Whiting v. Quackenbush

54 Cal. 306 | Cal. | 1880

Department No. 1, McKee, J.:

This is an appeal from a judgment of foreclosure of the lien of a street assessment upon a lot of land in the City of San Francisco.

It is contended that the judgment is erroneous, because the assessment does not show that the property or the streets represented upon it are within the City of San Francisco; because it does not show a sufficient description of the property; and because the law, under which the assessment has been made, is not equal and uniform, and therefore is unconstitutional and void.

First.—The Superintendent of Public Streets, Highways and Squares of the City and County of San Francisco, has certified the assessment from the book of the record of assessments in his office, and the caption at the head of the assessment shows that it was made in the City and County of San Francisco.

A venue in the margin of a pleading is held to be sufficient. (Hicks v. Walker, 2 Greene’s Iowa Reps.; Cocke v. Kendall, 1 Hempstead, 393.) And where there are several facts, the venue stated as to the first will apply to all the matter which follows it. (Skinner v. Gunton, 1 Saund. 229.) Laying the venue in the caption of the assessment is, therefore, sufficient to show that the property sought to be charged is situated within the jurisdiction of the Superintendent of Streets of the City and County of San Francisco.

Secondly.—An assessment for a street improvement must contain a description of the property upon which a lien is claimed. In Himmelman v. Cahn, 49 Cal. 296, no courses were represented on the diagram of the assessment. In Himmelman v. Bateman, 50 Cal. 11, the same defect existed, and the figure which indicated the depth of the side lines of the lot on the original diagram were omitted from the diagram as recorded; and in San Francisco v. Quackenbush, 53 Cal. 52, and Norton v. Courtney, Id. 691, there was nothing on the diagram to distinguish the meridian; and the description in each of those cases was held to be insufficient.

But in this case the assessment and diagram exhibit the streets on which the work has been done, the lot itself as designated by its number, the number of its feet front on the street, and the depth of its side lines, -and also a scroll representing the direction of the streets. The point of a scroll is as competent as the barb of an arrow to denote north on a map or a diagram. Indeed, any peculiarity of shape or color is sufficient for that purpose, so that the Court is enabled to read from the diagram that Tyler Street lies northerly, and runs parallel with McAllister Street, and that both of them run easterly and westerly; and that Polk Street runs at right angles with the latter streets. These are streets of the city as designated on the official plan or map of the city, of which the Court is bound to take judicial notice. (Stat. 1858, pp. 52-56.) The description of the lot is therefore sufficient.

Thirdly.—The front foot system, which is the system of apportionment adopted for assessments for the public improvement of streets in the city of San Francisco, has not been declared unconstitutional in the case of the People v. Lynch, 51 Cal. 15. On the contrary, that system was upheld and maintained as a standard of apportionment by the Supreme Court in that case : for the reasoning of the Court is, that every tax must be levied with equality and uniformity under some system of apportionment; an assessment for improving a street in a city is a tax; therefore every assessment must be levied with equality and uniformity. But if it be so levied under a system which apportions it with reference to the number of feet fronting on the improvement, or to any other standard which will approximate equality and uniformity, it is not void for want of equality and uniformity. In that case the Court had to deal with the fact that, in levying the assessment, a lot of land, within the district declared to he benefited, was not assessed at all; and in consequence thereof, the entire expense of the improvement was assessed upon the remaining lots; and it was held that the omission of the lot from the assessment disturbed the equality and uniformity of the levy, and rendered the assessment void; but that did not result from the assessment itself, but from the application of the system to the local improvement. No such disturbing cause exists in this case, and the assessment is valid.

Judgment affirmed.

McKinstry, P. J., and Ross,. J., concurred.