spondents, and his suggestion that the ap- | peal was frivolous, the judgment and order appealed from were affirmed, with damages. In making this order, the court acted upon the assumption that the appellant had voluntarily abandoned his appeal, and, as parties do not ordinarily abandon their appeals when there is even a plausible ground to support them, we were forced to conclude that this appeal had not been taken in good faith. It now appears that the failure of appellant to file a brief was due to his ignorance of the fact that his cause was on the calendar, and an examination of the record convinces us that the appeal was not frivolous. So much of the judgment, therefore, as imposes damages for a frivolous appeal is erroneous, and is hereby set aside. We do not think, however, that counsel has offered an excuse for his failure to note the time his cause was set for hearing sufficient to justify us in ordering a rehearing in bank. Rehearing denied, but the judgment is modified to one of attirmance simply, without damages. (83 Cal. 134) DESMOND v. FAUSS et al. (No. 13,553.) (Supreme Court of California. Feb. 10, 1890.) MOTION TO DISMISS APPEAL-ORDERS. Under Code Civil Proc. Cal. § 1003, which defines an order to be any direction of a court or judge in writing, not included in a judgment, a writing signed by four justices of the supreme court, extending the time for filing transcript, is an order, though it is not filed; and a failure to file it is not ground for dismissing the appeal, especially where it was an inadvertence, and respondents had notice thereof by service of a copy on their counsel. In bank. On motion to dismiss appeal. F. J. Castelhum, for the motion. THORNTON, J. Motion to dismiss appeal for failure to file transcript in time. By stipulation, the time to file the transcript had been extended to and including the 10th of October, 1889. By a writing signed by four justices of this court on the 8th of October, 1889, the time to file the transcript was further extended 20 days from the 10th of October, 1889. This paper was not filed, but a copy of it was served on the attorney of defendants on the said 10th of October. The order was filed after notice of motion to dismiss was served, and before hearing of the motion. It is now objected that the writing was of no force,-was not an order unti filed, and therefore the time was not extended. We are inclined to think that the paper signed by the four justices was an order of court before filing. It was a writing signed by the justices, and purported to be an order. See Code Civil Proc. § 1003.1 We are satisfied that the failure to file the writing was an inadvertence, and that the appeal should not be dismissed. The respondents 1 Code Civil Proc. Cal. § 1003, provides that every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an "order." 1. Pol. Code Cal. $$ 4480, 4481, provide that "the provisions of the four Codes shall be treated as if passed at the same moment of time," and that, "if the provisions of any title conflict with or contravene the provisions of another title, the provisions of each title must prevail as to all matters and questions arising out of the subject-matter of such title." Code Civil Proc. § 421, which is part of a title, the subject of which is "Pleadings in Civil Actions," being the only title in the four Codes devoted specially to the subject, provides that "the forms of pleading in civil actions, and the rules by which the sufficiency is to be determined, are those prescribed in this Code." Held, that a complaint in an action for the collection of taxes must conform to the requirements of the Code of Civil Procedure, and contain a statement of facts constituting a cause of action, as required by section 421, though the Political Code, in a title devoted to "Revenue," authorizes a special form of complaint in such cases. 2. Where such complaint avers an assessment of "the franchise, road-way, road-bed, rails, and rolling stock of the defendant," but does not allege that defendant is the owner of such property situate within the jurisdiction of the assessing board or of the court, it is defective. 3. A complaint, in such action, averring that the board apportioned the assessment among different counties, without showing its authority so to do, or that any portion of the property assessed, or of any property of defendant was situate in any one of such counties, and without describing any of the property, is defective. 4. An averment of indebtedness for taxes, without an averment that any taxes were ever levied on defendant or its property, or, if levied, when, where, and by whom the levy was made, or whether the taxes were based on the assessment mentioned above, or that there are any taxes against defendant, delinquent or unpaid, is insufficient. 5. Where such complaint states in one count an indebtedness to the state for state taxes, and to many different counties for county taxes, and de mands payment of all, there is a misjoinder of causes of action. 6. An averment of defendant's corporate existence is necessary in every count of a complaint against a corporation. 