county of San Francisco) which is arbitrary and absolute, without the possibility of equalization by the board of supervisors, as it provides for assessment to be made after the time within which the board can act. The legislature has no power thus to deprive the citizen of an, opportunity of appearing before the board for the purpose of contesting the amount assessed against him. The ninth section is violative both of the constitution of the state and of the fourteenth amendment of the constitution of the United States.

It is urged that defendant cannot rely upon the invalidity of the statute, because he failed to furnish the assessor with a list of his taxable property. The Political Code makes it the duty of the assessor "to exact" from each person a statement, under oath, setting forth specifically all his real and personal property, etc. Section 3629. And section 3633 provides:

"If any person, after demand made by the assessor, neglects or refuses to give, under oath, the statement herein provided for, or to comply with the other requirements of this title, the assessor must note the refusal on the assessinent-book, opposite his name, and must make an estimate of the value of the property of such person; and the value so fixed by the assessor must not be reduced by the board of supervisors."

There is no finding in the transcript that the assessor demanded or attempted to exact from defendant the statement mentioned in section 3629, or that defendant neglected or refused to give under oath the statement "after demand made by the assessor.' Moreover, the statute provides the penalties for a failure to furnish the statement after demand made by the assessor. First, the person refusing to make the statement is liable to pay $100. Pol. Code, § 3682. Second, he is deprived of the right to have reduced the valuation placed upon his property by the assessor prior to the adjournment of the county board of equalization. Pol. Code, § 3633. Pol. Code, § 3633. That such is the meaning of section 3633 is apparent from the language therein employed. The last clause declares "the value so fixed by the assessor must not be reduced by the board of supervisors," and clearly indicates the valuation referred to must be made before the adjournment of the board as a board of equalization. We are not authorized to add any third consequence as resulting from the failure to furnish a list of property, even where a list or statement has been demanded by the assessor,a fortiori, (under the pretense of imposing a third and distinct penalty upon a failure to furnish the statement of property,) to vitalize and render operative a provision of the statute clearly violative of the constitution. Neither City and County of San Francisco v. Flood, 2 Pac. Rep. 264, nor Orena v. Sherman, 9 Pac. C. Law J. 814, is in conflict with the views above expressed. In both the assessment was made by the assessor prior to the meeting of the county board of equalization. In Orena v. Sherman it appeared that the assessor had entered in his assessment-book that the party assessed had refused to furnish a statement of his property, and thereby declared and deter

mined that demand had been made, and the list refused. Judgment reversed.

We concur: MCKEE, J.; MORRISON, C. J.; SHARPSTEIN, J.; Ross, J.

We dissent: MYRICK, J.; THORNTON, J.

(67 Cal. 624)

PEOPLE ex rel, etc., v. STROTHER, Auditor, etc.

Filed October 30, 1885.

CONSTITUTION OF CALIFORNIA-VALIDITY OF AMENDMENTS.

(No. 11,284.)

The amendment of article 13 of section 9 of the California constitution of 379 was constitutionally adopted.

în bank. Application for a mandamus.

E. C. Marshall, Atty. Gen., W. T. Baggett, and Hall & Rodgers, for petitioners.

Doyle, Galpin & Scripture, for respondents.

MYRICK, J. Application for mandamus to compel the auditor of the city and county of San Francisco to enter in his books an increase of the assessments by adding a percentage in accordance with the direction of the state board of equalization. The reasons presented on behalf of the auditor why the writ should not issue have been considered by us. For lack of time, we cannot enter into a full discussion in this judgment of those reasons. As the time for performing the duty is rapidly passing, it is of more immediate importance to know the duty than its reasons. Other cases are before us involving some of the questions here concerned; and in those cases we shall give our views more at length. The substantial question involved is whether the amendment of section 9 of article 13 of the constitution was properly adopted. Independent of that question there is but little in the objections urged on behalf of respondent; no matter appears to us which renders it impossible for him to comply with the order. We are of opinion that the amendment referred to was constitutionally adopted. Let the writ issue as prayed for forthwith.

