105 Cal. 244 | Cal. | 1894
The board of supervisors of the city and county of San Francisco passed a resolution of intention June 1, 1891, to construct sewers in Fell street, and certain connecting streets, “ according to plans and specifications prepared by Charles S. Tilton, city engineer.” After an order for said improvement of the streets had been passed, the board of supervisors caused notice for sealed proposals to do the work to be given, and,
The legislature of the state has conferred upon the 41 legislative department of the government of any city,” which in San .Francisco is the board of supervisors, the exclusive authority for the improvement of its streets. This legislative department of the city has no power to delegate to any other officer or body the authority to determine upon the necessity of making such improvement, or the character or extent of any improvement which it may itself direct to be made. In the language of Mr. Dillon (Mun. Corp., sec. 96): “ It is not competent for the council to pass an ordinance ' delegating or leaving to any officer or committee of the corporation the power to determine the mode, manner, or plan of the improvement.” Accordingly, it has been held that no valid assessment upon property can be made under an order directing the improvement “where necessary” (Richardson v. Heydenfeldt, 46 Cal. 68); or “excepting such portions of the above-described work which have been already done in a suitable manner” ( Foss v. Chicago, 56 Ill. 354); or for constructing curbs “where the same are not now in.good and sound condition” (Bryan v. Chicago, 60 Ill. 507); or where, in constructing a drain, certain pieces of lumber were to be set “ at equidistant points of not more than four feet ” (Village of Hyde Park v. Carton, 132 Ill.
! This power of assessment is referable to the power of I taxation, and is itself a legislative power which must { not only find express authority for its exercise, but i which can be neither exercised by an executive officer, ¡ nor delegated to such officer by the legislative body of the municipality. The clerical or ministerial act of apportioning the assessment upon the lands to be charged therewith may be performed by another official, but whether the assessment shall be imposed upon the lands, and the amount of such assessment, must be determined by the legislative body. A prominent consideration before this body, in determining whether an improvement shall be made upon a street, is the amount of its expense and the advantage that will accrue therefrom to the property which is to be charged with that expense"; and unless it can know to a reasonable degree of certainty what the expense will be, it will be unable to exercise any intelligent discretion in determining whether the improvement' should be made. Hence, it becomes necessary for the legislative body to know the probable expense of the improvement before it will order it to be made, and, after the improvement has been ordered, the actual expense must be approved by this body and fixed in the contract for doing the work as the data upon which the assessment is to be calculated. This includes not only the price at which the work is to be done, but also the items of the material
This power and the exercise of this discretion in the city and county of San Francisco has been conferred upon the board of supervisors, and must be exercised by that body, and cannot be delegated by it to the superintendent of streets. By section 2 of the street improvement act of this state (Stats. 1889, p. 157) the authority to direct improvements is given to the city council of any municipality, which, in section 34 of the act, is declared to include “ any body or board which under the law is the legislative department of the government of any city”; and section 3 requires, as the initiatory or jurisdictional step, that the board of supervisors shall pass a resolution of intention “ describing the work” which they propose to order done, and that “before passing any resolution for the construction of said improvements, plans and specifications, and careful estimates of the cost ánd expenses thereof, shall be furnished to said city council, if required by it, by the city engineer of said city, and, for the work of constructing sewers, specifications shall always be furnished by him.” Section 5 provides that, before awarding any contract, a notice with “ specifications” shall be given, inviting proposals for doing the work ordered; and the city council is authorized to reject all proposals, if it deem it for the public good, and can award a contract only to the lowest responsible bidder. This contract is to be entered into by the superintendent of streets with the bidder to whom it has been awmrded, and, after its completion, the superintendent is to apportion the expense of the work, as fixed by the contract, upon the lands liable to be assessed therefor.
The proceedings in the present case show a wide departure from these provisions. The work which was “ described ” in the resolution of intention was the construction of sewers upon certain designated streets, “ of
A mere glance at these proceedings shows that the amount of tax which is to be imposed upon the lands for the expense of the improvement was not determined by the supervisors in their award of the contract, but
The right of the plaintiff to maintain the action is clearly established. The statute makes the assessment a lien upon her lands, and there is nothing upon the face of the assessment to show that the lien is not in all respects valid. If, by reason of matters outside of the assessment as it is recorded, this apparent lien may be shown not to be a valid encumbrance, the assessment constitutes a cloud upon her title which she is entitled to have removed; and although she can assert the same matters as a defense to any action for the enforcement of the assessment, she is not required to wait until such action may be brought, and, in the mean time, suffer the injury of having the title to her lands impaired by this apparent lien, but may herself invoke the equitable aid of the court to remove the cloud, and to enjoin the holder of the assessment from asserting any claim upon her lands by virtue thereof.
The judgment is reversed.
Garoutte, J., and Van Fleet, J., concurred.
Hearing in Bank denied.