The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1895-10-12
COUNTY GOVERNMENT ACT OF 1891.
One of Its Provisions Declared to Be
Unconstitutional.
But This Does Not Necessarily Apply
to Any Other County Than
Siskiyou.

The Supreme Court has reversed the
judgment of the lower court in the case
of w. w. Turner (plaintiff and respond
emit against Siskiyou County defendant
and appellant. The action was brought
by Turner to recover fees and mileage of
himself and number of assignors as
witnesses in certain criminal case. The
defendant demurred to the complaint.
The demurrer was overruled. and. the
county declining to answer, Judgment
was rendered against it, and it appealed.
The Supreme Court, in its decision, says:
THE action is not based on Section 1929
OF the Penal Code. which is general in its
nature and applies to the whole State
and which gives q Judge the discretion
airy power to direct the County Auditor
to draw his warrant on the Treasurer for
a reasonable sum of money, to be speci-
fed in the order, for the necessary ex-
penseS OF a witness in criminal case
where 1T appears that he has come from a
place outside OF the county, or that he is
poor and unable TO pay the expense of
such attendance.'
at is brought under Subdivision Is of
Section 1870 of the County Government
Act lStats. OF 1881, p. $3.50, which pro-
vIdes that III counties OF the twenty
eighth class alone: Every person SUBJ
penaed as a witness 10 criminal case be-
lore the superior Court shall, su Dject to
the discretion of the Judge thereof, be en-
titled to the same per diem as jurors in
like case; pTOUlded, that such per diem to
witnesses only be allowed for actual days
attendance.
This provision is clearly unconstitu-
II 10
counties OF any other class. Other coun-
ties are subject, in the matter of juries III
criminal cases, either to Section 1929, Z.
u, above noticed, or to provisions very
similar to those of that section. The
County Government Act is essentially q
general law (Dougherty VS.. Austin, 81
Cal. COL, 632. 633), and the provision in
question does not have a uniform opera
tlOH as required by Section III of Article
/. of the State Constitution.
The difficulty is not removed by the
fact that the counties are classified, and
that the provision applies to all counties
OF e certain class, because under Section 3
OF Article y /. counties may be classified
only tor the purposes of regulating the
compensation OF certain public officers
therein enumerated. (Dougherty vs.
Austin, supra; Welch VS.. Bramlet, 50
Cal. 2ly.)
In all other respects the Legislature
shall establish system OF county gov
ernments which shall be- uniform
throughout the State Section t. Art.
Nj; Coady VS.. Murphy, 50 Cal. o. cited
by respondent, dealt with the salary
OF Sheriff, the very thing for which couu-
ties may be classified. The provision in
question in the case at bar is local and
special, because it is not iu force in ell
parts OF the State, and does not affect
equally either all the people or all indi-
VIuuals OF a class; aud il is therefore in
valid in system OF county governments
which must be uniform throughout the
State
''lt is not even uniform as to the particu-
lar individuals whom il seeks to reach,
because the allowance to be made de-
ponds upon the absolute will OF the
Judge. No rules or principles are given
or limited at by which he is to hear and
determine; no facts are to be found or
conclusions reached, judieially; he is not
TO inquire and determine, as under Sec
ton 1929, Z. e., whether the witness
came from without the county, or is poor
and unable to pay the expenses OF his at
tendance, and what would be reason
able sum for his necessary expenses.
but the witness, II ne receives any,
thing, no matter what his condition or
where his residence may be, is TO receive
the same per diem and mileage as jur-
ors,' and thus he is to receive, or not re-
ceiye, as the Judge may arbitrarily will
IF the provision in question could be
considered as an enactment independent
OF the County Government Act, which
must be uniform throughout the state, it
would still be a local and special law
within the prohibition of Section p of
Article ". of the Constitution; it would
be law regulating county =
business
The judgment is reversed with direc-
tons to the Superior Court TO sustain the
demurrer to the complaint"
The decision was rendered by Justice
Mcfarland, concurred in by Justices
Henshaw and Temple, the Justices COM
prising Department Two.