STEPHENS, J.,
pro tem.,
Dissenting.
I dissent.
I do not think the citation of cases on the general question of costs is helpful in this case. Section 1255a of the Code of Civil Procedure is unmistakably a statute applying alone to cases in which the extraordinary power of eminent domain is sought to be exercised. It recognizes the limited meaning of “costs and disbursements” and specifically adds to the ordinary cost bill disbursements “which shall include all necessary expenses incurred in preparing for trial and reasonable attorney fees.” The legislature evidently did not consider that the usual allowance of “costs and disbursements” to the winning party properly covered the situation described in 1255a,
supra,
so it proceeded to provide specifically therefor. There is sound reason for this legislation. Too often ambitious municipalities have pushed condemnation proceedings to judgment only to abandon them before paying out the money when the values exceeded the engineering estimates. That the ordinary cost bill fell far short of making the property owner whole is obvious.
I think the evident purpose of section 1255a of the Code of Civil Procedure is disregarded in the main opinion, for it holds that section 1871 of the Code of Civil Procedure in a large measure supersedes section 1255a. If this is a proper interpretation it cuts the very heart out of the latter section. It is my opinion that the purposes of these two code sections are entirely different.
Section 1871 is a permissive statute. Either one or all parties may or may not act under it. If a party acts under it the court selects and appoints the experts and the fee is taxed as costs. If the party does not act under it he selects his own experts and pays them except for the small witness fee. A party has a perfect right to take either course according to his own judgment and it is entirely beyond my comprehension how this choice can or does affect the “neces
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sary expenses in preparing for trial.” Respondents here chose to select their own experts. Under 1255a if the experts were “necessary” their reasonable fee must be repaid by the plaintiff if it abandons its case. Bear in mind that section 1871 is a general statute applying to all cases within its scope except cases specially covered by other statutes. Section 1255a is a special statute enacted to right occurring wrongs in condemnation proceedings. Sections 84, 85 and 86, California Jurisprudence, volume 23, treating respectively, “Presumption against Repeal by Implication”, “Identity of Subject and Object”, and “Inconsistency and Repugnancy”, may be read in this connection with profit.
Expert testimony is constantly being criticised by the courts, but where technical knowledge is required it seems there is no better way to get it than from men learned in the particular line of information needed. Despite the abuses, I know of no better way to arrive at the truth than through the sworn testimony of men who have prepared the details of a case in which they are called to testify and to submit themselves to cross-examination. That a man’s property should be taken from him for a compensation estimated by a witness chosen for him and with whom he has no right to confer, and by a witness whose extent of examination of the property and the elements that affect its value he has no right to know until the witness reaches the witness-stand, is monstrous. It is entirely foreign to our system of jurisprudence. And yet this is the logic of every scheme for judicial selection of experts. No party should ever be required to have his case affected by judge chosen witnesses. Section 1871, according to the main opinion, effectually says to every property owner, in an eminent domain case, “Let the judge appoint your experts, or you cannot have their fees repaid you in ease the plaintiff abandons the case.” I cannot agree with this conclusion and I have a suspicion of its constitutionality if this conclusion is a correct one. The trial judge should have decided whether or not the expert witnesses employed by respondents were necessary, and if they or any of them were necessary he should have fixed a reasonable compensation for them and included the same in the costs allowed.
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A petition for a rehearing of this cause was denied by the District Court of Appeal on October 28, 1932, and an application by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 21, 1932.