245 P. 164 | Cal. | 1926
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *311 This action was brought to enjoin the defendants the City of Los Angeles and certain of its officers from expending any money in furtherance of a proceeding initiated under the Street Opening Act of 1903 (Stats. 1903, p. 376), including the cost of the prosecution of a pending action in condemnation. A general demurrer to the complaint was overruled. The defendants stood on their demurrer and declined to answer, whereupon a judgment of injunction was entered as prayed. From this judgment the defendants appeal.
On January 22, 1923, the council of said city adopted an ordinance entitled: "An ordinance declaring the intention of the city of Los Angeles to order the opening, widening and extending of Mines avenue between the easterly boundary of the city of Los Angeles and a point distant three hundred feet, more or less, westerly of Lorena street, and Ninth street between Lorena street and San Julian street, and of Tenth street between San Pedro street and Burck place, and of Country Club drive between Burck place and a point one hundred twenty-five feet westerly from said Burck place, in the city of Los Angeles, county of Los Angeles, state of California." This ordinance was approved by the mayor and published on February 1, 1923. In and by said ordinance it was ordained in section 1 thereof that the public interest and convenience required, and it was the intention of the council to order, that the streets therein named (described precisely as set forth in the title) be opened, widened, and extended. Section 2 described more particularly the lands to be taken. This description is a technical description by courses and distances of the exterior boundaries of the proposed improvement, covering eighteen pages of printed transcript. A series of maps prepared by the city engineer in August, 1923, for use in connection with the condemnation proceeding, was submitted at the oral argument for our enlightenment upon this appeal. From these maps, but not from the technical description in the ordinance, it is ascertained that the proposed improvement contemplates a street of uniform width extending from the easterly to the westerly boundaries of the city. Section 3 of the ordinance contains a description of the assessment district by courses and distances, covering forty pages of printed transcript. *313 Section 4, among other things, directs the board of public works to post notices of the improvement as required by law. Section 5 ordains that improvement bonds may issue to represent assessments as provided by the Improvement Bond Act of April 27, 1911. Section 6 provides as follows: "It is further ordered and declared by said City Council of the city of Los Angeles that a percentage of the expense of said improvement, in section 1 of this ordinance described, to-wit: That percentage which the sum of $1,500,000 bears to the entire expense of said improvement shall be paid by the city of Los Angeles out of such fund as said City Council may designate."
Thereafter, on February 2 and 5, 1923, the board of public works caused notices of public work to be posted. These notices described the proposed improvement precisely as described in the title of the ordinance of intention. The same form of notice was published in the official newspaper on February 7 and 8, 1923.
Within thirty days after March 4, 1923, the alleged effective date of the ordinance of intention, written protests against the proposed improvement were filed. The council heard protests filed on and prior to March 9, 1923, but refused to hear or consider protests filed after that date.
Thereafter the council on June 28, 1923, adopted the final ordinance ordering the opening, widening, and extending of said streets, describing the same in the identical language used in the title and in section 1 of the ordinance of intention and in the notices of public work as posted and published. The city attorney then instituted an action in the superior court to condemn the lands alleged to be necessary for the improvement claimed by the city to have been authorized by the proceedings preliminary thereto, but the said action has not proceeded to judgment.
The plaintiffs are the owners of lands within the assessment district which are subject to assessment on account of said improvement if the same be carried to completion as proposed.
