80 P. 81 | Cal. | 1905
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *352
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *353 The defendant appeals from a judgment taken upon his default, and from an order refusing to vacate the default and judgment.
The complaint sets forth a cause of action to quiet title. The defendant's claim is alleged to consist of certain bonds *356 for an assessment for street-work, issued in pursuance of the laws commonly known as the Vrooman Act (Stats. 1885, p. 147), and amendments thereto and the Street Bond Act (Stats. 1893, p. 33.) The proceedings leading up to the issuance of the bonds are set forth at length in the complaint, and it is claimed that there are numerous irregularities and defects therein which make the bonds absolutely void.
1. Section 4 of the Street Bond Act of 1893 declares that "Said bonds, by their issuance, shall be conclusive evidence of the regularity of all proceedings thereto under said Street Work Act, and this act, previous to the making of the certified list of all assessments unpaid to the amount of fifty dollars or over by the street superintendent to the city treasurer, and of the validity of said lien, up to the date of said list." Appellant contends that under this provision the plaintiff is precluded from making the objections, and that the defects and irregularities are thereby cured.
In Ramish v. Hartwell,
It is intimated, rather than claimed, by the respondent that the phrase "regularity of all proceedings," included in the clause of section 4 in question, does not include such defects as the failure to perform a required act, but only refers to the defective or imperfect performance of such acts as appear to have been at least attempted. Some support for this contention is found in the opinion in Ramish v. Hartwell,
What, then, are the essentials the non-observance of which cannot be cured? The property must be within the jurisdiction of the local board; there must be the actual performance of some work which is to be paid for, that is, a "subject-matter" *361 of which the council can acquire jurisdiction; an assessment or apportionment of the amount to be raised must be made; and, as above stated, there must be sufficient notice and opportunity for the hearing and determination of grievances and objections to constitute due process of law. In some cases relating to ordinary annual taxes it is said there must be some notice of sale, and this is among the essentials mentioned in Ramish v. Hartwell. But these decisions do not apply to local assessments under our statute, where notice of sale is provided for by the requirement that a sale can be made only in execution of a judgment of foreclosure, in which the law for ordinary execution sales applies.
In this case the location of the street within the jurisdiction of the council, the actual performance of the work as ordered and the making of a de facto assessment are all admitted. By the Vrooman Act the city council is given jurisdiction to order made any of the improvements therein mentioned by the proceeding therein prescribed. The proceeding is begun by a resolution of intention to do the work passed by the council, which must be posted and published. A notice of the work and resolution is then to be posted and published by the street superintendent. At any time after the first publication of the resolution, and before the assessment is issued, any property-owner may appear before the council and remonstrate or object to the proceeding in any particular and obtain a hearing and decision thereon. At the expiration of twenty-five days after the resolution has been fully published and twenty days after the notice is given by the street superintendent, the statute declares that the council is deemed to have acquired jurisdiction to order the work done. This part of the proceeding constitutes "due process of law" and satisfies the constitutional requirement. (Brown v. Drain, 112 Fed. 585;
The act then makes provision with much detail for advertising for and receiving bids for the work, letting the contract for the work to the lowest bidder, the execution of a contract in pursuance thereof for the performance of the work, and the supervision of its performance by city overseers. After the work is completed to the satisfaction of the city authorities *362 an assessment upon the property benefited is to be made in accordance with the minute directions of the statute, and when properly certified and recorded the several amounts assessed become liens on the several lots. All persons are deemed to have notice of the assessment from the time it is recorded.
It is obvious that the manner of procedure after the council has acquired jurisdiction to order the work done — the entire subject of letting the work, executing the contract, completing the work, and the minor details as to the mode and manner of making the assessment — are matters within the legislative discretion. If a plan entirely different in detail from that contained in the statute, but arriving at the same result had been adopted by the legislature for the accomplishment of these objects, and had been enacted as law instead of the one embodied in the statute, such law, from a constitutional point of view, would have been a valid enactment. There is nothing in the constitution which made the plan adopted a necessary one in these particulars. The legislature could at any time amend the law by omitting all the details after jurisdiction is acquired, and giving the council general power to get the work done by such means and in such manner as it deems best, and the law would still be constitutional. It must be equally competent to provide, in the law itself, that a disregard of its provisions as to any of these intermediate proceedings shall not be fatal to the validity of the assessment, or that after a given stage in the matter has been reached, all inquiry as to such proceedings shall be cut off, and they shall be conclusively presumed to have been performed in the manner required by the law.
