DAVID BIXLER'S APPEAL, 59 Cal. 550

The Court: 1. In view of the conclusion we have reached, it may be admitted (while we expressly decline so to decide) that the act, entitled “An Act providing for appeals from orders forming reclamation or swamp land districts, setting off lands from such districts, or consolidating districts,” is not

an act providing for appeals to the Superior Court, but is

an act providing for original proceedings, in that Court, for the formation of reclamation or swamp land' districts, setting off lands from such districts and consolidating districts: Further, construing the object of the act to be to provide for original and not appellate proceedings, it may be admitted (while we decline so to decide) that the title, which states the object of the act to be to provide for appeals, correctly expresses the object found, by construction, in the body of the act not to be to provide for appeals. (Act of April 16,1880, “providing for appeals,” etc.; Stats. 1880; Const., Art. iv, §24.) 2.

It may also be admitted (we expressly decline so to decide) that a proceeding to form a reclamation or swamp land district, or to set off lands from such district, or to consolidate districts, is a “ special case or proceeding,” judicial in its nature, of which the Superior Court has jurisdiction—the the case or proceeding not being “ otherwise provided for.” (Const., Art. vi, § 5.) 3.

It may further be admitted—although the act above referred to declares that the judgment of the Superior Court shall be “ final ”—that an appeal lies to this Court, if the Constitution confers upon this Court jurisdiction to entertain such appeal. 4. This Court has no jurisdiction of such appeal. (Const., Art. vi, § 4; Appeal of S. O. Houghton, 42 Cal. 35.) To what is said in the Appeal of S. O. Houghton we may add: It is clear that “ special cases or proceedings” are not included in the “cases at law,” in which this Court is given appellate jurisdiction by the fourth

section of

Article vi of the Constitution, because, in the fifth

section of the same

article “ special cases and proceedings” are spoken of as constituting a separate and distinct class from such “ cases at law.” In

Section 4 of

Article vi of the Constitution—the

Section which enumerates the classes of cases in which the Supreme Court has appellate jurisdiction—are mentioned all the classes of civil cases in which the Superior Court is given original jurisdiction (by the fifth

Section of the same Article), except “ actions of divorce and annulment of marriage,” and “ special cases and proceedings,” and except, also, that the appellate jurisdiction of the Supreme Court is declared to extend to “ probate matters” only where an appeal is provided by law.

Unless actions of divorce, or for annulment of marriage, or special cases and proceedings are included within some other class of those enumerated, it would seem very clear that it was not the intention of the Constitution to confer upon the Supreme Court appellate jurisdiction in actions of divorce; or for annulment of marriage, or in special cases and proceedmgs.

If, indeed, we could clearly see that actions for divorce were included within one of the classes previously mentioned, or that “ special cases” were so included, we might hold that the class thus included, would be appealable, notwithstanding it was specifically and separately mentioned in the

section of the Constitution which treats of the Superior Courts; that it was specifically and separately mentioned ex abundanti cautela, and only lest it might otherwise be supposed not to be included in the classification which precedes it.

Whatever bearing this suggestion may have upon the question whether, under our systems of laws, suits for divorce or an “ annulment of marriage” can be entertained by courts of equity, to be resorted to by a party to a civil contract (marriage) as a means of relieving him or herself of its obligations, it has no force when applied to “ special cases and proceedings.” These are neither cases in equity, nor cases at law involving the validity of a tax, etc.

Nearly thirty years prior to the adoption of the Constitution of 1879, they had been defined by the Supreme Court of the State as something entirely different—“ new cases the creation of statutes, and the proceedings under which are unknown to the general framework of courts of law and equity”—as not including any class of cases for which courts of general jurisdiction had .always supplied a remedy. (Parsons v. Tuolumne Water Co., 5 Cal. 43. See, also, Saunders v. Haynes, 13 id. 145; Dorsey v. Barry, 24 id. 449; Jacks v.

Day, 15 id. 91.) It was in the sense in which these words had long been construed that they must be supposed to have been employed by the framers of the last Constitution. 5. It has been suggested that the views of the Supreme Court, as expressed in the opinions of Justices Crockett, Wallace, and Temple in Appeal of S. O. Houghton, were subsequently modified in De Witt v. Duncan, 46 Cal. 345, and Spencer Creek Water Company v. Vallejo, 48 id. 73. But De Witt v.

Duncan was a bill in equity, by which the plaintiff sought to have a covenant executed by the tenants in common in a block of land, to lay out a street through the block on a line supposed to be the middle of the block (but which was not in fact in the middle) enforced by a decree adjudging that the street be declared to be in the middle of the Mock. A decree to that effect was entered in the District Court, and was, of course, appealable. In Spencer Creek Water Company v.

Vallejo, proceedings had been commenced and conducted before the County Judge for the condemnation of the waters of the creek, and a final order of condemnation made by that officer. On appeal from this order the Supreme Court held that the County Judge (as distinguished from the County Court) had no jurisdiction of the special proceedings.

The Supreme Court did entertain the appeal, and in the opinion would seem to have construed the decision in the Appeal of Houghton as a determination that the Supreme Court had no appellate jurisdiction of the proceedings there sought to be reviewed, “ because the statute had declared that the judgment of the County Court should be final —in other words, because no appeal had been provided.” (Id. 72.) It would not have been necessary, in the present case, to express an opinion upon the question whether the decision in the Appeal of Houghton was properly interpreted in Spencer Creek Water Company v. Vallejo.

Assuming' (but not admitting) that the decision in the first case was properly construed in the second, the decision in the Appeal of Houghton, at least as construed in Spencer Creek Water Company v. Vallejo, has never been overruled. As the act considered in Houghton’s Appeal declared that the judgment of the County Court should be final, so the act of April 16, 1880, declares that the judgment of the Superior Court shall be final.

No additional force would be given to the finality of the judgment by the words “ and conclusive.” Those words are not mentioned in the opinion in the Spencer Creek case—so unimportant were they considered. A judgment is sometimes said to be final to distinguish it from an interlocutory order or judgment in the same court. A judgment is also a final judgment which is a final determination, shutting off or concluding any further proceedings in the cause, by an "appeal or otherwise. It was in the latter sense that the word “final” was used in the statute construed in Houghton’s Appeal.

It is in the same sense that the word is used in the statute now before us. The special proceedings are prescribed in the Acts relating to swamp land districts, and if the statute of April 16, 1880, is valid, the modes provided by those Acts are to be pursued in the Superior Court, where the matters are there “ tried anew.” Such proceedings culminate in an order or judgment by the Supervisors forming a district," or setting off lands from a district, or consolidating districts, which order or “judgment ” of the Board was, until the passage of the Act of April 16th, final and unappealable.

If the members of the Board exceeded their powers, so far as they might be . held to be judicial, their action might be annulled by certiorari; but there was no appeal. When the matter determined by the Board is “tried anew” in the Superior Court, the judgment of that Court is not put by the language of the statute in opposition to any previous decretal order or interlocutory decree in the same proceeding.

But one judgment is spoken of, and in the sentence in which the word “ final ” is used it can mean nothing, except that the judgment shall be followed by no other proceedings determinative of the rights of the parties in the same or any other Court. The present case comes clearly within the rule laid down in Houghton’s Appeal, even if that rule be limited, as it is apparently sought to be limited in Spencer Creek Water Co. v. Vallejo. 6. The “ order and judgment ” of the Superior Court dismissing the appeal from the Board of Supervisors is a final judgment.

If it be urged that it is not the judgment which alone is prescribed by the statute, it is, nevertheless, a judgment in the special proceedings, from which no appeal is provided. Appeal dismissed.