Opinion
S.F. No. 5623.
February 11, 1915.
APPEAL from a judgment of the Superior Court of Alameda County and from an order refusing a new trial. John Ellsworth, Judge.
The facts are stated in the opinion of the court.
Johnson Shaw, for Appellant.
R.M. Soto, and H.S. Craig and W.B. Rinehart, Amici Curiae, for Plaintiff and Respondent.
Reed, Black Reed, for Defendants and Respondents.
After judgment on the appeals here presented had been rendered in the district court of appeal for the first appellate district, an order was made transferring the cause to this court for hearing and determination.
Our further examination has led us to the conviction that the district court of appeal made a correct disposition of the cause. The opinion in that court, prepared by the late Mr. Justice Hall, was as follows:
"Plaintiff filed her complaint against Blake Bilger Company, seeking to quiet her title to a piece of land situate in the town of Emeryville. Blake Bilger Company filed its answer, setting up a claim of lien for an assessment made for street work done under the 'Vrooman law,' so called, and its amendments, and also a cross-complaint in the usual form for a foreclosure of such lien.
"The other defendants were made parties to the proceeding under the cross-complaint, but according to the statement of counsel they now have no interest in or claim upon the property. Hereinafter when we refer to defendant we shall mean Blake Bilger Company.
"Plaintiff made answer to the cross-complaint of defendant, and the action resolved itself into an action to foreclose the lien of defendant for the asserted assessment.
"The theory of plaintiff is that the street assessment is void, because it was based upon a single proceeding, order, and contract for the doing of street work of various kinds upon several different streets. In other words, the work was treated and carried out by the town authorities as one improvement, and not as several and distinct improvements.
"The trial court adopted as correct the theory of plaintiff, and made findings accordingly, and gave judgment for plaintiff, and denied defendant any relief upon its cross-complaint.
"The work called for by the resolution of intention consisted of various sorts of street work authorized by the statute, and to be done upon several distinct streets. The principal street embraced in said resolution was Adeline Street. All the other streets intersect said Adeline Street at various points with the exception of Peralta Street and Magnolia Street, which are distant therefrom one block. Magnolia Street is in fact but a prolongation and widening of Peralta Street at its southern end.
"All the portions of the streets proposed to be improved are contained in a compact V-shaped district, about 3,000 feet long and about 1,500 feet wide at its widest end. The proceedings were under the plan calling for front-foot assessment, and the assessments were made for the several kinds of work according to this plan, the cost of each kind of work being charged only against such property as was liable therefor under this plan. All the work was done under one contract.
"The contention of plaintiff is that, under the general street law, under which this work was done, the municipal authorities have no power to cause several streets to be improved as one improvement, but that the work done upon each street must be done as a separate and distinct improvement.
"Upon the other hand, defendant insists that the extent of the work to be done as one improvement, and under one contract, lies within the discretion of the board of trustees.
"The trial court seems to have adopted as correct the theory of plaintiff, and made its findings and decree accordingly.
"While there is some inharmony in the language used by the supreme court in different decisions bearing upon the question, we think the contention of defendant and appellant is correct, and that the municipal authorities have jurisdiction and power to order several streets improved in one proceeding and as one improvement, to be performed under one contract.
"Section 2 of the present street law [Gen. Laws, 1909, Act 3930] is, as far as the present question is concerned, substantially the same as the street law of 1872, [Stats. 1871-72, p. 804] which the court had before it in Mahoney v. Braverman, 54 Cal. 565, where the power of the municipal authorities to cause a sewer to be laid in two streets in one proceeding and under one contract was sustained. It was there said: 'It is objected that the board of supervisors had no jurisdiction or power to order a sewer to be constructed in Willow Avenue and Gough Street in one and the same award and contract, inasmuch as they were two separate streets.' The court then refers to the statute and quotes the language thereof, which is substantially the same as that of the present statute, and then says, 'On the most cursory perusal of the sections cited, one must be struck with the broad and ample powers conferred by them on the board of supervisors in regard to street improvements. These powers seem to embrace every conceivable variety of street improvement, and they certainly embrace the whole or any portion of the streets to be improved. The language used is not of such a character as to confine the powers vested in the board to each street. If such had been the intention of the legislature, language suitable to disclose that intention and warrant the interpretation that each several street was referred to, and that the powers granted were to be so confined, could have been readily found and would have been employed. Such an intention would have been clearly manifested by inserting the words "of each" before the words "of the said streets," . . ., etc.'
"This decision was rendered in 1880, and the Vrooman Act was passed in 1885, and yet no change was made in the language of the statute in regard to the power of the board to improve streets.
