*1 Sav. etc. Soc. v. Ramish. December 18, In Bank. A. No. 1902.] [L. SOCIETY, Appellant, AND LOAN SAVINGS GERMAN Respondents. al., RAMISH et ADOLPH Mortgage.—The Bond Law—Prior Bond Act—Constitutional Street March is intend- provided lien for in the Street Bond Act of liens; unconstitutional, all other and that act is not prior ed to be to mortgage; nor is in viola- impairing obligation prior of a federal constitution, the fourteenth amendment to the which tion of inapplicable proceedings. tax Hearing.—The Id.—Opportunity Act, the Street Bond fact for object gives opportunity an to to the issuance the lot-owner object lien- give right but does not terms to to bond, holders, make the does not statute void. Bonds—Taxing Id.—Long power Power.—The conferred Period upon upon by impose charge a the Street Bond Act to years property-owners period proper for a ten is a exercise taxing taking a power, private property- and is not for public use. Id.—Constitutionality The Vroo- of Vrooman Act—Amendments constitutional; man are Act is and none of the amendments thereto
invalid. Id__Change Hearing Damages— — — of Grade Act Provision Change Act, Waiver.—The of Grade which is intended to not original sufficiently grade, provides include the establishment of hearing damages notice and all entitled compensation damage to under the constitution before the actual occurs, paid grade-lines changed, provided to be when the are a petition damages. is made for Those do ask who not be deemed to have waived them. Id.—Statutory Change Grade.—The Construction—Ordinance to Change and the Vrooman Act of Grade Act are to be treated as pari materia; power and the pass change to ordinance to modify grade acts, of a street under exists both
referred to either. Id__Proceedings Improve Change of Grade.—Pro- to Street after ceedings grade, gravel, street, inaugurat- improve otherwise a ordinance, ed another change grade a of official has been Change Act, made under the of Grade are invalid not because complying with that act. Id.—Sufficiency petition Petition—Determination Council.—A presented majority frontage lot-owners, asking both for change grade, and also that after an order be made improve grade, streets the new to issue Sáy. Germán etc. Soc. therefor, is sufficient to confer the council serial bonds only grade, improvements but also order the petitioned intention for. An ordinance of and otherwise *2 improve that, passage, the street is conclusive its appeared petition majority names a whose were owners of frontage. of the District__The establish the assessment Id.—Assessment only district either so as to be the lots coincident with and include would which have been under assessed the front-foot mode of assess- if ment, adopted, mode had been or it include a district other than that. Repealed.—The Street Bond was not Act Id—Street Bond Act not repealed by the constitutional amendment of 1896 to 6 of section article XI of the give constitution. That amendment life did not to the scheme for improvements street in the charter of Los Angeles which were void under section 8 article XI of the constitution. por Rate—Privilege op Property-Owners— Id.—Contract Reduced Fraud not Shown—Where property-owners, three fourths of the electing instead of do awarded, price work at the made a contract with the rate, contractor for corresponding a reduced a credit on their assessments, the privilege entering into which was extended all other lot-owners, such contract carries no such evi- dence fraud as to warrant the in declaring court the bonds void. Id,—Description District—Certainty.—A op description Assessment of an assessment district which sufficiently would have been certain in conveyance a is sufficiently certain under the law. judgment
APPEAL from Superior Court of Los Angeles County and from an denying order a new trial. Judge. P. Fitzgerald, W.
The facts are stated in opinion of the court rendered Department Two.
J. S. Chapman, Appellant. for
Frank G. Finlayson, Respondents.
