115 P. 53 | Cal. Ct. App. | 1911
It appears from the petition and affidavit filed that heretofore, in 1907, under the provisions of the *360
street improvement act of 1903 [Stats. 1903, c. 268], the city council of Los Angeles duly adopted an ordinance declaring its intention to order the widening of Eighth street, between Main street and Central avenue; said ordinance further designated the land necessary and convenient to be taken for such improvement, and fixed the boundaries of the assessment district, within which was included the property benefited by such improvement; that this ordinance was approved and published, and was followed by a subsequent ordinance ordering the improvement to be made and directing the city attorney to bring an action in the name of the city of Los Angeles for the condemnation of the property described in said ordinance necessary to be taken for the improvement mentioned. The action was instituted by said city attorney on July 3, 1907, against those whose lands were to be taken for such improvement. It is not shown at what date the trial was had or verdict returned, but it does appear that on January 3, 1910, an interlocutory judgment was entered in favor of the several defendants for the sums determined as damages which should be awarded the various defendants by reason of the taking of the land for the contemplated improvement. It will be presumed, in view of section 6 of the street law, to the effect that actions for the condemnation of property brought thereunder shall in all respects be subject to and governed by such provisions of the Code of Civil Procedure now existing or that may hereafter be adopted, as may be applicable thereto, except in the particulars otherwise provided for in this act, that the judgment was entered by the clerk within twenty-four hours after the rendition of the verdict, as provided by section
The proceedings set forth in the petition were instituted under the provisions of the street law of 1903, under section 14 of which act the right to abandon the proceedings by ordinance and cause a dismissal thereof without prejudice was given at any time prior to the payment of the compensation awarded to the defendants. Section 14 of the act of 1909, approved April 21, 1909, provides that the city council may at any time prior to the entry of interlocutory judgment abandon the proceedings by ordinance and cause said action to be dismissed without prejudice. Section 11 of the act of 1909 provides that any proceeding or action for any improvement as provided for in the act, already commenced and pending at the time the act takes effect, under and by virtue of any ordinance of intention theretofore passed, shall, from the stage of any such proceeding or action already commenced and in progress at the time of the act taking effect, be continued under the provisions of that act. It was insisted upon oral argument that section 11 is violative of the constitution in that it impairs a right once vested. This section affects a remedy as distinguished from a right. "Remedies must always be under the control of the legislature" (Cooley's Constitutional Limitations, p. 381); and where a reasonable remedy is provided, it is immaterial that it alters one previously existing. No one may question the constitutionality of a legislative act unless its enforcement would work an injury to the complaining party. Whatever may be the effect which should be given this section in cases where the remedy is shown to be unreasonably impaired, the city in the case at bar is not in position to insist upon its unreasonable character, for it is apparent from the record that nearly nine months elapsed between the passage of the act of 1909 and the entry of the interlocutory judgment, during all of which time it had notice of the limitation upon the remedy of abandonment and dismissal imposed by section 14. It cannot, therefore, *362
be said that this section unreasonably impaired the remedy in the case under consideration, and this case is brought within the rule of Terry v. Anderson,
There remains, then, but one question, which relates to the right of this court to direct a city council to proceed, as by section 19 of the act they are required to do, in passing upon and determining, as in their discretion and judgment is proper, the questions involved in the protests as to the assessment and the orders with reference to its confirmation or modification, or the ordering of a new assessment in lieu of the original assessment filed. We are of opinion that such action upon the part of the city council is a duty resulting from an office, and that under section
We are not in sympathy with the contention of respondents that the act of 1909 is in contravention of the constitution, which prohibits special legislation. The procedure may not be said to be special because it is peculiar to the character of the action with reference to which it is prescribed. (Clute v. Turner,
We do not desire to be understood as passing upon any questions sought to be raised as to the regularity of the proceedings before the city council anterior to the entry of the interlocutory judgment. We have heretofore by an order denied the right of those affected by the improvement to intervene and raise such questions in this proceeding, upon the theory that, if any irregularities in the proceedings connected with the ordinances or orders as affecting the jurisdiction of the city council to order the improvement in fact exist, a remedy full and complete may be had by appropriate equitable action in the superior court, and that this proceeding is inappropriate for the determination of such questions.
An order will be entered overruling respondents' demurrer to the petition.
Shaw, J., and James, J., concurred.