Because of the demurrer and the refusal of the defendants to answer, all of the material allegations of the complaint are of course admitted to be true. From these allegations and the record before us it appears that Mines Avenue is a public street extending from the easterly boundary *314 of the city in a general westerly direction to a point where it meets the easterly terminus of Ninth Street, approximately 150 feet westerly from Lorena Street, which is an intersecting north and south street; that Ninth Street extends westerly from its easterly terminus for a distance of about eight miles; that Tenth Street extends from its easterly terminus at its intersection with Central Avenue in a general westerly direction and approximately parallel with Ninth Street a distance of about 2,600 feet to its intersection with San Pedro Street, which is a north and south street intersecting both Ninth and Tenth Streets; that from San Pedro Street to San Julian Street, a distance of one block, Tenth Street is not open; that Tenth Street from San Julian Street to Main Street is, for a distance of some 1,800 feet, an open public street approximately paralleling Ninth Street between the same intersecting streets; that both Ninth and Tenth Streets for many years have been open, improved, and used public streets of the city and commonly known by their respective names; that it is not contemplated in the proposed proceeding to open, widen or extend Tenth Street between San Pedro and Main Streets, but the proposed improvement contemplates the opening of an entirely new street through private improved property diagonally from the intersection of Ninth and San Pedro Streets to the intersection of Tenth and Main Streets. The situation may be better understood by reference to the accompanying diagram. *315
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In section 2 of the Street Opening Act of 1903 as amended (Stats. 1921, p. 566) it is provided that before ordering any improvement therein authorized the city council shall pass an ordinance declaring its intention so to do, which ordinance "shall briefly describe the improvement" and the land necessary or convenient to be taken therefor. Section 3 requires that a "notice of public work" shall be posted along the line of the proposed improvement and be published by an insertion in a newspaper designated by *316 the city council for that purpose, which notice shall "briefly describe the improvement proposed, and refer to said ordinance of intention for a description of the assessment district and for further particulars."
The respondents first attack the proceedings on the ground that the improvement actually intended and sought to be carried out by the condemnation proceeding and the improvement described in the ordinance of intention and notices of public work are fatally at variance, in that the improvement described in the ordinance of intention and notices includes the opening and widening of Tenth Street between San Pedro Street and Main Street, and the improvement as actually attempted to be carried out between San Pedro Street and Main Street consists of the opening of an entirely new and unnamed street between Ninth and San Pedro Streets and Tenth and Main Streets, and that therefore the property owners within the assessment district were not charged with notice of the proposed improvement as required by law. We think this contention must be sustained. The proceeding isin invitum. It is conceded by counsel for appellants that in such a proceeding the property owner "is entitled to an accurate compliance with those specific requirements of the statute which the legislature deems important to safeguard his interests. These are the mandatory and jurisdictional provisions of the statute." This statement is in line with the well-established rule that the requirements of the statute essential to jurisdiction must be complied with. (Flynn v. Chiappari,
With the foregoing considerations in mind the question is: Does the description in the ordinance of intention and in the notice of public work as published meet the requirements of the law? It is to be observed that said description specifies Tenth Street between San Pedro Street and Burck Place as one of the streets to be opened, widened and extended. Reference to the map discloses that Burck Place is many blocks west of Main Street. It also appears that Tenth Street approaches and extends to San Pedro Street from the east and proceeds westerly from San Julian Street. Between San Pedro Street and San Julian Street Tenth Street is not open. When the ordinance of intention proposed to open, widen, and extend Tenth Street from San Pedro Street to a point westerly from Main Street the only reasonable inference or conclusion to be drawn from the language employed in the description was that it was contemplated to open Tenth Street from the point of its intersection with San Pedro Street westerly therefrom where at the time it was not then open, and thus provide a through street. But instead of carrying out the improvement as so described the appellants admittedly propose to open an entirely new and unnamed street from the intersection *318
of Ninth and San Pedro Streets to Tenth and Main Streets. It is conceded by the appellants that "the names of streets affected by the improvement must be correctly given, and none other than the official name may be employed, for in contemplation of law a street has but one name, — its official name." (Peck v.Stassforth,
It is insisted by the appellants that the opening of the new street from Ninth and San Pedro Streets to Tenth and Main Streets should, considering the improvement as a whole, be deemed an extension of Tenth Street from San Pedro Street to Burck Place. It is urged and it may be assumed that, in a comprehensive and unrestricted sense, the phrase "to extend" means to enlarge or to expand in any direction. But when used in conjunction with the phrases "to open" and "to widen" it can only mean a prolongation of the street from one of its termini and in its same general direction. (Mayor of Monroe v. Ouachita Parish,
47 La. Ann. 1060 [17 So. 498]; Owen v. Chicago,
Appellants again insist that, in view of the magnitude of the project, a substantial compliance with the statute has taken place. The record may not be so construed. If, under the notice given in this case, the city may not only fail to improve the street noticed for improvement for a distance of 1,800 feet, but also open a new street parallel therewith for that distance and not noticed for improvement, it might be urged with equal assurance that a new and unnamed and unmentioned street could be opened paralleling the street described in the notice for a mile or more — a proposition not possible of approbation under our street laws.