THE COURT. given For thereasons opinion in the de- livered Department judgment ease in and order appealed are affirmed. Dyke, J., J.,
Van Garoutte, McFarland, J., Henshaw, J. following opinion is the Department rendered in Two, day April,
on the third 1902:— Sav. etc. Soc. 11, CHIPMAN, C. of the facts. 1 to Statement Lots 1890, block be- Angeles, January of Los on longed day wife, D. Gould and and on that mort- W. gaged plaintiff; mortgage foreclosed, subsequently plaintiff purchaser became sale at foreclosure proceedings relating all the to the assessment and sale property place. 11, 1895, had taken the owners On November major- of a majority frontage, of the feet owners of a also ity grade, property proposed affected filed petition they prayed for “the council, with the of said streets establishment [here council]; follows description, subsequently followed stating changed also that the should and established at the time, same mutual benefit and all parties interest, will benefited district which . fronting . . is a de- property thereon follows [here *3 scription given subsequently in the ordi- of the district as changed nance ; grade also been and that when the has 3638] prayed for, as “will said established that the council order streets, graded, graveled, guttered, and of them, each to be granite curbed estab- and cross-walked to the said and new (the description lished same grade,” here follows and is the set in the 3638); as was afterwards forth ordinance also greater if front per the than one dollar cost found to be street, foot on each line of the council “will determine that represent serial issued the cost of and bonds be said work law; and also improvement, provided by manner form council establish and declare the district praying that the pay by grading, said . . . and to be assessed to be benefited descrip- (here expenses total and thereof” follows costs later ordi- appearing as in said proposed tion of district a uniform the assessment be “at 3638); praying nance also district,” represent- and per foot the entire square rate over expe- that the same be ing that “the interests demand more is of completed rapidly, and that same dited sign did not ordinary Plaintiff than benefit.” local any subsequent proceed- in appear it of petition nor did 18, petition. On November signed ings, the Goulds but duly said petition, council, in accordance with 1895, change 2313) (No. of intention to an ordinance passed petition, in on street described grade of Sav. etc. Soc. improvements objec- No made. were afterwards thirty- tion was change grade filed proposed of within days except by one publication ordinance, of said any Mitchell and one filed Nollack, persons and no other claim petition showing any property claimed ownership of damaged by mayor, to be proposed change grade. The said of city engineer, superintendent to act of streets assumed as a board 3 of the commissioners, provided for in section 9, 1893, though appears act of March their no record appointment these board, appears as such that each of but change of commissioners made affidavit in matter of the reciting that 2313, of the streets mentioned ordinance having the council claims of Mitchell referred to them the estimate Nollack, they, commissioners, said “make the would damages as incurred benefits They ability. proposed, in said ordinance to the best of his reported April 11, 1896, to the council ... we find that any property benefits that accrue to said are excess of Notice grade.” incurred virtue of said given by filing report required the clerk their day all law and a fixed therein for to show cause why objections being confirmed; it should not be no made ex- cept by day hear their Nollack, Mitchell and was fixed to May day hearing, wit, objections, and on the fixed for such objections 1896, report 25, were denied and the' Goulds plaintiff confirmed. Neither nor the commissioners objection May 25, any, proceedings. On made changed grades streets, or- of these Change provisions of the No. under the dinance *4 89). (Stats. 1893, p. On 9, 1893, March Janu- Act of Grade by, No. council, an ordinance of intention 1896, the ary 8, February 27,1893, (Stats. Act the of 3638, under Street Bond grade, gravel, gutter, proceedings to p. 33,) commenced deeming question; the streets in and the curb cross-walk, and ordinary public benefit, local or of than of more work by that the intention to this ordinance declared chargeable of said work an assess- expense make declaring to district district, the same be the benefited ment to improvement, pay and be assessed to its by proposed plan front-foot the district according to cost, appear opinion. Other facts assessment. of method Say. etc. Bamish. Soc. v. enjoin city This is an action to Hartwell, defendant treas- city executing urer of the of Angeles, Los a deed to Holliday defendant all of the lots in block being Mill city, 11, inclusive, Woolen in said Tract lots only property lots affected this action. These sold non-payment of certain which had because bonds pursuant been issued for improvement street to the Street- (Stats. Bond 1893, p. 33). Act The cause was tried court pleadings agreed statement facts. of appeals judgment Plaintiff from the in favor of defendants denying plaintiff’s and from the order motion for a new trial. given
