Summary
In Creighton v. Mansou, (27 Cal. 614,) which arose under the Act of 1862, it was held that the " municipal governments act under the legislative authority conferred, which is a portion of the sovereignty delegated for the purposes of municipal government."
Summary of this case from Chambers v. SatterleeOpinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] 27 Cal. 614 at 625.
Original Opinion of January 1865, Reported at: 27 Cal. 614.
JUDGES: Rhodes, J., on petition for rehearing. Sawyer, J., concurring specially.
OPINION
RHODES, Judge
By the Court, Rhodes, J., on petition for rehearing:
We have carefully considered the respondent's elaborate petition for a rehearing, but in the view we take of the case, a decision of several of the points therein made is unnecessary.
As suggested by the learned counsel, it may be far more convenient, in enforcing the payment of street assessments, to be permitted to take a personal judgment than a judgment in rem only, but that consideration would certainly not be seriously urged as a sufficient reason for allowing a judgment to be taken which was clearly in conflict with constitutional law.
If it is said that in the absence of a personal liability of the lot-owner for the assessment, the contractor is liable to lose that portion of the assessment which exceeds the value of the lot presumed to be benefited by the improvement, for which the assessment was made, it may be answered that the same result might happen if the lot was the only property possessed by the lot-owner; and further, that it is the duty of the contractor to see that some sufficient responsibility exists for the payment of his work; that is to say, to ascertain whether the lot is of value enough to bear the burden proposed to be imposed upon it for its improvement. It is as unquestionably his duty to see that ample liability exists for his payment as it is to know that a valid ordinance passed authorizing the work to be done, for he is dealing with officers vested with special and limited authority, and he must bear the consequence of his own errors and negligence.
We are earnestly pressed by the learned counsel for the respondent to grant a rehearing, because the case cannot be fully argued on briefs, as the law is special and complicated, presenting many points for discussion; but if our view of the situation and rights of the parties is correct, the points arising out of the details--the machinery--of the act are immaterial to the decision of the leading question in the present action.
We are referred to section seventeen of the act of 1862 as decisive of the question of the personal liability of the lot owner in favor of the contractor. It will be noticed that the contract was made under laws in force prior to the passage of the act of 1862, and what we said in respect to the question whether a personal liability for the assessment was given by the statute, had relation, not to a case that might arise out of a contract executed under the act of 1862, but to the case then before us growing out of a contract made under laws in force anterior to the passage of that act. Although the act of 1862 purports to create a personal liability, it does not in terms, nor by necessary implication, have a retrospective operation so as to create a personal liability for work performed or to be performed under contracts made before the passage of the act. The Legislature, by the act, granted to parties proceeding under the statute then in force the benefit of the remedies provided in that act; but the grant of a new remedy--a mere mode of procedure to maintain an existing right--which is clearly within the power of the Legislature, is very different in substance and effect from the grant of a new or additional liability for services performed or being performed under an existing contract. We do not now, nor have we in the opinion already delivered, attempted to controvert the position of the respondent--that the Legislature have in express terms, in the seventeenth section of the act of 1862, declared that the lot-owner shall be personally liable for the payment of the assessment, but we hold that such liability can attach, if at all, only to contracts made after the passage of the act; and when we said that the Legislature did not intend that the lot-owner should be personally liable, we had reference to an assessment for work done under a contract made before, not after, the passage of that act.
The principles upon which we rely for a solution of the principal questions in this case, and the course of reasoning adopted, may tend to show the invalidity of the personal liability clause in section seventeen of the act of 1862, but the question of the validity of that clause is not in issue, because it has no application to the present case.
An assessment for the improvement of a street, levied solely upon the owners of the lots lying adjacent to the street that has been improved as a public street, and which is authorized by law to be collected from the lot-owners as a personal charge, without regard to the benefit actually accruing to them by means of the improvement, is a tax, and as such is obnoxious to the objection that it violates the constitutional requirement of equality and uniformity.
