The act in question is not a special law, nor is it an attempt to regulate practice in a court of justice. (McDonald v. Conniff , 99 Cal. 386; Dougherty v. Austin , 94 Cal. 603.) Classification of counties according to population was within the constitutional power of the legislature. (Longan v. County of Solano , 65 Cal. 125; Cody v. Murphey , 89 Cal. 522; Bishop v. City of Oakland , 58 Cal. 572.)

JUDGES: McFarland, J. Henshaw, J., and Temple, J., concurred.

OPINION

McFARLAND, Judge

The defendant demurred to the complaint; the demurrer was overruled, and, defendant declining to answer, judgment was rendered for plaintiff. Defendant appeals from the judgment.

The action was brought by plaintiff to recover for fees and mileage of himself and a number of assignors, as witnesses in a certain criminal case tried in the superior court of Siskiyou county. The action is not based on section 1329 of the Penal Code, which is general in its nature and applies to the whole state, and which gives a judge the discretionary power to direct the county auditor to draw his warrant upon the treasurer for a reasonable sum of money, to be specified in the order, for the necessary expenses of a witness in a criminal case, "where it 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." It is brought under subdivision 16 of section 190 of the County Government Act (Stats. 1891, p. 385), which provides that in counties of the twenty-eighth class alone, "Every person subpoenaed as a witness in a criminal case before the superior court shall, subject to the discretion of the judge thereof, be entitled to the same per diem and mileage as jurors in like case; provided, that such per diem to witnesses only be allowed for actual days' attendance."

This provision is clearly unconstitutional and void. It does not apply to counties of any other class. Other counties are subject, in the matter of juries in criminal cases, either to section 1329 of the Penal Code above noticed or to provisions very similar to those of that section. The County Government Act is essentially a "general law" (Dougherty v. Austin , 94 Cal. 601, 632, 633), and the provision in question does not have a "uniform operation" as required by section 11 of article I 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 a certain class; because, under section 5 of article XI, counties may be classified only for the purposes of regulating the compensation of certain public officers therein enumerated. (Dougherty v. Austin, supra ; Welsh v. Bramlet , 98 Cal. 219.) In all other respects "the legislature shall establish a system of county governments which shall be uniform throughout the state." (Const., Art. XI, sec. 4.) Cody v. Murphey , 89 Cal. 522, cited by respondent, dealt with the salary of sheriff -- the very thing for which counties may be classified. The provision in question in the case at bar is local and special, because it is not in force in all parts of the state, and does not affect equally either all the people or all individuals of a class; and it is therefore invalid in a system of county governments which must be "uniform throughout the state." It is not even uniform as to the particular individuals whom it seeks to reach, because the allowance [42 P. 435] to be made depends upon the absolute will of the judge. No rules or principles are given or hinted at by which he is to "hear and determine"; no facts are to be found or conclusions reached, judicially; he is not to inquire and determine, as under section 1329 of the Penal Code, whether the witness came from without the county, or is poor and unable to pay the expenses of his attendance, and what would be a reasonable sum for his necessary expenses; but the witness, if he receives anything, no matter what his condition or where his residence may be, is to receive "the same per diem and mileage as jurors," and this he is to receive or not receive 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 25 of article IV of the constitution; it would be a law "regulating county. .. . business."

The judgment is reversed, with directions to the superior court to sustain the demurrer to the complaint.