poenas, writs, and other process issued in the suit, and of papers to bring him into contempt." But as to service of notice of appeal there is a special provision of statute to the effect that the notice shall be served "on the adverse party or his attorney." Code Civ. Proc. § 422. A familiar rule of construction is that, when a general and particular provision of statute are inconsistent, the particular provision will prevail, and this rule of construction is incorporated in the Code of Civil Procedure by the provisions of section 631. Therefore, in our judgment, the particular provision of section 422, relating especially to the service of the notice of appeal, and providing that service thereof may be made on the adverse party personally, or on his attorney, would make the service in this case of notice of appeal on respondent sufficient. Motion to dismiss is therefore denied. All concurred.

1. In the absence of constitutional restrictions, the legislature need not tax all property and occupations equally or uniformly.

2. Const. art. 12, § 1, provides that the legislature shall levy a uniform rate of assessment and taxation, and, in another sentence, provides that the legislature shall impose a license tax on persons or corporations doing business in the state. Section 11 provides that taxes shall be uniform. Held, that such licenses need not be uniform.

3. The license taxes provided by Pol. Code, §§ 4079, 4080, providing that every person carrying on a steam-laundry business shall pay a license of $15 per quarter, and that every male person engaged in the laundry business, other than the steam-laundry business, shall pay a license of $10 per quarter if engaged in business by himself, but $25 if employing other persons, are not taxes, within Const. art. 12, § 11, requiring the assessment and levy of taxes to be uniform.

4. Pol. Code, § 4079, requiring a laundryman with an assistant to pay a license fee of $25 per quarter, while persons engaged in the steam laundry business are required to pay a fee of only $15 per quarter, does not violate Const. U. S. Amend. 14, providing that no state shall deny to any person the equal protection of the laws.

5. The objection that Pol. Code, §§ 4079, 4680, requiring a license fee of $25 from a male laundryman with an assistant, while allowing steam laundries to be conducted with a license of only $15 per quarter, was meant to affect Chinamen only, is without merit, since the act itself expressly relates to every male laundry

man.

district court upon an application for a writ of mandate requiring the appellant to accept $10 as a license fee from the respondent, and to issue to respondent a license to conduct a laundry. Sections 4079 and 4080 of the Political Code are as follows:

"Sec. 4079. Every male person engaged in the laundry business, other than the steam laundry business, must pay a license of ten dollars per quarter; provided, that where more than one person is engaged or employed or kept at work, such male person or persons shall pay a license of twenty-five dollars per quarter, which shall be the license for one place of business only.

"Sec. 4080. Every person who carries on a steam laundry must pay a license of fifteen dollars per quarter."

The respondent here, Sam Toi, appeared in the district court, and filed a petition praying for a writ of mandamus, in which petition he set forth as follows: That appellant is the treasurer of Lewis and Clarke county, and that it was his duty to issue licenses, when tendered the fees therefor; that respondent is a male person, a resident of the county, and engaged in the laundry business, other than a steam laundry, and that he is employing male persons other than himself in such business; that he tendered to the said treasurer the sum of $10, and demanded that the treasurer issue to him a license for the conduct of the laundry business; that the treasurer refused to issue said license unless the respondent paid him the fee of $25, as required by section 4079, Pol. Code. The county attorney filed a demurrer to this petition, upon the ground that it did not set up facts sufficient to warrant the issuing of the writ of mandamus. The demurrer was overruled, and the writ was issued, commanding the treasurer to receive from the respondent the sum of $10, and issue to him a license for the conduct of said laundry business. From this judgment the respondent below appeals. There are some other matters set up in the petition for the writ, which will be noticed as the subject is treated in the opinion below. H. J. Haskell, for appellant. A. C. Botkin and J. M. McDonald, for respondent.

Petition by Sam Toi for a writ of mandamus to compel E. S. French, treasurer of Lewis and Clarke county, to issue a license to conduct a laundry. From a judgment granting the writ, defendant appeals. Reversed.

This is an appeal from the judgment of the

to tax all property and occupations equally or uniformly, unless so commanded by the constitution. Cooley, Tax'n, p. 570, c. 6. quoting Butler's Appeal, 73 Pa. St. 448; Mayor. etc., of Rome v. McWilliams, 52 Ga. 251; Decker v. McGowan, 59 Ga. 805. See, also, Manufacturing Co. v. Wright, 33 Fed. 121.

