122 Cal. 540 | Cal. | 1898
This action was brought to restrain the city treasurer of Los Angeles from selling the real property of plaintiff to pay the amount claimed to be due by defendant Sheldon on a bond issued against said property under the provisions of the act of March 17, 1891 (Stats. 1891, p. 116), for work on Ohio street in said city, which work was done under the provisions of the so-called Yrooman act of March 18, 1885. (Stats. 1885, p. 147.) A perpetual injunction was prayed for, and that said bond and assessment be declared to be void so far as they affect plaintiff’s property.
The court granted a preliminary injunction. Later an amended complaint was filed, to which defendants demurred for insufficiency of facts. At the hearing the demurrer was sustained; the injunction was dissolved and defendants had judgment, from which and from the order dissolving the injunction plaintiff appeals. By stipulation both appeals are to be heard upon one transcript.
The complaint sets out all the proceedings of the council and the steps taken subsequently leading up to the issuance of the bond provided for by the act of 1891, and sets forth the notice of sale of plaintiff’s property because of default in payment of said bond, and that the said city treasurer threatens to sell and will sell plaintiff’s property unless restrained, and will in due course execute a deed under the terms of the statute which will be con-
1. Appellant contends that injunction is a proper remedy, and that equity will enjoin the collection of and set aside a void assessment. This contention is supported by numerous citations from text-books and decisions of this and other courts of last resort. Eespondents make no reply to these, but plant themselves upon Esterbrook v. O’Brien, 98 Cal. 671 (cited it is claimed with approval, in Hellman v. Shoulters, 114 Cal. 141), as conclusively determining the question, and a holding that, even though the assessment be absolutely void, the injured party must litigate his rights in an action at law. We do not think these cases or those to which reference is made in the opinions necessarily lead to the proposition, stated by respondents.
It is well settled, as a general rule, that where an officer is about to sell real property to enforce the collection of a delinquent tax the equity court will interpose to restrain the sale, if, when consummated, it would cast a cloud upon the title. The true test by which to determine whether a deed, following such sale, would east a cloud upon the title of plaintiff was stated in Pixley v. Huggins, 15 Cal. 128, to be: “Would the owner of the property in an action in ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a recovery?” This test has been many times since affirmed in substantially the same but varying forms of expression.
It is equally well settled that a court will not restrain the sale for taxes when it is apparent that the sale would be void on the face of the proceedings upon which the purchaser must necessarily rely to make out a prima facie case to enable him to recover under the sale. (Bucknall v. Story, 36 Cal. 71, and cases there cited.)
By section 41 of the act of March 17, 1891, the provisions of the Political Code relating to sales for nonpayment of delinquent taxes are made a part of the act. Sections 3786 and 3787 of that code make the deed prima facie evidence that the property was assessed, and the taxes levied as required by law; that the taxes were not paid, and that the sale was in all respects ac
As we regard the case, the only debatable question relating to the remedy, assuming the assessment to be entirely void, is: Did plaintiff lose her relief in this action by failure to avail herself of the opportunities afforded by the statute to correct the errors and irregularities of which she now complains?
It is hardly necessary to summarize the provisions of the act as to the matters made the subject of appeal to the council. They have been frequently stated in former cases.
It was held in Manning v. Den, 90 Cal. 610, that section 11 of the act of March 18, 1885, authorizing street assessments, to the effect that no assessments shall be invalid except upon appeal to the city council, et cetera, does not apply to a case where an appeal is not authorized, or in which, if taken, the council could not have remedied the defect, the assessment being void by reason of incurable defects; and if in such case the owner appeals, and the decision of the council is against him, he is not estopped.
It was held in McBean v. Redick, 96 Cal. 191, that where the contract is absolutely void its invalidity could not have been remedied or avoided by the trustees of the city, and, this being so, the property owner was not required to appeal to the trustees for its correction.
2. Several defects are pointed out, the result of which, it is claimed, rendered the assessment void.
(a) It is alleged in the complaint that the only paper designated by the council for the publication of notice of intention was the “Los Angeles Daily Times,” and that the only publication of notice was in the “Los Angeles Evening Express.” Section 3 of the act of 1891 provides that the resolution of intention “shall be ... . published by two insertions in one or more daily, semi-weekly, or weekly newspaper published and circulated in said city, and designated by said council for that purpose.” The act requires the street superintendent to post notices headed “Hotiee of Street Work,” and to publish like notice in one or more .... newspapers. At the expiration of a certain period thereafter, if no objection to the work has been filed, “the city council shall be deemed to have acquired jurisdiction to order any of the work to be done .... which is authorized by this act.”
An act required that notice of awards of contracts by the board of supervisors should be published for five days. It was published, but without a previous order of the board. Held, that the publication of the notice was void. (Donnelly v. Tillman, 47 Cal. 40; Donnelly v. Marks, 47 Cal. 187, followed in several subsequent cases.) So held with regard to the publication of ordinances. (Napa v. Easterby, 61 Cal. 509.) Held in Shipman v. Forbes, 97 Cal. 572, that "in proceedings where the property of a citizen is to be taken, every requirement of the statute hav
It was, we think, mandatory upon the council to designate the paper, and, being so, a publication in some paper not designated would not be a compliance with the statute, and would in effect be no publication. (Wade on Notice, secs. 1106, 1108, 1123; 2 Dillon on Municipal Corporations, sec. 605, and cases cited. See, also, Donnelly v. Tillman, supra, followed in many cases; Napa v. Easterby, supra; Shipman v. Forbes, supra; Hewes v. Reis, 40 Cal. 255.)
(b) It is alleged in the complaint that amended specifications No. 5 contains certain provisions which, when examined, we think will be found to delegate duties which the council alone can perform. In Bolton v. Gilleran, supra, the question as to the power of the supervisors of San Francisco to delegate the authority given them by the statute was very fully considered. It was cited with approval in Perine etc. Co. v. Pasadena, 116 Cal. 6. We think those cases are determinative of the point here relied upon that there was an unauthorized delegation of power by the council.
Counsel for appellant presents several other alleged fatal defects, but we do not think it necessary to notice them. It is obvious that sufficient has been shown to render the assessment void and the bond invalid. ^Respondents’ counsel make no objection to the sufficiency of the complaint, except in the single contention that the case is not one for equitable relief. While we might well have assumed that the assessment was void, it appears clearly from what has been said that in at least two vital particulars the complaint shows it so to be. We think tire demurrer should have been overruled, and that it was error to dissolve the injunction and enter judgment for defendants.
The order dissolving the injunction and the judgment in favor of defendants should be reversed and the cause remanded.
Searls, C., and Belcher, C., concurred,
McFarland, J., Henshaw, J., Temple, J.