*1 239, 240 People Hampton, Cal.2d supra, at 636 [20] district [3] It would attorney remarkably appear 300].) or defendant’s free of reading any type attorneys. of the record of misconduct No error this case appears. judgment affirmed. Gibson, Traynor, J., Schauer, J., Peters, White, J., J., J., C. Dooling, J., concurred.
Appellant’s petition rehearing January for a was denied 25, 1961. In A. 25841. Bank. No. Jan.
[L. 1961.] ANGELES, Petitioner, THE CITY OF LOS v. MILTON OFFNER, Respondent. *2 Roger City Attorney, Bourke Arnebergh, ones, J Assistant City Attorney, John D. Barrett, Feldmeier, John F. Weldon *3 Deputy City
L. Weber and Powers, William P. Attorneys, for Petitioner. City Attorney McBride, (Concord), Thomas P. William W. City Attorney
Coshow, (Redding), Doug- Sturgis, Den-Dulk, Eugene Sturgis lass & Anderson and K. as Amici Curiae behalf of Petitioner.
William Mackenzie Brown and Roscoe R. Hess for Re- spondent. city Angeles SCHAUER, J.—The of Los seeks mandate to compel respondent, secretary public board of works, post publish inviting to and notices bids for certain by city sewer construction work pur- authorized ordinance (as Improvement suant to the Act of 1911 in codified &Sts. Hy. Code, 5000-6794). The ordnance which declares the §§ city improvement council’s intention to construct in- part cludes, assessment, as “a con- purportedly
nection for outlet facilities” authorized by (i) Highways of section 5024 of subdivision the Streets and by and (added to section Stats. ch. 158 such Code eh. 825L1 publish post and as Respondent refused to notices ordered petition by council, now demurs to ground mandate, that it does not state facts sufficient on the (i) in a cause action that subdivision constitute providing for the 5024 and the ordinances section improvement directing the local are uncon- assessment Respondent urges improperly (i) that subdivision stitutional. purports in a permit inclusion assessment expenses part “charges” are not actual costs and improvement; local that statute unconstitu- is tionally indefinite,- providing and that the ordinances for the improvement proposed special directing assessment and they “charge” are in the as- invalid because include such For the reasons hereinafter stated con- sessment. we have (Sts. Hy. Code, statute & cluded § (i)) legislation insofar as it subd. includes charge purportedly subdivision are invalid. authorized Angeles (adopted approved Ordinance 115574 February 1960) the intention of the council to declares improve sanitary described sewer district construction appurtenances sewers and house connection sewers specifications. ordi- plans accordance with certain provides proceedings improvement nance for the shall Improvement be had accord with the Act of and that “the estimated total cost and ”2 $390,372.26. among It provides, things, further other as follows: contemplated improvement, work or 3. The said
“See. “ expense’ provides can be made [which ‘Incidental 1Seetion against part the lands in the to be assessed the costs (i) In event that the construction . . includes: . district] ordered, any appurtenances have thereto shall been incident of sewers to the condition been that shall have established ’ ’ providing assessment district. sewer service added.) (Italics against the dis is to be assessed cost of the 2Not all the effectively trict, tied either to the cost amount to be assessed nor specific property. Ac specific or to the ‘‘ [among things] declaring title, other cording is one the ordinance its *4 public ordinary of more than local or be or to the work provides, “An allocation And section ordinance benefit.” defray may excess costs and ex public made to estimated be funds interceptor type penses sewer over that of a local sewer normal $60,373.38 per however, depth, exceed, 15.5 cent of not to or size and costs, lesser. whichever is the total final ‘ ‘ presented ordering shall not be this The final ordinance opinion Council, such that the costs of the is of nature proportion expenses be in to estimated should assessed hereby arising therefrom;[3] makes benefits Council expenses work or the assessable costs of said hereby chargeable upon a district which district the Council improve declares to be the work or district benefited said ’’ expenses ment to be to the costs and thereof. assessed expenses 7. That “Sec. the incidental the