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

We concur: CONREY, P. J.; SHAW,`J.

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 ollicers, 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, de claring 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; 77; Dec. Dig. 72, 76.] Dec. Dig. 265; Statutes, Cent. Dig. §§ 72,

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

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

Archibald Yell, of Sacramento, for appel- | passage of special laws the provision of our lant. Arthur C. Huston, of Woodland, and mechanics' lien law which authorized the alDriver Driver, of Sacramento, for respond- lowance by the trial court in actions to foreent. close mechanics' and laborers' liens"as part of the costs, * * * reasonable attorney's fees * to be allowed to each lien claimant whose lien is established, whether he be plaintiff or defendant."

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 plaintiff, 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 have a uniform operation and prohibiting the

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 having a bona fide claim for services, or for

calities or certain classes of people, to present a system of laws alike applicable to all of the great variety of conditions in the state. Hence the framers of the Constitution recognized the necessity of laws which, in a sense, would be special so far as their operation was concerned-special in the sense that they applied or were to apply to certain classes of persons or things only to the exclusion of all other classes. It is therefore competent for the Legislature to pass laws of this character; that is, laws which are designed to apply to or operate upon a certain class of persons only, but the rule is that the class to which the law is solely to apply must be founded upon some natural or intrinsic or constitutional distinction, or, in other words: "The individuals to whom the legislation is applicable must constitute a class characterized by some substantial qualities or attributes of such a character as to indicate the necessity or propriety of certain legislation restricted to that class." City of Pasadena v. Stimson, 91 Cal. 251, 27 Pac. 604, and numerous other cases cited in Board of Directors v. Nye, 8 Cal. App.

on page 536, 97 Pac. 208.

owner. The taking of private property by the state, in the exercise of this power, cannot be, abstractly viewing it, less justifiable on moral grounds than the enforced taking of private property by one individual from another for the latter's private uses. It is justifiable only because the power makes for the common benefit, and is upheld upon the theoretical conception that every owner of private property takes and holds such property subject to the condition that the state may take it from him, if occasion discloses that the common welfare will be the better subserved by its public use than by its private ownership. The people of the state, or that portion of the people who are vested with the right of franchise, in whom the power resides, have delegated the power to the Legislature, and the latter, in turn, has constituted certain specified persons as the agents of the state for the exercise of the power in particular instances. The Constitution of this state, as does that of nearly every other state, provides that, in the exer

cise of this power, no property shall be taken And, furthermore, lest by such enactments, or damaged without just compensation havthe constitutional inhibition against special legislation may be violated, it is the rule that, ing been made to, or paid into, court for the in the passage of laws designed to operate up-condition thus imposed as a prerequisite so owner. Article 1, § 14. Notwithstanding the on a particular class only, there must be no to take one's property, the fact remains that arbitrary discriminations between parties standing in the same relation to the subject when property is taken under the right of of such law, and that if, by such laws, such eminent domain, it is taken against the will And private propdiscriminations are made, then the legislation or consent of the owner. will fall under the force of the constitutional erty may thus be taken, even if the owner, mandates against special enactments. Ex for reasons peculiar to himself, would prefer parte King, 157 Cal. 161, 106 Pac. 578, and to retain it rather than to receive for it a cases therein cited. And in that case it is sum vastly in excess of its actual value for any practical purpose to which it might be further said: put. In brief, when the state, through any of its duly constituted agencies, makes a call for the property for a public use, it must be surrendered in any event; and whether the "property" referred to in the Constitution be merely the rights in the thing so desired or the thing itself, it is nevertheless true that the enforced giving up of the rights therein amounts in practical and substantial effect to a like giving up of the title to the thing itself. The result is that when this power is sought to be visited upon particular privately owned property, the owner thereof is, if proceedings in condemnation be found necessary, forced into litigation as to the subject-matter of which he is in no way in default, or for which he is not responsible in the sense in which a defendant who has breached a contract or by affirmative acts on his part has

of the *

"If it [the law] operates uniformly upon all the members of such class it necessarily has the 'uniform operation' required by section 11, art. 1, of the Constitution. The question whether the individuals affected by a law do constitute such a class is primarily one for the legislative department of the state, and it is hardly necessary to cite authorities for the proposition that when such a legislative classification is attacked in the courts, every presumption is in favor legislative act. Where upon the facts legitimately before a court, it is reasonable to assume that there were reasons, good and sufficient in themselves, actuating the Legislature in creating the class, though such reasons may not clearly appear from a mere reading of the law, such assumption will be made, and the legislation upheld. To warrant a court in adjudging the act void on this ground, it must clearly appear that there was no reason sufficient to warrant the legislative department in finding a difference and making the discrimination.'

See Grumbach v. Lelande, 154 Cal. 679, 685, deprived the plaintiff of a right or imposed 98 Pac. 1059.

