vold, and furnishes no cause of action upon which suit can be maintained under it. The provisions of the Code for the collection of taxes generally, and those for the collection of taxes upon the portion of this class of property, especially which lies in two or more counties, are too long to justify quotation in full in this opinion; but a reference to a few of the points of difference between them will serve to illustrate the special character of the legislation against which this objection is pointed.. expense, and the risk of transporting to the capitol of the state moneys which, in the aggregate, may be estimated by tons, as all taxes in this state must be paid in coin. Under both laws, if the tax becomes delinquent, 5 per cent. is added. Under the general law, on or before the first Monday in February the tax collector publishes in his county a delinquent list, which notifies the tax-payer of the amount of his delinquency, and of the time when the lien will be enforced by the sale of his property. Until that time, he has the right to pay the tax, with the 5 per cent. for delinquency, and 50 cents for the cost of publication of each separate description of real property assessed to him, and upon each assessment of personal property. If he does not pay it, the least amount of his property which any bidder will take and pay the tax and percentage and costs will be sold; and he will thereafter have at least one year in which to redeem the same. Under this special law, no notice of delinquency is ever published, but, if the taxes remain unpaid until after the first Monday in February, the comptroller must then commence an action for the recovery of the taxes due the state, and the various counties and cities and counties of the state, together with the said 5 per cent. penalty for delinquency, and the Before calling attention to those differences, however, it is proper to note a few general provisions of the revenue law which are alike applicable to all persons and all property, and which serve to show a total absence of necessity for any difference in the mode of collection. "Every tax has the effect of a judgment against the person, and every lien created by this title has the force and effect of an execution duly levied against all the property of the delinquent. The judgment is not satisfied, nor the lien removed, until the taxes are paid, or the property sold for the payment thereof." Pol. Code 3716. "Every tax due upon personal property is a lien upon the real property of the owner thereof from and after 12 o'clock M. of the first Monday in March in each year.' Id. § 3717. “Every tax due upon real prop-costs of suit; and it is specially provided that, erty is a lien against the property assessed, and every tax upon improvements upon real estate assessed to others than the owner of the real estate is a lien upon the land and improvements, which several liens attach as of the first Monday of March in each year." Id. § 3718. These provisions apply to, and these liens attach to, the property of railroad companies owning and operating roads situate in two or more counties, the same as to all other property in the state. It will thus be seen that for the taxes upon this class of property the state, and every county in it, has the same security that is provided for taxes upon all other property in the state,—a lien upon all the property of the owner,-not even excepting that which is by law exempt from execution, and by other provisions of the statute it is made a first lien. So that in no event can the state be defeated in the collection of its taxes if its own proceedings in the assessment, levy, and collection have been lawful. Under the general law, the taxes upon all property, except that here under consideration are collected by the tax collector of the county in which the property is situated. The state assumes the burden, the expense, and the risk of transporting its portion of the taxes so collected from the respective county-seats to the state treasury. Under this special law, all the taxes upon this class of property must be paid at the office of the state treasury, after first getting a certificate of the comptroller as to the amount thereof. This includes not only the state but the county taxes for the several counties; thus imposing upon the tax-payer the barden, the whether the tax be then paid before or after judgment, the defendant shall also pay such counsel fees as the court may allow. It is further provided that in such action the unverified complaint, in the form used in this case, shall be sufficient, and that upon the filing of such complaint the clerk must issue the writ of attachment prayed for. It will thus be seen that under this law the tax-payer is not only burdened with heavy costs and expenses not provided for by the general law, but, in addition to that, and notwithstanding the fact that the state has, as in all other cases, a first lien upon everything which he owns, any particular portion of his property which the representatives of the state may see fit to direct is liable to be summarily seized upon attachment, and, if it be personal property, taken out of his possession, held pending the suit, and finally sold under judgment for what it will bring. If there then be a deficiency, the original first lien still remains upon all the balance of his property. The inequalities, and the possi bilities of injustice, under such a provision, are certainly very great. Take the case at bar. The total amount sued for in this case, exclusive of costs and counsel fees, is $330,800.44. For this the state has a first lien upon the property, and most of it fixed property, assessed by itself at $20,000,000. withstanding that