27 Cal. 613 | Cal. | 1865
Lead Opinion
This action is brought to recover of the defendant the amount of the assessment levied upon a lot in San Francisco, by the Superintendent of Public Streets and Highways, to pay the plaintiff, as the contractor, for his services in grading Union street; also to enforce the assessment as a lien upon the lot.
The defendant was the owner of the lot when the services were performed, and still remains the owner. Previous to the making of the contract for the grading of the street between
The construction and improvement of streets are public works, and are intended for the benefit of the public at large; and though the presumption may be indulged in that the larger portion of the benefit inures to the owner of the contiguous property, yet it is but a presumption which in a large proportion of cases is not true, and it remains but a presumption that is liable to be rebutted by proof of the truth. The streets, although public works and designed for public use, are not always constructed at public expense, but more generally they are graded and improved under the direction of the municipal authorities, at the expense of the contiguous lots and lands. The municipal governments, in causing street improvements to be made, act under the authority conferred upon them by the Legislature, the authority being a portion of the sovereignty delegated to them for the purposes of municipal government.
The municipal government, in the exercise of the authority thus conferred,.is subject to all the constitutional restraints and limitations imposed on the Legislature, and has no other or greater power than is and lawfully may be conferred on it by the legislative act'. It can make no order for the improvement of a street, and make no provision for the payment of the expenses, that the Legislature might not do if it should act directly in the matter. When the improvement has been made, an assessment is levied upon the adjacent real estate by the city government, in such manner as the Legislature has directed, to pay for the expenses of the work. Is the right to levy the assessment thus conferred upon the city a portion of the power possessed by the Legislature of
It is also very difficult to uphold the power of levying the assessment on the adjacent property upon the theory that it is parcel of the right of eminent domain, transferred by the Legislature to the subordinate authority. When private property, whether lands or personal property, or the value of either of them, is taken for public use, just compensation must be made therefor. In order to overcome this apparently unsurmountable difficulty, it has been often held that the owner of the property should be deemed to be compensated by the benefits in the way of an increase of value that the property has received by the adjacent improvements. We do not under
When expenses for the improvements have been incurred by the city, or some one acting under her authority, it has been usual to give a lien upon the adjacent property, or to authorize it to be sold for the payment of those expenses, or some part of them. This brings us to the inquiry whether, by the provisions of the San Francisco Consolidation Act, and the amendments thereto, the Legislature has in fact done anything more than to provide for a lien upon the adjacent property and define the manner in which the same may be enforced. Sections forty-two, forty-seven, and other sections of the Act of 1856, provide that the expenses of the several
The Act of 1862, which was in force when the work under the contract was completed, in the eighth section prescribes in detail the property that shall be liable for the payment of the different kinds of improvements; and a subsequent section provides that upon the doing of certain official acts the amount assessed upon each parcel of property shall be and constitute a lien thereon. It is apparent from these provisions of the Consolidation Act, that it was intended that the expenses of each street improvement should be borne by the contiguous lots; and there is no clause in the Act of 1859, or of the Act of 1862, which, either directly or by necessary implication, charges the owner of the lot personally with those expenses that are required to be assessed upon the lot, unless that is done by those'provisions of the Act prescribing the mode of procedure for the collection of the assessment. Ho cause of action accrued in any manner to the plaintiff as against the defendant, to recover the assessment until after the Act of 1862 took effect; for the work was not then completed, and the several official acts had not then been performed which were requisite before he could sue the defendant. The plaintiff, in his own right, acquired no cause of action against the defendant for the services performed, for there was no contract, express or implied, between the parties, but the right of action was transferred to him by a sort of legislative assignment, and when transferred to him he took it subject to the laws then in force, so far as his remedy against the defendant was concerned, though the contract with the Superintendent may have been made under a former Act.
