I dissent from the order denying a rehearing of this cause and from the decision of the court.
The decision rests upon the ground that section 394 applies only to actions as contradistinguished from special proceedings, such as the proceeding under sections 1237 of the Code of Civil Procedure et seq. to condemn lands. But no notice is taken of section 1256 of that title, which expressly provides that "Except as otherwise provided in this title, the provisions of part II of this code are applicable to and constitute the rules of practice in the proceedings mentioned in this title." Section 394 is one of the provisions of part II of the Code of Civil Procedure, and therefore constitutes one of the rules of practice in eminent domain, unless it is in conflict with the special provisions of that title. I find no such conflict. The general rule that proceedings to condemn must be commenced in the county where the property is situated is in no wise impaired by giving effect to the special and exceptional provision that when such a proceeding has been commenced by a county or city against citizens of another county the proceeding must, on demand of the defendants, be transferred to a county other than the plaintiff county, or the county where the plaintiff — if a city — is situated. (Code. Civ. Proc., sec. 394) If sections 394 and 1243 were in the same title, there could be no doubt of this construction, and section 1256 has the effect of bringing them, for the purpose of construction, into the same title — "Eminent Domain."
The reasons upon which the proviso in section 394 rests demand this construction. Its purpose is to relieve defendants in actions by cities and counties of the disadvantages of local bias on the part of citizens and taxpayers of the county or city plaintiff; and this reason applies with the same force to proceedings to condemn as to actions of any character. *Page 583