Constitutions of a state are distinguished from the constitution of the United States, in this: "The government of the United States is one of enumerated powers; the national constitution being the instrument which specifies them, and in which authority should be found for the exercise of any power which the national government assumes to possess. In this respect it differs from the constitutions of the different states, which are not grants of powers to the states, but which apportion and impose restrictions upon the powers which the states inherently possess." Cooley, Const. Lim. p. 10. Therefore a state legislature is not acting under enumerated or granted powers, but rather under inherent powers, restricted only by the provisions of their sovereign constitution. We therefore inquire whether our constitution restrains the legislature from enacting such a law as sections 4079, 4080, Pol. Code.

The respondent contends that the restraint is found in the following provisions of the constitution:

"Section 1. The necessary revenue for the support and maintenance of the state shall be provided by the legislative assembly, which shall levy a uniform rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, except that specially provided for in this article. The legislative assembly may also impose a license tax, both upon persons and upon corporations doing business in this state." Article XII. "Sec. 11. Taxes shall be levied and collected by general laws and for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax." Article XII.

Many

The respondent argues that under these provisions the imposition of a license fee of $25 upon him, as a laundryman with a helper, while the laundryman without a helper and the steam laundryman pay a less license, is unconstitutional, in that it is not uniform and equal. We shall not decide whether this law is or is not a classification of the laundry business for license purposes, which the legislature may make, even if it were held that the uniformity clause in the constitution applied to such a license. cases might be cited upon this question. We shall decide this appeal without reaching a consideration of that point. A license fee is a tax sometimes, and for some purposes. Sometimes, and for some purposes, it is not a tax. Cooley, Tax'n, pp. 572, 573, 592, 596, 600, 601; People v. Martin, 60 Cal. 153; City of Santa Barbara v. Stearns, 51 Cal. 499; Cooley, Const. Lim. p. 245; Desty, Tax'n, p. 305. The particular distinctions as to when a license fee is a tax and when it is not, we shall not discuss, further than to give the reasons for our opinion that this license fee under consideration is not a tax, as falling within the equality and uniformity provisions

of the constitution. The constitution provides that the legislature shall levy a uniform rate of assessment and taxation, and secure a just valuation for taxation of all property (article XII. § 1), and that taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax (Id. § 11). In a separate sentence in said section 1 it is provided that the legis lative assembly may also impose a license tax both upon persons and upon corporations doing business in the state. But neither in this sentence of section 1, nor elsewhere, is it stated that licenses shall be uniform. If the constitution does not require that licenses shall be uniform, they need not be. Judge Cooley says, in his work on Taxation: "It has been seen that the sovereignty may, in the discretion of its legislature, levy a tax on every species of property within its jurisdiction, or, on the other hand, that it may select any particular species of property, and tax that only, if, in the opinion of the legis lature, that course will be wiser. And what is true of property is true of privileges and occupations, also. The state may tax all. or it may select for taxation certain classes and leave the others untaxed. Consideration: of general policy determine what the selection shall be in such cases, and there is no restriction on the power of choice, unless on is imposed by constitution. In another chap ter it has been shown that constitutional pro visions requiring the taxation of property by value have no application to the taxation of other subjects, and do not, therefore, by im plication, forbid the taxation now under con sideration." Page 570. These remarks of Judge Cooley are taken from the opening sentence of his chapter entitled "Taxation of Business and Privileges." See, also, chapter VI. of the same work, as to a general discussion of the impossibility of absolute uni formity.

In the case of People v. Coleman, 4 Cal.. we find, on page 54, that the counsel arguing in favor of the uniformity and equality of license fees makes the following remarks: "How is this to be done,' says the learned counsel, is no part of our province to de cide; nor are we to say whether.it is possible to devise an occupation tax which would be equal and uniform, unless it be a tax levied equally, and for the same amount, upon all occupations. All that we maintain is that an occupation tax which is not equal and uniform violates the constitution,' "-in reply to which the court remarks: "Is, then, the clause under consideration so vague as to be wholly unsusceptible of a practical meaning, and the force of the provision to be defeated from a want of some indefinable equality and uniformity, existing in the imagination of learned counsel, but so subtle in its character as to defy the ordinary use of language in its description? In constru ing this section, force and meaning must be given to every part of it. We cannot sup

pose the convention intended to enact, as a part of the fundamental law of this state, a provision so doubtful and ambiguous, and at the same time so completely calculated to paralyze the energies and prostrate the re sources of the state government. *