vast security, she asks for and, having asked, must have it-an attachment, under which her officers may direct the sheriff to seize and take possession of all the rolling stock of the company, stopping its entire traffic, and holding it for months,possibly years, -until the litigation is con Not cluded. Such a provision is not only in conflict with subdivision 10, supra, but also with subdivision 3, supra; for the general law regulating the practice of courts of justice authorizes the writ of attachment only when the plaintiff, by affidavit, shows that the debt for the recovery of which the action is brought is not secured by any mortgage, lien, or pledge of real or personal property. We make no point of the want of undertaking for the writ, for the reason that the state is not, under the general law on that subject, required to give an undertaking in any action brought by it. Under the general law, the sale for taxes upon realty is of the realty, or some part thereof. Such a sale will also be for the taxes upon personal property, if assessed to the same person. Under such a sale, there is a year at least in which to redeem. Under this special law, if the proceeding goes to judgment and sale, the sale may be entirely of personal property, from which there is no redemption. If of realty, there is but six months in which to redeem. generally is, so far, a general act. It comprehends the genus. But an act providing for the assessment of all mortgages for sums exceeding $500, or not payable within one year from the date of their execution, is special. It comprehends only a species of mortgages. So an act providing for the assessment of mortgages on wood-lands, plowlands, or river-lands, is special; and, in my judgment, an act that taxes mortgages on land in no more than one county, to the exclusion of those on land in more than one, is in the same category. It does not comprehend the genus mortgages, but only the species, one county mortgages." So, here, these provisions of law now under consideration do not comprehend the genus railroads, but only the species,-two county railroads. The general law for the collection of taxes in this state provides for the bringing of suit in certain cases; but this is not one of them, and is not brought in accordance with that general law. This is a fact which still further serves to mark the provisions under which this proceeding is had as special, and in violation of the prohibitions of the constitution. Section 3899 of the Political Code, a part of that general law, reads as follows: "The comptroller may, at any time after the delinquent list has been delivered to a collector, direct such collector not to proceed in the collection of any tax on said list, amcunting to $300, further than to offer for sale but once any property upon which such tax is a lien. Upon such direction, the collector, after offering the property for sale once, and there being no purchaser in good faith, must make out and deliver to the comptroller a certified copy of the entries upon the delinquent list relative to such tax; and the tax collectoror the comptroller, in case the tax collector refuses or neglects, for fifteen days after being directed to bring suit for collection by the comptroller-may proceed, by civil action, in the proper court, and in the name of the people of the state of California, to collect such tax and costs." This is the provision under which tax-payers other than those These are but a few of the points of difference between the general and special provisions of this law, but they are sufficient to show a marked and broad discrimination against the owners of railroad property situate or operated in two or more counties of the state. It is a discrimination which is not made against, and does not apply to, railroad property, and the owners of railroad property generally, but only when the property is situate in two or more counties. It is a matter of common knowledge that there are numerous railroads in this state, each situate wholly within one county. To such this special mode of collection of taxes has no application. While it is true that a law which applies to all of a class in a state is held to be a general law (to which rule, however, this court has held that there are some exceptions, as in Ex parte Westerfield, 55 Cal. 550,) it is equally true that one which applies to only a part of a class is special, and, under a constitutional inhibition like ours, is void. The case of Investment Co. v. School-Dist., 19 Fed. Rep. 359, is directly in point. The state of Ore-owning railroads situate or operated in two gon had a constitutional provision providing that the legislature should not pass "special or local" laws for the assessment and collection of taxes for state, county, township, or road purposes. An act was passed providing for the taxation of mortgages upon real property situate in no more than one county, in which it was provided that mortgages upon land situate in more than one county should be void. An attempt was made to enforce the collection of taxes upon mortgages upon land situate in no more than one county, by sale of the notes and mortgages, as provided might be done, under the act. The sale was enjoined, and the act declared void, because it provided for the taxation of mortgages upon lands situate in not more than one county, and not upon all mortgages. Judge DEADY, in discussing the question, said: “An act providing for the assessment of mortgages or more counties may be sued for the collection of taxes. The proceedings and form of complaint are then similar to those in this case, and are open to the same objection, when tested by the Codes, or by subdivision 3, § 25, art. 4, of the