2. Many of the plaintiff's objections to the proceedings are within the scope of this proposition. Among these objections are the following: That the time for the completion of the work was extended after the time first fixed had expired; that the notice of the time of receiving bids for the contract was not posted or published for the precise number of hours or days which plaintiff claims the law directs; that the contract did not contain a provision that the materials "used" should comply with the specifications; that the street superintendent recorded the assessment but did not properly certify to such record; that the time for beginning work under the *363 contract was not precisely fixed by the contract; and that the certificate of the engineer does not show that he measured the work.
Without determining whether or not these objections would be fatal or material if offered in a proceeding in which they could be made, it is sufficient to say that, under the curative clause of the Bond Act, after the bonds are issued the objections are conclusively presumed to have no foundation in fact.
The legislature undoubtedly could have enacted a valid law, which would have authorized the extension of the contract after the time first fixed had expired, or the receiving of bids after a more limited notice, or providing that a contract need not expressly provide that the materials used shall comply with the specifications, or that the record of the assessment need not be certified, or that the time to begin work need not be fixed in the contract, or that no certificate need be made by the engineer. Having such power, it likewise has power to declare that after the issuance of the bonds it shall be conclusively presumed that such directions, if any such exist, have been followed.
The same may be said of the objection that the specifications delegated to the street superintendent powers which the law vests in the council. Such powers might lawfully have been given to the street superintendent in the first instance, and hence they are subject to the curative effect of the clause in question. There might, of course, be an attempt to give him such power as to enable him to make a complete departure from the statutory plan of procedure, and substitute for the work ordered by the council a different character of work. This would be equivalent to an attempt to compel the making of the improvement without notice of the character of the work to be done, — that is, without due process of law, — and it would necessarily be void notwithstanding a curative clause. So also the alternative plan giving him power to change the amount of the contract price and of the assessment, as was attempted and condemned in Bolton v.Gilleran,
With respect to the objection as to the failure of the contract to declare that the materials "used" shall comply with specifications, it may be observed that the contract does require the contractor to "furnish" the materials required thereby and according thereto. Counsel's argument is, that materials can be "furnished" without being "used." The answer is, that no materials can be used without being furnished, and if the materials furnished are sufficient, the materials used must be sufficient also.
Some other questions require more particular notice.
3. The fact that the plaintiff at the time the procedings were in progress was a mortgagee only, and became an owner subsequently upon a foreclosure of her mortgage, even if it is conceded that such fact is averred, is entirely immaterial. As mortgagee she was as much bound by the proceedings as if she had been the owner, and her lien as mortgagee, although it may have been prior in point of time to that of the assessment, was not, because of that priority, paramount thereto. The assessment lien covered the entire estate and was paramount to all existing liens of a private nature. (German Sav. and L. Soc v. Ramish,
4. The fact that the conclusive evidence clause of the Bond Act arbitrarily fixes a period of thirty days, after which defects which before may have been fatal are placed beyond inquiry, does not make the law unreasonable. There is no strict analogy between such a law and a new statute of limitations shortening the time previously allowed for the bringing of an action. In such cases it has been held that the new law is void if it prescribes a period so short that it does not give the party a reasonable time after it takes effect within *366 which to begin his action. Here the notice of the proceedings is sufficient to constitute due process of law. The period of thirty days after the date of the warrant, within which the statute permits an owner to prevent the issuance of any bond by filing an affidavit and requesting that no bond be issued, gives a reasonable time to the owner within which to make his election whether he will take advantage of the extension of time afforded by the issuance of a bond, or, by requesting that no bond be issued, preserve such rights as he may think he has to defeat the assessment for irregularity in the proceedings. The notices having been given, he is conclusively presumed to have knowledge of his right to so elect. It should not be forgotten that, at the time the assessment becomes due, other persons have valuable property rights at stake as well as the owner.
