152 P. 933 | Cal. | 1915
Lead Opinion
Petitioner asked that a writ of mandate issue to compel the defendant, as presiding officer of the board of supervisors of the county of Los Angeles, to sign a certain contract and to fix the time for beginning and for completing certain work on Los Angeles and Redondo road and Gould Lane within Road District No. 36 of the county of Los Angeles. An alternative writ was issued.
It is not denied by defendant that the contract was awarded to plaintiff in proceedings under the provisions of the "Road District Improvement Act of 1907" (Stats. 1907, p. 806). The refusal of the defendant to sign the proffered contract is based upon two contentions, the first being that the said act of *100 1907 has been superseded by the provisions of article VII of the charter of the county of Los Angeles and the second, that the act of 1907 is unconstitutional and void because said statute contemplates an assessment of property according to its value and not in proportion to the benefits arising from the improvement.
The petitioner takes the stand that there are two methods provided for the improvement in districts of county roads — one under the act of 190:7 and the other under the provisions of the constitution and of the seventh article of the county charter. He points out the following facts: 1. The constitution and charter contemplate the creation within the limits of the county of a municipality with a form of government entirely its own and differing altogether from the temporary road district which may be established under the said act of 1907; and, 2. The methods of raising money to pay the expenses of improvements under the charter and the act of 1907 differ radically.
Examining section 7 1/2 of article XI of the constitution we find this language:
"It shall be competent, in all charters, framed under the authority given by this section to provide, in addition to any other provisions allowable by this constitution, and the same shall provide, for the following matters." This is followed by specifications of the matters for which a county charter "shall provide," including the composition and election of boards of supervisors, the selection and compensation of other county officers, the specification of the powers and duties of public officials, the assumption by county officers of certain municipal functions, the fixing and regulation by the supervisors of the number of clerks and attaches in the several departments of the county government, and the payment of these assistants and of certain other officers whose selection is provided by general laws. After the enumeration of these matters following the mandatory verb "shall provide," section 7 1/2 of article XI contains this language:
"All charters framed under the authority given by this section, in addition to the matters hereinabove specified, may provide as follows." . . .
"For the formation, in such counties, of road districts for the care, maintenance, repair, inspection and supervision only of roads, highways and bridges; and for the formation, in *101 such counties, of construction divisions for the construction only of roads, highways and bridges; for the inclusion in any such district or division, of the whole or any part of any incorporated city or town, upon ordinance passed by such incorporated city or town authorizing the same, and upon the assent to such inclusion by a majority of the qualified electors of such incorporated city or town, or portion thereof, proposed to be so included, at an election held for that purpose; for the organization, government, powers and jurisdiction of such districts and divisions, and for raising revenue therein, for such purposes, by taxation, upon the assent of a majority of the qualified electors of such districts or divisions, voting at an election to be held for that purpose; for the incurring of indebtedness therefor by such counties, districts or divisions for such purposes respectively, by the issuance and sale, by the counties, of bonds of such counties, districts or divisions, and the expenditure of the proceeds of the sale of such bonds, and for levying and collecting taxes against the property of the counties, districts or divisions, as the case may be, for the payment of the principal and interest of such indebtedness at maturity." The rest of the paragraph provides for an election and requires the assent of two-thirds of the qualified electors of the county, district or division to authorize the indebtedness and makes provision for the collection of an annual tax, the creation of a sinking fund and other pertinent matters. The quotation given above sufficiently illustrates the scope of the section.
Article VII of the charter of the county of Los Angeles is virtually identical with that part of section 7 1/2 of article XI of the constitution relating to the formation of road districts and highway construction divisions, the power to provide for the formation of such districts and their management, under permission of the electors, being confided by this part of the charter to the board of supervisors. (Stats. 1913, p. 1491.)
The "Road District Improvement Act of 1907" (Stats. 1907, p. 806) provides a scheme for the formation of a road district, the plan to originate with the board of supervisors of a county, an opportunity being given to defeat the creation of the contemplated district by the filing of objections in writing by a majority of the owners of land therein. The board is given authority, where no effective protest has been *102 filed, to order the work to be done; to advertise for bids; to award the contract; to execute it on behalf of the supervisors by the presiding officer of the board; to accept the work when completed; to issue bonds for the indebtedness; and to provide by a "special assessment tax" upon all of the land within the district for payment of the principal and interest upon said bonds as the same shall become due.
We are satisfied that the portion of the charter of the county of Los Angeles which is based upon the constitutional provision which we have been examining does not repeal the "Road District Improvement Act of 1907," [Stats. 1907, p. 806], in its application to that county.
