285 P. 374 | Cal. Ct. App. | 1930
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *666 The appellant is a railway corporation owning a right of way over which it operates freight and passenger trains as a common carrier from the city of Los Angeles easterly through portions of Los Angeles, Riverside and Imperial Counties in the state of California to Yuma, in the state of Arizona, and points east. Respondent is county tax collector of Riverside County, and, as such, took steps to sell the land composing 45.626 miles of appellant's main line roadbed, 165 feet in width, in Riverside County, because of an unpaid assessment levied for the benefit of the Coachella Valley Storm Water District. The assessment here involved was levied in the year 1921 in the amount of $3,193.68. Subsequent assessments, with charges, penalties and interest brought the total levy against appellant's right of way to the sum of $20,924.32 on April 30, 1927, no part of which has been paid. After the lapse of a period of five years respondent was proceeding to publish notice and offer for sale to the highest bidder the lands assessed. Appellant secured a temporary restraining order against the proposed sale. At the trial of the action judgment was rendered in favor of respondent and this appeal was taken.
The Coachella Valley Storm Water District is a storm water protection district duly organized and existing under the Storm Water District Act of 1909, being act of March 12, 1909 (Stats. 1909, p. 339), as amended. The district lies within the county of Riverside and is crossed by the land composing the right of way of appellant. This district was organized some time prior to 1921, and at that time had issued, sold and had outstanding bonds to the amount of $300,000, which sum was to be used in the construction of various works for the protection of lands, within the boundaries of the district, from the storm waters of the Whitewater River, an unnavigable stream, and from the storm waters from numerous canyons and washes, all within the boundaries of the district.
This case was originally appealed to the Supreme Court and has been transferred to this court for decision. The Supreme Court permitted the county counsel of Los Angeles *668 County and his deputy to appear and file a brief herein as amicicuriae on behalf of several local improvement districts in that county which will be directly affected by the decision in this case, there being over 800 miles of land used as rights of way by various railroads assessed in these districts.
The case has been ably and clearly briefed by the various counsel appearing herein, and in the last analysis the controlling issues have been reduced to two. Appellant maintains that the judgment cannot be affirmed because: First, the general revenue laws of California do not confer upon the county assessor of Riverside County the authority to assess and value the land composing the right of way of an intercounty railroad assessed by the state board of equalization, neither do the provisions of the Storm Water District Act confer such authority, and, therefore, that this attempted exercise of such power is without effect, and is invalid; and, second, that public policy forbids the dismemberment of railroads in enforcement of local improvement assessments. To the first contention of appellant may be added his secondary contention, that, as the land used as its right of way did not appear upon the regular assessment-roll of the county, the assessor had neither the authority to enter this land upon the assessment-roll nor the authority to place any value upon it, nor the authority to perform any other duty under the act; and that, therefore, the assessment levied could not become a lien upon the land in question here, but only upon lands within the district regularly upon the assessment-rolls of the county placed there by the assessor in the performance of his usual duties. However, it does not appear from the record that the assessor did place any value upon the land of appellant, speaking now in terms of the common usage of valuing land for assessment purposes.
We have been cited to no case construing the Storm Water District Act of 1909, so we will have to look to decisions upon somewhat similar acts to assist us in our conclusions in this case. Appellant admits that the assessment levied in this case was not a tax and that it was properly levied and constituted a legal lien upon its operative lands other than the land used as its right of way in question. It is admitted by the respondent that the land assessed and involved *669 in this action was assessed by the state board of equalization for the purposes of state taxation, and was not assessed by the county assessor of Riverside County for the purposes of general taxation for county purposes, and should not have appeared upon such assessment-roll for the purpose of local assessment of the district unless the assessor was authorized to place it there under authority of the Storm Water District Act of 1909 and of section 3650 of the Political Code.
We will consider the two grounds upon which appellant seeks a reversal of the judgment of the court below in the order in which we have stated them, namely, first, the authority of the assessor of Riverside County to place the property involved, together with the assessment against it, on the assessment-roll, and, second, the question of public policy involved in the sale of a portion of the land used by a railroad company doing an intercounty and interstate business.
