case. In these respects the parties stand on a parity. [2] It is no abuse of the trial court's discretion to deny a motion for a change of the place of trial made on the ground of the convenience of witnesses, if the affidavit of the defendant in opposition to the motion shows that his witnesses will be inconvenienced if the change be ordered. (McNeill & Co. v. Doe, 163 Cal. 338 [125 Pac. 345].)

[3] There is no merit in the suggestion that the larger number of witnesses reside in or near the county of Monterey. A mere preponderance in number of the witnesses which either party expects to produce will not necessarily determine the order to be made. (Reavis v. Cowell, 56 Cal. 588.) Nor will the necessity of producing in this case the records and files in the partition suit and the expense incident thereto settle the question. This, in common with the other matters, is a consideration addressed to the discretion of the court.

The order is affirmed.

Lawlor, J., Waste, J., Myers, J., Seawell, J., Wilbur, C. J., and Lennon, J., concurred.

[L. A. No. 7538. In Bank.-March 6, 1923.]

In the Matter of the Bonds of GARDEN GROVE DRAINAGE DISTRICT et al., etc. H. A. LAKE et al., Respondents, v. ALL PERSONS, etc., Defendants; M. H. SIEVER, Appellant.

[1] DRAINAGE DISTRICT-ACT OF 1903-BOND ELECTION-PETITION.The board of directors of a drainage district is not authorized under the statute of 1903 (Stats. 1903, p. 291), without a petition therefor, to call a second election, after the defeat of a previous one, for the purpose of creating the original bonded indebtedness authorized by section 274 of the act for the construction of the necessary improvement for which the district was organized. [2] ID.-CONSTRUCTION OF ACT-PETITION-CHARACTER OF SIGNERS.The petition referred to in section 27 of the act of 1903 (Stats. 1903, p. 291), is a petition signed by "fifty or a majority of the holders of title," and the phrase "a petition of the character here190 Cal.-34

in before provided for," relates not to the form and subject matter of the petition mentioned in section 1 of the act, but to the character of signers thereof.

APPEAL from a judgment of the Superior Court of Orange County. R. Y. Williams, Judge. Reversed.

The facts are stated in the opinion of the court.

Clyde Bishop and M. B. Wellington for Appellant.

Head, Rutan & Scovel for Respondents.

WILBUR, C. J.-The Garden Grove Drainage District was created in pursuance of the statutes of 1903. (Stats. 1903, p. 291.) An election was called for the purpose of creating the original bonded indebtedness authorized by section 27 of the act for the construction of the necessary improvements for which the district was organized. This section provides for the issuance of such bonds, and if necessary, for a supplemental issue of bonds to complete the work, when authorized by a vote of the electors of the district. With reference to the result of the election the statute provides:

"At such election the ballots shall contain the words 'Bonds-Yes' or 'Bonds-No,' or words equivalent thereto. If a majority of the votes cast are 'Bonds-Yes,' the board. of directors shall cause bonds in said amount to be issued; if a majority of the votes cast at any bond election are 'Bonds-No,' the result of such election shall be so declared and entered of record. Whenever thereafter, a petition of the character hereinbefore provided for in this section, is presented to the board, it shall so declare of record in its minutes, and shall thereupon submit such questions to said. electors in the same manner and with like effect as at such previous election."

The bonds were defeated at the election, and thereafter, without any petition therefor from electors or property holders, the directors called another election at which the bonds carried. This action was brought to establish the validity of the bonds about to be issued as a result of the second election. The trial court held that the election was valid.

[1] The sole question presented by this appeal is whether or not the board of directors of the Garden Grove Drainage District was authorized by the statute to call such second election without a petition therefor.

This involves an interpretation of the last sentence of section 27 (Stats. 1903, p. 299), above quoted. The uncertainty as to its proper construction arises from the fact that section 27 does not thereinbefore provide for any petition whatever. The appellants contend that this whole sentence should be disregarded because void for uncertainty. The respondents suggest that the word "act" was intended instead of "section" and that the petition provided for in section 1 of the act is the one referred to in the concluding sentence of section 27. That petition is one signed by fifty or a majority of the holders of title within the proposed district and addressed to the board of supervisors asking for the calling of an election for the foundation of the district, etc.

[2] We are satisfied that the petition referred to in section 27 is a petition signed by "fifty or a majority of the holders of title," and that the phrase "a petition of the character herein before provided for," relates not to the form and subject matter of the petition mentioned in section 1 of the act, but to the character of signers thereof, to wit, "fifty or a majority of the holders of title." Not only is this petition the only one mentioned in the act before the concluding sentence of section 27, and, therefore, of necessity, the one there referred to, but it is reasonable to suppose that the legislature so intended.

