Opinion
Department Two
Hearing in Bank denied.
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and for an order refusing a new trial.
COUNSEL:
There is no provision in the act of April 1, 1872, authorizing assessments for work done on Montgomery Avenue crossings. (Act of April 1, 1872, secs. 8, 24, subd. 3, 4.) The act of March 19, 1878, purporting to legalize previous assessments made for such work, is inoperative to accomplish such result. (People v. Goldtree , 44 Cal. 323; People v. Lynch , 51 Cal. 15; 21 Am. Rep. 677; Brady v. King , 53 Cal. 44; Schumacker v. Toberman , 56 Cal. 511.)
Langhorne & Miller, for Appellant.
J. M. Wood, for Respondent.
The assessment in question was authorized. (Act of March 19, 1878.) The act authorizing the assessment is valid. (Cooley's Constitutional Limitation, 159-163; Emery v. S. F. Gas Co ., 28 Cal. 372; Hancock v. Whittemore , 50 Cal. 523; Hewes v. Reis , 40 Cal. 263; Emery v. Bradford , 29 Cal. 83.)
JUDGES: Foote, C. Hayne, C., and Belcher, C. C., concurred.
OPINION
FOOTE, Judge
This action was brought to foreclose the lien of a street assessment, levied under the act of 1872, upon certain lots on Montgomery Avenue, in the city and county of San Francisco.
At the time when the notice of intention on the part of the board of supervisors was given, no valid assessment could have been made, as the act of 1872 did not provide for any mode of assessment for work such as was done in the present instance. By a curative act, approved March 19, 1878 (Stats. 1877-78, pp. 341, 342), it was attempted to validate former assessments, and also to provide a mode of assessment for the work which had already been done.
But the property involved here, upon which the burden of paying for the work was attempted to be imposed, was not liable when the work was ordered. At that time the proceedings of the board of supervisors had no relation to it. That being the case, the legislature, by the act of 1878, supra, had no more power to order it to be assessed for that work than it had the power to order lots lying on the other side of the city of San Francisco to be assessed for such work.
We are of opinion that this case falls within the doctrine announced in People v. Lynch , 51 Cal. 23; 21 Am. Rep. 677; Brady v. King , 53 Cal. 45.
It follows that the judgment and order should be reversed and the action dismissed. The Court. -- For the reasons given in the foregoing opinion, the judgment and order are reversed and action dismissed.