1. Plaintiff contends if the act is to be bond obligation retrospective impairs effect it of Gould plaintiff wife to of United and violates the constitution n States. power improvements Whether the is to be to tax for street taxing power of emi- general power referred to the and the suggested, police nent domain, or, as some courts have be, power, very important. its source Whatever n itexists objects, beyond its reason of nature taxing power must partakes that it of the nature of the levy general purposes, power a tax for be admitted. The liens, other- prior other superior shall a lien to all tax, it is called a wise, doubted, and it is not because is not necessity raising revenue object and the for of its but because government. modern In the functions to execute order society in an demands of may have been the times, whatever the neces- development government, period of the earlier per- towns, cities and while sity improving the streets objects gov- general degree than haps important less necessary the welfare of yet important and ernment, is on which opinion principles community, and our whole govern in depends, and which taxation system general also general purposes, are levies of tax enforcement streets, improvement for the taxation applicable It is like work. sewers, and other construction particular improvement of a assumption mistaken property- adjoining for the benefit solely in a street generally, and public" accrues to ; the benefit owners to the well- is essential compel improvements *5 German Sav. etc. Soc. Eamish. v. being expressly provides of communities. The bond act that upon property” “a first lien the lien of the bonds shall be pro- (Stats. 1893, p. sec. and section 5 also makes the 4, 36); delinquent state and visions the law the collection (Pol. county under the bond act. applicable taxes to sales clearly mani- Code, 3788.) The intention seems to be sec. prior fested that all liens. The the bond lien shall be unnecessary inquire view take of the statute makes it we recording upon as to attaches the effect the lien which mortgages against prior of the If protect warrant. we are to lien, title, can his how reason take from the owner we mortgagee’s which antedates interest? page Murphy Beard, 560, 565,
In
138 Ind.
at
v.
priority of the
lien was involved and
assessment
“If,
proposition
in the
however,
court said:
we are correct
right
implied paramount
purchaser
that
takes title with
named,
his mort-
for the
the lienor takes
uses
paramount
that
gage
his own loan with notice of
and makes
(Wabash
Ry.
etc.
right, and must submit to its exercise.”
see, also, the
etc.,
p. 400;
act March no Act, Grade because hearing upon given question establishing changing is or grade,—i. paper grade,—and yet damage e. a may result grade; although time from such 2 some also that section gives of the Vrooman Act of 1885 power the council to estab- grades provision lish of streets, no is made any notice is established; before the that Change only gives Act person Grade to an owner or own- ing property an opportunity to be heard damage mortgagee benefit, give any oppor- or does not damage arising tunity to heard whether there is benefit be or establishing grade changing lines, and even the owner opportunity has no to be heard to benefits or established, the act is first hence void. where of the federal constitution can- The fourteenth amendment tax-proceeding inapplicable it is invoked, not because be (Merchants’ Transportation Chicago, Co. v. 99 U. S. cases. any Francisco, 492.1) 66 If dam- Cal. Reardon v. San 635; of our state consti- claimed, it must be reason be can age hearing. notice and It was said requiring tution (at p. 38): City Portland, 149 S. 30 “While U. Paulson taxpayer must notice to the some form questioning for the construction of a sewer an assessment given before be Rep. Am. 109. 1 56 Say. Soc. v. Ramish. etc.
can be sustained, ... think we do not it essential validity of a city granting power section in the charter of a to construct sewers expressed that there should in terms be necessity either notice”; for or the time or manner of it given was held that where the do work the statute would not be if require unconstitutional did notice given; be notice must but “the- given, would have a broad discretion with reference to kind of notice and the giving same,” manner of quoting Gilmore Hentig, Kan. (See, also, Tillson, Lent v. 404.) The consequential damages arising directly from a grade may compensated only reason *7 provisions of constitution, the state or passed pur- some law suant provision constitution. The constitutional is: property damaged “Private shall not taken public be or for just compensation use having without made, been first or paid mortgagee into A court for the owner.” is entitled compensation, if all, provision because of this of the consti- tution, object if Change pro- he that the of Grade Act only filing damages vides for petition a for owner, compensation then he must seek as owner; an and if he claims that the “owner” not word does include mort- a gagee, replies Lent v. Tillson himto that the statute and the together must be law, constitution read as one and the statute may is as as constitution. It broad well be asked at this May point, compensation for damage the same be awarded mortgagee? Certainly both the owner not. toIf but damage one if both, ? And one one, appor- how to be necessity why providing tioned ? And for notice to others ample But does than the owner? the act make provision hearing for a notice to and as come within description those entitled to compensation, and this appellant’s objection. think relieves the statute from we may true, contended, as be where the statute fails to payment damages arising time provide a for from chan- ging grade damages they are payable at the accrue,— time grading begun; Change i. when the e. but the of Grade Act provided compensation may of 1893 has that the be deter- damage occurs, mined before the actual paid and shall be changed; grade lines are when the lot-owners do not who then petition compensation, as the provides, statute shall be Cal.
