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(112 Wash. 117, 191 Pac. 1101.)

advised the jury, in effect, that if the plaintiff had made any admissions indicating that the collision Iwas due to his own fault, such admissions must be considered in the light of all the circumstances surrounding him when made, and would be binding upon him only in case he was then fully advised as to all of the facts, and as to the law applicable thereto. The evidence which called forth this instruction was introduced by appellant and denied by respondent, and, as we read it, the statements, if made, and if admissible at all, amounted to no more than an expression of opinion that both parties were to blame, or, in one instance, that it was his own fault,-in either case a conclusion and not a fact, and as such not

Evidenceadmission-of fault in

collision.

apt to be very convincing with a jury, and easily susceptible of excuse or ex

planation. We have no doubt, since

the evidence was before the jury, that the instruction was a proper one in all except the reference to knowledge of the law applicable thereto, but since it is a common adage, known and re- error in peated everywhere,

Appeal

presumption of instruction.

that every man is presumed to know the law, we cannot, in the absence of anything in the record to so indicate, hold that the jury was misled thereby.

An additional error is assigned, but not argued, relating to still another instruction. We have examined the instruction referred to, and are unable, unaided, to find anything therein approaching reversible error.

The judgment of the trial court is affirmed.

Holcomb, Ch. J., and Fullerton, Mount, and Bridges, JJ., concur.

ANNOTATION.

Highway: contributory negligence of pedestrian injured by vehicle, in walking on left-hand side of road.

The legal principle which underlies this question is what is known as the "law of the road," which is explained in 13 R. C. L. 270, as follows: "In the United States and in England certain rules regarding the rights of vehicles and persons meeting or passing in the public highway have been established by long-continued custom or usage, or, in many jurisdictions, by statutory regulation. These rules and regulations are usually spoken of as the law of the road' or the 'rules of the road.' These rules are, however, not inflexible, and a strict observance should be avoided when there is a plain risk in adhering to them, and one who too rigidly adheres to such rules, when the injury might have been averted by variance therefrom, be may charged with fault. A traveler may not remain stubbornly and doggedly upon the right of the traveled part of the highway, and wantonly produce a collision which a

slight change of position would have avoided, and to do so will amount to contributory negligence which will preclude a recovery for injuries thereby sustained. The exceptions to the 'rule of the road' depend upon the special circumstances of the case, and in respect to which no general rule can be applied."

Under the common law the rule of the road does not apply to pedestrians. Apperson v. Lazro (1909) 44 Ind. App. 186, 87 N. E. 97, rehearing denied in (1909) 44 Ind. App. 195, 88 N. E. 99; Cotterill v. Starkey (1839) 8 Car. & P. (Eng.) 691.

And generally the statutes prescribing the rule of the road have reference to vehicles, and those riding or driving animals upon the highway, and do not refer to pedestrians. Yore v. Mueller Coal Heavy Hauling & Transfer Co. (1899) 147 Mo. 679, 49 S. W. 855, 5 Am. Neg. Rep. 630; Savage v. Gerstner (1899) 36 App. Div. 220, 55

N. Y. Supp. 306, 5 Am. Neg. Rep. 237; MARTON V. PICKRELL (reported herewith) ante, 68.

Elliott, in his work on Roads' & Streets, 3d ed. § 1090, says: "The 'law of the road,' in its strict sense, does not obtain with respect to footmen; they may meet and pass on either side, and drivers of carriages or other vehicles may also pass footmen on either side, all that is required being the exercise of due and reasonable care under the circumstances. among themselves, the degree of care required by foot passengers is such as the nature of the way, the number of people upon it, and other circumstances, demand, and must, it is said, depend in a great measure upon the injury likely to happen if such care is not observed."