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

(67 Cal. 633)

SHEARER v. CITY OF OAKLAND. (No. 8,479.)

Filed October 31, 1885.

JUSTICE OF THE PEACE-CONSTRUCTION OF CALIFORNIA ACT OF APRIL 1, 1880. Section 103 of the California act of April 1, 1880, entitled "An act to amend part 1 of the Code of Civil Procedure, and each and every title, chapter, article, and section of said part 1, and substituting a new part 1," etc., was intended to apply to justices of the peace elected at the general election of 1879 as well as to those justices elected after the act took effect. Department 1. Appeal from superior court, county of Alameda. Sextus Shearer and J. G. McCallum, for appellant.

J. M. Poston and John Yule, for respondent.

BY THE COURT. The demurrer to the complaint was sustained by the court below on the ground that section 103 of the act entitled "An act to amend part 1 of the Code of Civil Procedure, and each and every title, chapter, article, and section of said part 1, and substituting a new part 1 to take the place thereof in said Code, relating to courts of justice and various officers connected therewith," approved April 1, 1880, was only intended to apply to such justices of the peace as should be elected after it took effect. In this we think the court was in error. There is nothing in the language of the act indicating such intention, and that the legislature, in enacting it, had in mind the justices of the peace elected at the general state election of 1879, of which the plaintiff was one, is shown by section 110, which reads: "The term of office of justices of the peace shall be two years from the first day of January next succeeding their election: provided, that all justices of the peace elected at the general state election of 1879 shall go out of office at the end of one year from the first day of January, 1880."

In our opinion, the provisions of the act of April 1, 1880, applied from its taking effect as well to such justices of the peace elected at the general election in 1879 as to those elected subsequently.

Judgment reversed, and cause remanded, with directions to the court below to overrule the demurrer to the complaint.

(34 Kan. 293)

SUPREME COURT OF KANSAS.

SMITH and another v. SMITH.

Filed November 7, 1885.

1. WAYS-ESTABLISHMENT OF PUBLIC ROAD RUNNING THROUGH GOVERNMENT

LANDS.

A public road cannot be established by prescription or limitation while the land over which the road runs belongs to the United States.

2. SAME-PRESCRIPTION.

Nor can any portion of the time while the land belongs to the United States be counted in establishing a public road by prescription or limitation. 3. SAME-OCCUPATION BY PRE-EMPTOR.

And this is true, although the land at the time may be occupied by a person intending to obtain the land under the pre-emption or homestead laws of the United States, but who has not yet done all that he is required to do in order to obtain the title to the land under such laws.

4. SAME-DEDICATION BY PRE-EMPTOR.

Nor can a person who is thus occupying a piece of government land, intending to obtain the same under the pre-emption or homestead laws, dedicate it, or any portion thereof, for a public road until he has done all that he is required to do in order to obtain the title to the land under such laws.

5. SAME-UNIMPROVED AND UNOCCUPIED PRAIRIE LAND.

A public road cannot be established by prescription or limitation while the land over which the road runs is unimproved and unoccupied prairie land, over which all people may travel at their pleasure.

Error from Linn county.

On May 31, 1881, Ed. R. Smith filed the following petition in the district court of Linn county, omitting court and title:

