258 P. 955 | Cal. | 1927
This action was commenced in the superior court in and for the county of San Mateo to compel the chairman of the board of supervisors of said county to sign a contract awarded by said board to the plaintiff for the performance of certain street work in a proceeding had and taken under the Road District Improvement Act of 1907 (Stats. 1907, p. 806), as amended. From a judgment in *631 favor of the plaintiff the defendants have appealed. In their answer the defendants allege and now urge that the said proceedings are invalid for reasons which will be considered.
The resolution of intention was published on the fifteenth, twenty-second and twenty-ninth days of September, 1923, and the "Notice of Road District Improvement" was posted on September 25th. On October 15th the board of supervisors proceeded to hear such objections as were offered against the work, including those of the defendants other than the defendant chairman of said board, and on the same day the board adopted a resolution ordering the work to be done and fixing the time for the reception of bids on November 5th. Notice to bidders was duly posted and published, the bids were received, opened, and examined and on November 19, 1923, the board adopted a resolution awarding the contract to the plaintiff. Subsequently a form of contract was presented to the defendant chairman of said board for his signature. He refused to sign the contract on the ground that he had been advised by counsel for certain interested property owners that the proceedings were irregular and that he thought, in the interest of all concerned, the legality of the proceedings should be tested in court. This action was accordingly commenced to compel the execution of the contract.
[1] It is first contended that the board of supervisors was without jurisdiction to hear the objections to the work at the time the same were heard and disposed of by reason of an alleged insufficient notice of the passage of the resolution of intention. Section 5 of the act provides that printed copies of the resolution of intention headed "Notice of Road District Improvement" shall be "posted along the line of work described in said resolution. . . ., and published. . . . . Affidavits in proof of such publication and posting shall be filed with the clerk of the board of supervisors. When, before the day of the hearing specified in the resolution of intention, twenty days have elapsed since the posting and the first publication (they need not be simultaneous) of the resolution of intention, the board of supervisors shall have acquired power to proceed with such hearing and to take all other action in the proceeding as is in this act authorized." *632
We think the notice of hearing of objections was sufficient. Under well-recognized rules either September 25th, the date of the posting, should be included in the computation of the twenty-day period, or if that day be excluded, October 15th should be included. In either case the period of twenty days elapsed between the posting of the notice and the hearing of the objections. Under the peculiar wording of the statute the question would not seem to be determinable by the rule laid down in section
[4] The defendants challenge the constitutionality of the act of 1907 under the state and federal constitutions. Section 26 of the act provides that the tax to be levied to satisfy the bond obligation "shall be levied and collected in the same mode and manner and by the same officers as the ordinary county taxes, and all laws applicable to the levy, collection and enforcement of such county taxes are hereby made applicable to said special taxes." By reason of this provision it is contended that the property owner may not know of the amount of the special assessment tax to be paid by him until the final installment on said bonds is to be paid (1) because of the fluctuations in assessed values from year to year and (2) because the tax on some of the lots in the district may become delinquent and some of the land owners be required to pay an undue proportion in order to make up a sufficient fund to pay said installments. It is accordingly urged that the land of one property owner in the district may thus be impressed with a tax not properly chargeable to it but chargeable against the land of the delinquent owner. We deem it not essential to the validity of the statute that the property owner be advised in advance of the precise amount he will be required to pay each year as the special assessment tax is levied to satisfy the installments of principal and interest on the bonds as they become due. The law requires the board of supervisors to levy and collect sufficient funds for that purpose. This requirement is mandatory. When the contract is let the property owner does know the amount of the cost of the work which will be represented by the principal of bonds to be issued. The defendants herein were so advised, it is assumed, for they are objecting to the contract price. The nature of the proceedings is such that precision as to the exact amount of future levies as against each lot is impossible by reason of fluctuations in assessed valuations from year to year and delinquencies in payment of the tax on the part of some land owners in the district. These facts are not alleged in the *637 answer but they may be assumed. It would not follow therefrom that the method of ad valorem assessment would be invalid. If the value of a particular lot increase it is reasonable to assume that the benefit and burden would increase proportionately. If the value decrease a lessening of the assessment would result. If some of the special assessment payments become delinquent from year to year it would not follow that the lands of the delinquent owners would be relieved from paying the charge. It would be merely postponed. With the penalties and costs accruing to the bond fund it is reasonable to assume that the burden is equalized during the period that the bonds are outstanding.
The act of 1907 has received consideration in numerous cases in this state. Its validity on numerous grounds of attack has been declared. (Thomas v. Pridham,
Finally, it is contended by the defendants that the evidence shows that the cost of the proposed work is grossly excessive when compared with the value of the lots in the district. The engineer of the proposed work testified that the original cost of the work would be in the proportion of $566.92 for each fifty-foot lot in the district and the total amount to be represented by the principal and interest on the bonds to be issued to represent the cost of the work would total $226,295.37. The average assessed value of the lots in the district is $150. The fair average market value of the lots in the district appears to be from $500 to $600. There are 384 fifty-foot lots in the district. It thus appears that the contract price is approximately equivalent to the market value of the lots in the district. As stated by the judge at the conclusion of the trial the case presents a most unfortunate situation. There was evidence that the type of pavement provided for in the specifications is too costly for a district embracing property of such valuation. It may be that by reason of the improvement the values will be more than doubled in consequence of the pavement. Such may not be the case. These are not matters for our determination on this record. No fraud is alleged or proved. It is claimed that the bids were advertised for and the contract was awarded at a time when prices were at their peak. In a new proceeding, if one be commenced, either less costly pavement may be specified or more advantageous prices may be received. These are questions to be determined by the board of supervisors in the exercise of their sound discretion. For the reason only that said board was not authorized to institute and carry to completion the proceedings in *639 question in the face of said prior and outstanding indebtedness of the district the judgment is reversed.
Waste, C.J., Curtis, J., Preston, J., Langdon, J., and Seawell, J., concurred.
Rehearing denied.