5. It was not necessary that the resolution of intention should have given a more complete description of the work. The act provides that the council shall pass a resolution of intention "describing the work." The resolution in question declares it to be the intention of the council that the described street "be graded, graveled and guttered in accordance with the plans and profiles on file in the office of the city engineer and specifications on file in the office of the city clerk of the city of Los Angeles. . . . That a cement curb be constructed along each line of the roadway of said" street in accordance with said specifications, and "that a cement sidewalk five feet in width be constructed along each side of said" street, in accordance with the said specifications.
It is claimed that the resolution does not sufficiently describe the work, and also that the plans and specifications on file are made a part of the resolution by the reference to them, and that the proceedings are void because these plans and specifications were not incorporated into the resolution and published. The appellant in answer to this claim contends that the curative clause of the Bond Act covers these defects, if such they are. The resolution of intention is the first step in the proceeding. It is to be published, and it is by means of such publication, and the notice thereafter given, which refers to it for particulars, that the council acquires jurisdiction. It is a part of the "due process of law" required by the constitution, the want of which cannot be cured or waived by the *367 legislature. There must be a substantial compliance with the provisions of the act in regard to this preliminary process.
In several decisions of this court, involving resolutions which did not refer to any sufficient plans or specifications, it has been held that the phrase "describing the work" in the act, means that the resolution must not only describe the work proposed to be done, but must also state, in general terms at least, the materials of which such work is to be composed. Thus, it is said that a resolution declaring the intention that a certain street be "curbed" or "guttered," or that "suitable drains and inlets" be made, or that a "flushing apparatus" be provided, does not sufficiently describe the work, and that an assessment founded upon such a resolution is void. (Schweisau v. Mahon,
This does not make the plans and specifications referred to an integral part of the resolution so that they must also be published in order to comply with the statute requiring the publication of the resolution. The rule is but an application of the maxim, "That is certain which can be made certain." (Civ. Code, sec.
6. The Bond Act provides (sec. 2) that "Whenever the city council . . . shall find, upon estimates of the engineer, that the cost of any proposed work . . . will be greater than fifty cents per front foot" it may determine that bonds shall be issued under the act, and (sec. 3) that when said city council shall determine that bonds shall be issued "it shall so declare in the resolution of intention to do said work." (Stats. 1893, p. 33.) These provisions do not make it necessary that the council should by a formal statement declare such finding. The council must, of course, ascertain and find that the cost will exceed the amount named, but this does not mean that *369
there must be an express written declaration of such finding similar to that required in an action in the superior court, or at all. The resolution, after the recital as to the cost, declares that "it is hereby determined that bonds shall be issued" as provided in the act. The passage of the resolution containing this declaration sufficiently indicated that the council had found the necessary fact. Where a legislative body is given power to act whenever it shall find a given fact to exist, it is not necessary, as a condition to the exercise of the power, that such body should previously or contemporaneously make a declaration that the fact exists. The fact that it takes the action raises the presumption that it had upon inquiry ascertained the existence of the fact, unless the statute giving the power explicitly requires an express finding or declaration of the conditions precedent. The Bond Act does not require any declaration whatever as to the cost. All that is required to be stated in the resolution is the determination of the council that bonds shall be issued. This the resolution does, and this implies a finding that the cost exceeded the amount required. (McQuillin on Municipal Ordinances, sec. 140; German Sav. and L. Soc. v.Ramish,
7. It is claimed that the contract was awarded at a time when the council was not lawfully in session. There is nothing in the point, even if we concede that the curative clause does not place it beyond inquiry. It is alleged that the council, being in session the day before, had adjourned that session to the next day at ten o'clock, but that in fact said adjourned session was called to order and began to transact business at nine o'clock, and that the contract was awarded on that day. It is not alleged that the contract was awarded before ten o'clock, and it will certainly not be presumed that such was the fact. Further comment is unnecessary.