Respondent and amici curiae rest their case in reply to appellant's first argument upon two grounds, namely, first, that while section 3628 of the Political Code requires the assessor each year to assess and place on the assessment-roll all taxable property within his county "except such as is required to be assessed by the State Board of Equalization," still the broad provisions of section 3650 of the Political Code were sufficient to enable him to place upon the assessment-roll a description of the property in question with the amount assessed against it, and, second, that if a tax or special assessment is imposed by statute the necessary machinery for its collection is implied.
[1] While respondent urges with great force the argument that section 3650 of the Political Code directs the assessor to assess all taxable property within the county and place such assessment on his rolls, we do not desire to adopt this theory as the basis of this decision. The fact remains that under the provisions of section 3628 of the Political Code, the land in question here comes within the exception contained in that section which we have heretofore quoted, and is assessed by the state board of equalization, together with other operative property of railroad companies. The two sections of the code must be construed together, and we think amply justify the methods of assessment *670 of this class of property, in use for many years, to raise revenue for state purposes, and to retire bonds issued by counties, cities and other public agencies.
There is much more force in the argument of respondent andamici curiae that if a tax or special assessment is imposed by statute the necessary machinery for its collection is implied, though we think that this statement is entirely too broad to be a correct statement of the law and is not required by the facts of this case. They cite and rely upon the cases of State v.Poulterer,
The Storm Water District Act of 1909, as originally enacted provided for the organization of the district, the election of a board of trustees to govern its affairs and the appointment of employees to carry on the protection work. After organization, the board of trustees is empowered to have a survey of the district made in order to determine what improvements shall be constructed, and shall have *671 prepared plans and specifications of the improvements proposed. The board of trustees must appoint three commissioners to estimate the total cost of making these improvements, including all incidental expenses, and to assess the benefits and damages arising therefrom. [2] The assessment, which is composed of the cost of the improvements, including any damages that may be awarded, "shall be made upon the lands in said district in proportion to the benefits to be derived by such lands from said improvements, including in said assessment the property of any railroad company within said district, if such there be." (Sec. 11, Storm Water District Act of 1909.) The word "property," as used in this quotation, must be held to refer to, and include only "land," as it is clear from the act that no property other than land is to be assessed under its terms. The commissioners must file their detailed report with the board of trustees. The act provides for a notice of hearing of the report, objections and a hearing of the same, if any, the rejection or correction of the report or assessment, and the confirmation of the same, or of an amended or corrected report. After the adoption of the report the board of trustees may, if the assessment be too great to be paid in one year, extend the payments in equal installments over a period of years not exceeding ten. Certified copies of the necessary portions of the proceedings are then to be filed with the county tax collector and the assessments spread upon the tax-rolls of the county, after which they become liens upon the land assessed and are to be collected by the tax collector. Provision was also made for an annual assessment to provide money for the current year for defraying the ordinary expenses of the district and maintaining and repairing the works and improvements thereof. The levy of an assessment for these purposes does not seem to be involved in this case. In 1917 the legislature added to the act, provisions authorizing the district to issue bonds to pay the costs of the improvements (Stats. 1917, p. 218). This formed an alternative method for the raising of money to pay the cost of improvements within the district. The deferred assessment plan we have outlined was left in full force and effect. It will be observed that the bonds, if the bond plan be adopted, are in lieu of the plan of spreading the payment and collection of the assessments *672 over a period of years, and do not affect the prior proceedings. Under the bond plan the board of trustees of the district is required annually to estimate the amount of money necessary to pay the principal and interest on the bonds accruing each year and certify such amount to the board of supervisors of the county, who shall levy an assessment on the lands in the district sufficient to raise the money. "Said tax, when levied, shall be entered upon the assessment roll and collected in the same manner as the state and county taxes." (Stats. 1917, p. 220.) In the case before us the estimate was made by the board of trustees and submitted to the board of supervisors, which levied a tax of $1.40 on each $100 valuation on the land assessed within the district. The county assessor entered the assessment on the roll for the year 1921-1922 and succeeding years, during which the same proceedings were seemingly taken. The agreed statement of facts in the record and the findings of fact of the trial court contain the following recital in this connection: "That in the year 1921, the county assessor of Riverside County entered upon the operative rolls the following assessments of the right of way of the Southern Pacific Railroad Company," followed by a description of the various parcels of the land assessed with the charges against them. The board of supervisors fixed the rate to be paid on the assessment upon the lands within the district, and the county auditor computed the amounts of the several collections to be made for the year.