It is provided in section twenty-nine of that Act that “All proceedings which may have been taken under the law, for which this law is a substitute, and which are pending at the time this law shall take effect, may be continued and completed
No one would contend that a subsequent purchaser of the lot was personally liable for the assessment, or that in enforcing the lien a personal judgment could be rendered against
It is proper to mention another principle, which we think is sufficient to control the whole case. If it is admitted that the benefits received by the property or its owner, by means of the improvements, will satisfy the constitutional requirement of a just compensation for the assessment levied upon the property, that theory is subject to the rule that the assessment must not exceed the value of the benefit conferred by the making of the improvement. This doctrine is laid down/ in Matter of Fourth Avenue, 3 Wend. 453; Matter of Albany Street, 11 Wend. 149; Matter of Canal Street, 11 Wend. 154; Matter of William and Anthony Streets, 19 Wend. 678 ; Matter of Flatbush Avenue, 1 Barb. 386; and is affirmed in Canal Bank of Albany v. Mayor, etc., of Albany, 19 Wend. 344; and People ex rel. Post v. Mayor, etc., of Brooklyn, 6 Barb, 309 ; and we think the doctrine is correct and applicable to cases
Judgment reversed and the cause remanded for further proceedings.
Rehearing
We have carefully considered the respondent’s elaborate petition for a rehearing, but in the view we take of the case, a decision of several of the points therein made is unnecessary.
As suggested by the learned counsel, it may be far more convenient, in enforcing the payment of street assessments, to be permitted to take a personal judgment than a judgment in rem only, but that consideration would certainly not be seriously urged as a sufficient reason for allowing a judgment to be taken which was clearly in conflict with constitutional law.
If it is said that in the absence of a personal liability of the lot owner for the assessment, the contractor is liable to lose that portion of the assessment which exceeds the value of the lot presumed to be benefited by the improvement, for which the assessment was made, it may be answered that the same result might happen if the lot was the only property possessed by the lot owner; and further, that it is the duty of the contractor to see that some sufficient responsibility exists for the payment of his work; that is to say, to' ascertain whether the lot is of value enough to bear the burden proposed to be imposed upon it for its improvement. It is as unquestionably his duty to see that ample liability exists for his payment as it is to know that a valid ordinance passed
We are earnestly pressed by the learned counsel for the respondent to grant a rehearing, because the case cannot be fully argued on briefs, as the law is special and complicated, presenting many points for discussion ; but if our view of the situation and rights of the parties is correct, the points arising out of the details—the machinery—of the Act are immaterial to the decision of the leading question in the present action.
We are referred to section seventeen of the Act of 1862 as decisive of the question of the personal liability of the lot owner in favor of the contractor. It will be noticed that the contract was made under laws in force prior to the passage of the Act of 1862, and what we said in respect to the question whether a personal liability for the assessment was given by the statute, had relation, not to a case that might arise out of a contract executed under the Act of 1862, but to the case then before us growing out of a contract made under laws in force anterior to the passage of that Act. Although the Act of 1862 purports to create a personal liability, it does not in terms, nor by necessary implication, have a retrospective operation so as to create a personal liability for work performed or to be performed under contracts made before the passage of the Act. The Legislature, by the Act, granted to parties proceeding under the statute then in force the benefit of the remedies provided in that Act; but the grant of a new remedy—a mere mode of procedure to maintain an existing right—which is clearly within the power of the Legislature, is veiy different in substance and effect from the grant of a new or additional liability for services performed or being performed under an existing contract. We do not now, nor have we in the opinion already delivered, attempted to controvert the position of the respondent—that the Legislature have in express terms, in the seventeenth section of the Act of 1862, declared that the lot owner shall be personally liable for the payment of the assessment, but we hold that such liability can attach, if at all, only
The principles upon which we rely for a solution of the principal questions in this case, and the course of reasoning adopted, may tend to show the invalidity of the personal liability clause in section seventeen of the Act of 1863, but the question of the validity of that clause is not in issue, because it has no application to the present case.