The occupation of the humblest artisan, with no capital but his labor, the reward of whose toil secures to him only a scant subsistence, must be taxed equally with the [occupation of the] richest merchant, banker, or broker, or, if not equally, at least the state has no right to release the miserable pittance so cruelly wrung from his hard earnings." In that case it was held that the uniformity clause of the constitution did not apply to license fees upon occupations. We do not concur in all that was said in deciding that case. We have omitted a portion of the remarks from our quotation, and added a parenthesis which the language seems to need. The California supreme court has not followed that case, in whole. People v. McCreery, 34 Cal. 433. But the principle that the uniformity clause does not apply to license fees has been maintained in California. Ex parte Hurl, 49 Cal. 557. It was again said in City of Santa Barbara v. Stearns, 51 Cal. 499: "A license charge or fee for the transaction of business is, in our opinion, a tax, within the meaning of the term 'tax,' as employed in those sections [referring to sections other than the uniformity clause]. It is not a tax within the meaning of section 13 of article 11 of the constitution [which is the uniformity section of the California constitution]. • • People v. Coleman, 4 Cal. 46; People v. Raymond, 34 Cal. 492; City and County of Sacramento v. Crocker, 16 Cal. 119; Taylor v. Palmer, 31 Cal. 240; Emery v. Gas Co., 28 Cal. 345; Emery v. Bradford, 29 Cal. 75; Ex parte Hurl, 49 Cal. 557; Cooley, Const. Lim. 201." See, also, San José v. San José & S. P. R. Co., 53 Cal. 475; Ex parte Mirande, 73 Cal. 375, 14 Pac. 888; Ex parte Li Protti, 68 Cal. 635, 10 Pac. 113; People v. Thurber, 13 Ill. 554; City of East St. Louis v. Wehrung, 46 Ill. 392; Slaughter v. Com., 13 Grat. 767; Baker v. Cincinnati, 11 Ohio St. 534; Kleizer v. State, 15 Ind. 449. .

The alleged inequality or nonuniformity of this classified laundry license does not seem to be such as to grant a monopoly, or such as to be prohibitory of a legitimate trade or occupation. We are of opinion that the first sentence of section 1, art. XII., and the whole of section 11, art. XII., are upon the same subject, and must be read together, and that they refer to taxation, and the equality and uniformity thereof, and that the last sentence of section 1, art. XII., upon licenses, does not fall within the uniformity provision.

The laundry license fee is not obnoxious to the provisions of section 1 of the fourteenth amendment to the constitution of the United States. Home Ins. Co. v. New York State, 134 U. S. 194, 10 Sup. Ct. 593; Ex

press Co. v. Seibert, 142 U. S. 339, 12 Sup. Ct. 250.

It is also set up in the petition for the writ of mandamus, and, of course, admitted by the demurrer, that the relator below, and respondent here, is a subject of the emperor of China, and that the provision of the law requiring a fee of $25 from a male laundryman with one assistant was meant and intended to affect only Chinamen; that Chinamen are engaged in the class of laundry business falling within the $25 fee; that steam laundries employ a large number of persons, and make greater profits than the petitioner or his countrymen; and that he will not be able to conduct his business in competition with the steam laundry, if he is required to pay the license fixed by the laws cited. The fact that Chinamen are engaged in the hand-laundry business is purely fortuitous. Manufacturing Co. v. Wright, 33 Fed. 121. The law, in its terms, applies to all male laundrymen, of every condition and nationality. If the equality and uniformity provisions of the constitution do not apply to the license fee under consideration, the subjects of the emperor of China are certainly in no different or better condition to make complaint than the subjects of any other foreign power who may be residing within this state, or even the citizens of the United States themselves.

We are of opinion that the district court erred in issuing the writ of mandate. The questions which we have determined in this opinion are the only ones presented upon the appeal, and upon them is rested the decision. It is ordered that the judgment be reversed, and the case be remanded, with directions to dismiss the writ.

thereon, which was dismissed; and the judgment in that action is pleaded in bar of this. The court made general findings that all the allegations of the complaint were true, and all the allegations of the answer untrue, and rendered judgment against defendant, from which, and an order denying him a new trial, he appeals.