"Section 8 of the present act, as enacted in 1885 and as it now stands, is that there shall be attached to the assessment 'a diagram exhibiting each street . . . on which work has been done.' This language clearly indicated that the legislature intended that several streets could be improved under one order and under one contract.
"In White v. Harris, 116 Cal. 470, [48 P. 382], the resolution of intention was for the construction of a sewer in eight different streets. Thereafter a contract was let doing the work as one improvement. The notices of the work posted along each street referred only to the work done on such street. It was held that the notices were insufficient upon the ground that the work upon the eight streets constituted but one improvement.
"The case principally relied upon by plaintiff to support the contention that the work upon each street must be treated as a distinct and separate improvement to be separately contracted for is Bates v. Twist, 138 Cal. 52, [ 70 P. 1023]. In this case the resolution of intention called for work upon widely separated streets. While the report of the case does not make it very clear, the fact was, as disclosed by the record of the case now before us, that the resolution of intention indicated that the work upon the different streets was to be treated as so many distinct pieces of work. It directed that the notice should require that persons objecting to the work should state in their protests the frontage of their property, and upon what street it was located, and also designated a paper for the publication of the notices 'in relation to the several pieces of work described aforesaid respectively.'
"Following the clearly indicated purpose of the resolution of intention, awards of contracts were subsequently made for the several pieces of work called for as distinct improvements. In the suit to foreclose, it was objected that only one contract could be let for all the work called for by the resolution of intention. The only point involved in that case was as to whether or not under such a resolution of intention all the work must be treated as one improvement to be done under one contract. In answering this question in the negative the court did use language which lends support to the contention of plaintiff in the case at bar. But such language must be understood as limited to the facts then before the court. That the court did not intend to lay down the rule that work on several streets may not be done as one improvement under one contract is manifest from its analysis of White v. Harris, 116 Cal. 470, [48 P. 382], in which it distinctly recognizes the power under the statute to cause work to be done on several streets as one improvement under one contract.
"In San Francisco Paving Co. v. Egan, 146 Cal. 636, [80 P. 1096], the resolution of intention, as disclosed by the record of the case, also clearly indicated the purpose to treat the work upon the different streets as distinct improvements, and they were so treated throughout the proceedings. In no case where the point was involved has it been decided that the city council has no power to order work upon different streets to be done as one improvement under one contract. On the contrary such power has been distinctly upheld in Mahoney v. Braverman, 54 Cal. 565.
"The trial court fell into error in holding that the proceeding is void because work on different streets was included in one award and contract, and for that reason the findings it made upon such theory are not supported by the evidence.
"The court also erred in sustaining plaintiff's objections to certain evidence that defendant offered in support of its allegations that plaintiff had waived any defense to the assessment founded upon any illegality in the proceedings under the resolution of intention. Since the time of the trial of this case it has been determined that such a defense may be waived to an action to enforce a lien for street work in Allen v. Hance, 161 Cal. 189, [ 118 P. 527], which overrules Heft v. Payne, 97 Cal. 108, [31 P. 844], upon which the ruling of the trial court was doubtless based."
The foregoing opinion, which contains a fair statement of the essential facts bearing on the questions discussed, has our complete approval, and is adopted as a part of the opinion of this court. It may be well, however, to add one or two observations concerning the points decided in said opinion, and to refer briefly to the contention of plaintiff and respondent that certain further points advanced by her were not noticed by the court of appeal.
The main question in the case is whether the assessment is void because "based upon a single proceeding, order and contract for the doing of street work of various kinds upon several different streets." The opinion of Mr. Justice Hall shows that the statute, as construed by this court, authorizes the city council to include in a single scheme of improvement work upon more than one street. Mahoney v. Braverman, 54 Cal. 565, and White v. Harris, 116 Cal. 470, [48 P. 382], in which this rule was declared, were cases of sewer improvements. We are unable to find in the statute any language which justifies the drawing of a distinction, in this respect, between the construction of a sewer and any other kind of street improvement authorized by the Vrooman Act. If the various streets, or, rather, the portions thereof to be improved, are so related that the improvement of them as a whole may fairly be deemed to be a benefit to all the property fronting upon such parts, the council does not exceed its jurisdiction by treating the work on the several streets as an entirety, and including it is a single proceeding. Whether one or more streets should form a unit for improvements is a question committed primarily to the discretion of the council. No abuse of discretion appears here.