constitution, as already noted, but the action cannot be brought or maintained until the property has been offered for sale by the tax collector once, at least; and even then it must be commenced in the county where the property is situate, and the money, when paid,-whether before or after judgment,-must be paid to the county treasurer, and not to the state treasurer. Id. § 3900. The appellant argues that all these special provisions now under consideration operate as, and constitute, an immunity in favor of the respondent, and that it cannot, therefore, complain of them. If appellant is correct in opinion goes entirely upon the ground that the provisions of the Political Code relating to the assessment and collection of taxes levied upon railroads operated in two or more counties are in conflict with section 25 of article 4 of the state constitution,-a section which prohibits local and special legislation on certain enumerated subjects. In my opinion, the legislation referred to is neither local nor special. It is not local, because it operates throughout the state; and it is not special, because it applies to all railroads of a class created and defined by the constitution itself. I content myself with this brief indication of the grounds of my dissent because want of time precludes a more elaborate statement. The question as to the al fourteenth amendment to the constitution of the United States not having been considered in the opinion of the court the occasion does not call for any expression of my individual views. PEOPLE V. CALIFORNIA PAC. R. Co. (No. 12,258.) (Supreme Court of California. March 8, 1890.) Fox, J. This case is exactly like that of People v. Railroad Co. ante, 303, (No. 12,257,) decided this day, except as to amount involved, and identity of counties interested; and on the authority of that case the judgment is affirmed. this, then these provisions are in direct conflict with section 21, art. 1, of the constitution, and void, That section reads: "No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the legislature; nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens. But appellant is mistaken as to the party to whom these special privileges and immunities are granted. It is not to the few whose railroads are situate in two or more counties, but to those whose railroads are situate each entirely in one county, and to all other taxpayers except those of the class to which this defendant belongs. As to this defendant, and the few others situate like it, these pro-leged conflict of our revenue law with the visions impose burdens not imposed upon other railroad corporations. All railroad corporations in this state are organized under one general law, and the constitutional provision with reference to that law is: "Corporations may be formed under general laws, but shall not be created by special act." Article 12, § 1. This court has held, in the most emphatic terms, that any attempt to confer a benefit or impose a duty upon one or more corporations formed under a general law, not conferred or imposed upon all corporations formed under the same law, is in conflict with this provision of the constitution, and void. "Private corporations, formed for similar purposes, will stand upon the same footing, enjoy the same rights, and be subject to the same burdens, which cannot be increased or diminished, except by general laws applicable to all. ** * * The rights and duties of all corporations formed under the general law * * * are fixed and determined by its terms, and can only be changed or modified by amendment of the general law; and every such amendment must be made applicable to all corporations created under the general law." San Francisco v. WaterWorks, 48 Cal. 493. The same doctrine has since been laid down and adhered to in Road Co. v. Cole, 51 Cal. 381; Water-Works v. Bryant, 52 Cal. 132; and Railroad Co. v. Baldwin, 57 Cal. 160. That these provisions for the collection of taxes upon the property of railroad companies operating in two or more counties do impose burdens not imposed upon other railroad companies organized under the same general law, seems to us too plain for argument. From what we have already said, it follows that the judgment appealed from in this case must be aflirmed. It therefore becomes unnecessary to consider the only other point made upon the demurrer. Our decision of that point either way would not change the result. Judgment affirmed. We concur: MCFARLAND, J.; SHARPSTEIN, J.; PATERSON, J.; WORKS, J. I dissent: THORNTON, J. We concur: MCFARLAND, J.; SHARPSTEIN, J.; PATERSON, J.; WORKS, J. I dissent: BEATTY, C. J. I dissent: THORNTON, J. PEOPLE V. NORTHERN PAC. Rr. Co. (No. 12,259.) (Supreme Court of California. March 8, 1890.) Fox, J. This case is like that of People v. Railroad Co., ante, 303, (No. 12,257,) this day decided, except as to the amount involved, and counties interested; and on the authority of that case the judgment is affirmed. We concur: MCFARLAND, J.; SHARPSTEIN, J.; PATERSON, J.; WORKS, J. I dissent: BEATTY, C. J. I dissent: THORNTON, J. PEOPLE V. SAN PABLO & T. R. Co. (No. 12,260.) (Supreme Court of California. March 8, 1890.) Fox, J. This case differs from that of People v. Railroad Co., ante, 303, (No. 12,257,) this day decided, only as to the amount involved, and the counties interested; and on the authority of that case the judgment is affirmed. PATERSON, J.; WORKS, J. I dissent: BEATTY, C. J. I dissent: THORNTON, J. PEOPLE V. SOUTHERN PAC. R. Co. (No. 12,261.) (Supreme Court of California. March 8, 1890.) Fox, J. This case is in all respects like that of BEATTY, C. J. Idissent. The prevailing People v. Railroad Co., (No. 12,257,) ante, 303, this day decided, except as to amount involved, and counties interested; and on the authority of that case the judgment is affirmed. the east end of the dam, which, if proven, he claims would negative the averment of its having occurred through carelessness or We concur: MCFARLAND, J.; SHARPSTEIN, J.; negligence in the construction or maintenance PATERSON, J.; WORKS, J. I dissent: BEATTY, C. J. I dissent: THORNTON, J. (83 Cal. 198) WIEDEKIND . TUOLUMNE COUNTY WATER Co. (No. 13,493.) (Supreme Court of California. Feb. 25, 1890.) EVIDENCE-RELEVANCY-TRIAL. 