work to be charged upon the district . . . shall be in the amount of the actual costs in connection with incurred the work described herein, provided, however, that the amounts to be assessed expenses shall, such aggregate, in the in no case exceed either price $500, of the contract whichever is the 12% larger exception see the declared in the paragraph] next [but any expenses that incidental incurred for consummation of this work in excess these limitations shall .be . . de- frayed budgeted departments funds concerned. “Notwithstanding limitation,[4] said in addition to the expenses charge work, said incidental outlet facilities, has been in an established amount per equal acre as providing $400 condition to the properties sewer service to in the assessment will district, as against assessed an incidental properties such therein served sewers and with accordance Section 64.16.1 of the Los Angeles Municipal (Italics added.) Code.” This gives present litigation. $400 rise to the ’ ’ purpose. the Council until funds have been made available for said (Italics added.) adopting appropriated After Ordinance 115574 the council $60,373.38 but, opinion p. (infra, [6]), as shown in the text of the this against arbitrary charge sum is §400 an acre assessed offset providing properties “as a condition to the of sewer service ’ ’ assessment district. 3Apparently section, declaring expenses this that “the costs and ’’ proportion arising therefrom, should be assessed to estimated benefits only they among means should be assessed this manner the various district, lots finding and is not a determinative equals whole the benefits to the whole district. peculiar provision reading 4This “Notwithstanding bears twice: said limitation, in addition work, to the said incidental equal per for outlet facilities ... in an $400 acre . . . ’ ‘ ‘ expense ’; will be assessed as an incidental this additional incidental expense” specified assessment of an acre is to be “a condition to providing of sewer service to in the assessment district.” may ponder what, any, specially One well as to if assessed property could receive from the if basic work §400 additional an acre paid. were not *5 108 (as Angeles Municipal Code the Los of 64.16.1 Section (with ex- provides immaterial 1, 1957) December amended any lot granting permit connect “Before ceptions) that public or house to a sewer already connected parcel or require, in addition ., the shall . . Board sewer connection imposed 64.12 to charges and See. Sec. fees all other charges], other concern various sewer 64.22, inclusive [which therefor of a fee connec- applicant payment equal to $400 facilities of an amount charge for outlet tion preliminary A per property to be served. ...” acre of the estimates shows spread of the assessment based of of these total against in the district will be assessed
$46,934. April, 1960, adopted approved in 115829,
Ordinance 115574 be done orders that the work described Ordinance given provided inviting notices bids previously stated, respondent Improvement Act of 1911. As post litigation publish notices, this refused to followed. improve theory of assessments for local
ments lows 117 as is a reasonable Roads and [2] [5] necessary such as The assessment improvement ‘and the local authorities cannot County [17 Streets, P.2d of fair one upon the San complete 734] 4th mode.’ can he levied here Diego : ed., p. 892.) “The under discussion is stated as v. ([Italics Childs particular improvement any only ” other work than such added.] assessed. (1932), the actual cost view that 217 must 2 [Citation.] Elliott on Cal. include confer 109, fol properly Legislature cannot authorize a for a local amount which exceeds necessary cost of actual incidental ex expressed penses, implicit is also in the following cases: Spencer (1888), v. Merchant 125 345, 353, U.S. 355 S.Ct. [8 ; City 921, 31 L.Ed. Southwick v. Santa Barbara 763] (1910), 14, 610]; Cal. 19 P. Prospere 158 City v. [109 Richey (1929), 508, Port 98 Pla. 2]; City New 510 So. [124 (1925), 424, 194, Cochran 160 Ga. Camilla v. 431 S.E. [128 City [3]]; (1893), Davis 313, 197 v. 145 Ill. Litchfield 325, 888, 328 ; N.E. 21 Building L.R.A. Union [33 563] City Chicago (1871), v. 439, 442; Assn. Ill. City 61 S,W.2d Ky. (1931), 305, Marion Paris 311, v. 237 309 [35
109
313];
City
ex rel.
State
Shelby (1938), 107
Griffith
Mont.