It is such a petition which initiates the proceedings for the establishment of the district which is to pay for the necessary improvements by the issuance of bonds. Thereafter the subject of the issuance of bonds is voted for at an election called by the directors, at which election all the electors of the district, regardless of whether or not they own land, vote upon the issuance of the bonds. (Sec. 27, supra.) If the proposed bond issue is defeated it is evidently intended that the majority of the holders of the land. of the district susceptible of drainage or fifty of them can by petition require a second election. But the board of directors has no power to call an election for the issuance of bonds unless expressly authorized by law, and the statute

nowhere makes provision for an election authorizing a bond issue after such issue has once been defeated, except such authority as is given in the concluding sentence of section 27 and this authority on the part of the board of directors is predicated upon a petition therefor. Section 56 provides that the board of directors shall have no power to incur any debt or liability whatever, either by issuing bonds or otherwise, in excess of the express provisions of the act.、

If we reject the whole of the last sentence of section 27 there is no authority for the calling of the election in question. That we have arrived at the intention of the legislature with reference to the necessity of a petition by a majority, or fifty of the holders of title, as a basis for a second election is indicated by a similar requirement in the statute concerning the refunding of bonds.

Section 33 provides for an election for refunding bonds already issued, upon a petition presented to the board of directors, signed by a majority in number of holders of title or evidences of title to real property in such district.

We think it clear that the legislature intended to authorize an election only upon petition of "fifty or a majority of the property owners," after the defeat of such a proposition. The judgment of the lower court holding the bond issue valid is erroneous.

The judgment is reversed.

Lennon, J., Seawell, J., Waste, J., Myers, J., Lawlor, J., and Kerrigan, J., concurred.

[Sac. No. 3405. In Bank.-March 6, 1923.]

In the Matter of a Proceeding to Validate SUTTER-BUTTE BY-PASS ASSESSMENT NUMBER SIX OF THE SACRAMENTO AND SAN JOAQUIN DRAINAGE DISTRICT.

[1] APPEAL-TRANSFER BY SUPREME COURT-JURISDICTION.-If a judgment is an appealable one and the appeal lies in the first instance to a district court of appeal, the appeal may be transferred by the supreme court to the proper district court of appeal, as provided

in article VI, section 4, of the constitution, or retained in the supreme court, pursuant to the power possessed by that court to order a transfer to it either before or after judgment given in any case pending in a district court of appeal.

[2] ID.-RIGHT OF APPEAL-POWER OF LEGISLATURE.-The right of appeal from the judgment of an inferior to a higher court must be found either in the state's constitution or statutes, and it is the settled rule of law that if the right of appeal is constitutionally granted in any given case such right cannot be destroyed or delimited by legislative enactment.

[3] CONSTITUTIONAL LAW-POWER OF LEGISLATURE-REMEDIES.-While the legislature has, ordinarily, the power to create a new remedy for the enforcement of a right or a defense against a wrong, it cannot, under the guise of creating a new statutory remedy, deprive a litigant of an existing constitutionally guaranteed right to defend, even unto a court of last resort, against the enforcement of an alleged right. This right to so defend, once existing, continues regardless of the form in which the legislature may cast the remedy.

[4] ID. APPEAL - JURISDICTION OF SUPREME COURT.- The legislature cannot by the creation of a new remedy deprive the supreme court of its constitutional grant of appellate jurisdiction if the right involved in the execution of the remedy is of a character which in its very essence is equitable and was of an equitable nature and character at the time of the adoption of the constitutional provision which gave to that court appellate jurisdiction over the subject matter of the remedy.

phrase

[5] SPECIAL PROCEEDINGS ACTIONS - DEFINITIONS. - The "special proceeding" is used in the code practice in contradistinction to "action," and that phrase has no reference to provisional remedies in actions at law or in equity, but has reference only to such proceedings as may be commenced independently of a pending action by petition or motion upon notice in order to obtain special relief; and, generally speaking, any proceeding in a court of justice which was not, under the common law or equity practice, either an action at law or a suit in equity is a special proceeding. [6] DRAINAGE DISTRICT PROCEEDING TO VALIDATE ASSESSMENT NATURE OF RIGHT OF APPEAL.-A proceeding for the validation of an assessment of the Sacramento and San Joaquin drainage district, a governmental agency created by the special act of May 26, 1913 (Stats. 1913, p. 252), is one to establish, pro tanto at least, the validity of the assessment, and has all the characteristics of a case, somewhat after the manner of a suit in equity to quiet title to land, the purpose of the proceeding being to establish the validity of the assessment with a view to a bond issue; and such a proceeding is a judicial proceeding, which is well within the