8. With regard to the supposed defect in the certificate attached to the record of the assessment and in the record itself, it may be further said that the facts alleged show no such irregularity. It appears that the warrant, assessment, diagram, and engineer's certificate were copied in the proper book by the street superintendent, and that the certificate was in the following words, written underneath them: "Recorded *370 9:15 a.m. Apr. 11, A.D. 1896. P.A. Howard, Street Superintendent City of Los Angeles." The criticism seems to be that the documents may have occupied several pages of the record, and the certificate is insufficient because it does not expressly state that all of the documents were recorded at that time. This, however, is implied from the words used and the place where they appear immediately following the documents, coupled with the further consideration that the law required all these documents to be recorded by that officer in that book. This would be a sufficient showing to admit the record in evidence, and it by no means justifies or authorizes the conclusion that the documents, or any of them, were not recorded at the time stated.
9. Section 2 of the Vrooman Act provides: "that whenever the grade of a street shall hereafter be changed, the petition of the owners of a majority of the feet fronting thereon, asking for grading the same to the new grade, shall be a condition precedent to the ordering of such grading to be done." It is alleged that the grade had been changed before the proceedings here involved were begun, and that the change of grade was made upon a petition which was not signed by the owners of the major part of the frontage, as required by section 38 of the act as amended in 1893. (Stats. 1893, p. 89.) It is further alleged, in effect, that the resolution of intention to do the work for which these bonds were issued, was preceded by and founded upon a petition asking that the street be graded to the new grade, which petition was not signed by the owners of a majority of the frontage, as required by section 2 above quoted. Hence, it is claimed the proceeding was unauthorized and the bonds void. In German Sav.and L. Soc. v. Ramish,
10. In regard to the contents of the certificate of the city engineer recorded with the assessment, it should be said that the act nowhere specifies what such certificate shall contain, nor requires that any such certificate shall be made. If the street superintendent finds himself able to make the assessment without the aid of any certificate from the engineer, there is nothing in the statute forbidding him from doing so. If he procures such certificate to aid him, the statute requires that the same, whatever it contains, must be recorded. Only that and nothing more. (Reid v. Clay,
11. The description of the bonds in the resolution of intention was sufficient. It specifies that the bonds shall be issued to represent the cost of the improvement, and shall be serial, extending over a period of ten years, an equal portion to be paid annually on the second day of January of each year after their date, and to bear interest at seven per centum per annum, payable semi-annually on the second days of July and January. This, in connection with the positive requirements of the statute concerning the form and contents of the bonds, describes them sufficiently. It is not intended that the resolution should copy the proposed bonds in full.
12. We can see no reasonable objections to the form or *372 sufficiency of the contractor's return upon the assessment. It was not necessary that it should state with whom the street superintendent contracted. The warrant was in favor of Stansbury and Moore. The return was made by Moore, and states that he is the contractor named in the assessment, diagram, and warrant. Moore was certainly named in the warrant, and as the diagram and assessment are not in the record we must presume that they also name him, so that the statement is not untrue, even if Stansbury was also named and the statement was material. It is clearly shown therein that the demand was made by virtue of the warrant, though it is not expressed in the same language as that which counsel for respondent uses in his brief to express the same idea. Besides, these irregularities, if material, are cured by the conclusive evidence clause.
The conclusion is that the complaint sets forth no irregularity in the proceedings which is not cured by the Bond Act, and hence that the bonds of the defendant are valid and the complaint does not state a cause of action. The judgment must therefore be reversed.
The writer of this opinion was the judge of the court below who presided when the judgment was rendered. He desires to say that the judgment was given on default, ex parte, and without any consideration of the effect of the curative provision here discussed.
13. The appeal from the order refusing to vacate the default may as well be dismissed. The reversal vacates the judgment, and no further proceedings can be had in the court below, except upon an amended complaint, which must be served on the defendant. This will necessarily open the default. The appeal, therefore, presents a question wholly immaterial to the rights of the parties, except as to costs, and as the two appeals are presented on the same transcript and briefs the appellant will recover all costs.