128 Sav. etc. Soc. Bamish. deemed to have This waived them. rule under old (In Street, 495); constitution re 39 and the rule is Beale Cal. changed where, compensation prop- now, as is made erty “damaged,” old which could he under the demanded property-owner constitution where “taken.” waive compensation (Bigelow Ballerino, all claim to 559); damages deemed to and those who do not ask intentionally have waived them. appellant assuming
We do not think is sustained Change enough ori Act is broad to include the Grade ginal change of grades, as well as the estab establishment of grades. lished thus assumes and claims that the act Counsel give any opportunity to heard does one grade and benefits where the first (Stats. 89) empowers 1893, p. established. Section change modify or street council “to same, regrade repave . . so as to conform . and ’’ provided. manner hereinafter grade, modified as .such previous grade. language implies the existence of a Un This power to Act establish as der the Vrooman had and, treating streets, all these as well respondents answers, materia, counsel for pari statutes provision that it was because of reason, we think with Change of Grade Act Act that section Vrooman grade shall be or “no of an provided that established *8 majority the petition of the owners except on dered by the not think it was intended affected.” We do property originally grant power 1893 to to Change Grade Act acts. Be comes from other grade; power such establish alleged in com if, the shows, further as sides, as counsel change grade of these 3620 did the No. plaint, ordinance pass to ordinance of the council the streets, the Act; if the ordinance did not to the Vrooman referred streets, they re of these grade the the effect have grade lines, established, true and the originally as mained originally grade lines be, as they may were the wherever of intention the ordinance must construe We established. proper grade official the the intending streets p. Co., 346, 28 Cal. Gas (Emery v. Francisco San lines by appeal having been no 376); and there by the acceptance work from the parties interested Say. Gekman etc. Soc. v. Ramish. city engineer, Act, by 11, pro which Vrooman section might taken, vided superintendent the act of the was con graded grade. clusive that the streets were to the true official (Warren Riddle, 106 Bond 352.) Cal. And the Street Act makes the bonds conclusive as to not essen evidence matters jurisdiction tial to the of the officersto create assessment. (Stats. 1893, p. 36; Hartwell, 443.) Ramish v. Cal. Assuming that the Vrooman Act of 1885 is unconstitu- provides assessments, appellant
tional in that front-foot subsequent amendatory contends that all acts are thereof necessarily unconstitutional a void cannot be because statute Appellant’s premise being (Hadley amended. unsound Dague, 207), faulty. conclusion equally
6. It is proceedings claimed to grade, gravel, etc., they comply are void because did not with the statute of Act): 9, 1893, (Change March of Grade 1. Because the com- damages upon missioners did not assess the benefits each district; lot petition within the 2. That no was filed majority owners frontage; of a of the lot The and 3. district included no or land except lots as would have been adopted. assessed had the front-foot method been already only We have held that this act authorizes the regrade, repave, etc., council to and not grade, pave, etc., being originally, this latter authority derived from other improvements statutes. the streets in by petition, initiated which Goulds joined, which sub- stantially everything done asked which was subse- have quently done matter. It does not follow that because enough petition gravel- broad to include the grading, was ing, etc., streets, the council did, what under or- 3638-, established, dinance was done under Change appear Act. of Grade does that the commis- petitions Mitchell Nollack, acted on sioners who any damage only who claimed were the ones in the matter report grade, and changing their was confirmed during petition proceedings was filed council. Their think grade, required and we do not act assess benefits and commissioners to *9 If them. petition presented there were other was lot- no question of to have the benefit and entitled owners Cal—9 CXXXVIII.