The fact that some of the streets are wider than others — a circumstance not particularly mentioned in the opinion of the court of appeal — does not affect the conclusion reached. It is true that an owner fronting on a street sixty feet in width will be required to pay the same amount per front foot for grading or paving as one who fronts upon a street eighty or one hundred feet wide. But the front-foot method of assessment is not based upon the view that each owner shall pay the cost of so much of the improvement as is made on the portion of the street opposite his lot. The assessment is to be supported upon the ground that each owner is charged with an amount equal or proportionate to the benefit conferred upon his property by the entire improvement, and this benefit, in theory, at least, is regarded as measured by the number of feet of frontage upon the work. The assessment imposed upon an individual owner may be greater or less than the cost of doing the particular part of the work on the portion of the street opposite his lot. This is obviously so, even where only a part of a single street is improved. If the work be, for example, grading, the expense involved may be far greater on some parts of the street, or of a block, than on others. Yet the assessment per front foot must be equal and without regard to the varying difficulty or cost of the work at different points along the line of improvement.
If the grading or paving of two streets may be united in one proceeding, it is because the property on each of the streets is benefited by the improvement of the others. The work as a whole is a benefit to all of the property to be assessed. The extent of the benefit is not measured by the width of the street, but, under the statute, by the frontage. Property fronting on a narrow street may be benefited by an improvement of the several streets as much as property fronting on a wider street. These are matters to be considered by the council in fixing the extent of the improvement, and its decision is not to be overthrown except upon a showing of fraud or abuse of discretion. The mere fact that the streets are of varying widths, which is all that appears here, is not enough to invalidate the proceeding.
There is no merit in the claim that the construction which we have given to the statute impairs the right of the majority of owners on any single street to bar the work, by protest, for six months. The Vrooman Act does not give this right to the owners of the majority of the frontage on a street, as is assumed in the argument, but to "the owners of a majority of the frontage of the property fronting on said proposed work or improvement." (Sec. 3.) If the "work or improvement" may cover more than one street, a majority of the frontage on all the streets covered by the proposed work must join to make the protest effectual.
On the subject of waiver or estoppel, little need be said beyond what is contained in the opinion quoted above. The respondent seeks to distinguish Allen v. Hance, 161 Cal. 189, [ 118 P. 527], on the ground that in that case there was a mere irregularity, which might be cured by estoppel or waived, whereas here the defect (i.e., the joinder of the improvement of the various streets in a single proceeding) went to the jurisdiction of the council and the want of power, as is claimed, could not be supplied by estoppel. But if there be any difference in this respect between a want of power and an irregularity, the point is not applicable to the case at bar, since, as we have seen, the council did not exceed its jurisdiction in ordering the improvements by a single proceeding.
The excluded writing, which was relied upon as creating an estoppel, declared that the signers waived any illegality or irregularity in the proceedings, "in consideration of a deduction of five per cent from the total amount (providing the said amount is paid by us within ninety days from the date of the assessment roll) to be assessed to us under the contract . . ." The payment was not made within the ninety days. This fact did not establish a mutual abandonment of the waiver agreement. If, as alleged in the cross-complaint, the appellant went on and completed the work in reliance upon the agreement, its right to stand upon the waiver was not lost by the failure of the owners to take advantage of the deduction of five per cent which they might have claimed. Their right to this deduction was made conditional upon payment by them within ninety days. The option to obtain the rebate upon this condition was a good consideration for their waiver, and its sufficiency as a consideration was not impaired by the fact that they failed to exercise their option.
The district court of appeal did not notice the respondent's point that the assessment was void because "in the cost and expense assessed were included the cost and expense of work done on Adeline Street on that portion thereof occupied by the tracks of the Atchison, Topeka and Santa Fe Railway Company." An inspection of the record discloses that the point has merely formal, rather than substantial, support in the evidence. The assessment named, at the outset, a total sum of $60,072.28, which included the amount payable by the railroad company. But when the apportionment to the various lots was made, credit was given for $2150, the cost of work on the railroad right of way, and the balance, $57,921, was apportioned according to the statute to the various lots. The aforesaid sum of $2150 was, as shown by the assessment, paid by the railroad company.
The resolution of intention provided that "wooden bridges" be constructed at each end of the cross-walks (i.e., over the gutter from the crosswalk to the sidewalk) at certain points. It is claimed that there was a fatal defect in the failure to describe the kind of wood to be used in these bridges. We think the description was sufficient. (Harney v. Heller, 47 Cal. 15; Deady v. Townsend, 57 Cal. 298.)
There are no other points requiring notice.
The judgment and the order appealed from are reversed.
Shaw, J., Melvin, J., and Henshaw, J., concurred.
Lorigan, J., and Angellotti, C.J., dissented.
Rehearing denied.