571,
183, 186]; City
577
[87
Asheville v. Wachovia
360,
Loan & Trust
(1906),
Co.
143 N.C.
366
S.E.
[55
800]
In re Mill Creek
(1900),
Sewer
196
183,
Pa.St.
187 [46
312];
A.
Vincent v.
South
(1915),
Bend
83 Wash.
452];
P.
Bekkedal
Viroqua
(1924),
[145
Wis.
887]; Hardy
N.W. 879,
[196
v. Waukesha
(1911),
Ill beyond frontage properties may thereby that be served greater depth or at a greater normally or of a than size would required abutting properties be to serve in the assessment (Italics district.” added.) quotation argument
Also, following from the as the position pertinent state statute shows,it takes the legislation contemplate local that the to be part assessment can be used collected as of the maintaining and will furnishing for the cost of sewers and services subject properties which benefit not in the assessment district: may Legislature, in its enactment of subsection “The be any expecting city establishing considered as furnishing accurately for sewer service so as would do equitably possible, experience local conditions, based its expert and needs and with best advice available concern- ing expenses anticipated maintaining incurred and to be system furnishing its sewer may sewer service. It be as- proceeding duty sumed in this that official has been and will regularly performed and that the amounts that approximate received from fairly will the total expenditures necessary that will be for the sewer system, and that, application within each city, the the ap- charge will (Italics added.) be definite and fair.” It is parent from Angeles the nature of system the Los sewer city’s proposals to use the $400 an acre “connection charges” purposes (outlet sewer sewer construc- system tion and sewer maintenance, without limitation furnishing sewer service to the lands in the local district) could divert pay- those funds to ments which would benefit far removed from the Angeles district. The system Los sewer includes the Hyperion sewage plant, treatment tube, submarine and outfall sewers which the required construct a 1946 decree in an action the state to abate a nuisance and to re- Angeles strain Los municipal and other public corpora- discharging tions from sewage into Bay Santa Monica without permit. (See People City Angeles Los (1948), 83 Cal. App.2d 627, 645 489].) Angeles Los (with other defendants in the abatement action) must bear its share the costs of operating and maintaining those to such the court. Los p. *8 Angeles [3] decree, (See of 83 Cal.App.2d, (1955), 45 People City provides Cal.2d for continuing supervision by City Angeles Vernon v. works (1948), supra, 841].) pursuant case, argument of this city in has said oral As the sewage plant from the Hyperion disposal through the by imposed upon the system law Angeles “is a burden Los People City Angeles (1948), in Los city” decree course, is, of Cal.App.2d The essential service supra, 83 627. city, of the entire of all sense, for the benefit in a broad people sustaining city. city in the The cost of of all the land city liability of its is a the burden direct but it can seeking of funds is understandable sources new follow, framework, our each
not parcel within constitutional Angeles with which is furnished of land specially local sewer can be assessed connected to new operation in of the whole outfall and treatment some share improvement. of the local to its share of the cost To addition permit special otherwise would be to to divert hold purposes. to taxation assessment funds city urges appropriated that because it has private $60,373.38 its sewer construction account the described 2, supra, footnote whereas the assessment of sewer charges only $46,934, connection will amount to estimated appears property that the owners assessment district proposed improvement greater will receive a return from the disputed charges. But, than the amount of the as stated in proposed improvement Ordinance is “of more ordinary public $60,373.38 than local or benefit” appropriated defray “to the estimated costs and interceptor type sewer over that of a local sewer normal depth.” (Italics added.) appears size and It thus from this argument that the is of the mistaken prop view that the erties including district can be required, the sewer connection assessment, to bear the of an in an amount substantially pro exceeds posed benefit those from the contrary This construction. theory the basic compensating “The property benefit to the owner is the war warrant, rant, legislature impose sole for the of a burden assessment. [Citation.] must confer a assessed. ” (County Biego San (1932), supra, v. Childs [Citation.] 109,117.) 217 Cal. city’s petition It true for mandate does not expressly show that the does or does not represent actual be incurred incident to constructing subject improvement the work of or of fur-