130 Cal. Sav. etc. Soc. v. Ramish. by duty pre- commissioners, determined it was their petitions therefor, having so, their sent their done claims must be deemed to have been waived.- The assessment any provide first liens would not be because of failure to void un- compensation taxation, lot-owner. of The although domain, like that of eminent be exercised dam- ages paid have not been to the owner before the street work v. (Hornung McCarthy, 17; De Baker is done. Cal. Railway Co., 260.1) act March 106 Cal. The Southern Cal. 1893, 1893, 11, (Stats. act of 9, by was amended March p. 172,) petition by latter a the owners 1893, which act fronting majority is made a condition a feet thereon grading, etc., precedent regrading, street; appellant petition filed, claims that no such was unless requirements, petition 18, 1895, of November meets the alle- appellant denies. Aside from the fact that there no filed, gation petition no complaint in the that there was petition, that presumed that it there was that, respondent from the further claim of view aside 1893, (Stats. clause of the bond act the conclusive evidence petition jurisdictional 36), such a sense p. assessment, necessary to a we think prerequisite is a valid it lot-owners, filed of the the Goulds petition majority requirements among to meet the of the them, was sufficient suggestion that appellant. on amendatory act relied 1895, may not signers petition 18, on November passed afterwards when the council have been lot-owners it counter-suggestion that is met No. ordinance determine duty of council to whether part of the was duty presume must signers lot-owners, and this we then etc., grade, ordinance of intention .to performed; and the names passage whose its is itself conclusive majority of a were owners appeared petition 40; 87 Cal. frontage. Assn., v. Homestead (Spaulding People Los Dinsmore, 318; Bank v. 97 Cal. M. Farmers & no 338.) point that the council had To the Angeles, co- authority assessment district should be that the to declare only the would have been or include lots which incident with assessment, may mode front-foot under the assessed amendatory act of replied that section Rep. 1 46 Am. St. *10 131 German Sav. etc. Soc. v. Ramish. of 1885,
act does not mean necessarily that the council must impose expense of the improvement upon a district other than a embracing district fronting lots on the streets to improved. so, do and it make the district coextensive with the lots which would be liable under the method, front-foot if adopted. such mode had been The stat- provides ute object that lot-owners may to the extent of the district, and proceedings thus arrest the if successful. The may, however, again proceed, omitting the lots found improperly (Section included. 3, supra.) Counsel for re- spondents points out that at least one lot was included district that away is three blocks Beaudry from Avenue, for grading improving and this which lot liable became for a part of the cost. pursued
That the
plaintiff’s
method
pecuniary
was to
ad-
vantage appears
undisputed
fact
the assess-
against
ment
its lots was less than one third of what the cost
would have been to it had the front-foot
adopted.
mode been
The act
proceedings
under
these
and
were taken
repealed
bonds issued
was
the constitutional amend-
(art.
XI,
6)
ment of
sec.
Appellant
the constitution.
Byrne Drain,
relies on
visions.” and of intention notice of street-work to resolution state that fifty for each assessment over issue dollars. A a bond will given warrant, must be effect was notice admits that given. Plaintiff the ordinance of intention so give description street-work did notice interest, required this is all the the rate of act bonds bonds; as to the and there stated reference to be there for bids. advertisement bonds city council had awarded to Ramish & Marsh 8. After the work, the contractors entered contract to do into an of more than three owners fourths agreement with Say. Sog. etc. frontage fronting improved, of the lots on the streets to be which, in waiving right consideration of the their lot-owners work, agreed to do the the contractors execute the contract superintendent with the to them perform the work awarded per on twenty-five allow the lot-owners a credit of cent *11 assessments, provided they their paid to the contractors the balance, seventy-five per thirty days in after cash, cent within filing making superintendent the and of the assessment the might elect provided streets. It also that the lot-owners was to act, they to bonds issue under the in which ease were have per have fifteen cent credit It was indorsed bonds. provided signing agreement also that the lot-owner not might days thirty of the posting within of notice award issuing party contract; a become the assessment the contractors Gould and offered to receive from against seventy-five per cent the lots wife of the assessments against allega- in in lots. block full settlement said The only complaint denied, tions in of fraud the were the agreed stated,— upon