184 P. 406 | Cal. Ct. App. | 1919
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *760 The plaintiffs brought this action in the superior court of the county of Los Angeles for the purpose of avoiding a special assessment against their land for the construction of cement curbs and sidewalks under the "Road District Improvement Act of 1907," [Stats. 1907, p. 806]. The defendants demurred to the complaint on the ground of its insufficiency to state a cause of action. The demurrer was sustained, and plaintiffs declining to amend, judgment of dismissal was rendered. Plaintiffs have appealed on the judgment-roll.
The grounds of attack upon the assessment, on which the sufficiency of the complaint depends, are the allegations: (1) "That the lands of plaintiffs derive no benefit whatever from the curbs and sidewalks, but that, on the contrary, the lands, being farming lands, are injured by the curbs and sidewalks; (2) that no allowance was made for the difference in benefits which would accrue to the several parcels *761 of land in the district, and that the supervisors particularly disregarded the question of benefits with reference to the properties of the plaintiffs; (3) that the estimated burden of the tax levied and to be levied under the assessments closely approximates the present assessed value of the land, and amounts to confiscation; and (4) that the Road District Improvement Act of 1907 is unconstitutional.
Taking up first the question of the constitutionality of the act: Appellant does not very clearly indicate in what respect the provisions of the Road District Improvement Act in question are violative of any constitutional right. [1] He objects that the act nowhere provides an opportunity for an owner of property within a district to raise an objection concerning the size of the assessment district or the inclusion of his property therein. This objection seems to be sufficiently met by section 5 of the act, which provides for a hearing of objections of land owners, and, specifically, that "in the order of the hearing shall be heard such objections as shall be made to the boundaries of the district as set forth in the resolution of intention. Objections to the grades or to the boundaries of the district may be made by an owner of land lying within the district upon the hearing without any written statement of the same." We do not understand the permission granted by this section to land owners to file written objection to ordering of the work as an entirety, to be a limitation upon filing other objections, but to provide a means by which a majority of the land owners may entirely block further proceedings. (Thomas v. Pridham,
[4] The allegation that the property was not benefited by the improvement does not aid the complaint. For the reasons heretofore stated, under the rule laid down in Hunt v. Manning,supra, it will be presumed from the action of the board in including these lands in the district that they determined that all the lands so included would be benefited. And it is well settled that when jurisdiction is given to a board to pass upon the question of benefits, the courts will not disturb their finding, unless there appears a clear and palpable abuse of such discretion. Quoting from Duncan v. Ramish,
The further allegation of the complaint that the assessment was levied upon the lands of appellants without reference to any ascertainment of the benefits to be derived by such lands from the improvements does not entitle them to relief, for the reason that the assessment is authorized under the act in question according to the value of the property, rather than in accordance with the benefits conferred. As already pointed out, the validity of the ad valorem assessment under this Road District Improvement Act is upheld in Thomas v. Pridham, supra.
In Emery v. San Francisco Gas Co.,
[5] There is one limitation on the power of the supervisors, or whatever board is intrusted with the discretion to form an improvement district and determine the lands to be included therein. The discretion granted is not arbitrary. If the conditions shown by the record, or coming within the judicial knowledge of the court, are so unreasonable as to outrage the common sense of fairness and justice, the courts may interfere. (Spring Street Co. v. City of Los Angeles,
We find nothing in the authorities cited by appellant, in so far as they apply at all to the conditions presented on this appeal, inconsistent with the conclusions indicated in this opinion. The citations to United States supreme court decisions, referred to us by appellant in lieu of a closing brief, not previously cited — Myles Salt Co. v. Commissioners,
The judgment is affirmed.
Finlayson, P. J., and Thomas, J., concurred. *766