101 Cal. 508 | Cal. | 1894
Lead Opinion
In December, 1890, the city of San Luis Obispo instituted proceedings under the act of March 6, 1889 (Stats. 1889, p. 70), for the widening of about three hundred feet of Chorro street, and designated the exterior boundaries of the district of lands to be affected or benefited thereby. In its resolution of intention it declared that “ the public interest and convenience require that Chorro street of said city, between Monterey street and Higuera street, be widened as hereinafter specified”; and, after describing the land to be taken therefor, continued: “And the work to be done and the improvements to be made shall consist of removing from said land the buildings and other structures and obstructions now thereon, and filling in with earth so as to bring the land taken (not including the creek) to the present grade of Chorro street, and gravel the same.” After proper publication of its resolution commissioners were appointed to assess the benefits and
Section 1 of the act of March 6, 1889, gives authority to the city council of any municipality “ to order the opening, extending, widening, straightening up in whole or in part of any street, square, lane, alley, court, or place within the bounds of such city, and to condemn and acquire any and all land and property necessary or convenient for that purpose.” The only “ work to be done or improvement to be made” under the provisions of this act is that for which power is conferred by this section, and before the municipality can acquire jurisdiction to exercise this power it is required to pass a resolution of its intention to do so, “ describing the work or improvement.” Hence, the only work or improvement which the municipality has any jurisdiction to order is limited, in the first place, to that which is designated in section 1 of the act, and next to that which it has described in its resolution of intention.
We are of the opinion, therefore, that it was not within the power of the municipal authorities to include in the assessment the cost of grading and graveling the lands taken |for the widening of the street, and that for that reason the assessment was illegal and created no lien upon the land of the plaintiff.
The judgment and order are affirmed.
Fitzgerald, J., McFarland, J., De Haven, J., Garoutte, J., and Paterson, J., concurred.
Concurrence Opinion
I concur in the judgment, not only upon the ground stated, but because I am of the opinion that the act of 1889 is unconstitutional.