7. Pol. Code Cal. § 3670, providing a special form of complaint in actions to collect taxes on railroads situate in more than one county, conflicts with Const. Cal. art. 4, § 25, subd. 3, which forbids the legislature to pass special laws "regulating the practice of courts of justice," as such provision is a "special law," though found in the Political Code, which is general. 8. Pol. Code Cal. §§ 3665-3670, providing a mode for the collection of taxes on railroads situated in two or more counties, differing from that found in the general law, are in conflict with Const. Cal. art. 4, § 25, subd. 10, forbidding the legislature to pass any special laws "for the assessment or collection of taxes." 9. Such law cannot be justified by Const. Cal. art 13, 13, which provides that "the legislature shall pass all laws necessary to carry out the pro visions of this article," on the ground that section 10 of that article provides a different method for assessing property of railroads operated in more than one county, from that provided for other property, as this does not refer to levy and collection of taxes, but to "assessment" only, and the general laws for the collection of taxes are sufficient to carry into effect the provisions of article 13. BEATTY, C. J., and THORNTON, J., dissenting. In bank. Appeal from superior court, city and county of San Francisco; WALTER H. LEVY, Judge. George A. Johnson, Atty. Gen., and D. M. Delmas, for the People. Creed Haymond, John Garber, and H. S. Brown, for respond ent. Fox, J. This is an action, brought in the name of the people of the state, to recover from the defendant a certain sum of money alleged to be due the state for taxes, and also various other sums of money alleged to be due to divers of the counties of the state, for taxes for the year 1886. The defendant demurred to the complaint, which demurrer was, upon argument, sustained by the court below, and judgment entered for the defendant, from which the plaintiff appeals. So far as we are advised, this is the first case in which the precise questions here involved, under the present constitution, has been presented for adjudication. To a complete understanding of it, we give the pleadings at some length. The complaint, after giving the title of the court and cause, is as follows: "Plaintiff avers that on the 14th day of August, in the year 1886, the state board of equalization assessed the franchise, road-way, road-bed, and rolling stock of the defendant at the sum of $20,000,000. That the board apportioned the said assessment as follows: To the county of Alameda, the sum of $2,607,230, [and here follows similar language as to 16 other counties, differing only in amount.] That the defendant is indebted to plaintiff, for state and county taxes for the year 1886, in the following sums: For state taxes, in the sum of $112,000; for county taxes of the county of Alameda, in the sum of $16,225.34, [and here follows a statement in similar form as to the other 16 counties before named, differing only as to amount,] with 5 per cent. added to each of said several sums for non-payment of taxes. Plaintiff demands judgment for said several sums, with 5 per cent. added thereto, together with costs and counsel fees as allowed by law, and prays that an attachment may issue in form as prescribed by section 540 of the Code of Civil Procedure." To this complaint the defendant demurred on the following grounds: "First. That the court has no jurisdiction of the subject-matter of the action, nor the person of the defendant herein. Second. That the plaintiff has not the legal capacity to sue herein, for the following reasons: That sections 3668-3670 of the Political Code, under the provisions of which said action was instituted, are unconstitutional and void, in this: that said sections are in contravention of subdivisions 3 and 10 of section 25 of article 4 of the constitution of the state of California. They also are in contravention of section 21 of article 1 of the constitution of the state of California, and of section 1 of article 12 of the constitution of the state of California. That said sections of the Political Code are in contravention of section 1 of the fourteenth amendment of the constitution of the United States. That, so far as the assessment of railroad property is concerned, sections 4 and 10 of article 13 of the state constitution, upon which the said action is founded, are in contravention of section 1 of the fourteenth amendment of the constitution of the United States. Third. That several causes of action have been improperly united. Fourth. That several causes of action have been improperly united, which are are not separately stated in the complaint; that is to say: (1) a cause of action for state taxes; (2) a cause of action for county taxes of the county of Alameda. [Followed by a separate subdivision, in similar form, for each of the other 16 counties.] Fifth. That the complaint does not state facts sufficient to constitute a cause of action. Sixth. That the complaint is ambiguous, unintelligible, and uncertain, in this: that it does not appear how or when defendant became indebted for taxes; that it does not appear how or when 5 per cent. was added. Wherefore, defendant prays judgment against plaintiff, and that it may have its costs in this behalf expended." 