164 P.2d 1136 | Cal. Ct. App. | 1917
Certiorari. The board of supervisors of Los Angeles County, claiming authority so to do under and by virtue of the provisions of a certain act of the legislature entitled, "An act to promote the drainage of wet, swamp and overflowed lands, and to promote the public health in the communities in which they lie," approved March 21, 1903 (Stats. 1903, p. 354), the title to which and the act were amended in 1915 (Stats. 1915, p. 359), in a proceeding instituted therefor *254 by petition, created and established a drainage district designated as "Los Angeles County Drainage District No. 1," the boundaries of which embrace certain territory in the city of Long Beach. When the proceedings had progressed to a point where the contract for constructing the drainage improvement had been awarded for the doing of the work and contract therefor executed, petitioner, as an owner of land in the district, brought this proceeding attacking the proceedings as in excess of the jurisdiction of the board. Petitioner asserts that the law under which the board of supervisors assumed to act is invalid, and hence the proceedings so had and thereunder taken by the board of supervisors for the formation of the district, award of contract for the doing of the work therein, and providing for the payment of the cost thereof by bonds issued for and on behalf of the district to the contractor for the cost of the work, were had and taken without authority of law.
This contention is based upon the following grounds: First. That there is an irreconcilable contradiction between the different sections of the Drainage Act relative to the disposition to be made of the bonds to be issued by the county to represent the cost of the proposed work. Second. That the inclusion of part of the city of Long Beach within the proposed drainage district, is unauthorized by law. Third. That the Drainage Act under which the proceedings were taken is wanting in any provision which restricts the power of the board acting thereunder to cases where the improvement would constitute a public benefit. Fourth. That the act has been superseded in Los Angeles County by a subsequent act adopted by the legislature, known as the "Los Angeles County Flood Control Act." We will discuss the points made by petitioner in the order in which they are presented in his brief.
1. To meet the cost of the formation of the district and the proposed improvement therein, the act provides for the issuance of bonds in form as prescribed. Section 8c of the act provides that if, upon a hearing had in accordance with section 8b, the board is of the opinion that the work contracted for has been completed, it shall by a resolution so declare and accept the work, and state therein "the aggregate amount for which bonds shall be issued, and . . . the amount of the incidental costs and expenses of the work and the proceeding which are charged against and to be paid by the contractor," *255
as provided in section 8g. Section 8d requires the clerk to transmit a copy of the order so made by the board of supervisors to the county treasurer, upon receipt of which such officer is required to issue bonds in the amount fixed by said board in said order; which bonds are to be signed by the presiding officer of the board and the county treasurer, and when so signed, "said bonds shall be delivered by saidtreasurer to said contractor or to his order, assignee orlawful representative." Section 8e provides for the raising of a fund by special tax for the discharge and payment of the bonds and the interest thereon as the same become due, and to maintain and keep the works in repair, followed by the provision: "And the board of supervisors is hereby vested withthe power and it is the duty of said board to advertise saidbonds for the sale by at least one insertion of a notice ofsale in a newspaper of general circulation within the countyand to sell said bonds to the highest responsible bidder, andto do all and singular the things necessary for the purpose ofselling said bonds and which in this section aforesaid it isdeclared shall be done." It thus appears that the act contains two provisions touching the disposition of the bonds, which are wholly repugnant. It is impossible to give effect to both, for it is apparent that if the treasurer be required by the provision contained in section 8d to deliver them to thecontractor or to his order, assignee or lawful representative,
as payment for doing the work, it must necessarily render the provision for the sale thereof, contained in section 8e, wholly inoperative. Throughout the proceeding the board of supervisors acted upon the theory that the cost of the work and expenses incidental thereto should be paid for, not from the proceeds of the sale of bonds to be issued for and on behalf of the district, but in bonds issued and delivered directly to the contractor, who was required to advance all sums necessary to cover surveys, inspection, and incidental expenses. The contention of petitioner is that, since the conflict between the two provisions is so complete as to leave no possible room for giving effect to both, the one last in numerical order must prevail (Turner v. Wilson,
2. Section 1 1/2 of the act provides: "Whenever a portion of any ditch or drain or system of ditches or drains for the drainage of any such body of wet, swamp, or overflowed lands passes through or forms the boundary line of any municipal corporation, or where adjacent territory within such municipality is found by said board of supervisors to be benefited by such work or improvement, such adjacent territory may be included within the boundaries of such drainage district in proceedings instituted for the creation of said drainage district; provided, said petitioners first obtain the consent of the governing body of such municipality, expressed by ordinance, to the construction of such ditch or drain or ditches or drains within the limits of such municipality, and thereupon all such territory shall be subject to the provisions of this act, and any work of any improvement herein contemplated to be done may be done either within or without the boundaries of the district organized therefor as may be necessary to properly drain by a ditch or drain or a system of ditches or drains any body of wet, swamp or overflowed lands within said district." Incorporated within the boundaries of the proposed district were certain lands located within the city of Long Beach through which the proposed drainage canal was to extend. Under the authority of said section 1 1/2 of the act, the board of supervisors sought and obtained from the legislative body of the municipality its consent and permission, expressed by ordinance, to the construction of the drainage canal through certain specified streets of said city. Notwithstanding this ordinance, which contained conditions upon which the consent was made, petitioner insists, first, that the legislative body of said city of Long Beach, operating under a freeholders' charter, was without power to make the grant of such use; and, second, that the attaching of conditions to such consent rendered it null and of no effect. The want of power to consent to the construction of the works through the streets of the city to an outfall emptying into the ocean, is *258