113 property are mind assessed. We nishing future service duty legislation as to save its constitu to so construe ful of our tionality reasonably possible (Palermo Stockton if that is v. 53, 1]), and of Theatres, (1948), 60 P.2d 32 Cal.2d Inc. [195 duty imposing such application the rule particular the (Banaz v. validity is attacked of an assessment the where Hadley Hague 102,105 P. v. (1901), 133 Cal. Smith 309] [65 500]). the state 221 P. But since (1900), Cal. 130 [62 frankly proposes legislation permit, local guise of a unequal real effect, taxation of to special improvement, appears mani for a local assessment uphold particular festly inappropriate for court to this this theory (by liberally that virtue of constru on the assessment ing possi petition pleader) in favor of there is a bare bility improper, to be assessed is not and to that the amount legislation theory (by uphold on the that virtue of political presumption constitutionality) other local sub unconstitutionally pursuant may perhaps not act divisions legislation. dubiety presumption such of reliance constitutionality is here further indicated the fact that municipalities curiae, Angeles, urge other than as amici Los applied properly in a manner that the statute can such as proposed by Angeles. that Los argues Legislature, defining Petitioner “any expense” “incidental to include that shall have providing established as a condition to the
been (Sts. Hy. Code, 5024, & (i)), sewer service” subd. acted § legislative body the rule that “When a within enacts statute prescribes meaning given particular which terms by it, meaning binding (Rideaux the courts” used whether or not the used Such Torgrimson (1939), Angeles for other rule, however, (1946), purposes statutory cannot sustain a definition the 29 Cal.2d (Trabue Cal.2d definition Pittman 636 conforms [3] [2] [86 Corp. County to definitions P.2d operative 826]), 512]). is unconstitutional. effect of which attempts curiae, in to show that and amici legislation theory statute and local accord with constitutionality of legislation other attacked, which has not been provided a number of statutes which cite have types fix collect various of districts can sewer connection provide charges and some of which that such can be a lien on the land in the district. The existence of made not raise, of, or contribute to the solution statutes does problem of indefiniteness of subdivision of section 5024, inclusion in has led to the invalid indefiniteness which subject special for a of a connec- measured the actual tion not mistakenly proposed use, and is for of the local only, the cost and but to improvements pay for maintenance or which will benefit the system generally or other than sewer those special assessment district. conclusions, our other In view of above stated contentions parties require particular do not discussion.
Respondent’s petition demurrer is sustained mandate is denied.
Peters, White, J., pro J., Lillie, tern.,* J. concurred. GIBSON, J.—I C. dissent. Angeles Municipal Code, of the Los Section 64.16.1 1957, requires payment per a amended in of fee of $400 charge as a for connection with the acre outlet sewer charge prior collected, separate This was to 1960,
facilities. apart any special assessments for local sewer im- provements, landowners, being after for assessed required improvements, local lump were the charge in a they improvement. sum could use the local before It is undisputed per charge that the connection with city’s system the outlet facilities of the is reasonable in amount municipal imposing that the code section charge and valid. is By (i) enactment of subdivision of section of 5024 Highways Legislature Code 1959 the Streets authorized inclusion of such assessments as an inci- expense, 1960, thereafter, and when dental adopted by us before was ordinance 115574, the charge was in the amount The included assessed. landowners within the may pay the amount of the period district assessment over a years. of majority The holds that subdivision of section 5024 of Highways
the Streets Code and the 1960 ordinance, insofar as it includes the authorized (i), subdivision holding solely unconstitutional. The is are based violation section 1 of asserted article XIII the state Con- provides, property “All stitution which in the State . . . *Assigned by Chairman Judicial Council.