As

It was held in the reported case (MARTON V. PICKRELL, ante, 68) that in the absence of a clear statutory rule requiring pedestrians to keep on the right side of the road in passing vehicles, the question of contributory negligence was for the jury in case of collision between an automobile and a pedestrian walking

along the extreme left of the road. In this case the court said: "It is a matter of common knowledge that a pedestrian on a highway, or on a double-track line of railway, is far better able to look out for his own safety and protection by so traveling as to face all oncoming vehicles than he would be if keeping to the same side of the roadway as vehicular traffic, and being thus at all times obliged to keep watch to the rear." And it was held in Work v. Philadelphia Supply Co. (1920) — N. J. L. 112 Atl. 185, that the trial court could not say as a matter of law that a pedestrian injured while walking on the left-hand side of a road, on a side path for pedestrians, was guilty of contributory negligence, but that her negligence was a question for the jury, and a finding that she was not negligent was sustained, where it appeared that an automobile, coming from behind on the right-hand side of the road, suddenly turned to the left and slid across the road, turned over in back of the pedestrian, and fell upon her to her injury.

G. V. I.

TURLOCK IRRIGATION DISTRICT, Respt.,

V.

JAMES G. WHITE, Tax Collector of Tuolumne County, et al., Appts. California Supreme Court (In Banc)—June 15, 1921.

(- Cal. 198 Pac. 1060.)

Taxirrigation district as municipal corporation within meaning of tax laws.

An irrigation district is not a municipal corporation within the operation of a constitutional provision rendering the property owned by such corporations outside their boundaries subject to taxation by the organization in which it is located.

[See note on this question beginning on page 81.]

(Sloane, J., dissents.)

APPEAL by defendants from a judgment of the Superior Court for Tuolumne County (Nicol, J.) in favor of plaintiff in an action brought to enjoin defendants from attempting to collect certain taxes levied by the defendant county against plaintiff's lands. Affirmed.

The facts are stated in the opinion of the court.

(Cal. -> 198 Pac. 1060.)

Mr. Rowan Hardin for appellants. Messrs. P. H. Griffin and Griffin, Boone, & Boone, for respondent:

An irrigation district is not a municipal corporation for the purpose of taxation within the meaning of the Amendment of 1914.

Dill. Mun. Corp. 5th ed. § 34; Pleasant Twp. v. Ætna L. Ins. Co. 138 U. S. 68, 34 L. ed. 865, 11 Sup. Ct. Rep. 215; Dean v. Davis, 51 Cal. 406; People v. Reclamation Dist. 53 Cal. 348; Hoke v. Perdue, 62 Cal. 545; People v. La Rue, 67 Cal. 526, 8 Pac. 84; Central Irrig. Dist. v. DeLappe, 79 Cal. 351, 21 Pac. 825; LindsayStrathmore Irrig. Dist. V. Tulare County, 182 Cal. 315, 187 Pac. 1056; Re Madera Irrig. Dist. Bonds, 92 Cal. 321, 14 L.R.A. 755, 27 Am. St. Rep. 106, 28 Pac. 272, 675; People v. Selma Irrig. Dist. 98 Cal. 206, 32 Pac. 1047; Quint v. Hoffman, 103 Cal. 506, 37 Pac. 514, 777; Perry v. Otay Irrig. Dist. 127 Cal. 565, 60 Pac. 40; Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 174, 41 L. ed. 394, 17 Sup. Ct. Rep. 56.

Irrigation districts are public corporations, but not municipal corporations.

Indian Cove Irrig. Dist. v. Prideaux, 25 Idaho, 112, 136 Pac. 618, Ann. Cas. 1916A, 1218; People ex rel. Sels v. Reclamation Dist. 117 Cal. 114, 48 Pac. 1016; Re Werner, 129 Cal. 567, 62 Pac. 97.

The property of an irrigation district situated in another county is not assessable and taxable.

Webster v. University of California, 163 Cal. 705, 126 Pac. 974; Reclamation Dist. v. Sacramento County, 134 Cal. 477, 66 Pac. 668; Middle Kittitas Irrig. Dist. v. Peterson, 4 Wash. 147, 29 Pac. 995; Bettencourt v. Industrial Acci. Commission, 175 Cal. 559, 166 Pac. 323.

Per Curiam:

This appeal is by defendants, from a judgment enjoining them from attempting to collect certain taxes levied by the defendant county against lands of the plaintiff.