based upon the contention that such use thereof confers upon the district control of the streets, which is violative of the provisions of the charter vesting in the city "plenary control of all uses of its streets," together with all matters of internal sanitation; that hence the work proposed to be done by the district is a municipal affair as to which the freeholders' charter under which the city is operating is the controlling law. (Const., art. XI, sec. 6; Fritz v. San Francisco,
In our opinion, there is no merit in petitioner's claim that the ordinance granting consent of the city of Long Beach to the construction of the drainage ditch through its streets is a nullity by reason of the fact that such consent is upon certain terms named in the ordinance. The conditions attached are terms protective of the public interest, germane to the subject, and violative of no provision or principle of the Drainage District Act; indeed, without being attached to the ordinance, they might be and, for aught that appears to the contrary, are incorporated into the specifications for the construction of the ditch through the streets of the city. At all events, since the city might, at its option, deny the use of its streets for the purpose of constructing the canals therein, it could attach any condition, not in conflict with the conditions of the act, which was germane to the subject and calculated to protect the public interest in the streets, thus exercising plenary control over the streets. A similar question arose in the case ofLake v. Ocean City,
3. Section 1 of the act provides for the initiation of the proceeding by filing with the board of supervisors a petition defining the boundaries of the proposed district to be benefited by the construction of the improvement, upon which, after notice given, a hearing is had upon objections filed as provided in said section. While not in express terms authorizing the board to deny the petition, such power to deny, modify, or change, we think, must be deemed implied from the provision of section 5, that "at the conclusion of the hearing, the determinations of the board shall be made in writing to be filed and entered upon the minutes of the board." Nor, in our opinion, is the act subject to the objection that it is void by reason of its failure to provide that the doing of the work shall depend upon its being a public benefit. True, it does not require in direct terms a finding on the part of the board that it shall be a public benefit, though the record discloses that the board did find that the public interest and convenience would be subserved by the doing of the work. In Page and Jones on Taxation by Assessment, section 334, it is said: "Possibly the special and local benefit is clearer in drainage than it is in any other of the public improvements for which assessments are levied. The improvements of drainage, and its beneficial effect upon the land drained are matters of general knowledge which have often been commented upon by the courts." And again (sec. 335): "If land in its natural condition is generally or often covered with stagnant water it is likely to be a menace to public health. . . . Under these circumstances there is no doubt that the drainage of such land, by artificial means, is an improvement which confers a benefit upon the public at large." The supreme court of this state, in the case ofHagar v. Board of Supervisors,
4. Petitioner suggests that the act in question has been superseded, in so far as Los Angeles County is concerned, by "An act to create a flood control district, to be called 'Los Angeles county flood control district.' " (Stats. 1915, p. 1502.) We are unable to perceive any merit whatsoever in this contention, and agree with counsel for petitioner that "there is a radical difference between the purposes of the drainage act involved in this action and the said Los Angeles county flood control act. The purpose of the drainage act is to dispose of the water and get rid of it as an injurious element; while the purpose of the Los Angeles county flood control act is to conserve it as a beneficial agent." The purpose of one is "to promote the drainage of wet, swamp or overflowed lands"; the other, as declared by the first paragraph of section 2, is "to provide for the control of the flood and *262 storm waters of said district [which embraces practically the entire county of Los Angeles], and to conserve such waters for beneficial and useful purposes by spreading, storing, retaining or causing to percolate into the soil within said district." The fact that in the proceedings mention is made of the proposed drainage ditch as the "construction of a storm drain," which purpose it might at times serve, is in no wise inconsistent with the purpose declared in the act itself. Certainly it was not the intent of the legislature that by creating a flood control district, embracing almost the entire county of Los Angeles, such act should repeal all provisions for the drainage of wet and swamp lands in the county, any more than by the act under which irrigation districts are created it was intended to destroy all acts providing for the drainage of swamp-lands embraced within such irrigation districts.
While the act is loosely drawn, nevertheless its purpose is clear, and we have reached the conclusion, not without some difficulty, however, that taken as a whole, it affords a means for effecting such purpose, the validity of which is not subject to attack upon the specific grounds urged by petitioner.
It is therefore ordered that the proceedings be affirmed.
Conrey, P. J., and James, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 16, 1917.