The appeal from the order is dismissed, and the judgment is reversed with costs.
Angellotti, J., Van Dyke, J., and Beatty, C.J., concurred.
Dissenting Opinion
I dissent, and adhere to the subjoined opinion heretofore rendered in department. I think the correct rule for the interpretation of the statute in *373
question was laid down in Ramish v. Hartwell,
McFarland, J., and Lorigan, J., concurred in the dissenting opinion.
The following opinion was rendered in Department Two, April 2, 1904: —
Addendum
This action was brought to quiet plaintiff's title against a lien upon her lands claimed by defendant by virtue of his ownership of certain street bonds. The plaintiff sought to have the bonds, the assessment, the warrant, the diagram, and the proceedings for the street-work and the contract for it so far as they affected her lands declared to be null and void, and sought further to have the bond delivered to the clerk of the court and by him canceled. The complaint is therefore in its nature a bill of peace against the outstanding street bonds. Defendant made default, and the judgment granted plaintiff the relief sought. Defendant appeals from that judgment and from the order of the court refusing to vacate his default.
The questions here presented have to do with the provisions of the general street laws of the state, the Vrooman Act, and *374
the Street Bond Act (Stats. 1893, p. 33). The latter portion of section 4 of said last-named act, after setting forth the conditions whereunder and the terms whereby such bonds may be issued, provides as follows: "Said bonds, by their issuance, shall be conclusive evidence of the regularity of all proceedings thereto under said Street Work Act and this act, previous to the making of the certified list of all assessments unpaid to the amount of $50 or over by the street superintendent, to the city treasurer, and of the validity of said lien, up to date of said list." In Ramish v. Hartwell,
Under the rule here laid down, which may not be gainsaid, we may turn without further discussion or citation of authorities to the attacks made by the complaint against the validity of the bonds; attacks which for the purposes of this appeal are to be taken as true upon all matters of fact properly averred. These attacks are some fifteen or more in number, but it will not be necessary to consider them all, since the *375 grounds of some of them at least are well taken, and they are sufficient to invalidate the bonds in question.
1. It appears that the contract was dated upon September 28, 1895, and the work was to be completed "one hundred and twenty days thereafter." This means the designated number of days after the date of the contract. (Palmer v. Burnham,
This radical defect, however, appellant insists, is cured by the conclusive-evidence clause of the Bond Act, and herein the reasoning is that the conclusive-evidence clause of the act is in its nature curative, and validates anything and everything done or not done, jurisdictional or otherwise, the doing of which the legislature might in the first instance have dispensed with. This, within certain limitations, is true, but the limitations are set forth in Ramish v. Hartwell,
2. The specifications under which the street improvement was made delegated powers which the law requires to be exercised by the council. Without setting forth these specifications, it is sufficient to say that they are identically the same as those discussed and condemned in Chase v. Scheerer,
3. The motion to vacate the default was based upon an alleged mistake in law upon the part of the defendant, who *377 believed that the defects pleaded in the complaint were unanswerable and fatal to the validity of his bond. As the sole ground for vacating the default was that this belief was mistaken, and as appears from the foregoing it was not a mistaken belief, the trial court properly refused to make the order.
The judgment and order appealed from are therefore affirmed.
McFarland, J., and Lorigan, J., concurred.
The following opinion was rendered by the court in Bank on petition for rehearing March 31, 1905: —
Addendum
On petition for rehearing.
The petition for a rehearing is denied.
In response to an objection urged somewhat at length in the petition for a rehearing, we think it proper to say that a mortgagee of property affected by a street assessment has the right of appeal to the city council secured by section 11 of the Vrooman Act (Stats. 1885, p. 156), as fully as the owner of the property. The rule of strict construction in regard to proceedings to assess property for local public improvements does not apply to those provisions of the law which are made for the benefit of the property-owners to enable them to present objections to irregularities in the proceedings. With respect to such provisions the statute will be liberally construed in favor of the person interested. (City Street Imp. Co. v. Babcock,
Beatty, C.J., Angellotti, J., and Van Dyke, J., concurred. *378