The judgment of the County Court, which is the subject of this appeal, was rendered upon a Commissioner’s report, filed before it, after recommitment of a previous report, under the provisions of an Act of March 30th, 1868, and the Act of February 1st, 1870, amendatory thereof authorizing the Board of Supervisors of the City and County of San Francisco to modify the grades of certain streets. By the amendatory statute it is enacted, that “the said County Court shall have power to render a judgment as to said report, or as to any of the matter therein contained; and such judgment of said County Court, as to the premises, shall be final and conclusive.” (Sec. 13.)
The respondent has submitted a motion here, that the appeal taken be dismissed upon the ground that, in the proceeding aforesaid no appeal is allowed by the statute already referred to.
That the amendatory statute of February 1st, 1870, not only does not authorize the appeal in question, but, on the contrary, that its purpose was to absolutely prohibit any appeal whatever in this case, is most evident and unmistakable, upon examination of its provisions. Upon this point I, therefore, concur in the conclusion announced by Mr. Justice Crockett, and, in the main, in the reasoning through which he has reached it. I think, too, that the result which follows must necessarily be, that the motion to dismiss the appeal is to be granted.
Independently of rules adopted by this Court on the subject (and there are none), an appeal, as a mere procedure, is defined by statute; it is essentially the creature of the statute, and may be accorded or withheld, restrained, enlarged, or wholly abrogated by legislative enactment. It cannot be affirmed to have any existence, except as found in the expression of the legislative will. The Constitution *59has not undertaken to define it, or to secure its benefits, to any person, as against the legislative control. While that instrument has defined the cases to which the appellate jurisdiction of this Court extends, it has not attempted to provide, in any wise, for the mere instrumentalities through which that jurisdiction is to be exercised. It has left that subject wholly at large, and to be provided by the Legislature, through statutes enacted, or, in default of them, by this Court, through rules adopted for that purpose. The jurisdiction of this Court, as defined by the Constitution, it is true, is in no sense dependent upon legislative provisions for its appropriate exercise. It exists, and is capable of effective assertion, independently of legislative aid as to the procedure through which it is to be exerted. In general, but not always, the proceedings by which causes reached this Court have pursued the provisions in that respect prescribed by the statutes of the State; for in general, but not always, these provisions have been found to be sufficient for the due exercise of the appellate power of the Court over the subject committed to it by the Constitution. In the year 1854, however, the Legislature, having failed to provide any means by which judgments rendered upon applications made for writs of habeas corpus might be reviewed here, and the means provided by legislation for the review of certain judgments rendered in the County Courts have failed of their purpose, this Court, nevertheless, exercised its appellate power over such judgments, through the instrumentality of appeals and writs of error prescribed and regulated under its own rules, and by its own authority. (Vide Rules of Supreme Court of California, adopted October Term, 1854, Vol. 4, Cal. R.) But whether it be under a statute or under a rule of Court, it is clear that, unless the one or the other has authorized an appeal to be taken in cases of a particular class or character, no appeal, in such cases, can be entertained here, even though such cases be, *60in themselves, cases within the appellate jurisdiction of the Court, as defined by the Constitution. Should we even assume, therefore, that the case at bar is included within the expression of section three hundred and fifty-nine of the Practice Act; that it involves the “ legality of an assessment;” or that it is “ a special case within the appellate jurisdiction of the Supreme Court;” and so, in the one way or the other, the subject of an appeal to this Court, if respect were had only to section three hundred and fifty-nine itself; yet, as we hold, that that section of the Practice Act has become inoperative as to the judgment of the County Court now in question (because of the provisions of the Acts of 1868 and 1870 specially applicable to that judgment, and declaring it conclusive), it follows that the appeal taken can derive no support from section three hundred and fifty-nine; and there is no other statute brought to our attention, which is supposed or claimed to give an appeal in the case at bar.
