97 P. 692 | Cal. Ct. App. | 1908
This proceeding was instituted in the superior court of Los Angeles county to obtain a writ of review directed to the city council of the city of Los Angeles.
The controversy grows out of the opening of Grand avenue from Temple street to California street, the proceedings for the opening of which were had and taken under the street opening act of 1903. (Stats. 1903, p. 376.) It appears from the verified petition that appellants are the owners of lots and lands located within the district established by said council as being benefited by the opening of said street, and upon which the cost of such opening was apportioned by an assessment duly made upon the parcels of land located within the boundaries thereof. The assessment and diagram were filed with the city clerk, who thereupon gave notice of such filing by publication for a period of ten days, the first publication of said notice being made on the eighteenth day of October, 1907. On November 15, 1907, and within thirty days after the first publication of said notice appellants filed objections to said assessment. It appears from said petition that no action was taken by said council upon these objections until Monday, December 23, 1907, at which time, as shown by the minutes of the proceedings of the city council as set forth in the petition, the "petitions, protests and communications were received and referred to their appropriate committees, to wit: . . . No. 1224 from the Estate of T. D. Garvin, et al., protest *609 against the assessment for the opening of Grand avenue between Temple street and California street. Set for hearing January 6th, 1908, at 11 a. m., and in the meantime referred to the city engineer for report as to frontage, and the clerk instructed to give notice in the manner required by law." On January 6, 1908, as shown by the minutes of the proceedings set forth in the petition, the engineer made his report to the effect that the protestants did not represent a majority of the frontage in said district, and, according to the minute entry of said proceedings, "the matter of the hearing of protests Nos. 1224 and 1229, Estate of T. D. Garvin and S. A. Waldron, et al., protesting against the opening of Grand avenue from Temple street to California street, coming on regularly at this time as a special hearing, the same was taken up, and Mr. Healey moved, seconded by Mr. Clampitt, that the report of the city engineer be adopted and that the protests be denied and the assessment and diagram presented by the Board of Public Works be confirmed and adopted"; which motion was adopted by a full vote. No notice of the time when said objection would be heard was served on the objectors.
Upon the filing of this petition the writ was issued as prayed for. Thereafter, instead of making a return of its proceedings as required by said writ, said respondents filed a demurrer, alleging that the petition did not state facts showing that petitioners were entitled to the writ. This demurrer was sustained, and a motion made at the time by respondents to have the writ theretofore issued dismissed was granted; whereupon a judgment of dismissal was entered in accordance therewith, from which petitioners prosecute this appeal.
The question presented by the record is the sufficiency of the verified petition to warrant the issuance of the writ. The effect of the demurrer on the part of respondents was, for the purpose of disposing of the question raised thereby, to adopt as their return the facts alleged in the petition. The question, therefore, is whether these facts entitled petitioners to the writ.
By the provisions of section 18 of the street opening act of 1903 (Stats. 1903, p. 380), the superintendent of streets, upon the completion of the assessment, is required to file the same with the city clerk, who shall give notice of such filing by publication *610 for at least ten days in a daily newspaper published and circulated in the city. Said notice shall require all persons interested, within thirty days after the date of the first publication of such notice, to file with the said clerk their objections, if any they have, to the confirmation of said assessment. Pursuant to said notice so given by publication, appellants did, within the thirty days provided therefor, file with the city clerk objections to the confirmation of said assessment. No other notice of the filing of said assessment, or the hearing of objections thereto, other than this publication, is required; hence, parties filing objections are not entitled to personal notice of the time and place when a hearing will be accorded upon their objections. The law fixes the time when the objections shall be heard. Section 19 of the act provides: "The clerk shall, at the next regular meeting of the City Council after the expiration of the time for filing objections, lay said assessment and all objections so filed with him, before the Council; and said council shall hear all such objections at said meeting, or at any other time to which the hearing thereof may be adjourned." The objectors, therefore, were chargeable with notice that their objections would be heard at the next regular meeting of the city council after theexpiration of the thirty days within which to file objections, or at such other time to which such hearing might at such meeting be adjourned. It was their duty to be present at such meeting, if a hearing was then had, or, if not had, to ascertain from the action then taken the time to which such hearing was adjourned.
By reference to section 13 of article III of the charter of the city of Los Angeles, of which this court will take judicial notice (Dillon's Municipal Corporations, sec. 83; 17 Am. Eng. Ency. of Law, p. 936; Bituminous etc. Paving Co. v.Fulton (Cal.), 33 P. 1117; People v. Potter,
The council, having failed to take any action at thenext regular meeting after the expiration of the time for filing objections, either in the way of according a hearing or adjourning the hearing to some subsequent day, lost jurisdiction to act in the matter, except upon a republication of the notice in accordance with the provisions of section 18 of the act. The record of the proceedings may show an entirely different state of facts from that set forth in the verified petition, but the question under consideration here is the sufficiency of the petition as an affidavit to justify the issuance of the writ.
The appeal is on the judgment-roll, which consists of the judgment, writ and return thereto (Code Civ. Proc., sec. 1077), and respondents contend that the petition cannot be considered on appeal, for the reason that it is not incorporated in a bill of exceptions. It is true that where a return is made, the petition or affidavit for the writ can serve no purpose on appeal, unless it is embodied in a bill of exceptions (Reynolds v. County Court,
The views herein expressed render it unnecessary to consider other points urged by counsel.
The judgment is reversed and the proceeding remanded, with instruction to the trial court to overrule respondents' demurrer.
Allen, P. J., and Taggart, J., concurred.