It is also insisted by the appellants that, as section 3 of the act provides for a reference in the notice of public work to the ordinance of intention for a description of the assessment district "and for further particulars," and as the notice in this case contained such reference and as the eighteen-page description by courses and distances in section 2 of the ordinance of intention was, from an engineering standpoint, a correct description of the land to be taken, therefore the notice was sufficient. But the phrase "further particulars" contemplates that the brief description contains some particulars of the essential parts of the proposed improvement, in order that the property owner be charged by reference with the further
particulars (White v. Harris,
A similar defective and omitted description is alleged by respondents to have occurred as to the proposed opening of a new and unnamed street approximately 900 feet in length westerly from Lake Street to Hoover Street, whereas Tenth Street westerly from Lake Street and running in the same general direction as the proposed new street and being easterly from Burck Place is not to be improved. Respondents likewise question the right of the city to open a new street, approximately 1,400 feet in length, from Crenshaw Boulevard westerly to Burck Place under a notice to open, widen, and extend Tenth Street, when, as a matter of fact, Tenth Street is and was at the time of said notice, a public street known as such by the official name of Tenth Street and running in the same general direction between the said termini and is not to be improved. Other defects in the description are alleged but need not be noted. But from those referred to, it will be seen that, under a notice to open, widen, and extendTenth Street between San Pedro Street and Burck Place, the respondents are attempting to open about four-fifths, of a mile of new street through private property when the same territory is traversed by a street officially known as Tenth Street and running in the same general direction and which is not to be improved. Further argument should not be required to support the conclusion that such a proceeding is contrary to law.
The case of McGarry v. Ellis,
A serious objection is also urged by the respondents to the sufficiency under the statute of the provisions of section 6 of the ordinance of intention. The city had the *321
option to proceed under the Street Opening Act of 1903 (Hayes
v. Handley,
Respondents contend that there was also a fatal noncompliance with the statute when the ordinance of intention failed to designate the fund from which the city's portion of the expense was to be paid. Appellants in reply state that it is no concern of the property owner from what fund the city's portion is to be paid and that the language of the act is reasonably susceptible of the construction that the ordinance shall state merely that the city's portion shall be paid "out of such fund as the city council may designate." We think the proper construction of the language of the act requires that the fund be designated in the ordinance of intention and that such designation is for the benefit of the property owner and jurisdictional. The appellants concede the correctness of the rule laid down inDehail v. Morford, supra, wherein this court said that "every requirement of the statute which has a semblance of benefit to the owner must be observed in order to give the municipality jurisdiction in the premises." If the fund be designated *323 as the general fund or the reserve fund or the unappropriated balance the property owner might be satisfied with the expenditure from that source as entailing no additional burden on his part, but if the fund be designated as a fund to be derived from a general bond issue to be thereafter authorized and to satisfy which his property would be subject to an additional tax, or a fund from which the payment of the city's portion could for some reason not legally be made, he would know or be charged with knowledge of the additional burden to be borne by him and be governed accordingly in deciding whether or not he would protest. We therefore hold that the statute requires that when the city is to pay a portion of the cost of the improvement, a definite percentage of the total cost and the name of the fund from which the payment is to be made be stated in the ordinance of intention, and that these statutory requirements are jurisdictional.