1. In an action for damages caused by the breaking of defendant's reservoir, defendant's witness, after testifying that he had "been in the water business 35 years, "and had "had experience with earth dams, "was asked by defendant, "What is your experience and observation in regard to the breaking of such earth dams through the earth at one end or the other?" also, "How many different reservoirs of earth have you had charge of and had under construction and management during the last 35 years?" Held, that objections to the questions were properly sustained, as defendant's dam was a wooden dam, which the evidence tended to show broke away by reason of decayed timbers. 2. The fact that the court compelled defendant's counsel to go on with the case at an evening session, against his objection that he was too ill to proceed, is not sufficient ground for granting a new trial, where it appears that defendant was not thereby prevented from having a fair trial, but that the trial proceeded as it would if defendant's counsel had not been ill. Department 2. Appeal from superior court, Tuolumne county; C.V. GOTTSCHALK, Judge. Edwin A. Rodgers, for appellant. Frank W. Street, for respondent. SHARPSTEIN, J. This action is brought by plaintiff for alleged damages caused him by the breaking of defendant's reservoir, by reason of which a large volume of water flowed over and into the mining claim of plaintiff, situated below said reservoir, filling said claim with earth, rock, and timber, and carrying away mining implements and a bridge constructed by plaintiff, and depriving plaintiff of the use of said claim during a period of four months. Plaintiff avers that said dam was poorly constructed, and at the time of the break was in a rotten and decayed condition, and was badly and carelessly attended by defendant, and by reason of such carelessness and negligence it broke away, and caused the injuries of which plaintiff complains. All the material allegations of the complaint are denied by the answer of the defendant. The cause was tried by a jury, which returned a verdict in favor of plaintiff; and a judgment was entered in his favor for the damages awarded him by the verdict. Defendant moved for a new trial, which was denied, and from that order and the judgment he appeals to this court. Appellant's main contention is that the evidence is insufficient to justify the verdict. He admits that a break occurred by which the water of the reservoir escaped, but contends that it was not in the dam proper, but in the native earth at or near of the dam. But there is evidence tending to prove that the break occurred as alleged in the complaint, and that is sufficient to justify the verdict, although there is evidence tending to prove that the break occurred where the defendant alleges it to have occurred. It is a clear case of conflict of evidence, and we cannot disturb the order denying defendant's motion for a new trial on the ground of “insufficiency of the evidence to justify the verdict." There are two exceptions to rulings of the court in sustaining plaintiff's objections to questions asked of defendant's witness Smith. After testifying that he had "been in the water business thirty-five years,” and had “had experience with earth dams," he was asked by counsel for defendant, "What is your experience and observation in regard to the breaking of such earth dams through the earth at one end or the other?" Defendant's counsel objected to it as irrelevant. The court, in sustaining the objection, remarked that it did not see "how an earth dan might break would assist the jury in determining how the break in this case had occured," this not being an earth dam. The ruling was correct. Defendant's counsel then asked the follow. ing question: "Mr. Smith, how many different reservoirs of earth have you had charge of, and had under construction and management, during the last thirty-five years?” Plaintiff's counsel objected, and the objection was properly sustained. Defendant's dam was a wooden dam, and there is testimony tending to prove that it broke away by reason of the weakness of some of the timbers, which had become decayed by age and exposure. Any amount of familiarity with earth dams would not qualify a witness to testify as an expert in regard to wooden dams. The last ground upon which defendant's counsel insists is "irregularity in the proceeding of the court, and abuse of discretion by the court, by which defendant was prevented from having a fair trial." The spec ification is as follows: "That on the 12th day of February, A. D. 1889, this case was on trial from 10 o'clock A. M. to 5 o'clock P. M., at which time the court took a recess until 7 o'clock P. M., to which defendant's counsel objected, stating that he was too unwell to attend an evening session. At about twenty minutes to 9 o'clock P. M. defendant's counsel again stated he was physically and mentally unable to proceed further. The court directed defendant's counsel to go on and call his next witness, and defendant here assigns that this order and direction were such an irregularity and abuse of discretion as to prevent defendant from having a fair trial." While it would have been eminently proper, under the circumstances, for the court below to have granted counsel's request, it does not MCGUIRE . DREW et al. (No. 13,402.) (Supreme Court of California. Feb. 27, 1890.) NEW TRIAL-ABSENCE OF DEFENDANT-JURY TRIAL ORDERS. 