124 Cal. 335 | Cal. | 1899
Action to recover $2,405.20 alleged to have been paid by plaintiff to the street superintendent of defendant nnder protest, as an assessment in a street opening.
The city of Oakland by its council, in 1889, adopted a resolution of intention to open and extend Filbert street in said city between certain points, The proceedings were taken under the street opening act of 1889 (Stats. 1889, p. 70). Eo question arises as to the regularity of the proceedings and the collection of the assessment as originally levied. A deficiency occurred of $6,641.31 in the collections nnder the assessment, to meet which the council advanced this amount by transfer from the general fund of the city, pursuant to section 18 of the act, and upon condition that the general fund should be reimbursed out of a supplemental assessment thereafter to be made. Such supplemental assessment was duly made, and no question arises out of this supplemental assessment. But after the collection of the whole of this assessment there still remained a deficiency
The commissioners filed their report and second supplemental assessment with said council, showing an assessment against plaintiff of $2,405.20. Plaintiff and others filed written objections to the confirmation of said report and assessment, which objections were set down to be heard September 19, 1892, at 9:15 o’clock P. M., of which hearing plaintiff had due notice. A question arises as to whether plaintiff was bound by the action of the council at this and the meeting which followed the next night. The findings as to these two meetings are as follows:
“That at the time set for the hearing of his objections filed to the report of the commissioners, as alleged in section XIV of said amended complaint, there was no session of the said council. That some time prior on that night to the time set for said hearing one member of said city council was present in the council chamber of said council, together with the clerk of said council, and then and there declared the meeting of said council set for that night adjourned to a succeeding night, and that said adjournment was then and there entered by the said clerk upon the minutes of said council. That said plaintiff was not present at said adjournment. That he had no notice thereof, and was 'not present at said succeeding meeting and had no notice thereof, and that at said succeeding meeting said council took up said objections and passed upon them, without sustaining them or any of them, and then and there confirmed and adopted said report of said commissioners.”
On the twenty-second day of September, 1892, the street superintendent published the fact that he had received the assessment-roll containing the assessment against plaintiff’s property, and notifying the public that the assessment would become delinquent if the assessments were not paid before the expiration of thirty days thereafter; within five days after the expiration of the time as above stated the said superintendent caused to be published a notice that he would sell at public sale on November 19, 1892, all lands within said assessment district upon which
“That said plaintiff did, on the eighteenth day of November, 1892, pay to the said superintendent of streets the said sum -of $2,405.20, and under protest, as alleged in section XVII of said amended complaint, and that he did pay the same to prevent his said lots of land from being sold for the nonpayment of said new supplemental assessment, and to prevent his title to said lots from being clouded.”
Plaintiff had judgment, from which and from an order denying its motion for a new trial defendant appeals.
1. Appellant’s first contention is that the second supplemental assessment was authorized. Respondent denies this and claims that the council exhausted its authority in making the first supplemental assessment. Section 20 of the act provides: “If .... there should be a deficiency .... or for any cause it appears desirable, the .... city council may order a supplemental assessment, and report the same in manner and form as the original, and subject to the same procedure.” Section 25 reads: “The provisions of this act shall be liberally construed to promote the objects thereof.” Without resort to this latter section we think a reasonable construction of the statute warranted the second supplemental assessment if the proceedings were regularly pursued. This seems to us too plain to call for argument.
,2. It is objected by respondent, however, that the assessment was void, for the reason “that the plaintiff was deprived of his right to appear before the city council, at the hearing before it of his objections filed to the confirmation of the commissioners’ report of their proceeding, in the second supplemental assessment.”
The facts from which the finding above given was drawn are the following: The hearing of plaintiff’s objections to the assessment, which he had duly filed with the city council, were set down for 9:15 P. M., September 19, 1892; the objections were that the council had no authority to make the assessment; that it was illegal and unequal; that the plaintiff’s property was assessed higher in proportion to other property in said district,
It appears from the complaint and answer that Councilman MacDonald and Clerk Brady attended at the council chamber on September 19th, at the hour of 8 o’clock P. M., and adjourned the meeting, record of which has been stated above.