115 provision, This ...” its value. proportion shall be taxed us. before applicable to the situation see, is not shall as we require entitled well settled rule is charge as a condition to connection payment of a reasonable system. (Harter v. Barkley, use of its sewer 158 Cal. with or Longridge City 556]; Estates 742, P. v. 745-746 [112 Cal.Rptr. Cal.App.2d 533, 539-540 Angeles, 183 [6 900] Cal.App.2d City Diego, 168, 164 Cramer v. San Code, 5471; & ; Health Saf. The Sewer Dis P.2d § 235] [330 (Stats. [formerly 1899, 66, p. ch. 81 Act 1899 Health trict §§4659-4667, repealed 1309, p. Code, 1959, ch. & Stats. Saf. City Trondsen, 93, see 48 101- 3581]) ; Glendale v. Cal.2d Municipal ; McQuillin, Corporations, 103 11 1] [308 pp. charge, merely 31.30, 238-240.) represents Such § payment them, landowners services of benefit to subject requirements is not a tax to the constitutional uniformity equality like those section 1 of article (See (4th Cooley, 1924), 36, 268, XIII. 1 Taxation ed. §§ pp. Am.Jur., §§16, 115-117, 569-572; Taxation, 157, pp. 51 209.) 48-49, Trondsen, supra, In Glendale 48 Cal.2d seq., charges et 101 we held for rubbish collection did XIII, pointing not come under section 1 of article out that sewer service have been not to taxes. held constitute (48 p. 102; County at see Cal.2d also Louisville & Jefferson Metropolitan Joseph Seagram Dist. Sewer E. Sons, & 307 Ky. 588].) S.W.2d A.L.R.2d being now included fact that formerly separately, collected assessment, does whereas that it becomes a tax to section its so not alter character authority supporting XIII, there is substantial article charge for a reasonable sewer service conclusion *11 special a The in assessment. cases dis- properly be included be assessed is below establish cussed may but local installations be based to the cost of limited contributing to the benefit of landowners and all elements improvements for the use of may a reasonable include operation larger for maintenance. area and serve 85], Etheridge City Atlanta, 84, 222 v. 167 Ga. S.E. [145 of sustaining a directly point. In sewer assessment excess constructing a lateral sewer and connections cost of of the building, held that the private property, the court cost with city’s disposal repairing, upkeep of trunk sewers and plants into and that reasonable be taken consideration should connecting trunk lines privilege of with the charge for the 116 to the actual cost could be added lateral sewers and property City Angeles, connections. Roberts v. 7 Cal.2d 323], 477, may P.2d held that the 490-494 include its [61 furnishing current, estimated costs of electric repairs,
supervision
lighting.
in an
for
concluding
street
In
there should be no distinction between the cost of the
to be
services
rendered
cost of the mechanical contriv-
part
improvement,
ances installed
the Roberts deci-
pointed
sion
out that the
benefit
the landowners arose from
improvement,
the whole
the services
reasonably
were
necessary,
and that the fact that the
private
rather than a
party
to furnish
them did not
duty
affect the district’s
(7
pp.
for them.
490-494.)
Cal.2d at
There are
holding
also decisions
that the
sewage
use of
dis
plants
posal
trunk
is a
mains
benefit to the land
improvements
that the
served and
be met
(Federal
assessments.
Construction
Ensign,
Co. v.
59
200,
Cal.App.
seq.
209 et
(pet.
P.
hg.
[210
for
den.);
536]
Improvement
Davidson v. Sewer
4,182
Dist. No.
Ark. 741 [32
1062, 1064]; City
S.W.2d
Elmhurst v. Rohmeyer, 297 Ill.
761,
Alley
430
;
City
N.E.
v.
Lebanon,
[130
764]
146 Ind.
1003,1004] ;
125
N.E.
Gray Dingman,
v.
[44
The
relies on assessment cases which did
not involve a
for use of a
system any
sewer
other reasonable
which the
was entitled to make
service furnished
For
it.
example, County
San
Diego
Childs,
been J., J., Dooling,
Traynor, concurred. rehearing January application for Petitioner’s denied pro place tern.,* participated therein in Lillie, 1961. J. disqualified. Gibson, J., McComb,J., himself C. of Traynor, who deemed opinion J., Dooling, J., were of the granted. application should be
* Assigned Chairman of Judicial Council.