1. It will be unnecessary to consider these grounds of demurrer separately, at any considerable length. The questions of jurisdiction, of misjoinder of causes of action, of insufficiency of facts, and of ambiguity, all turn upon the constitutionality of the provisions of the Political Code under which the plaintiff is attempting to proceed, and under which alone, if anywhere, this form of complaint can be justified. But, tested by the provisions of the Code of Civil Procedure, every point made against the complaint is well taken. Outside the Political Code of this state, it is doubtful if either authority or precedent can be found which would have induced any lawyer to file in a court of justice a complaint like this. It does not contain "a statement of the facts constituting the cause of action,” as required by section 426, Code Civil Proc., or as required by any other rule of pleading known to the profession. And yet, by section 421 of the same Code,—the general statute of this state devoted specially to the subject of pleadings and procedure in civil actions, it is expressly provided that "the forms of pleading in civil actions, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed in this Code." And by the provisions of the Political Code, from which Code it is conceded that this form of complaint is taken, it is expressly declared that "the provisions of the four Codes shall be treated as if passed at the same inoment of time, and were parts of the 66 same act," and that, "if the provisions of any title conflict with or contravene the provisions of another title, the provisions of each title must prevail as to all matters and questions arising out of the subject-matter of such title." Pol. Code, §§ 4480, 4481. The sections of the Code of Civil Procedure referred to are part of title 6, pt. 2. The "subjectmatter" of that title is "Pleadings in Civil Actions," and it is the only title in the four Codes devoted specially to that subject. It is therefore, the title which section 4481 of the Political Code declares "inust prevail as to all matters and questions arising out of that subject-matter." How, then, can we test the sufficiency of pleadings by the provisions of section 3670 of the Political Code? That section is the only warrant for this complaint, and is found in title 9, pt. 3,--a title devoted entirely to the subject of Revenue." Responsive to this, the appellant says that the same legislature passed both Codes; that its power to legislate is supreme, except when and where limited by the constitution; and that its power is ample to prescribe one form of complaint for one class of cases, and another form for another class. That is true; but the same legislature had the power to say, and did say, that "the forms of pleading in civil actions, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed by this act," to-wit, the Code of Civil Procedure, which is a separate act from other Codes, though deemed to have been passed at the same moment of time, and, in the exercise of the same power, at the same moment of time, in another act, which defines the rights and duties of all persons subject to the jurisdiction of the state, and a part thereof devoted to a "definition of the sources of the law," and a title of such part defining "the effect of the Codes," it expressly tells the courts by what rule they shall be governed in case the provisions of the four Codes, or of either Code, are found to be conflicting. or of this court, nor indeed, that there was any such property in esse. (3) There is an averment that the board apportioned the said assessment to 17 different counties in the state, but there is nothing to show its authority to make any such apportionment; that any portion of the property, or of any property of defendant, was situate in any one of said counties. The apportionment is of the total sum at which the assessment is made, without a word of description of the property so assessed, or of the part thereof so apportioned to any one of said counties. (4) There is an averment of indebtedness for state taxes, but no averment that any taxes were ever levied or imposed upon the defendant or its property; or, if a levy was made, when, where or by whom it was made, or whether the taxes were based or levied upon the assessment so made, or the property so assessed as aforesaid, or that there are any state taxes against the defendant, delinquent or unpaid. (5) There is an averment of indebtedness for county taxes in each of the 17 counties named, but as to each the same defect exists as above noted in reference to state taxes. (6) If there is any cause of action stated in this complaint at all, there are 18 separate and distinct causes of action, all in one count, and not separately stated. They affectand if the money is collected it will belong to -18 different persons, to-wit, the state, and 17 separate counties. The only provision in the title of the Code on the subject of pleadings which authorizes the uniting of several causes of action in the same complaint requires that they shall all belong to one class, affect all the