as this as above facts transaction are agreement i. are to be found in itself. If there was e. the contract, judged the it alone from its terms. fraud must alleged already made, The award had fraudulent been the and the contractors could combination between lot-owners making By influenced the award. not have property-owners 200) fourths of the (p. of 1891 three act do award to might days after notice elect within ten making the' if, instead of But price the work at awarded. work, the they had elected to do complained of, contract fail been no less. We have property would assessment on especially injured, property-owners the other to see how of the contract. avail themselves they opportunity as had an injuriously mortgagee be plaintiff as Besides, how could a mortgagors, did not become its Goulds, affected because that might inferred It contract? party to the obnoxious justify which would profit in a contract great too there was face agreement. But on the into such enter contractors to of fraud as would no such evidence carries of it the contract In one declaring to be void. the bonds the court warrant lot- fourths acknowledgment three it was an sense into, fairly duly entered the contract owners say much. the contract recitals Say. Dee. v. etc. Soc. attempt legislative to confer Plaintiff insists that
9. charge upon property impose a on the council to years is ten period in a for the owners continue taking taxing prop- power, not the but is exercise of due erty compensation and without use without process untenable point to be law. The we think shown Shoulters, in Hellman v. 140. in block finding
10. It is that the lots contended damages by more than the were benefited in excess justified amount the evidence. of the assessment is not finding upon a Respondents’ counsel contends that this is a decision, in wholly immaterial a recent issue; and because of holding otherwise, City Tacoma, Rep. 32, White v. 109 Fed. urges reason that a point counsel a decision on the cloud has bonds been thrown over these street-assessment sup- this decision. think evidence sufficient We there was unnecessary pass port finding, and this makes question. indefinitely claimed that district is so described alleged attempt that the it is create void. defect *12 of description on the north line point relates to calls from a Galpin Street, “easterly to northwest corner of the Sixth tract; easterly along northerly of said . . thence line . prolongation easterly line of Sixth tract and the thereof to the runs (which Street.” Some distance before Sixth Street Beaudry as on nearly west) Avenue, reaches shown east shortly slight diagram, southerly, it makes a bend right angle, nearly passing it makes Beaudry Avenue running joining street southerly, easterly side of the Galpin Mill corner of the tract Woolen tract the northwest controversy diagram. arises over as understand the we running west, can have Street, fact east and whether Sixth marked southerly Street, as an east line. This arm of Sixth name of this diagram, Street, Loomis but the on was once changed duly passed by ordinance part of Loomis was Street etc., grade, gravel, published proceedings before did diagram, As so Sixth were commenced. shown city published appear maps on which were Street of to the com- prior months and sold to residents of the some diagram shows Clearly proceedings. mencement of said named. point easterly particular line of Sixth Street at the Hilmeb Hills. stating Without as to further evidence situation and the description contention of suf- appellant, we think the ficiently description certain; it would have been a sufficient in certainty. a conveyance, requires greater law no (Irrigation Lappe, 351; Dist. v. Thomason v. De 79 Cal. Cuneo, 25.) 119 Cal. judgment is advised that the and order affirmed. C., and
Cooper, Gray, C., concurred. December 19, Department F. No. 2586. One. [S. al., FRED Appellants, L. HILMER AUSTIN et H. al., Respondents. HILLS et Conversion—Ownership Goods—Executory Action fob of Contract will lie Sale—Title not Passed.—An action for conversion right plaintiffs ownership possession in no favor who have goods alleged converted, have been who have a mere but executory thereof, contract of sale under which the title has not passed to them. Delivery—Title Vendor.—Upon for Cash Id.—Sale on in a sale of goods delivery, distinguished credit, for cash on as from a sale on right possession goods title remains the vendor paid. until the cash is Lading—Naming Consignees—Intention Id.—Bill as to Title. plaintiffs —The fact conversion action for consignees . lading named the bill of have did not the effect pass them, clearly showing contrary title to view evidence intention.
APPEAL judgment from a Superior Court of the *13 City County of San Francisco and from order denying a new trial. J. C. B. Hebbard, Judge.
The facts opinion. are stated in the Mullany, Grant Cushing, & for Appellants. being
The vendee named lading, bill of the title him upon delivery vested in to the carrier for shipment.