Had plaintiff notice of the adjourned meeting of September 20th? We do not think he had, and we are of the opinion that the proceedings were, therefore, as to him, unauthorized and void. The statute conferred the right to notice, without giving which the council could not pass upon his objections. (Williams v. Bergin, 108 Cal. 166; Schwiesau v. Mahon, 110 Cal. 543.) Upofi the power to adjourn a meeting Mr. Dillon states the rule to be that “a regular meeting (which this appears to have been), unless special provision is made to the contrary, may adjourn to a future fixed day, and at such meeting it will be lawful to' transact any business which might have been transacted at the stated meeting, of which it is, indeed, but the continuation.” (Dillon on Municipal Corporations, 287.) The statute gave to plaintiff the right to be heard at the time and place noticed; he was not bound to attend at an earlier time. It is alleged and not denied, and is found by the court as the fact, that the time for hearing plaintiff’s objections was fixed at a stated hour, and the court on sufficient evidence found that there was no session or meeting of the council at that hour. The only meeting held by the council on that day was more than one hour previous to the noticed hearing, and for what purpose it then met is not shown. It was, we suppose, a regular meeting, and may be conceded to have been called for regular business, but
3. Appellant contends that, even if the proceedings were void, plaintiff’s payment was voluntary and the money cannot now be recovered. The act of 1889, section 16, makes the deed of the superintendent of streets prima facie evidence of the regularity of the proceedings thereunder, and is made "conclusive evidence of the necessity of taking or damaging the lands taken or damaged, and of the correctness of the compensation awarded therefor.” Under the rule stated in Pixley v. Huggins, 15 Cal. 128, many times approved by this court, the deed would cast a cloud upon plaintiff’s title. It has been recently held here that where an officer is about to sell property under a void assessment he maybe enjoined. (Chase v. City Treasurer, 122 Cal. 540.) This remedy was open to plaintiff in the present case. But it was not the only remedy available to him. He also had the right
4. It is further claimed by appellant that the city of Oakland is not liable because the fund was for the use of and to be dis? bursed by another organization, to wit, a street opening district within the city, of which the city was merely a creditor by reason of advancing money to it. We do not think that the act of 1889 creates a distinct organization separate from the municipality in the sense urged by appellant. The council authorizes the assessment; it conducts, through its agencies, all the proceedings, and the fund raised must be paid over to the city treasurer, who “shall, upon receipt thereof, place the same in a separate fund, designating such fund by the name of the street . ... or place for the .... opening or other improvement of which the assessment was made.” The city retains control of the fund from first to last through its proper officers. The court found, upen sufficient evidence, that the money paid by plaintiff was turned, over to the city treasurer, “and was thereupon used
5. It is contended that plaintiff has no cause of action against defendant because the evidence fails to show that he presented his claim to the council or that it was acted upon by the council. Respondent replies that there is no provision of the charter of the city of Oakland which requires a claim to be first presented to the council or city before a suit can be maintained upon it. Appellant has called our attention to no such provision, and we have found none. Section 40 does require that “every' demand must, before it can be paid, be presented to the auditor to be approved”; he must examine and approve or reject the claim; if he reject it he must return it to the council with his, reasons for rejecting it, and a majority of the council may allow it upon the approval of the.mayor, and it may then be audited. ' These and some other provisions are made for the allowance and payment of claims in the ordinary course, but no provision is made for actions against the city brought upon such or any claims. The evidence shows that plaintiff did present his claim to the auditor long before this suit was brought, who rejected it, and it was shortly afterward sent to the council and referred to the "auditing committee, but no action is shown to have be'en taken on the claim by the council. We do not think the council éóúld avoid the suit by refusing or neglecting to act upon the claim.
6. Appellant’s remaining point is, that the complaint fails to state a cause of action because it does not appear therein that the superintendent who threatened to sell plaintiff’s property-was clothed with authority, real or apparent, to carry out his threat, or that he would hfive made a deed to the purchaser1 if the, assessment was not paid. (Citing Bank of Santa Rosa v. Chalfant, 52 Cal. 170; Bank of Woodland v. Webber, 52 Cal. 73; Bucknall v. Story, 46 Cal. 589; 13 Am. Rep. 220.)
The Bank of Santa Rosa ease was an action to recover a tax illegaly assessed. It did not appear from the complaint that the tax was delinquent, nor that the defendant was, when he demanded payment of the tax, armed with authority, real or ap
It is advised that the judgment and order he affirmed.
Haynes, C., and Britt, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
Harrison, J., Garoutte, J., Van Dyke, J.