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either judgment or order when it appears, as in this case, that such course was had without objection by plaintiff. The plaintiff, by his conduct, waived the right to object to the course pursued herein, which was nothing more than an irregularity. Clapp v. Graves, 26 N. Y. 418. It would be highly unjust to allow the plaintiff to object now to a procedure to which he consented by not objecting in the court below before the trial was entered on, when he should have made the objection. He should not be allowed thus to speculate on the result of the trial; taking advantage of such result if in his favor, and annulling it if adverse to him.

It is said that there is no finding on the issue raised by the crosscomplaint of J. M. McDonald, and the answer on the point that no part of the principal or interest of the note upon which judgment was entered had been paid. The finding on this point is "that there is due from plaintiff to defendant James M. McDonald the whole of the principal sum of said promissory note, together with accumulated interest thereon, in accordance with the terms of said note, amounting, on the twenty-fifth of January, 1881, to $18,891.16, making in the aggregate the sum of $26,891.69." The findings further state "that the rate of 2 per cent. on the sum $26,891.69, the amount found due in the case, viz., $672.75, is a reasonable counsel fee for counsel of defendant James M. McDonald." And the court finds the following conclusions of law:

"That defendant James M. McDonald is entitled to recover of the plaintiff, J. R. Meyers, the sum of $26,891.69, the amount of principal and interest due on said note, and the sum of $672.75, the amount of said counsel fees, making in the aggregate the sum of $27,563.94, besides costs of suit; and to have the said stock sold by the sheriff of the city and county of San Francisco, California, and the proceeds applied to the payment of the said amounts, and for judginent to be docketed against the said plaintiff for any deficiency which may remain after."

We think the clauses selected from the findings and the conclusions of law show that the word in the findings criticised is used in the sense of owing and unpaid, and that something more than a conclusion of law is stated by using the word "due," and that the fact is found that the sum recovered has never been paid to defendant J. M. by plaintiff. We think the court found on all the material issues joined by plaintiff and J. M. McDonald.

We perceive no error in denying plaintiff's motion to set aside the judgment, for the reason that the trial was had without objection by plaintiff; the judgment which was rendered and entered following logically upon the findings of fact reached on the trial so had.

For the foregoing reasons the judgment in favor of M. L. McDonald is reversed, and the cause remanded for a new trial, and the judgment and order in favor of James M. McDonald is affirmed. So ordered.

We concur: MYRICK, J.; MORRISON, C. J.; Ross, J.

(68 Cal. 142)

MILLER V. KISTER. (No. 11,119.)

Filed November 30, 1885.

1. SALARIES OF PUBLIC OFFICERS-POWER OF LEGISLATURE TO CHANGE. Salaried public offices, created by the legislature, are not held by contract or grant, and the legislature has full control over them, except where restricted by the constitution, and may abolish them altogether, or impose upon them new duties, or reduce the salaries; but in exercising such power the legislature must, under the California constitution of 1879, control and regulate them by general laws only.


The amendments of 1885 to the California county government act of 1883 are general laws as far as concerned the subjects embraced therein,-i. e., the classification of counties, and the compensation of officers within the classified counties,-but, as regards the provisions restricting their operation as general laws, namely, where they discriminated as to the salaries of officers of certain classes unfavorably,-such restriction prevented the uniform operation of the law, and was in effect special and local legislation, and therefore unconstitutional, under subdivision 20, art. 4, of the constitution.

In bank. Appeal from superior court, county of Mono.
O. F. Hakes, for appellant.