The amounts of the assessments, and the fairness of the amounts charged against its lands, are not questioned by appellant, but only the fact that the entries were made by the assessor. [3] It must be admitted that it might have been better practice to have had prepared at the time the original report was submitted by the board of trustees of the district to the board of supervisors under section 16 of the Storm Water District Act of 1909, a permanent record in which the descriptions of the lands to be assessed, together with the amounts of the assessments, might be entered with extensions for the entry of the various annual installments during the life of the bonds, which would have left nothing to be entered except the annual computations of the installments to become due. Because this was not done, and because the assessor seemingly made up a new *673 assessment-roll each year, must the assessments fail? The transcription of the roll was only a manual act, and we cannot see why the writing up of a new roll each year should give appellant cause for complaint if the assessor had the implied authority to do this work. It would seem to us to make no difference in principle whether the assessments were entered in one continuous roll, or were separately entered. This is a question of form and not of substance affecting the rights of the land owners.
[4] It is very evident from the terms of the Storm Water District Act of 1909, both in its original form and as amended, that the legislature intended to place the burdens of the cost of the improvements upon the lands within the district that were benefited by them. That none of the lands benefited should escape, is very evident, and especial mention is made of lands belonging to railroad companies. [5] In construing a statute it is a duty of the courts to construe it and to view it "in the light of every presumption and intendment favoring its constitutionality" (Los Angeles County Flood Control Dist. v.Hamilton,
[7] Under the broad provisions of the law of California the assessor of a county is given the duty, and upon him rests the burden, of assessing all taxable property within his county, with certain definite exceptions, for the *674
purpose of the levy and collection of taxes for county purposes. The right is given him to assess all taxable property, but this right, together with the duty following, is suspended by other sections of the Political Code, where the assessment is made by certain officials of the state. [8] Operative property of public service corporations has not been exempted from taxation by the terms of the Constitution (Const., art. XIII, sec. 14), but rather a substituted form of assessment and collection of taxes was adopted. In the case of McHenry v. Alford,
Bearing in mind that an assessor is given the broad duty of assessing the property within his county subject to taxation for county purposes, and that it is clear that the legislature intended that the property of appellant involved in this action be assessed to pay its just share of the costs of *675
the improvements within the district, and bearing in mind further that the amendments of 1917 to the Storm Water District Act of 1909 contained no direct mandate to enter the description of this property, together with the assessment upon it, on the tax-rolls of Riverside County, we must proceed to the question of whether or not the respondent had the implied power to make the entries that he did in his records. While we have not been referred to, nor have we found a case directly in point, there are, however, many cases construing the implied powers granted to officers and boards within the state that furnish us with the general principles to be applied here. In the case of Laurelle v.Bush,
The act of the legislature creating the Los Angeles County Flood Control District (Stats. 1915, p. 1502) contains many provisions as to the assessment of the lands of the district similar to the Storm Water District Act of 1909. The same questions which we are considering under the Storm Water District Act of 1909 were considered and passed upon under the Los Angeles Flood Control District Act in the case of Los Angeles Ry. Corp.