The respondents attack the said proceeding on additional grounds which are treated rather extensively in the briefs. Some consideration of these further objections is deemed essential to a proper disposition of the case. It is insisted by them that the amendment to the Street Opening Act of 1903 authorizing the municipality to pay a portion of the cost of improvement is void for the reason, so it is claimed, that the title of the act does not embrace the subject of the amendment and is therefore legislation contrary to the provision of section 24 of article IV of the constitution. Estate of Melone,
Again, it is contended that the attempted appropriation of $1,500,000 by the city constitutes a gift of public money contrary to section 31 of article IV of the constitution. It is argued that, inasmuch as the city council has declared that the property within the assessment district is to be benefited by the proposed improvement, it must therefore follow that the improvement is of benefit to the property in the district and is of no benefit to the general public over and above that ordinarily received by the general public from all streets. It is further argued that, as the ordinance of intention provides that the property in the district shall be assessed to pay the cost of the improvement, such declaration means the payment of the whole cost. We think the declaration referred to must be read in connection with the provisions of section 6 of the same ordinance, which provides for the payment of a portion of the cost of the improvement. It must be assumed that the opening, widening, and extending of a public street within a city is a matter of general public interest and concern (Sinton v.Ashbury,
It is alleged in the complaint that at the time of the adoption of the ordinance of intention there was not, nor was there at any time during the fiscal year ending June 30, 1923, in the city treasury of Los Angeles any sum or amount sufficient to enable the city to pay the $1,500,000 proposed to be paid, and that the electors had not authorized the said indebtedness. As this allegation was admitted it is insisted that the indebtedness thus attempted to be incurred was unauthorized and contrary to the provisions of section 18 of article XI of the constitution, which provides that no city shall incur any indebtedness or liability in any year exceeding the income and revenue provided for *325 such year without the consent of two-thirds of the qualified electors thereof voting at an election to be held for that purpose. We think the order and declaration of the council as embodied in section 6 of said ordinance do not constitute the incurring of an indebtedness as contemplated by the section of the constitution referred to. The mere declaration of a purpose is there evidenced which does not amount to a covenant which could then be enforced. The proceedings may be abandoned or the improvement may be delayed for many years. Notwithstanding the facts as alleged and as admitted, such a state of the city's finances may not be in existence at the time the appropriation is actually to be made.
It is contended that the ordinance of intention was not properly entitled as required by section 4459 of the Political Code. It is therein provided that official advertising, when published, must be preceded by words "describing or expressing in general terms the purport or character of the notice intended to be given." This section was added to the Political Code in 1903. In 1908 it was said by this court in Ex parte Young,
At the time of the adoption of the ordinance of intention section 198g of the city charter provided that an ordinance making or authorizing any contract should not go into effect until the expiration of thirty days from its publication, with certain exceptions, including contracts that require the payment by the city of less than $25,000, and it is urged that the ordinance in question authorized a contract for an expenditure in excess of $25,000 and therefore was not within the exception. But said section 198g at that time also contained a provision excepting from the thirty-day restriction "an ordinance . . . relating to . . . the opening, widening, straightening or extension of streets." The ordinance of intention appears to be in this excepted classification and the thirty-day postponement provision had no effect upon it. It is not disputed that if the ordinance of intention was in effect on the date of its publication, then March 9th was the last day for the filing of protests. The city council therefore proceeded correctly in refusing to consider or pass upon protests filed after that date.
Finally, it is insisted that the act of 1903 does not provide for a hearing to be had on the question of the respective portions of the general public and local benefits, and therefore due process of law is not accorded the property owners on that question. Without prolonging the discussion it is sufficient to say that we think the said act provides for all the notice and opportunity to be heard essential in that connection to the requirements of due process. *327
From what has been said as to the failure of the appellants to observe jurisdictional requirements it necessarily follows that the demurrer was properly overruled and that the judgment should be affirmed. It is so ordered.
Waste, C.J., Seawell, J., Richards, J., Curtis, J., Lawlor, J., and Lennon, J., concurred.