote, and it is not shown whether such voters did vote on said 3d day of November, 1914, or

the officers to have the polls open at 6 a. m., it is plain, according to the findings of the court, that he did not sustain this burden by proof. It is argued, however, that upon a showing being made of the delay in opening the polls, a presumption of damage arose which shifted the burden of proof to the contestee and required of him a showing that the irregularity did not result in damage to the contestant. This question and those incidental to the proposition were considered in the case of Kenworthy v. Mast, 141 Cal. 268, 74 Pac. 841. In that case it was shown that there was a delay of from 6 to 7:45 o'clock in the opening of the polls of a certain precinct, a delay of 30 minutes more than the evidence and findings disclose here occurred in the case of precinct 20. The court there said that it had never been held in this state that a literal compliance with the provisions of the law as to the hour of opening the polls was absolutely essential to the validity of

have made becomes necessary in order to
arrive at the decision indicated.
The judgment is reversed.

We concur: CONREY, P. J.; SHẨN,

CITY OF SACRAMENTO v. SWANSTON et al. (Civ. 1397.)

ence of even a mandatory statute must be liberally construed. The conclusion to be deducted from that opinion is that the Supreme Court did not consider a delay in opening the polls of 1 hour and 45 minutes at the commencement of the day a great deviation from the requirement of the statute. The court there referred to the PackwoodBrownell Case, supra, and called attention to the concurring opinion of the Chief Justice as filed in that case, wherein it was said (District Court of Appeal, Third District, Calithat, while the requirements as to time or place of holding an election are mandatory, the time in that connection meant the proper day for holding the election, and"that a slight delay in opening the polls, explained and excused by the absence of one of the officers, and by the necessity of setting up the booth, railings, etc., ought not to disfranchise the voters of a precinct, in the absence of any showing of actual injury."

In the case last above cited there was even a greater delay in the opening of the polls than was shown in Kenworthy v. Mast, supra, the delay being from 6:29 a. m. until 8:15 or 8:30, and we glean from the opinion that such a delay was not to be denominated great or considerable. In Kenworthy v. Mast, it is said:

"The general rule, as stated in McCrary on Elections (section 165), is that, in the absence of a provision in the statute expressly declaring that a failure in this respect shall render the election void, it will be regarded as so far directory only, and that, unless the deviation from the legal hours has affected the result, it will be disregarded; but that if such deviation is great, or even considerable, the presumption will be that it has affected the result, and the burden will be upon him who seeks to uphold the election to show affirmatively that it has not."

Considering the facts in evidence in this case and applying to them the law as we understand the Supreme Court to have declared it, we are not of the view that the delay shown in the opening of the polls in precinct 20 was either "great" or "considerable." Conceding correctness for that conclusion, it follows that the contestant failed to support his charges of malconduct with proof of damage resulting therefrom to him. It would be most unjust, we think, to declare that all of the voters who cast their ballots at precinct 20 on election day should be disfranchised in their attempt to express a choice for supervisor simply because the election officers deviated from the strict requirement of the statute as to the opening of the polls. We, therefore, conclude that it was error for the court to have rejected the vote cast in that precinct. Had the findings of fact contained a particular statement showing the reason for the nonopening of the polls, a judgment might be directed without the necessity of further proceedings being had in the trial court. However, as the finding that the officers failed without sufficient cause or excuse to open the polls may import a finding of fraud, the review of the evidence which we

fornia. Dec. 21, 1915.)

1. STATUTES 72, 76-UNIFORM OPERATION -APPLICABILITY OF GENERAL LAW-CLASS LEGISLATION.

Notwithstanding Const. art. 1, § 11, declaring that all laws of a general nature shall have uniform operation, and article 4, § 25, prohibiting local or special laws in enumerated cases and in all other cases where a general law can be made applicable, the Legislature may pass laws designated to apply to or operate on a certain class of persons only, provided the class is founded on some natural or extrinsic or constitutional distinction, but there must be no arbitrary discrimination between parties standing in the same relation to the subject of the law.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 72, 772-782; Dec. Dig. 72, 76.]

2. EMINENT DOMAIN 1-NATURE OF PRO

CEEDINGS.

The taking of private property in the exercise of the power of eminent domain is justifiable only on the theory of common benefit, and though Const. art. 1, § 14, provides that no property shall be taken or damaged without just compensation having been made, private property may be taken though the owner does not desire to give it up.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 1, 2; Dec. Dig. 1.] 3. CONSTITUTIONAL LAW 248. EMINENT DOMAIN 265 STATUTES 72, 76 EQUAL PROTECTION OF THE LAWS-SPECIAL LEGISLATION.

court, on the abandonment of condemnation proCode Civ. Proc. § 1255a, authorizing the ceedings by plaintiff, to enter judgment of dismissal and include in the costs assessed against plaintiff the fee of defendant's attorney in the proceeding, applies alike to all of the classes to which it applies, and does not discriminate as between persons belonging to that class, and denies to none the equal protection of the law, and the provision does not violate Const. U. S. Amend. 14, or Const. art. 1, § 11, providing that all laws of a general nature shall have a uniform operation, or article 4, § 25, prohibiting special laws: eminent domain proceedings being capable of differentiation from ordinary actions.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 703; Dec. Dig. 248; Eminent Domain, Cent. Dig. §§ 400, 690-693; Dec. Dig. 265; Statutes, Cent. Dig. 88 72, 77; Dec. Dig. 72, 76.]

