39 Cal. 495 | Cal. | 1870
delivered the opinion of the Court, Temple, J., and Sprague, J., concurring:
The first question presented upon this appeal is, whether or not the Act of March 28, 1868 (concerning the change of street grades in San Francisco), permits an award of damages to any person who "shall not have filed his petition, claiming such damages within twenty days after the first publication of notice of the intention of the Board. There is no doubt, at least upon authority, that the Act might have clothed the Board with the power to change the grades of the streets without awarding compensation to any property owner—such change not being a taking of private property for public use, within the meaning of the Constitution. The Legislature, however, considering that it" would be unjust that one class of property holders should obtain all the benefits and another class suffer all the disadvantages supposed to be occasioned by the proposed alteration, saw fit to provide a method by which • such, a result would be avoided. . Accordingly the Act has afforded the means by which those who are to be benefited may be compelled to, in some measure, make up the losses of those who are to be damaged by the alteration.. It requires .that ‘within, twenty days after the first publication of such notice any person claiming that he or she would sustain damage by reason of such change shall file a petition with the County Clerk, addressed to the County Court, setting forth the fact of his or her ownership, the description and situation of his or her property, its market value, and the amount óf damages over and above all benefits which he or she would sustain by reason of the proposed change, if completed, asking the appointment of Commissioners to assess such damages, which petition shall be verified by the oath of the petitioner or las or her agent.”
We think it was the purpose of the Legislature to confine the award of damages to those who should thus petition for their, allowance. It will be seen that the petition must ncrt only set forth with great minuteness and precision as well the fact of ownership as the description and situation of
We think that the Commissioners, in awarding damages to parties who had not filed their petitions, as required by the statute, exceeded their authority, and that the County Court should have sustained the objections of the appellant made in that behalf.
The next question for our determination arises under Section 3 of the Act, by which it is provided that “before entering up judgment the (County) Court shall fix a day for hearing parties who may feel aggrieved by any of the proceedings,” etc. " Under the' provisions of the statute the
We think that it was not the intent of the statute that the County Court should, upon objection of any party, enter upon an examination of questions of mere valuation. That duty is assigned to the Commissioners and is to be made -upon proof brought before them, and upon their own personal inspection of the premises concerned. When their report is filed in the office of the County Clerk, the Board of Supervisors, who, by a committee from their body, are supposed to have been aiding the Commissioners in the investigation of the facts, the examination and inspection of the premises, etc., determine by ordinance whether or not the proposed grade shall be established.
The statute provides that “if they (the Board) confirm it (the report of the Commissioners) the grade of the street shall he changed,” etc. Where the proceedings are free from fraud and have been regularly conducted, the change of the grade itself is absolutely fixed by the mere act of the Board in adopting the report of the Commissioners; and this imports, under Section 2, a previous adjustment of values within the meaning of the Act, without which adjustment the statute declares that the grade “ shall not be altered or changed. ” The alteration of the grade thus effected, being itself final, we think that the “adjustment of benefits and damages” upon which that alteration was directed, must be held to be equally so, and that, in the absence of fraud, the objections to be made in the County Court must be confined to errors of jurisdiction and irregularities appearing on the face of the proceedings themselves.
We think that the statute has committed all questions
The judgment of the County Court is, therefore, reversed, and the cause remanded, with directions to render judgment, omitting the damages awarded to parties not filing petitions therefor as required by the statute, and for such further proceedings as may be necessary and not inconsistent with this opinion.
By Crockett, J., Rhodes, C. J., concurring:
We concur in the judgment on the first ground discussed by Justice Wallace.