State v. Aitken. or unconstitutional duties are imposed upon him, would not prevent his holding the office and exercising constitutional and appropriate duties attached to it. The provision that justices of the peace might both fine and imprison, though unconstitutional, has never been supposed to oust all justices in the state of Nebraska from their offices. The provision that railroad property shall be assessed at the valuation fixed by the state board of equalization certainly can not be held, whether constitutional or not, to deprive the tax commissioner of all authority to assess property within the corporation. Our constitution expressly provides that property shall be taxed according to its value, to be ascertained in the manner provided by the legislature. The legislature in its wisdom has decided that the value of railroad property can be more accurately and justly estimated by the state board of equalization than by local assessors, and has exercised its constitutional prerogative by providing that railroad property shall be assessed in that manner. Whether or not it is reasonable to suppose that the state board of equalization would have more knowledge and a better opportunity to make a just valuation of such property than local assessors is quite unnecessary to be determined in deciding upon respondent's right to act as tax commissioner. Why may not several valuers constitutionally act upon different kinds of property, or upon the same property, for the purpose of different taxes? The real objection to this act on the ground of uniformity is, evidently, the idea that value is not such a fixed quantity that it is possible for two independent appraisers to agree. If values are fixed for purposes of municipal taxation by one body of assessors, and for county and state by another, it is practically certain that the two will disagree. Enough is said above to indicate an opinion that the only uniformity required as to any tax is that it should be uniform throughout the jurisdiction; i. e., that state taxes shall be uniform throughout the state, county taxes throughout the county, and city taxes throughout the city. Pleuler v. State, 11 State v. Aitken. Nebr., 547. Such uniformity would be as well secured by having one set of assessors value property for county taxation, another set for city taxation, and still another for state taxation, as it would by having all the valuations made by one set of assessors, and one appraisement adopted in the levy of all the taxes throughout. With the good or ill policy, relative expense or cheapness of the two methods, this court has nothing to do. The constitution has expressly said that the valuations shall be determined in the manner that the legislature points out. If the legis lature chooses a foolish or expensive way, so long as it is not a pretext for some unconstitutional purpose, it must stand. The complaint that this is special legislation prohibited by section 15, article 3, seems to be based upon the proposition that it is special because of the provision with regard to railroad property. So far as this provision is concerned, it seems sufficient to have pointed out that the office of tax commissioner, and the right of respondent to hold it, does not depend in any degree upon the validity or invalidity of this provision in the act. Whether in discharge of his duties he shall obey and follow this provision or pay no attention to it, does not need to be decided for a determination of his title to the office which he is exercising. In none of the cases cited by counsel for the relator do we find that the conferring of unconstitutional powers upon an officer deprives him of his right to exercise the constitutional ones; nor do we think that an unconstitutional restriction of an officer's powers should be held to deprive him of them altogether. The remedy for an unconstitutional omission to assess property would seem to be mandamus rather than quo warranto. This objection amounts in effect to saying that no general act of the title and for the purpose of this one can be enacted by the legislature of the state of Nebraska, owing to the inhibition upon special legislation. The objection is just as good against any other provision of this charter for cities from 40,000 to 100,000 inhabitants as it is against State v. Aitken. The the provision for a tax commissioner. So far as the objection of special legislation is concerned, we can see no difference between the provisions of the old charter, section 50, that the assessment of property values as equalized by the county board shall be the assessed valuation for general city taxation, and the provision here. question whether or not the legislature may classify cities seems to have been conclusively determined in this state. State v. Graham, 16 Nebr., 74; State v. Stuht, 52 Nebr., 209. In the latter case it was expressly held, without dissent: "If the provisions of a law establishing a class of cities on the basis of population are such that other cities may in the future, without additional legislation, enter the specified class, the law is