Appeal from Superior Court, Yolo County; N. A. Hawkins, Judge.

Action by the City of Sacramento against George Swanston and another. From a judgment of dismissal with costs against plaintiff in favor of defendant named, plaintiff appeals. Affirmed.

Archibald Yell, of Sacramento, for appellant. Arthur C. Huston, of Woodland, and Driver & Driver, of Sacramento, for respondent.

HART, J. The action is in eminent domain for the condemnation of certain lands belonging to the defendants. The jury assessed the damages accruing to the lands described in the complaint by reason of the taking thereof for the purposes of the plain

tiff, and in due time after the verdict so

rendered and entered, the court, upon its findings of fact and conclusions of law, entered judgment of condemnation in the amount of damages admeasured by the jury. The plaintiff having failed, within 30 days after the final judgment of condemnation, to pay the amount at which the damages as to the defendant Swanston's lands was appraised or fixed by the jury, as required by section 1251 of the Code of Civil Procedure, the court, in accordance with the provisions of section 1255a of said Code, upon motion of said defendant, entered a judgment dismissing the action and taxing costs against the plaintiff.

Included in the costs so allowed to the defendant is an attorney's fee of $3,000, such a fee constituting, under the terms of section 1255a, supra, an item of costs which, with other legal costs, may be allowed against a plaintiff in condemnation proceedings where there has been an express or implied abandonment of such proceedings by the plaintiff at any time after the filing of the complaint. This appeal is prosecuted by the plaintiff from said judgment of dismissal.

The reasoning of the court in that case is, substantially: That it is a provision which imposes a penalty upon the defendants in such an action for a failure to pay certain debts, and thus the law singles out a certain class of debtors and punishes them when, for like delinquencies, it punishes no others. They are therefore not treated as other debtors, or equally with other debtors. them," so proceeds the reasoning, "they are "If the litigation terminates adversely to mulcted in the attorney's fees of the successful plaintiff; if it terminates in their favor, they recover no attorney's fees. It is no answer to say that they are punished only when adjudged to be in the wrong. courts upon equal terms. They must pay attorThey do not enter the ney's fees if wrong. They do not recover any if right; while their adversaries recover if right and pay nothing if wrong."

Thus, so goes the argument, in suits to which they are parties they are discriminated against, do not stand equal before the law, and are denied its equal protection, in violation of the Fourteenth Amendment of the federal Constitution. Gulf, etc., Ry. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666.

In support of the position that the provision of the law concerned here involves special legislation or the granting of special privileges, rights, and immunities, contrary to certain specific inhibitions of section 25, art. 4, of the Constitution, the court, in the Builders' Supply Co. Case, cites the following cases, which are also cited here: Davidson v. Jennings, 27 Colo. 187, 60 Pac. 354, 48 L R. A. 340, 83 Am. St. Rep. 49; Atkinson v.

[1] The principal and, indeed, the sole complaint against the judgment arises from the allowance by the court of an attorney's fee to the defendant, the plaintiff claiming that so much of section 1255a of the Code of Civil Procedure as authorizes the court, upon the abandonment of the proceedings by the plaintiff and thereupon the entry of Woodmansee, 68 Kan. 71, 74 Pac. 640, 64 L. judgment of dismissal, to include in the costs assessed against the plaintiff the fee of the defendant's attorney in the proceeding is unconstitutional and void for these reasons: (1) That said section in the particular mentioned violates the Fourteenth Amendment of the federal Constitution; (2) that it contravenes certain provisions of our state Constitution, requiring that laws of a general nature shall be uniform in their operation, and prohibiting the passage of special laws. For the support of their position as thus stated counsel for the plaintiff rely principally upon the case of Builders' Supply Depot v. O'Connor, 150 Cal. 265, 88 Pac. 982, 17 L. R. A. (N. S.) 909, 119 Am. St. Rep. 193, 11 Ann. Cas. 712, and the cases therein cited. In the case just named, the Supreme Court held to be violative of the Fourteenth Amendment of the federal Constitution and of the provisions of our state Constitution, requiring that every law of a general nature shall

R. A. 325; Perkins v. Boyd, 16 Colo. App. 266, 65 Pac. 350; Hocking Val. Coal Co. v. Rosser, 53 Ohio St. 12, 41 N. E. 263, 29 L. R. A. 386; Grand Rapids Chair Co. v. Runnels, 77 Mich. 104, 43 N. W. 1006; Wilder v. Chicago Ry. Co., 70 Mich. 382, 38 N. W. 289; Openshaw v. Halfin, 24 Utah, 426, 68 Pac. 138, 91 Am. St. Rep. 796; Durkee v. Janesville, 28 Wis. 464, 9 Am. Rep. 500. In all these cases, with the exception of Wilder v. Chicago Ry. Co., 70 Mich. 382, 38 N. W. 289, and Durkee v. Janesville, 28 Wis. 464, 9 Am. Rep. 500, in which, however, the identical principle is discussed and the same rule applied, statutes providing for laborers' or mechanics' liens are involved. As seen, the reasoning by which the conclusions in those cases are arrived at is substantially the same as that upon which the United States Supreme Court, in Gulf, etc., Ry. Co. v. Ellis, supra, declared the Texas statute authorizing the allowance of attorney's fees to persons hav

damages against a railroad company for | case of Smith v. Judge Twelfth District stock killed, was unconstitutional and void as in violation of the Fourteenth Amendment of the federal Constitution.