The plaintiff, an irrigation district, whose corporate boundaries are wholly within the counties of Merced and Stanislaus, is the owner of land situated in the county of Tuolumne. It is the taxation of this land by the county of Tuolumne that is sought to be enjoined.

Authority to levy and collect such tax is claimed by the defendant county under the Amendment of 1914 to § 1 of article 13 of the state Constitution. As this section of the Constitution previously stood, it provided that no property belonging to the "United States, this state, or to any county or municipal corporation within this state," shall be subject to taxation. The Amendment excepts from such exemption "such lands and the improvements thereon located outside of the county, city and county, or municipal corporation owning the same as were subject to taxation at the time of the acquisition of the same by said county, city and county, or municipal corporation."

The entire controversy in this case is as to whether or not an irrigation district, organized under the laws of California, is a "municipal corporation" within the meaning of this section of the Constitution.

This Amendment to the Constitution (art. 13, § 1) was submitted by the legislature to the people in November, 1914. A printed argument in favor of its adoption accompanied the publication of the proposed Amendment, a copy of such argument being mailed to each voter in the state as required by law. Pol. Code, §§ 1195, 1195a, 1195b. This argument in favor of the proposed Amendment clearly explains its purpose, and the voters, in acting upon the Amendment, must be deemed to have considered such reasons in interpreting the general term "municipal corporation" used in the proposed Amendment. The argument, in part, was as follows:

"This Amendment does not seek to hinder in any way the development of enterprises by and for the benefit of counties or municipalities, in any part of the state, but to protect from loss those counties into which they may enter for such purposes. A concrete illustration is afforded by the counties of Tuolumne, Mono, and Inyo. In furtherance of obtaining a large water

supply, for municipal and other uses, the purchase by San Francisco in Tuolumne county aggregated over $1,000,000 worth of property. Los Angeles, in Owens river valley, acquired by purchase over 75,000 acres of land, amounting to over one sixth of the assessed value, and more than one fourth of the located agricultural land of the county. The city of Los Angeles has acquired large holdings in Mono county. Before such acquisition the area was tax-paying property. Since the acquisition in Inyo county, the city of Los Angeles has continued to pay taxes, as a matter of justice, but its payments are accompanied by protests, in order to preserve to it the right of refusal to pay which many contend that it has under the constitutional provision as it stands at present, and that it might sustain in case of legal contest. While not abandoning any right from a technical standpoint, the city recognizes the justice of the contention upon which this Amendment is based.

"The city of San Francisco refuses absolutely to pay one dollar in taxes in Tuolumne county on their $1,000,000 worth of property, contending they are exempt from such a tax by a constitutional provision.

"It would be possible for an acquiring city or county to virtually destroy the government of a small county by acquiring, for one purpose or another, for municipal use, the substance of its revenue-yielding property. That such a result would be imporbable and extreme does not alter the fact of its possibility. In the Inyo county instance, refusal by the city of Los Angeles to pay taxes upon real estate which has heretofore borne its due share of the expense of the county government would be a serious matter, either curtailing the county's welfare or imposing a heavier burden on other property. With such a result possible to a fractional extent, it would be equally possible to the

fullest extent that the investing city might see fit to go.

"It is to remedy such a condition that this Amendment was proposed. Uncertainty on the matter should be removed by a legal assurance that, while natural resources within one county may be directly used for the upbuilding of another, land or other property already upon the invaded county's tax roll shall continue to bear its share of maintaining the local government.

"It is hoped, therefore, that the justice of this Amendment will insure for it the approval of the people of the state."

It is apparent that the term "municipal corporation" was thus presented to the people as synonymous with such corporations as Los Angeles and San Francisco; that is to say, as municipal corporations in the strict technical sense.

In their brief appellants say: "To start with, it will be admitted that by the late decisions of the supreme court said decisions have, by an exceedingly fine analysis, determined that, as a technical, legal proposition, an irrigation district is an arm of the state government, or a public corporation, and not a municipal corporation, as the term 'municipal corporation' is technically known."