Thus we are now brought face to face with the concrete proposition submitted for decision in this case, and by the light of the principles above stated the question must be considered and determined.

upon him a wrong is responsible for litigation. He, in short, although not desiring to give up his property for the price offered for it or at all, and, although acquiring title to it subject to the burdens which follow from an inherent power or legal right in the peo

[2] Eminent domain is an attribute of sov-ple in their sovereign capacity, does not inereignty and the right or power of a sovereign state to appropriate private property to particular uses without the consent of the

vite the litigation, nor is he the actor therein, as one who violates a contract or commits some private wrong invites the litigation

necessary to enforce the obligations of the arrived at in Builders' Supply Depot v contract or to correct the wrong.

Thus it must at once become obvious that a proceeding for the condemnation of private property for a public use, under the power of which we have been speaking, is, in its origin, its purpose and its characteristics, essentially different from any other action or proceeding established by our law as an instrumentality for the enforcement of a private right or the redress or prevention of a private wrong. It is, indeed, not included by the Code within the category of ordinary actions at law or suits in equity, but is denominated, with others, as a "special proceeding," and even as to other proceedings so denominated in the Code, it is, by reason of the characteristics peculiar to it, strictly sui ge

neris.

O'Connor, supra, and in Gulf, etc., Ry. Co. v. Ellis, supra. In those cases it was held, as we have seen, that an allowance to the plaintiff of an attorney's fee if he was victorious in the trial was distinctly discrimi natory, because no such allowance was provided for the defendant in case he prevailed at the trial. In this case, however, as in no other case of which we can presently think, the statute gives to the plaintiff the right to abandon the proceeding, even after a trial thereof and a verdict and judgment of condemnation rendered and entered, and, as a penalty for such abandonment, accords to the defendant the right to be reimbursed by the plaintiff for not only the ordinary costs but an attorney's fee. No right of aban donment is awarded by the statute to the defendant, and, in the very nature of the case, there could not be so that it would affect or impair the right of the plaintiff to condemn and take his property. The conditions as to the two parties in the proceeding are essentially and radically different.

But, in our judgment, the real rationale of the authority of the state, to which the sov

over the right of eminent domain, to exact from the plaintiff the payment as costs of a reasonable attorney's fee to the defendant under the circumstances indicated in the stat ute and which, in our opinion, could be so exacted in any event or under any circumstances, lies in the control, hedged only by limited constitutional restraints, it has over that sovereign right.

[3] It, therefore, cannot be doubted that the proceeding to condemn property under the right of eminent domain is so differentiated from the ordinary actions or proceedings in a court of justice "by which one party prosecutes another for the enforcement or protection of a right, or the redress of a private wrong," as to bring it within the settled test justifying the assignment of the proceed-ereign power has delegated the jurisdiction ing to a particular class for the purposes of reasonable provisions not applicable to other classes of actions. The test in that regard is: If the classification is "based upon some difference bearing a reasonable and just relation to the act in respect to which the classification is attempted," any reasonable special provision as to the action so classified, and which is not applicable to other classes, will not be held to be void as involving spe- As before explained, the persons, artificial cial or discriminatory legislation within the or otherwise, upon whom the right to exerconstitutional provisions upon that subject. cise or invoke on specified occasions the powThis rule is conceded in all the cases, and is er of eminent domain is conferred by the elaborately considered by Chief Justice An- state or the Legislature are mere agents of gellotti in the case of Engebretsen v. Gay, the state for that particular purpose. They 158 Cal. 30, 32, 109 Pac. 880, in which, after are, in other words, by the state specially reviewing many cases, including Builders' clothed with power to exercise a right of sovSupply Depot v. O'Connor, 150 Cal. 265, 88 ereignty which they could not exercise but Pac. 982, 17 L. R. A. (N. S.) 909, 119 Am. for the action of the Legislature in clothing St. Rep. 193, 11 Ann. Cas. 712, mainly relied them with the authority of agents for that upon by the appellant here, it is held that a purpose. The act of conferring that power provision in the street improvement act of upon those persons is entirely and purely vol1885 (St. 1885, c. 153), allowing, in addition untary upon the part of the state. The state to the taxable costs, an attorney's fee to the cannot be compelled to part with it by conplaintiff in an action to foreclose a lien upon ferring it upon other persons desiring to exproperty improved under said act, is not dis- ercise it, but may withhold it and itself excriminatory or violative of the state consti-ercise it, subject, of course, to the constitututional inhibition against special legislation tional restraints referred to, to the exclusion or of any provision of the federal Constitution. The theory of the decision, as we understand it, is that, as may be done where there is default in the payment of the ordinary taxes assessed against property, the Legislature has the right to impose upon those defaulting in the payment of street assessments for the improvement of streets a penalty which may include a reasonable attorney's fee.

In the case at hand there exists no basis

of all other persons or instrumentalities. Therefore, no one will dispute the right in the Legislature, in conferring the right to exercise the power of eminent domain upon others, to impose any reasonable conditions upon its exercise by those others as it sees fit. In this state it has imposed upon those in whom it has invested that right, as one of the conditions upon which they may exercise it, the requirement that, in case they abandon the proceedings in condemnation after