There have been no other provisions of law, either organic or statutory, which have been the source of so wide a range of discussion, or which have been more difficult to apply in given cases than those inhibitions of the state and federal Constitutions whose purpose is to establish equality before the law, and therefore the uniform operation of all laws of a general nature and the prohibition of class and special legislation.

Court, 17 Cal. 555, by the late Judge Baldwin, voicing the views and conclusion of the court. In that case, the question was as to the validity of a statute passed by the Legislature, not only authorizing, but making it the duty of the judge of the district court of this state to transfer a criminal case for trial from the city and county of San Francisco, where the crime was committed, to the district court of the Eleventh judicial district, in and for Placer county. The constitutionality of said act was upheld, it being permissible, under the Constitution of 1849, to pass special laws, with the result that there was had under that instrument special legislation upon an infinite variety of subjects. The court in that case said:

It is not true that any law which is designed to operate upon a particular class of persons or property involves special legislation, or is wanting in uniformity of operation, or denies to a person the equal protection of the The construction given to the word law within the meaning of the constitutional uniform,' in this view [the view urged by counsel] is universal. * But this is guaranties relating to those subjects. Inabsurd, for different classes of crimes may and deed, that even special laws are in certain do call for different modes of procedure. * cases permissible under our present state But the error is in a misapprehension of this Constitution and the cases expounding the noted. It is not that all laws shall be universal term uniform.' The language must be carefully provision which, by implication at least, or general in their application to the same subauthorizes such legislation, is a well-settled jects, nor is it even that all laws of a general proposition. Article 4, § 25, subd. 33; People nature' shall be universal or general in their v. McFadden, 81 Cal. 498, 22 Pac. 851, 15 Am. is that these laws of a general nature' shall application to such subjects; but the expression St. Rep. 66; People v. Mullender, 132 Cal. be uniform in their operation'-that is, that 221, 64 Pac. 299; Board of Directors v. Nye, such laws shall bear equally, in their burdens 8 Cal. App. 527, 542, 543, 97 Pac. 208. It is and benefits, upon persons standing in the same category. But this category depends upon the true, however, that the design of the fram- facts which characterize the offense. Every ers of our present Constitution, by inserting defendant is not entitled to the same privileges, into that instrument provisions prohibiting or subject to the same burdens, as every other; class or special legislation, was to correct or not, and this depends upon the particular facts for instance, some are entitled to bail, others are prevent a repetition of the evils which grew characterizing the imputed crime. When we up under the Constitution which the present speak of uniformity in the operation of a law, superseded from the vast amount of special we speak of that operation which is equal under the same facts; for what justice or unilegislation, applying only to certain persons formity would there be in applying the same and things, which found its way to our stat- rigor of remedy or the same measure of punishute books. The result is that now special ment to all conditions of fact or degrees of crimlegislation is not, as formerly, generally perity or identity in the general charge? The effect inality, merely because there existed a similarmissible, but only allowable where the exi- of laws of a general nature shall be the same gency of the occasion imperatively calls for a to and upon all; but who are 'the all' who are special law. the subjects of this operation? Obviously, the answer is, all who stand in the same relations to the law; all, in other words, the facts of whose cases are * * the same. To treat one man differently from another man-to deny to one man a privilege extended to another man -is not partiality; it may be a just discrimination; to constitute partiality and the invidious discrimination against which the Constitution aims, the denial to another of what is given to facts; or, to express the idea differently, the one must be made upon substantially the same denial must be of the same claim before accorded."

It is obvious, however, that the case now before us is not of that class where a resort to special legislation is necessary or contemplated by subdivision 33, § 25, art. 4, of the Constitution. The sole question here, then, is whether the law in question as to the particular provision thereof under review, being a law of a general nature, is wanting in uniformity in its operation, or whether it is a special law within the constitutional inhibition in that regard or offends the mandate of the national Constitution against the passage of laws having the effect of denying to any person within the jurisdiction of this state the equal protection of the laws.

Although, as stated, the framers of our present Constitution took particular pains to guard against the indiscriminate enactment of laws the effect of which was to operate only upon particular persons or things, still, in the very nature of things, it was and is imWhat is meant by the provision of our possible, in a state, like ours, having a variety Constitution that "all laws of a general na- of interests calling for diverse kinds of legisture shall have a uniform operation" (article lation, sometimes antagonistic to each other 1, § 11)—a provision which was contained in and where, therefore, a single rule, universal the state Constitution of 1849-was as clear- in its application throughout the commonly and logically explained as that language wealth, would operate as a distinct and posi