An assessment for the improvement of a street, levied solely upon the owners of the lots lying adjacent to the street that has been improved as a public street, and which is authorized by law to be collected from the lot owners as a personal charge, without regard to the benefit actually accruing to them by means of the improvement, is a tax, and as such is obnoxious to the objection that it violates the constitutional requirement of equality and uniformity.
We rest our opinion mainly on the proposition that street assessments, of the form of the present one, can be maintained, if at all, only on the theory that the power to levy such assessments upon the lots adjacent to the street that has been improved under the direction of the city government is parcel of the right of eminent domain transferred by the Legislature to the city; and that to maintain them even on that theory, it must be assumed that the benefits that the lots have received from the improvements constitute a “just compensation” for the lien cast upon them. The requirement of a just compensation to be made for private property taken for public use attends every exercise of the power by an authority subordinate to the sovereign power of the State, as well as by the State itself, and applies as well where the value or a part of the value of the property is taken by being subjected to the payment of a sum of money, as where the property itself, or some interest therein, is directly taken for public use. As a necessary consequence of this doctrine, the amount of the
The validity of the lien thus asserted, and of the judgment ordering the lot to be sold, must be ascertained mainly by an examination of the acts and proceedings required by law to be done and'had by the officers of the city and the contractor previous to the time at which the alleged right of action accrued to the contractor. We previously omitted to consider this branch of the case because, the parties admitting the lot to be of no value, we deemed it unnecessary to ascertain whether the proceedings requisite to charge the lot with the payment of the assessment had been taken according to law, but as the contractor is entitled to his judgment, without regard to the value of the lot, if the proceedings have been regular, it becomes necessary to pass also upon the judgment ordering the lot to be sold.
Upon this question the appellant maintains that when summary proceedings are authorized by statute, the effect of which is to divest or affect rights of property, the statute is to be strictly construed, and that the power conferred must be executed precisely as given, and that any departure vitiates the whole proceeding. This doctrine is well expressed in the axiomatic language of Mr. Justice Bronson in Sharp v. Spier, 4 Hill, 76: “ Every statute authority in derogation of the common law to divest the title of one and transfer it to another must be strictly pursued or the title will not pass.” We expressed our concurrence in this principle in Curran v. Shattuck, 24 Cal. 427, as applicable to proceedings to acquire the right of way for a public road, and proceedings as in this case to acquire a lien for the payment of a street assessment are within the reasons of the rule.
'We shall notice but one of the objections made by the appellant to the proceedings, and that is, that the resolution of intention of the Board of Supervisors to grade the street in question,
It is provided in section forty of the Consolidation Act, that the Board may order a street to be graded after notice of their intention has been published in a daily newspaper for the period of ten days, unless the owners of a specified proportion of the lands or lots bounded by the street shall make written objection thereto. The declaration of intention is the fundamental act of the whole proceeding to grade the street, and in the absence of the declaration of intention manifested by an ordinance or some act that is its equivalent in substance and effect, though differing from it in form, the whole proceedings must fail of compulsory effect. The manner of making the declaration of intention is not specified in the Act, but the power to make the declaration is conferred upon the Board and expressed in the same general terms as in the preceding and subsequent sections, is the authority to lay out a street or-to order a street to be graded, and it is impossible to see why an ordinance or a resolution is not as requisite in declaring the intention to grade the street, as in ordering the street to be graded. If it is said that the resolution of intention is not comprised within the meaning of the words “ every ordinance or resolution of the Board of Supervisors providing for any specific improvement,” as used in section sixty-eight, it may be answered that the declaration of intention, whatever may be its form, is a legislative act, and as such must be passed in
Rehearing denied.
Concurrence Opinion
I dissent from some of the views expressed in the opinion, but concur in the reversal of the judgment.
Concurrence Opinion
I con cun’ in denying a rehearing for reasons different from those expressed in the opinion. I also dissent from the construction given in the opinion to sections forty and sixty-eight of the Consolidation Act.
