No. 7,072 | Cal. | Jul 1, 1881
This action was brought to enforce the lien of an assessment upon certain lands alleged to have been made for their reclamation. The complaint was demurred to upon the ground, among others, that it did not state facts sufficient to constitute a cause of action. The Court below sustained the demurrer, and the plaintiff declining to amend, judgment was rendered for defendants. From this judgment plaintiff appealed.
On the argument it was contended that the complaint was defective in its averments as to the publication of the petition presented to the Board of Supervisors of Kern County, for the formation of a reclamation district, and as to the approval of the petition by the board just referred to. The averments referred to are as follows:
*584 “ That thereafter the said petition was published once a week for a period of more than four (4) weeks preceding the hearing hereinafter mentioned, viz., for a period beginning with the twenty-second (22nd) day of December, A. D. 1870, and ending on the twenty-fifth (25th) day of February, A. D. 1871, in the Havilah ‘Weekly Courier,’ a newspaper published once a week at Havilah, in the said county of Kern; that at the time said publication was going on, there was no newspaper in said Kern County which was published oftener than once a week; that immediately after said publication was completed as aforesaid, to wit, on the twenty-eighth (28th) day of February, a. d. 1871, the said petition was presented to the said Board of Supervisors, that is to say, was filed in their office and with the clerk of said board; and an affidavit of publication thereof, in the usual form, made by the publisher of the said newspaper, and showing that the said petition had been published in the manner hereinbefore set forth, was filed in the office of the said board, with the said petition and at the same time. That the said board was not in session at that time, and was not in session after that time until the month of May following.
“ That at the next term of said board held after the publication of the petition was completed as aforesaid, and after the said petition and affidavit had been presented and filed as aforesaid, to wit, on the 2nd day of May, 1871, the said petition so presented and on file came up for a hearing before the said board, at a regular meeting thereof, and the said board then and there heard the same, and upon hearing and consideration thereof found the statement set forth in said petition to be correct and true, and that no land was improperly included in or excepted from said district; and that said board then and there made an order approving the said petition, which order was signed by the president of the said board and attested by the clerk thereof.
“ That thereupon, to wit, on the 3rd day of May, 1871, the said petition was recorded by the county recorder of said Kern County, in a book which was kept in his office for the purpose of recording papers relating to reclamations of swamp and overflowed lands.”
. .The petition referred to is the initial proceeding in forming
It will be perceived from an examination of the averments of the complaint set forth above, that there is no allegation of the publication of the petition for four weeks next preceding the hearing. The hearing is stated to have been had on the 2nd day of May, 1871, and the publication made for a period beginning with the 22nd of December, 1870, and ending on the 25th of February, 1871, and that there Is an entire absence of averment that the board noted their approval on the petition signed by the president of the board and attested by the clerk.
It is contended that in consequence of the lack of the averments just referred to, it does not appear from the complaint that the reclamation district was ever formed, and therefore that the other proceedings alleged were illegal and should not be regarded, inasmuch as it had no right to levy any assessment which ought to be enforced.
In answer to this, it is contended on behalf of appellant that the averments of the complaint show that the reclamation district is a corporation, and that the objections urged here by respondent should not be regarded, for the reason that these objections could only be availed of in a suit on behalf of the people of the State. To sustain this contention, Dean v. Davis, 51 Cal. 406" court="Cal." date_filed="1876-07-01" href="https://app.midpage.ai/document/dean-v-davis-5438992?utm_source=webapp" opinion_id="5438992">51 Cal. 406, and The People v. Reclamation District, 53 id. 346, are cited.
If the district referred to in the complaint, and the matters averred in relation thereto, do not show it to be a corporation, this action cannot be maintained, and the demurrer was properly sustained.
Then, conceding it to be a corporation, can the action be maintained in the name of the people ? The respondent argues
This' action was commenced under the Political Code. By § 3466 of the Code, the duty to proceed to collect delinquent assessments is devolved on the same officer. But the provision that the district attorney shall proceed in the same manner as is provided by law for the collection of State and county taxes is omitted in the section of the Political Code just referred to. According to the provisions of the Political Code which were in •force when this action was brought, the assessments, when collected, were to be paid to the treasurer of the county, and this latter officer was required to place the same to the credit of the district. (See Pol. Code, § 3466, also § 3456 ; see also § 35 of the Act of 1868, Acts of 1868, p. 516.) The money so paid to the county treasurer is to be paid out only for the work of reclamation of the district. The law requires that every action must be prosecuted in the name of" the real party in interest. (§ 367, Code Civ. Proc.) There are some exceptions to this general rule mentioned in § 369 of the Code of Civil Procedure to which we will hereafter refer.
Who is the real party in interest here ? In our opinion, it is manifestly the reclamation district. The money, when collected by suit or paid by the persons assessed, is to go to the credit of the district, and to be paid out for the reclamation of the district. It is assessed, collected, and disbursed for the district —a district which we hold as a corporation is competent to sue.
In The County of Mendocino v. Lamar, 30 Cal. 628, the action upon a recognizance was held, properly brought in the name of the county, although the recognizance was made to the people of the State, on the ground that the money, when collected, went to the relief of the county. The Court, per Justice Shafter, in that case used the following language on the
The exceptions above alluded to, from the rule requiring an action to be prosecuted in the name of the real party in interest, are those of an executor or administrator, or trustee of an express trust, or a person expressly authorized by statute, who, it is provided by § 369 of the Code of Civil Procedure, “ may sue without joining with him the persons for whose benefit the action is prosecuted.” The people are not expressly authorized by statute to sue in this case.
We are of opinion that the corporation—the reclamation district—was the real party in interest within the rulings of the cases above cited, and that the action should have been brought in the name of the district. We think this objection can be taken by a demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action. (See De Witt v. Chandler, 11 Abb. Pr. 459" court="N.Y. Sup. Ct." date_filed="1860-11-15" href="https://app.midpage.ai/document/de-witt-v-chandler-5456304?utm_source=webapp" opinion_id="5456304">11 Abb. Pr. 459.) The facts stated in the complaint show no cause of action in favor of the plaintiff against defendant, and in such case the general ground is sufficient, the plaintiff having legal capacity to sue, but no right to recover, if every fact averred is proved.
For the reasons above given the judgment is affirmed.
Ross, J., McKinstry, J., Myrick, J., Sharpstein, J., and McKee, J., concurred.