v. Los Angeles County Flood Control Dist.,
As far as the particular entry on the assessment-roll by the assessor of Riverside County of the lands of appellant goes, much the same situation arose in so far as the assessor was concerned, as when property in a new form comes into existence and must be assessed. Not so many years ago there were no motor vehicles to be assessed. Later the radio, the airplane and other new forms of personal property came into being, and all were assessed. [9]
When the inventive mind of man has produced property in a new form no one could question, not only the right, but the duty of the assessor to enter it upon the assessment-roll so that it may bear its just portion of the cost of government. When the inventive mind of the legislature finds a new class of property upon which it directs shall rest a portion of the burden of a public improvement, we do not believe that the implied power of the assessor to so complete his assessment-rolls that this property shall not escape an assessment to pay its just proportion of the benefit it receives, should be questioned.[10] No other means of collecting the assessment is provided by law (Atchison, Topeka Santa Fe Ry. Co. v. Reclamation Dist.No. 404,
What is, or what is not, against public policy is a question upon which courts in various jurisdictions do not always agree. "Some courts, speaking upon this subject, have said that the immediate representatives of the people, in legislature assembled, would seem to be the fairest exponents of what public policy requires, as being most familiar with the habits and fashions of the day, and with *679
the actual condition of commerce and trade, their consequent wants and weaknesses, and what legislation is least objectionable, because it operates prospectively, as a guide in future negotiations, and does not, like a judgment of the court, annul a contract already concluded. There can be no doubt that primarily it is the prerogative of the legislature to declare what contracts and acts are contrary to public policy, and to forbid them; hence public policy is what a statute enacts. Therefore it is the duty of the judiciary to refuse to sustain that which is against the public policy of the state, when such public policy is manifested by the legislation or fundamental law of the state. Nor can courts declare contracts or acts authorized by statute to be contrary to public policy; but in the absence of a statute they may declare void, as against public policy, contracts which are clearly injurious to the interests of the public." (6 R.C.L., p. 709.) This rule seems to have been adopted in California in the case of Lux v. Haggin,
In the cases cited by appellant in support of its contention that public policy in California would not permit the dismemberment of a railroad doing an intercounty or an interstate business, the question of the declaration by the legislature upon such policy was not involved. The cases of Southern CaliforniaRy. Co. v. Workman,
Section 16 of the Street Opening Act of 1903 (Stats. 1903, p. 376) provided that the cost of an improvement must be assessed "upon and against the lands, including the property of any railroad, within said assessment district." In the case of LosAngeles Pac. Co. v. Hubbard,
[12] In the case before us, section 11 of the Storm Water District Act of 1909 contains an explicit direction that with the lands to be assessed to pay the costs of the improvements shall be included "the property of any railroad company within said district." We believe that when the legislature directed the assessment of any land belonging to a railroad company within the district it intended that the assessment should be paid or collected according to law. In this case the only way to collect a delinquent assessment is by sale of the lands. (Atchison,Topeka Santa Fe Ry. Co. v. Reclamation Dist. No. 404,supra.) We believe the legislature did not intend to direct the making of a useless assessment and that it has determined the public policy of California to be that lands used as a railroad right of way may be sold to pay a delinquent assessment lawfully levied under the provisions of the Storm Water District Act of 1909.
[13] Appellant further complains of the assessment levied because it insists that it includes the franchise, roadway, roadbed, rails and rolling stock of the company. We do not so read the assessment in the record before us. The assessment is copied in full and shows only a strip of land 165 feet wide through various sections described, with an amount in money following each of the several parcels described. We cannot construe this to be an assessment on anything more than it shows. From all that appears in the records, the amounts entered are the benefits charged against the *683 lands described in the report of the commissioners and approved by the trustees of the district.
[14] Appellant further complains of a ruling of the trial court refusing to strike out a portion of an agreed statement of facts used at the trial, to the effect that the railroad right of way was benefited by the protection works of the district. This ruling cannot be complained of by appellant in this action. The question of what property was benefited by the improvements was submitted to the board of supervisors of Riverside County during the proceedings leading up to the organization of the district. The findings and decision of the board of supervisors on this question cannot be collaterally attacked in this proceeding. The other questions presented by appellant are not material to the conclusions we have reached and do not need to be separately discussed in this opinion as we have assumed without deciding that its position on these exceptions and assignments of error was correct.
Judgment affirmed.
Sloane, P.J., and Barnard, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on February 24, 1930, and a petition by appellant to have the cause heard in the Supreme Court after judgment in the District Court of Appeal, was denied by the Supreme Court on March 31, 1930.
All the Justices concurred.