1. The case was tried in defendant's absence. He knew, on the day before the trial, that it was set for that day; also that plaintiff would grant no further continuance. It did not appear that the result would have been different if he had been present. Held, that these facts did not show accident or surprise entitling defendant to have the judgment vacated, and to have a new trial. 2. The fact that defendant was a candidate for office, and on the day of trial was looking after the returns, did not excuse his negligence in failing to appear or secure representation at the trial. 3. Defendant telegraphed the judge, demanding a jury trial. Held, that it was immaterial that a jury was not ordered, as the court was authorized, by Code Civil Proc. Cal. § 631, to dispense with a jury, on failure of defendant to appear in person or by counsel. 4. The court proceeded with the trial of the case at the same time with another case against the same defendant, allowing the testimony, so far as applicable, to be used in both cases, though the witnesses were separately sworn, in each case. Defendant claimed that counsel who went to the court to demand a jury in this case, were thus prevented from doing so. Held, that the course pursued by the court was within its discretion, and, that as no demand for a jury and a continuance was made, it could not be said that defendant was injured thereby. 5. A ruling on the admission of evidence is not an order, within Code Civil Proc. Cal. § 1003, which declares "every direction of a court or judge made or entered in writing, and not included in a judg ment, is denominated an order,'" and must therefore be excepted to at the time it is made in order to be available on a motion for a new trial or on appeal, within section 646. Commissioners' decision. Department 1. Appeal from superior court, Sacramento county; W. C. VAN FLEET, Judge. Thomas J. Clunie, (Andrew J. Clunie, of counsel,) for appellant. R. T. Devlin, for respondent. GIBSON, C. This appeal is by T. J. Clunie alone, from a judgment rendered against himself and co-defendants, as partners, in an action prosecuted by plaintiff upon an account for material furnished to and work done for defendants; also from an order denying him a new trial, and an order refusing to vacate the judgment. At the time this case was called and set for trial another action was pending, which had been brought by Towle Bros. & Co. against the same defendants as partners, except C. A. Drew, to recover up | on an account for building material furnished to them, and it was set for trial for the same day, namely, November 14, 1888. Notice that the case had been set for trial on the date mentioned was given to the defendant Clunie. On the day of the trial the plaintiffs and defendants in both cases, with their counsel, were present, except the defendant Clunie, who neither appeared in person nor by counsel. The court, it seems, proceeded with the trial of both cases at the same time, although no order of consolidation appears to have been made; but in the case here separate findings were made, and a separate judgment thereon rendered, in favor of the plaintiff, and against the defendants N. L. Drew and T. J. Clunie, as partners under the name of Sacramento Warehouse Company; the court first having granted a nonsuit as to C. A. Drew, the other defendant. Subsequently defendant Clunie made a motion for a new trial, which was denied. He then moved to set aside the judgment, with a like result. The first motion was based upon the grounds of the irregularity of the proceedings on the trial; accident or surprise which ordinary prudence could not have guarded against; insufficiency of the evidence to justify the decision; and that the same was against law; and the second motion was upon the ground of mistake, inadvertence, surprise, and excusable neglect. Excusable neglect is not one of the grounds of a motion for a new trial, under section 657, Code Civil Proc.; but, by section 473 of the same Code, it is one of the grounds, in addition to the ground of surprise, upon which a judgment may be vacated. Hence we suppose appellant made the motion to vacate the judgment in order to avail himself of the ground of excusable neglect, and as this last motion embraces the ground of accident or surprise, and is more fully presented upon the affidavits that were used upon the hearing, we shall consider it first; and the disposition of it will include the other motion, upon the ground last mentioned. The facts relied upon to establish accident, surprise, or excusable neglect may be briefly stated, as follows: At a general election in this state on November 6, 1888, appellant was a candidate for congress in the fifth congressional district, embracing a portion of the city and county of San Francisco. The contest was very close between himself and his competitor; and in conse quence his presence in the city on that day, and almost continuously until the 23d of November, was necessary, in order that he might see that the returns were properly canvassed and declared. Having previously succeeded in obtaining from counsel for plaintiff a postponement of the trial until after the day of the election, on account of his political engagements, and relying upon his former success, he requested another postponement by letter, which the counsel for plaintiff on the 13th of November telegraphed he could not accede to. Thereupon the appellant notified the judge before whom the case would |