"Said plaintiff, for a cause of action against said defendant, says that he resides upon, is in possession, cultivates, and is the owner of, the following lands and tenements in Linn county, Kansas, to-wit, the west half of the north-east quarter of section 14, and the west half of the south-east quarter of section 11, all in township 22, range 23; that he occupies and cultivates said land as a farm, and it is the homestead of himself and family; that he has so occupied and owned said land for a number of years last past; that running through said land east and west is a public highway, which public highway commences two or three miles west of said land and runs in an easterly direction through other lands west of said land, and enters said land about thirty rods south of the north-west corner of the north-west quarter of said north-east quarter of section 14, and from thence runs east, nearly parallel with the north line of said section, through said west half of the north-east quarter of section 14, and then in the same direction east through the east half of said north-east quarter of section 14, and through, in the same direction, the north-west quarter of section 13, in said township and range, and thence in an easterly direction to Mound City, in Linn county, Kansas. Plaintiff further says that said highway has been used by the public and by said defendant in passing and repassing thereon as a public highway continuously from 1859 until it was obstructed in March, 1881, by said defendant, as hereinafter more fully set forth; that in 1859 a road was viewed by the supervisors of Mound City township, in said county, across said lands, near to and over the same road, which survey was duly recorded in the township records of said township, and that ever since said survey said road has been used by the people of Linn county, Kansas, as a public highway, with the consent and assent of said defendant; that said defendant has resided upon a farm of which the said east v.8P,no.7-25

half of the north-east quarter section 14 is a part, the other part being the east half of the south-east quarter section 11, town 22, range 23, ever since said survey was made, and has recognized and used said road as a public highway ever since; that he has built a fence on both sides of said road where the same crosses the said east half of the north-east of said section 14, and has, as overseer of the public highways in the road-district in which said road is located, repaired said road, built culverts and bridges thereon, and kept the same in repair as a public highway.

"Plaintiff further says that he has used said road as a public highway in passing to and from Mound City, the county-seat of said county, the trading point, milling place, and post-office of said plaintiff, from his said farm continuously for the last 24 years; that during said time he has used no other road than the said road across the defendant's said land in going to and returning from Mound City from his said farm; that across his own land he has built fences on each side of said road, and has built his dwelling house, stables, outhouses, pens, and fields with reference to said road, and adjacent and handy to the same; that in going to the railroad station he has passed over said road continuously, and he has no other eastern outlet from his house and farm than over said road.

"Plaintiff further says that said defendant has built his houses, outhouses, planted his orchard, constructed his fields on his farm, being the said E. of S. E. section 11, and the E. of N. E. 4 of said section 14, town 22, range 23, adjacent to and convenient to said road.

"Plaintiff further says that on or about the twentieth day of March, 1881, said defendant did willfully obstruct said road by placing posts firmly in the ground on said road, and attaching three strands of barbed wire firmly to said posts across said road, and by placing brush and timbers in said road; that said obstructions are and were placed on and across said road by said defendant on the said day, and at the point on said road where it enters upon the said east half of the north-east quarter of said section 14, and like obstructions where said road crosses the east line of said land: that said defendant has been frequently requested by said plaintiff, and others who use said road, to remove said obstructions, but that he refuses to remove the same, or any part part thereof, and still maintains the same, and has kept the same in and across said road since said twentieth day of March, 1881, and that by reason thereof said plaintiff has been wholly deprived of the use of said road since said date, to his damage in the sum of five hundred dollars; that he has been compelled to go three miles around, because of said obstructions, in going to and returning from Mound City, and in going to and returning from the railroad station, and that his family and each member thereof has been compelled to go a like distance in making the same travel; and that said obstructions greatly inconvenience and damage said plaintiff in the use and enjoyment of his said farm and homestead, to his damage as aforesaid.

"Wherefore, plaintiff demands judgment against said defendant for the sum of five hundred dollars; that said highway be adjudged a legal highway, and that the same may be opened to the public for public travel; for other relief, and costs."

On June 27, 1881, S. W. Smith, the defendant, filed his demurrer to the petition, alleging that sufficient facts were not stated therein to constitute a cause of action, and also alleging that the plaintiff had no legal capacity to sue. On July 20, 1881, the demurrer was argued and overruled. On September 7, 1881, the defendant filed his answer, admitting therein himself to be the owner and in the possession of the E. of the S. E. section 11, and the E. of the N. E. sec