If, then, it be true that an appeal in the case at bar must exist, if at all, by reason of section three hundred and fifty-nine, and if that section has, as to this case, been itself repealed, or rendered inoperative by the statutes of 1868 and 1870, it results that the appeal must fall with the statute, upon which alone it rested for support. Irrespective, however, of the question of procedure involved, I come now to inquire whether or not the case under consideration be, in itself, one which is subject to the appellate power of this Court, were an appeal or writ of error provided for that purpose. If we are to look to the Constitution alone as being the source of the appellate jurisdiction of the Court, we find that it extends that jurisdiction to all cases in equity; not to all cases at law, but to such of them only as involve the title or possession of real estate, or the legality of a tax, toll, impost, assessment, or municipal fine, or in which the value of the property in controversy exceeds a named sum of money, etc. (Const., Art. YI, Sec. 4.) It will be seen, upon examination of the Constitution, *61that the cases to which the appellate power extends are carefully defined, and that (with the exception of cases arising in the Probate Court, and criminal cases amounting to felony), no case is) by its terms, subject to review here in the exercise of our appellate power, unless it be a case in equity, or a case at law of a defined character.
It is argued by the appellant that the case is a “ case at law,” one involving the legality of an assessment, and therefore, within the jurisdiction of this Court to hear and determine. But even if it can be said to involve the legality of an assessment, I think it clear that it is not a case at law within the intent of the Constitution. It is said that it is a legal controversy, prosecuted according to the forms of law, and that, therefore, it is a case at law; but though it be such controversy, and so prosecuted, it does not follow that it is a case at law in the sense of not being a special case. A special case may be said to be a legal controversy, prosecuted according to the forms of law, and yet the Constitution itself has distinctly provided that the jurisdiction in special cases shall be in the County Court, unless otherwise provided for. A special case can no more be said to be a case at law, in a constitutional sense, merely because it is a legal controversy prosecuted according to the forms of law, than it could be said to be a case in equity, because its solution might involve a consideration of the principles of equity, or the judicial proceedings provided for its determination were similar in form to those usually observed in Courts of equity.
But the case at bar does not belong to either one of the two grand divisions of civil cases mentioned in the Constitution as subject to be reviewed here, in the exercise of appellate power, but does unmistakably belong to another and well defined class of cases which are accustomed to be principally designated and distinguished from the others by the fact that they are “ not cases for which the Courts of general jurisdiction had always supplied a remedy.” (Parsons v. Tuol*62umne County Water Company, 5 Cal. 43.) Special cases are special proceedings characteristically differing from ordinary suits at the common law (Jackson v. Day, 15 Cal. 91); special proceedings do not proceed according to the course of the common law; they give new rights and afford new remedies (Saunders v. Haynes, 13 Cal. 145), etc. This distinction between “cases at law” and “special cases” was already established and enforced by this Court when, in 1862, the Constitution was amended, and “cases at law” and “special cases” again provided for; “the County Courts shall have original jurisdiction * * * of all such special cases and proceedings as are not otherwise provided for ” (Art. VI, See. 8), is the language of the constitutional amendment of 1862. I can attribute to this expression no other meaning than that which, as we have already seen, had been theretofore fixed to the term “special cases” in this Court before the amendment of 1862 was adopted; and it results that “special cases,” that is, cases which grow out of special proceedings authorized by statute creating rights not theretofore existing, and providing remedies not accustomed to be administered by Courts of law or equity as such, are not cases at law within -the appellate jurisdiction of this Court, as defined by the Constitution, even though they may involve questions or values which, if involved in a case at law, would constitute it one to be reviewed here on appeal or writ of error.
The case at bar not being a case in equity nor a case at law, within the constitutional designation, is not within the appellate jurisdiction of this Court as defined by the Constitution. Had the Acts of 1868 and 1870, out of which this controversy has arisen, provided that an appeal from the judgment in question might be taken to this Court, a question would then, have arisen as to whether or not it is competent for the Legislature to add to the class of cases over which the Constitution has declared that our appellate power *63is to be exercised, another and distinct class not enumerated as such in the Constitution, but omitted, it may be, ex industria, therefrom. But as the case here does not present that question, I am not to be understood as expressing any opinion upon that point.
I am of opinion that the appeal must be dismissed.