parties to the action, and must be separately stated. Code Civil Proc. § 427. (7) The complaint is also ambiguous, for the reason stated in the sixth ground of demurrer. Tax proceedings are in invitum, and, to be valid, must be stricti juris. Cooley Tax'n, 259, 260; Moss v. Shear, 25 Cal. 46; People v. Mahoney, 55 Guided by that rule, when we examine this Cal. 288; Lake County v. Mining Co., 66 complaint we find it defective in all these Cal. 20, 4 Pac. Rep. 876. If not valid, they particulars: (1) The defendant is sued by constitute no cause of action. It therefore a name indicating that it is not a natural becomes necessary that a complaint in an acperson, but a company of some kind, but tion for the collection of a tax should show there is no averment of the fact of incorpo- upon its face facts sufficient to make out a ration, or of any fact to show that it is an prima facie case of valid tax and that it is artificial being capable of being sued; nor, if delinquent. It is true that the title on incorporated, is there any averment to show "Revenue" provides that "no assessment, or where, or under what law, so that the court act relating to assessment or collection of may determine where jurisdiction of its per- taxes, is illegal on account of informality, son lies. An averment of defendant's cor- nor because the same was not completed porate existence is necessary in every count within the time required by law." Pol. Code, of a complaint against a corporation. Loup § 3885. But the waiving of informality v. Railroad Co., 63 Cal. 99. (2) There is an does not waive the necessity for action. That averment of the fact of assessment of "the an assessment shall not be invalid because of franchise, road-way, road-bed, rails, and roll- some informality does not excuse the total ing stock of the defendant;" but there is no want of assessment. There can be no asaverment that the defendant is the owner of sessment unless there is some property assuch or any property situate in this state or sessed; and, to be assessed, there must be elsewhere, nothing to show that the prop- some attempt at description of the property. erty so assessed was or is within the juris-At least, its general character must be shown, diction of the board making the assessment, and its situs must be shown to be within the v.23p.no.5-20 state or the county where assessed. It will be observed, also, that the section quoted refers to informality in the matters of assessment and collection only. The statute nowhere waives informality in the matter of levy of the tax. There is no tax until one is levied. and a complaint shows no indebtedness for taxes unless it shows the levy of a tax. In this complaint there is no intimation that a tax, either state or county, was ever levied. Counsel for appellant has cited several decisions of this court in support of the power of the legislature to prescribe by special act a special form of complaint in actions for the collection of taxes. Unfortunately for his argument, those decisions were all based upon special acts, passed at a time when the legislature had power to pass special laws upon almost any subject, and even before the adoption of the Cod s; forgetting that here he is attempting to proceed under the Codes themselves, and that in them the legislature has itself provided for just such a contingency as arises here, and directed us as to which shall prevail in case of conflict between the different parts of the same general law. the article is there any provision made as to * * * or impairing of liens." An examination of the whole section shows conclusively that the intention of the framers of the constitution, and of the people in adopting it, was to prohibit the legislature from passing local or special laws which should in any wise affect questions of taxation, or the liens of taxes, or the practice in courts of justice. All these must be provided for by general and uniform law. The legislature has provided a general and uniform law "regulating the practice of courts of justice." That law requires that the complaint in a civil action shall be such as we have already indicated, and that its sufficiency shall be determined as therein prescribed. Yet, in the teeth of this constitutional inhibition, and in spite of the fact that the provisions of the constitution are “mandatory and prohibitory unless by express words they are declared to be otherwise," (article 1, § 22.) the legislature has provided 2. But the respondent, by its demurrer, attacks this complaint, and all the proceedings upon which it is based, upon other and high-fourth, authorizing the creation, extension, er ground than that which we have thus far considered. The law upon which these proceedings are based is attacked as being in conflict with the constitution of the state. The provisions of the constitution on the subject of revenue are all found in article 13, and comprise the whole law of the constitution on the subject of the assessment of property for purposes of taxation, and of the levy and collection of taxes. Those provisions which bear most directly upon the questions here involved are found in sections 10 and 13, which read as follows: "Sec. 10. All property, except as hereinafter in this section provided, shall be assessed in the county, city, city and county, town, township, or district in which it is situated, in the manner prescribed by law. The franchise, road-way, road-bed, rails, and rolling stock of all railroads operated in more than one county in this state shall be assessed by the state board of equalization at their actual value; and the same shall be apportioned to the counties, cities and counties, cities, towns, townships, and districts in which such railroads are located in proportion to the number of miles of railway laid in such counties, cities and counties, cities, towns, townships, and districts." "Sec. 13. The legislature shall pass all laws necessary to carry out the provisions of this article." The last section quoted is the one to which we have to look for authority to levy the tax. The first section of the article commences by providing that "all property in the state * * * shall be taxed in proportion to its value, to be ascertained as provided by law," and several subsequent sections speak of the "levy" and the “taxes so levied," and one says that “income taxes may be assessed to and collected from," etc.; but nowhere in First, a general scheme for the assessment, levy, and collection of taxes; and, second, a special scheme for the assessment, levy, and collection of taxes on railroads situate in more than one county, and in that special scheme has provided for the form of complaint adoptted in this action. The special scheme referred to is found in sections 3665 to 3670 of the Political Code, the form of complaint being authorized by the latter section. The whole scheme, so far as it relates to the collection of taxes, is claimed to be in conflict with the constitution, and in due course will be considered, but for the moment we are dealing only with that part of it which provides for this complaint. It is claimed by appellant that this is not in confiict with the third subdivision of said section 25 of article 4, for that it relates to pleading and not to practice. But this is But it is further claimed by appellant that, and therefore within this constitutional prohibition, and void. 3. But the objection goes not alone to the form of complaint, but to the entire legislative scheme for the collection of taxes upon railroads operated in more than one county. It is to the effect that the entire scheme is special, and in conflict with the different subdivisions of section 25, art. 4, of the constitution, which we have quoted, and that being so in conflict, no action can be maintained thereunder for the collection of taxes, whatever may be the form of the complaint. If this scheme is special, then the cases which we have already cited will apply to it in all its parts, and to them many others might be added from the courts of last resort in very many of the different states in the Union; but this court has already expressed itself so plainly upon the subject in the cases cited that it is unnecessary to go elsewhere for authority. Practically admitting that the scheme is "special," the appellant justifies it under section 13 of article 13 of the constitution above quoted, claiming that the legisla ture is not only authorized, but required, to pass all laws necessary to carry that article into effect. That is true, but it is not authorized, required, or empowered to pass laws that are not necessary to carry it into effect, nor to destroy the uniform operation of laws which are required by the constitution itself to have a uniform operation. It will be borne in mind that the constitution provides for a difference in the mole of assessment only, not in the mode of levy, or of collection of the tax on the property when assessed. Under the constitution, it became necessary, or if not necessary, at least proper, for the legislature to pass laws providing the details for the assessment and apportionment of the assessment of this class of property by the state board of equalization. It is the only property in the state of which that board is authorized by the constitution to make assessment; and, as the board is only authorized to make such assessment when the property is situate in two or more counties, apportionment thereof to the several counties became necessary. To provide for the details of that apportionment, and of notice to the several counties interested, it be came necessary and proper that the legislature should act; and, in so far as its action relates to the assessment, and the apportionment thereof, it is not attacked as being in conflict with the constitution. But this legislation also provides a mode of collection differing from that found in the general law on the subject, not necessary for the purpose of carrying into effect any of the provisions of article 13 of the constitution, and special, because not applicable to all property, or even to railroad property generally, but only to such railroad property as is situate or operated in two or more counties. For this reason, it is in direct conflict with, and is specially forbidden by, subdivision 10 of section 25 of article 4 of the constitution. It is therefore |