However, appellants' contention is that the term "municipal corporation," in its popular acceptation, includes irrigation district, and, consequently, this popular meaning is to be applied, rather than a technical one. The rule appellants rely on is thus stated in a recent case (Pasadena v. Railroad Commission,

Cal., 10 A.L.R. 1425, 192 Pac. 25): "The Constitution, 'unlike the acts of our legislature, owes its whole force and authority to its ratification by the people; and they judged of it by the meaning apparent on its face, according to the general use of the words employed, where they do not appear to have been used in a legal or technical sense.' Miller v. Dunn, 72 Cal. 465, 1 Am. St. Rep. 67, 14 Pac. 28.

(Cal., 198 Pac. 1060.)

Where a word has a popular and also a technical meaning, 'the courts will accord to it its popular meaning, unless the very nature of the subject indicates, or the context suggests, that it is employed in its technical sense.' Weill v. Kenfield, 54 Cal. 113."

Other instances of its application: may be found in Miller v. Dunn, 72 Cal. 462-465, 1 Am. St. Rep. 67, 14 Pac. 27; Towle v. Matheus, 130 Cal. 574-577, 62 Pac. 1064; San Pedro, L. A. & S. L. R. Co. v. Hamilton, 161 Cal. 610-617, 37 L.R.A. (N.S.) 686, 119 Pac. 1073; Perrin v. Miller, 35 Cal. App. 129-132, 169 Pac. 426.

In support of the proposition that the term "municipal corporation" as commonly understood, includes an irrigation district, the following quotation from Merchants Bank v. Escondido Irrig. Dist. 144 Cal. 329, 77 Pac. 937, is cited:

66

Nat.

But the term 'municipal,' as commonly used, is appropriately applied to all corporations exercising governmental functions, either general or special; and, indeed, this must be taken as the definition of a public or municipal corporation."

Appellants also cite the following from Re Madera Irrig. Dist. Bonds, 92 Cal. 296, 319, 14 L.R.A. 755, 27 Am. St. Rep. 106, 28 Pac. 277: "The municipal corporations which may be thus created are not limited to cities and towns. The Constitution makes provision in various places for municipal corporations, other than cities and towns. Art. 11, §§ 9, 10, 12, 16. In each of these sections provision is made with reference to the government or officers of 'county, city, town, or other public or municipal corporation,' thus clearly indicating that there may be municipal corporations other than those of a town or city."

The fact that the argument submitted to the voters indicated that the term "municipal corporation" was used with technical accuracy requires that the rule relied upon by appellants be applied against them, rather than in favor of their

contention, because the very nature of the subject, the context of the Amendment, and the manner and reason for its presentation, all require that it be construed in its technical sense, and, hence, it is within the exception of the rule of construction above stated. There are, however, other cogent reasons for concluding that an irrigation district is not included within the district as term "municipal municipal corporation" as used within meaning in the Amendment. The nature of an irrigation district has been a matter of judicial investigation and interpretation, and it has been held that such a corporation is not a municipal corporation, but a "public corporation for municipal purposes." Fallbrook Irrig.

Tax-irrigation

corporation

of tax laws.

Dist. v. Bradley, 164 U. S. 112, 41 L. ed. 369, 17 Sup. Ct. Rep. 56. As to swamp land, drainage, levee, and reclamation districts, similar to irrigation districts, it has been held that they are not municipal corporations. People ex rel. Silva v. Levee Dist. 131 Cal. 30, 63 Pac. 676; People ex rel. Chapman v. Sacramento Drainage Dist. 155 Cal. 373, 103 Pac. 207; Swamp Land Dist. v. Silver, 98 Cal. 51, 32 Pac. 866, and Reclamation Dist. v. Sherman, 11 Cal. App. 399, 105 Pac. 277. See also People v. Selma Irrig. Dist. 98 Cal. 206, 208, 32 Pac. 1047, and cases there cited. The Amendment in question must be considered to have been framed and submitted to the people with these decisions in mind, by which it was settled that such corporations were not "municipal corporations."

It is worthy of note that, at the very election at which this constitutional Amendment was adopted, several amendments were submitted in which the term "irrigation district" was used. For illustration, S 13, art. 11, was amended to prohibit the legislature from interfering with any county, city, town, or municipal improvement, etc., "except that the legislature shall have power to provide for the supervi

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