Summary
In Reclamation Dist. No. 551 v. Sels, 117 Cal. 164, it is said: "This proceeding is not an action in personam, and, while it is not in strictness a proceeding in rem either, it partakes rather of the nature of the latter.
Summary of this case from Lower Kings River Reclamation Dist. No. 531 v. McCullahOpinion
Department Two
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of Sacramento County and from an order denying a new trial. A. P. Catlin, Judge.
COUNSEL:
Warren Olney, for Appellant.
W. A. Gett, Jr ., for Respondent.
JUDGES: Henshaw, J. McFarland, J., and Temple, J., concurred.
OPINION
HENSHAW, Judge
Plaintiff instituted this proceeding as contemplated by section 5493 1/2 of the Political Code, seeking a determination of the validity of an assessment which it had caused to be levied for purposes of reclamation. Summons was served upon all the property owners in the district. They suffered default, saving the defendant Van Loben Sels, who appeared and contested. From the judgment, which was adverse to his contention, and from the order denying a new trial, he prosecutes these appeals.
1. It is first insisted that plaintiff is not legally organized. The argument here is precisely that pressed upon our consideration in People v. Reclamation District No. 551, ante, p. 114, adversely to appellant's views.
2. Defendant is consul of the republic of Paraguay, and has pleaded his consular privileges in bar of this proceeding. We need not stop to decide whether, under the amendment of 1875 to the Federal Judicature Act, the courts of a state may take jurisdiction of actions in personam against consuls of a foreign country. That question is now under consideration by this court in Bank, and its decision need not be anticipated. For this proceeding is not an action in personam, and, while it is not in strictness a proceeding in rem either, it partakes rather of the nature of the latter. It is designed as one of the processes to test the legal perfection of an assessment levied [49 P. 132] by a reclamation district. The property owner is entitled to a hearing at one time or another upon the question of benefits. (Reclamation Dist. v. Evans , 61 Cal. 104; Reclamation Dist. v. Phillips , 108 Cal. 306; Hagar v. Reclamation Dist ., 111 U.S. 701.) Before the passage of section 3493 1/2 of the Political Code he made his showing when action was brought to enforce the assessment. But to obviate difficulties and delays which thus arose, this peculiar proceeding was established. By it is provided a forum before which a property owner may go and make full proof of his objections to the assessment. The final determination of the court upon the matter may be used by or against him in any future action to collect the tax. Thus it gives the property owner the hearing to which he is entitled, but provides that such hearing may take place in advance of an action upon the assessment. It is, then, a process of law forming one of the steps by which the lien of the tax is fixed upon property. We entertain no doubt that a foreign consul may be bound by all legal processes and proceedings in state courts having this end in view. No more responsibility attaches to the person of the consul in such a proceeding than arises in an action to enforce the assessment, or than is occasioned by his appearance before a county board for the equalization of his assessment for purposes of state and county taxation. We conclude that the plea of consular privilege is not well taken.
3. The law contemplates the employment by the trustees of a reclamation district of a competent engineer to survey, plan, locate, and estimate the cost of the works necessary for reclamation. These plans and estimates, as approved by the trustees, are reported to the supervisors, and upon them the assessment follows. Appellant contends that in the plans and report of the engineer employed in this instance the ditches and pumping plant are not located, and that, therefore, the assessment is invalid. The engineer's report is quite elaborate, and contains, not alone a general and comprehensive, but also a detailed statement of the character and amount of ditch work to be done, with estimates of the cost thereof, and also of the cost of the proposed pumping plant. We think the report is sufficient in these respects to serve as a basis for the assessment.
4. The appellant made offer to prove, and asked of the witnesses questions tending to prove, that his land was wholly reclaimed, and had been provided, at his own expense, with a suitable pumping plant and drainage facilities; that a thousand acres of it were in fruit-bearing trees, and other large portions planted to potatoes and other vegetables. He sought further to show that all of his land had been assessed for nearly twenty dollars per acre, while other lands similarly situated, and of the same level, but unreclaimed, had been assessed for only eleven dollars per acre. He also attempted to prove that portions of his lands used for roads, and portions used for ditches, had been assessed for about twenty dollars an acre, while the lands of other owners within the district subjected to like uses had been entirely relieved from assessment.
To all of appellant's efforts in this direction objection was interposed and sustained by the court. The theory upon which the case was tried is sufficiently indicated by the objections of counsel at an early stage of the trial: "We might as well cut this short here as anywhere else. The object of this is apparent. It is to impeach the assessment made by these commissioners, and your honor knows it has been held repeatedly it cannot be done." And again: "The object of this is unquestionably to impeach the assessment. Here is the most extreme case that has ever been decided in the state of California, and it is the last, I think, on that proposition, and is to this effect -- the case of People v. Hager , 66 Cal. 59. It has been held from that time up to the present time that parties are not permitted to show anything in the world that tends to impeach the judgment of the commissioners in the assessment."
This view receives some countenance, it is true, from the case to which counsel directed the court's attention; but in the case of Reclamation Dist. v. Phillips, supra, the question was elaborately considered, the authorities extensively reviewed, and the conclusion expressed, with which the whole court was in accord, that a property owner was within his undoubted right in making any legal proof to show an unfair and illegal assessment whereby his lands were not benefited to the amount of the lien sought to be fixed upon them.
For this reason the judgment and order are reversed, and the cause remanded.