As we have seen, the constitution does not require the framers of county charters to include therein enactments equivalent to section VII of the Los Angeles County charter. This would indicate an intention to leave with the people of each county in proposing a charter, the discretion to determine whether or not they desire the general law to be the only one upon which they might depend in matters pertaining to district assessments. It seems to be conceded by respondent and by theamicus curiae that the people of a county are at liberty to adopt or to omit the scheme provided by section 7 1/2 of article XI with reference to roads, but they contend that having embodied that plan within their charter, and the charter having received due legislative sanction, the people of Los Angeles County have thus availed themselves of a method of construction and improvement of roads totally at variance with the law of 1907. But article VII of the charter is, in itself, merely permissive. "The board of supervisors may provide for the formation of road districts" are the opening words of that article. There is no declaration in the charter that the supervisors must resort to the plan set forth in the constitution, if it seems proper to create road districts. The bare authority to employ that system is sought to be conferred upon the supervisors. Conceding that the omission of all mention of road districts from the charter would have left the supervisors free to follow the statutory plan of the law of 1907 (and that seems to be conceded) it follows that mere permission to form districts and to pursue the necessary steps to that end by a different method, would not prevent resort to the "Road District Improvement Law." It is clear that the framers of the charter intended to leave the supervisors *103
at liberty to pursue either the method outlined by that instrument or that set forth in the statute of 1907. This conclusion makes it unnecessary for this court to determine whether or not a charter might be framed in such fashion as to prevent the board of supervisors from resorting to the general law in dealing with the roads of the county. It is also unnecessary to decide whether or not such permissive language is effective to make the plan outlined by section 7 1/2 of article XI of the constitution part of the law of the county. In other words we need not here determine whether the charter may confer merely permissive powers upon aboard of supervisors. However, the case of Mardis v. McCarthy,
Admitting that in specific instances the ad valorem system of assessment for benefits has been upheld, nevertheless counsel for respondent insist that the system is wrong and that it violates the spirit and letter of the constitution of California. (Art. I, sec. 14.) Assessments for local improvements according *104 to the value of the property assessed have been frequently attacked and generally upheld in this state and in other jurisdictions. The decisions in this state have generally followed Burnett v. Mayor and Common Council of the City ofSacramento in the 12th volume of the California reports. Mr. Justice Field, delivering the opinion of the court in that case said, among other things (p. 84), [73 Am. Dec. 518]):
"The law in question avoids the injustice of general taxation for local purposes, and lays the burden upon the recipients of the benefit. It apportions the tax according to the assessed cash value of the adjacent property, which is as near an approximation to an equitable rule as can well be established. No rule could be adopted which would work absolute equality. An approximation to it is all that can be attained. The power of apportionment, with the power of taxation, is exclusively in the legislature. The constitution contains no inhibition to the tax, and prescribes no rule of apportionment. Security against the abuse of the power rests in the wisdom and justice of the members of the legislature, and their responsibility to their constituents. See The People v. The Mayor of Brooklyn,
"The result of our investigation is, that there is no restriction in our constitution upon the power of the legislature to impose assessments to defray the expenses of public improvement in the nature of grading and planking streets, upon the property supposed to be benefited thereby in any district designated *105 by the legislature, or the proper officers of municipal governments acting under the authority of law. And that it is authorized to apportion the amount to be raised according to value, according to the benefits received, in proportion to frontage or the superficial contents, or to adopt any principle of apportionment that can be referred erred to the general sovereign right of taxation as defined by Mr. Justice Ruggles, in People v. Brooklyn."
Speaking upon the subject of upholding the right of assessment in a manner different from the ad valorem principle Mr. Justice Harrison in the opinion in the proceeding In reMadera Irrigation District,
In Fallbrook Irrigation District v. Bradley,
In view of these decisions we feel that we must regard the matter as settled so far as this state is concerned. Defendant seems to rely largely upon the case of Norwood v. Baker,
It follows that the alternative writ should be made peremptory requiring the defendant as chairman and presiding officer of the board of supervisors of Los Angeles County to execute the contract set forth in plaintiff's pleading and to fix the time for beginning and for completing the work therein specified. It is so ordered.
Lorigan, J., Lawlor, J., Sloss, J., and Angellotti, C. J., concurred.
Mr. Justice Shaw did not participate in the consideration or discussion of this case.
Rehearing denied. On denying a rehearing the court filed the following opinion on October 28, 1915:
Addendum
In denying the petition for rehearing the court wishes to say that all points made in the briefs but not discussed in the opinion were carefully considered. We find no merit in the contention that no bearing for all owners of property in the district is provided for in the act of 1907. Section 5 of the act (Stats. 1907, p. 809) does provide for a hearing after due notice by publication to all parties concerned. While the right of protest in writing is limited to owners of record as defined in the section this limitation does not prevent all interested persons (including those not owners of record) from appearing before the board of supervisors and voicing their objections. The legislature may limit the right to protest by granting it only to owners of record. (Hellman v. Shoulters,
Sloss, J., Lawlor, J., and Angellotti, C. J., concurred. *108