We rest our opinion mainly on the proposition that street assessments, of the form of the present one, can be maintained, if at all, only on the theory that the power to levy such assessments upon the lots adjacent to the street that has been improved under the direction of the city government is parcel of the right of eminent domain transferred by the Legislature to the city; and that to maintain them even on that theory, it must be assumed that the benefits that the lots have received from the improvements constitute a " just compensation" for the lien cast upon them. The requirement of a just compensation to be made for private property taken for public use attends every exercise of the power by an authority subordinate to the sovereign power of the State, as well as by the State itself, and applies as well where the value or a part of the value of the property is taken by being subjected to the payment of a sum of money, as where the property itself, or some interest therein, is directly taken for public use. As a necessary consequence of this doctrine, the amount of the charge or lien imposed upon the property cannot exceed the value of the property, and the payment of the amount can be enforced only by proceedings to subject the lot to sale in discharge of the lien. The personal judgment rendered against the appellant is therefore erroneous.
The validity of the lien thus asserted, and of the judgment ordering the lot to be sold, must be ascertained mainly by an examination of the acts and proceedings required by law to be done and had by the officers of the city and the contractor previous to the time at which the alleged right of action accrued to the contractor. We previously omitted to consider this branch of the case, because, the parties admitting the lot to be of no value, we deemed it unnecessary to ascertain whether the proceedings requisite to charge the lot with the payment of the assessment had been taken according to law; but as the contractor is entitled to his judgment, without regard to the value of the lot, if the proceedings have been regular, it becomes necessary to pass also upon the judgment ordering the lot to be sold.
Upon this question the appellant maintains that when summary proceedings are authorized by statute, the effect of which is to divest or affect rights of property, the statute is to be strictly construed, and that the power conferred must be executed precisely as given, and that any departure vitiates the whole proceeding. This doctrine is well expressed in the axiomatic language of Mr. Justice Bronson in Sharp v. Speir (4 Hill, 76): " Every statute authority in derogation of the common law to divest the title of one and transfer it to another must be strictly pursued or the title will not pass." We expressed our concurrence in this principle in Curran v. Shattuck (24 Cal. 427), as applicable to proceedings to acquire the right of way for a public road, and proceedings as in this case to acquire a lien for the payment of a street assessment are within the reasons of the rule.
We shall notice but one of the objections made by the appellant to the proceedings, and that is, that the resolution of intention of the Board of Supervisors to grade the street in question, was not presented to the President of the Board for approval according to the requirements of section sixty-eight of the Consolidation Act. It is a general rule that the legislative department of a city government can act only through the medium of an ordinance unless the organic law specially provides another mode. The instrument containing the expression of the legislative will need not necessarily be in the usual form of a municipal ordinance and be preceded by the words, " Be it ordained," etc., but it may properly be, as in this case, in the form of a resolution; but whatever its form it amounts in substance to an ordinance, and must be passed in the mode prescribed for the passage of ordinances.
It is provided in section forty of the Consolidation Act, that the Board may order a street to be graded after notice of their intention has been published in a daily newspaper for the period of ten days, unless the owners of a specified proportion of the lands or lots bounded by the street shall make written objection thereto. The declaration of intention is the fundamental act of the whole proceeding to grade the street, and in the absence of the declaration of intention manifested by an ordinance or some act that is its equivalent in substance and effect, though differing from it in form, the whole proceedings must fail of compulsory effect. The manner of making the declaration of intention is not specified in the act, but the power to make the declaration is conferred upon the Board and expressed in the same general terms as in the preceding and subsequent sections, is the authority to lay out a street or to order a street to be graded, and it is impossible to see why an ordinance or a resolution is not as requisite in declaring the intention to grade the street, as in ordering the street to be graded. If it is said that the resolution of intention is not comprised within the meaning of the words " every ordinance or resolution of the Board of Supervisors providing for any specific improvement," as used in section sixty-eight, it may be answered that the declaration of intention, whatever may be its form, is a legislative act, and as such must be passed in the mode prescribed by law; and for that purpose it must be presented to the President of the Board for his approval.
Rehearing Denied.
CONCUR
SAWYER
Sawyer, J., concurring specially:
I concur in denying a rehearing for reasons different from those expressed in the opinion. I also dissent from the construction given in the opinion to sections forty and sixty-eight of the Consolidation Act.
Thompson v. Hoge, Creighton v. San Francisco,