There is no substantial merit in the appeal. The objection that the findings are insufficient to cover the issues is untenable (Pralus v. Mining Co., 35 Cal. 34; Carey v. Brown, 58 Cal. 184; Moore v. Waterworks Co., 68 Cal. 146, 8 Pac. 816); and the further objection that the findings are unsupported by the evidence equally so. The only particular suggested under the latter point is as to the sufficiency of the demand and notice, and of that there is no question. Judgment and order affirmed.

(109 Cal. 493)

BLOSS v. LEWIS, Clerk of Superior Court. (No. 18,417.)

(Supreme Court of California. Oct. 10, 1895.) CONSTITUTIONAL LAW-FEES OF COUNTY CLERKLOCAL ACTS.

1. Act March 31, 1891, § 162, creates counties of the thirty-third class, and section 195 allows the clerk of each of such counties a salary of $3,000, and authorizes him to collect fees for services in settlement of estates based on the value thereof. Const. art. 11, § 5, authorizes a classification of counties for the purpose of regulating the compensation for county officers according to duties. Held, that section 195, in fixing a fee for official services in counties of the thirty-third class different from that in other counties, violates Const. art. 11, § 4, directing the legislature to establish a system of county government which shall be uniform throughout the state.

2. And also violates Const. art. 1, § 11, requiring all laws of a general nature to operate uniformly.

3. And also violates Const. art. 4. § 25, subd. 33, forbidding local or special laws in all cases where a general law can be made operative.

Commissioners' decision. Department 1. Appeal from superior court, Stanislaus county; William O. Minor, Judge.

Petition by George S. Bloss against J. A. Lewis, clerk of the superior court of the county of Stanislaus, for a writ of mandamus to compel defendant to file an inventory of an estate of which the plaintiff was executor. From a judgment denying the writ, plaintiff appeals. Reversed.

James F. Peck, for appellant. L. W. Fulkerth, for respondent.

VANCLIEF, C. This appeal is from a judgment of the superior court of the county of Stanislaus denying a peremptory writ of mandate petitioned for by appellant. The verified petition for the writ shows that the petitioner was one of the two executors of the will of John W. Mitchell, deceased, who at the time of his death, in November, 1893, was a resident of said county, and left estate

therein, and in the counties of Madera, Fres no, and Merced, an inventory and appraisement of which had been made according to law, said estate, real and personal, having been appraised at $1,364,367.65. That in May, 1894, the petitioner and his coexecutor returned such inventory and appraisement in due form to the superior court of the county of Stanislaus, in which court said will had been proved, and in which proceedings for the settlement of said estate were then pending, and offered the same to the defendant, clerk of said court, and demanded that he receive and file the same, and then and there tendered to said clerk $25 in payment of the lawful fees for filing said inventory and appraisement, and at the same time requested that the surplus of said $25, if any there should be, over and above such fees, be credited on account of fees thereafter to accrue in the matter of said estate; but the defendant clerk then refused, ever since has refused, and still refuses, to receive or to file said inventory or appraisement, by reason whereof said executors have been prevented from making return of said inventory to said court as required by law. Wherefore petitioner prays for the writ of mandate commanding the clerk to receive and file said inventory. An alternative writ was ordered, issued, and served; and the defendant showed cause for not having obeyed it by demurring to the petition on the sole ground that it does not state sufficient facts to entitle petitioner to the writ, or any relief whatever. The court sustained the demurrer, and upon the refusal of petitioner to amend his petition rendered judgment denying a peremptory writ.

Under the classification of counties for the purpose of regulating the compensation of county officers by the county government act of March 31, 1891, the county of Stanislaus belongs to the thirty-third class, the county clerk of which, by section 195 of said act (St. 1891, p. 397), is entitled to a salary of "three thousand dollars per annum; provided, that such clerk shall collect and pay into the county treasury, for the use and benefit of the county, the following prescribed fees, to wit." Here follows a list of fees, other than those allowed in probate proceedings, as to which that section makes the following provision: "For filing papers and issuing letters testamentary, or of administration, guardianship, or special administration, in any case, two dollars. For services up to and including the final settlement of the case, in which the value of the estate does not exceed five thousand dollars, except as hereinafter provided, ten dollars, and one dollar for each additional one thousand dollars in value, as shown by the inventory."

Respondent contends that the demurrer was properly sustained, on the ground that the petition does not state nor show that the executors tendered to the clerk $1 for each $1,000 valuation of the estate, as shown by the inventory, additional to $5,000, which, in this