general." The further objection that the law is amendatory of the state revenue law and unconstitutional, because of its form. can not be maintained. It is expressly provided by our state constitution that such a charter may contain provisions for municipal taxation. Such provisions are not amendatory of the state revenue law. The fact that the title was comprehensive and not detailed, makes no difference so long as such title is fairly descriptive of the purposes and intention of the act. State v. Stuht, supra. To say that this act may be abused and may, in its practical workings, result in a failure of uniformity of taxation is not to establish its unconstitutionality. If all laws which may fail to bring about a just and equal valuation of property and a perfectly fair and equitable adjustment of taxation are to be unconstitutional, it is to be feared that not only the city of Lincoln, but every other municipality in the state of Nebraska, might have to wait a long while for authority to collect its revenues. It is therefore recommended that this case be dismissed. DAY and KIRKPATRICK, CC., concur. By the Court: For the reasons stated in the foregoing opinion this case is hereby DISMISSED. Waugh v. Newell. JOHN M. WAUGH ET AL. V. J. K. Newell. FILED JULY 10, 1901. No. 9,947. Commissioner's opinion, Department No. 1. 1. After Foreclosure, Mortgage Creditor Must Obtain Leave of Court to Further Proceed. Under the provisions of sections 847, 848, 849 and 850 of the Code of Civil Procedure prior to the amendments of 1897, a creditor whose debt is secured by mortgage, having foreclosed the mortgage, can not procéed in an action at law to recover a judgment for the remainder due upon the note or obligation, without leave obtained of the court having jurisdiction of the action of foreclosure to commence such action at law. 2. Plaintiff Must Plead Authority. The lack of authorization to bring such an action is not a defense necessary to be pleaded, but should be alleged, or at least proved by the plaintiff, as without such authorization the action can not be maintained. Meehan v. First Nat. Bank, 44 Nebr., 213. ERROR from the district court for Douglas county. Tried below before SLABAUGH, J. Reversed. Ellery H. Westerfield, for plaintiffs in error. McCabe, McGilton & Rath, contra. DAY, C. On November 5, 1896, J. K. Newell commenced an action in the district court for Douglas county against the defendants, John M. Waugh and Jane Waugh, to recover upon certain promissory notes alleged to have been executed and delivered by the defendants to the Central Investment Company and by that company assigned to the plaintiff. The petition discloses that one note for $4,000 had been given by the defendants, and that to secure the payment thereof a mortgage upon certain real estate had also been executed by the defendants; that the mortgage had been foreclosed and the premises sold for $2,270, and after deducting the expenses of the foreclosure sale there Waugh v. Newell. The remained to be credited upon the note $1,888.32. other eight causes of action alleged in the petition were each upon a note of $80, claimed, likewise, to have been executed and delivered by defendants to the Central Investment Company and by it transferred to plaintiff. No reference is made in the petition to any mortgage security for these notes. The plaintiff also caused an attachment to be issued and levied upon certain real estate, the grounds therefor being the non-residence of the defendants. On December 28, 1896, defendants appeared specially by a plea in abatement, and alleged that the court had no jurisdiction of the subject-matter of the action set forth in the several counts of the petition, for the reason that a suit had been commenced by plaintiff in the district court for Douglas county against the defendants to foreclose two mortgages upon real estate given to secure the indebtedness claimed in the several causes of action of plaintiff's petition, and that plaintiff had obtained no authority of court to bring the action as required by the statutes of the state. The plea asked that the writ of attachment be quashed and the levy discharged. The facts alleged in the motion were supported by affidavit and are not disputed. The trial court overruled the plea in abatement and entered judgment for the plaintiff. To review this ruling error is brought to this court. The question presented may be stated as follows: Was it necessary for plaintiff to obtain leave of the court in which the foreclosure proceedings were prosecuted, before commencing this action to recover for any amount remaining due on the notes? All of the proceedings herein occurred prior to the act of 1897, repealing sections 847 and 849 and amending section 848 of the Code of Civil Procedure. The question presented must be determined in view of the statutes as they existed prior to the amendments of 1897. In Meehan v. First Nat. Bank, 44 Nebr., 213, the opinion of the court set out at length the provisions of sections 847 and 848 and the substance of 850 and 851 of our Code of Civil Procedure as they existed prior |