W. O. Parker, for respondent.

MCKEE, J. Application for a writ of mandate to compel the county auditor of Mono county to draw a warrant on the county treasury in favor of the petitioner for the sum of $250, which he claims to be due and owing to him by the county, for his salary as county clerk of the county, for the month of March, 1885. The petitioner was elected at the general election in 1884. He qualified according to law, and entered on the discharge of his official duties on the first Monday in January, 1885. From that time until the first of April, 1885, he received compensation for his services at the rate of $250 per month, under the provisions of an act entitled, "An act to establish a uniform system of county and township governments," approved fourteenth of March, 1883. St. 1883, p. 299. By the provisions of that act, Mono county, having a population of more than 7,000, and less than 7,500, entered the class of counties known and designated as the thirty-fifth class; and the compensation of the county clerk of the county was fixed at $3,000 per annum, payable monthly out of the county treasury upon warrants to be drawn by the county auditor. Sections 162, 163, 169, pp. 334, 354, 363, St. 1883. But on the first of April, 1885, when the petitioner made demand of the auditor for his usual warrant for the month of March, the auditor refused him. a warrant for any greater sum than $133, upon the ground that the legislature, by an act passed on the eighteenth of March, 1885, reduced salaries of county clerks of the thirty-fifth class to $1,600 per


The power of the legislature to regulate the compensation of all county and township officers in proportion to duties, and, for that purpose, to classify the counties of the state by population, is unquestionable. In the exercise of that power the legislature, by the act

of 1883, carried out the commands of the constitution upon those subjects; and the act has been adjudged by this court constitutional. Logan v. Solano Co., 65 Cal. 122; S. C. 3 Pac. Rep. 463. But on the eighth of March, 1885, the legislature, by several enactments, revised the act of 1883, by amending section 162, "relating to the classification of counties," and "by amending and revising and subdividing into new sections" a number of the sections of the act, among which was section 163, relating to the compensation of county officers in counties of the thirty-fifth class, etc. St. 1885, pp. 166, 194, 195. The classification of Mono county was not changed by the amendments. The county still remained in the thirty-fifth class. But it was provided that the county officers of that class shall "receive, as compensation for the services required of them by law or by virtue of their office, the following salaries, to-wit: "(1) The county clerk $1,600 per annum,” etc.

The enactments of 1885 were made during the incumbency of the petitioner in office, and the act of 1883 was passed before his election, and was in force as law when he qualified and entered into office. But it is well settled that salaried public offices, created by the legislature, are not held by contract or grant. The legislature has full control over them, unless restricted by the constitution, and may abolish them altogether, or impose upon them new duties, or reduce their salaries. Attorney General v. Squires, 14 Cal. 12; Christy v. Board of Sup'rs, 39 Cal. 3. Yet, in exercising its powers over such offices and officers the legislature must control and regulate them by general laws, free from any unconstitutional provision. The amendatory acts passed in 1885 must be regarded as general laws upon the subjects embraced by them; i. e., the classification of counties. and the compensation of officers within the classified counties. But as general laws, the legislature restricted their operation as follows:

"Sec. 3. The salaries herein provided shall not take effect nor be in force until the expiration of the terms of the present officers, except as hereinafter provided. Sec. 4. The salaries herein provided for the officers of the tenth, thirty-fifth, and forty-sixth classes shall take effect and be in force from and after the first day of the first month next succeeding its passage.'

By these sections the operation of the law upon the subject of the compensation of officers in the 52 counties of the state, except the counties of three classes, is suspended until the expiration of the terms of the then incumbents in office, and is put in force almost immediately upon officers of the three specified classes. Unquestionably, the legislature has power to suspend the operation of the general laws of the state. "But when it does so," says Cooley, in his work on Constitutional Laws, page 391, "the suspension must be general, and cannot be made in individual cases or for particular localities."

A law speaks from the time of its going into effect. People v. Johnston, 6 Cal. 673. In 45 of the 48 classes into which the 52 coun

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ties of the state have been divided, the statutes of 1885 do not speak at all. They speak only in counties of three classes. In other words, after classifying the counties of the state, and regulating the compensation of the county officers therein, the laws by which the classification and regulation are accomplished are declared inapplicable during the terms of office of officers of 45 of the 48 classes, and applicable during the terms of office of three classes only; the operation of the law is therefore exceptional and eccentric, and is causative of discrimination between the officers upon which it is to operate. It in effect declares that the law shall not operate upon the large majority of county officers in the counties of the state, but shall operate upon the officers of three or four counties only. The very few are thereby excluded from the privileges accorded to the many. This the legislature could not do. The constitution requires that all laws of a general nature shall have a uniform operation. Section 11, art. Where particular persons are excepted from the operation of a general law, it destroys the uniformity of its operation. Omnibus R. Co. v. Baldwin, 57 Cal. 165. So it is said in French v. Teschemaker, 24 Cal. 544:


"The legislature cannot discriminate or grant an indulgence to one which is not accorded to another. Every general law must have a uniform operation; that is to say, it must operate equally upon all persons and upon all things upon which it acts at all."

Besides, the section of the law which produces such effect is special and local legislation, and objectionable to subdivision 29, art. 4, of the constitution. As, therefore, section 4 of the act of 1885 (p. 195, St. 1885) has the effect of destroying the uniformity of the operation of the law, and is special and local in its character, it is an unconstitutional provision. Christy v. Board of Sup'rs, 39 Cal. 3. That being the case, the petitioner is entitled, during his incumbency in office, to the compensation awarded him under the act of 1883. Judgment and order affirmed.

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Ross and MYRICK, JJ., (concurring.) We concur in the judgment on the ground that section 4 of the act of 1885 is in effect a special law as respects the counties therein referred to, which, by the twentyninth subdivision of section 25 of article 4 of the constitution, the legislature is prohibited from passing.

(68 Cal. 146)


Filed November 30, 1885.

1. DIVERSION OF WATER-INJUNCTION AGAINST ALLEGATIONS OF COMPLAINT. Complaint in action by appropriator of water in stream to restrain unlawful diversion thereof need not allege that plaintiff is in a position to use the water himself, or that he is in any position which gives him a right to furnish it to others, but it is sufficient if he allege that he has a right to the use and enjoyment thereof.


A continuous wrongful diversion of water will be restrained in equity at the instance of a prior appropriator thereof, although no actual damages are averred or proved, the relief being granted in such cases to prevent the wrongful acts from ripening into a right.


A finding that "all the allegations of the complaint herein are true," etc., and that "all the allegations of the answer herein are untrue," is sufficient. In bank. Appeal from superior court, county of Yolo.

Fox & Kellogg, for appellant.

W. B. Treadwell, F. E. Baker, and Wallace, Greathouse & Blanding, for respondent.


MORRISON, C. J. This case comes before us on the judgment roll alone, and the principal points are as to the sufficiency of the complaint and findings to support the judgment. The alleged cause of complaint is the diversion of water by defendant from plaintiff's ditch from a stream known as Cache creek, in the county of Yolo. There are two counts in the complaint; the first of which alleges"That the plaintiff is the owner. and in the possession of a certain water ditch in said Yolo county, generally known and called the Woodland' or Moore's' ditch, which commences and heads in a natural water-course or stream flowing through said county, well known as Cache creek,' at a point in said creek near the north-east corner of the lands belonging to the estate of W. J. Campbell, deceased, and runs thence in a general easterly course about two and one-half miles to a point where it branches or forks, one branch or fork thereof running thence in a general south-easterly direction about five miles, and the other branch or fork running from said point in a general north-easterly course about two and one-half miles; that said ditch, during all the times hereinafter mentioned, had the capacity to carry one hundred and eighty cubic feet of water, running and flowing at the velocity of four feet per second; and that plaintiff and his grantors and predecessors in interest have been the owners of, and in the possession of, said ditch, and using and operating the same, for more than ten years next before the commencement of this action. Plaintiff further alleges that he is the owner of certain water-rights, viz., the right to appropriate and take out from the waters of said Cache creek, flowing naturally therein at the head of said ditch, so much water as said ditch has the capacity to carry as aforesaid, and to divert the same into and through said ditch, and to use said water and furnish the same to others, to be used for domestic, stock, and agricultural purposes; and that he and his grantors and predecessors in interest have been the owners of such water-rights continuously for more than ten years next before the commencement of this action, and have, during said time, except when such rights were interrupted by defendant, as hereinafter stated, been in the uninterrupted use and possession of such water, and diverted the same at said point, and used and furnished the same to others to be used for domestic, stock, and agricultural purposes. Plaintiff further alleges that said defendant, by means of a

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