Opinion
Department Two
Appeal from a judgment of the Superior Court of Yolo County, and from an order refusing a new trial.
COUNSEL:
W. H. Beatty, and S. C. Denson, for Appellants.
Armstrong & Hinkson, for Respondent.
JUDGES: Belcher, C. C. Searls, C., and Foote, C., concurred.
OPINION
BELCHER, Judge
This is an action to enforce payment of an assessment made for reclamation of swamp lands.
The plaintiff recovered judgment, from which, and an order denying a new trial, the defendants appeal.
1. Under the provisions of the code, when an assessment for swamp-land purposes is to be made, three commissioners must be appointed, who are disinterested persons and residents of the county, "and who must view and assess upon the lands situated within the district a charge proportionate to the whole expense, and to the benefits which will result from such works." (Pol. Code, sec. 3456.)
Under the statutes formerly in force, the commissioners were required to jointly view the land, and failing to do that, their assessment was void. (People v. Coghill , 47 Cal. 361; People v. Hagar , 49 Cal. 229.) Now they are not required to act jointly in viewing the lands. It is sufficient if, as they did here, two go together and the other alone to view it.
But if this be so, it is urged that they did not sufficiently view the land to enable them to make a valid assessment. The court found that they viewed all the lands in the district, and each and every tract thereof, and there was evidence, we think, tending to sustain the finding. It is true, the lands were mostly covered with water, but the commissioners were at a point where they could look over the whole area of the district and see every part of it, with the exception of a few small parcels along its eastern margin, which was hidden from view by trees. Their duty was to make such an examination of the lands of the district as would enable them to form an intelligent judgment as to the benefits which each part would receive from the completed works of reclamation, and as matter of law we cannot say that they failed to perform their duty.
[12 P. 463] 2. It is alleged in the complaint that the commissioners, after viewing each tract of land, assessed upon the same charges proportionate to the entire expense and the benefits which would result to each tract from the works of reclamation, and on the same day made a list of the charges assessed by them, etc.
The defendants by their answer denied that the commissioners assessed upon the several tracts of land charges proportionate to the entire expense, and to the benefits which would result to each tract from the works of reclamation. And they alleged that the commissioners did not make any examination, computation, or estimate as to the result or effect of the proposed work of reclamation upon each tract of land in the district, but arbitrarily assumed that each and every acre of land in the district should be assessed for an equal share of the entire sum to be raised; and without considering whether some tracts would be benefited by the proposed work more or less than other tracts, arbitrarily assessed each tract at the same rate per acre, when in fact some tracts, if the proposed works should be carried out and completed, would be greatly benefited and enhanced in value, while other tracts would be benefited very little, if at all. And they further alleged that the assessment was unfair, unequal, and unjust to the defendants, for that the lands described in the complaint would not be benefited to the same extent as other lands of other owners in the district.
At the trial, the plaintiff, after introducing certain preliminary proofs, offered in evidence the assessment roll, with the certificate attached thereto, signed by the commissioners. Among other things, the commissioners certify that "we did view said lands, and assess said sum of thirty-nine thousand dollars as a charge upon the lands within said district for the purpose of completing the reclamation of said district, which charge was and is made proportionate to the whole expense, and to the benefit which will result from such works of reclamation."
The defendants objected to the assessment roll being received in evidence, and in support of their objection sought to prove by one of the commissioners that in making the assessment and apportioning the money to be raised among the several tracts of land in the district, the commissioners never considered, discussed, or in any way referred to the proportional benefits to be derived to each piece of land by reason of the work to be done for which the assessment was levied, but arbitrarily, and without considering the question of benefits to any piece of land in the district, assessed an equal sum upon each acre, in obedience to what they understood to be a bylaw of the district; and further, that some of the tracts of land in the district would be benefited very much more than other tracts by the work of reclamation. The plaintiff objected to each of the several questions asked, upon the ground that it was irrelevant, immaterial, and incompetent, and the court sustained the objection, the defendants reserving an exception. Thereupon the court overruled the objections to the assessment roll and admitted it in evidence, and the defendants excepted to that ruling.
It was proved that about ten days after viewing the land, the commissioners met at the office of the attorney for plaintiff, and found the assessment roll there, and nearly written up; that the attorney then, under their instructions, computed the amount to be charged against each tract, and entered the same on the roll, and that thereupon they signed the certificate. 570 It is argued for the respondent that when the commissioners signed the certificate the assessment roll became a record of official acts, and could not afterward be impeached or questioned, except for fraud. And in support of this contention, among other authorities, sections 1920 and 1926 of the Code of Civil Procedure are called to our attention. Those sections read as follows:
" 1920. Entries in public or other official books or records, made in the performance of his duty by a public officer of this state, or by another person in the performance of a duty specially enjoined by law, are prima fac ie evidence of the facts stated therein." [12 P. 464]
" 1926. An entry made by an officer, or board of officers, or under the direction and in the presence of either, in the course of official duty, is prima facie evidence of the facts stated in such entry."
Conceding that when the commissioners signed the certificate it became an official record and evidence of all the facts recited in it, still it was only prima facie evidence, and as such was subject to be contradicted.
" Prima facie evidence is that which suffices for the proof of a particular fact until contradicted and overcome by other evidence. For example: the certificate of a recording officer is prima facie evidence of a record, but it may afterward be rejected upon proof that there is no such record." (Code Civ. Proc., sec. 1833.)
The commissioners were required to assess upon the lands "a charge proportionate to the whole expense, and to the benefits which will result from such works."
When special duties are enjoined upon commissioners, as in this case, the law must be strictly complied with, and any substantial departure from its requirements will render their acts void. (People v. Coghill , 47 Cal. 361; People v. Hagar , 49 Cal. 229; People v. Ahern , 52 Cal. 208.)
We think that, notwithstanding the certificate signed by the commissioners, the defendants were entitled to prove, if they could, that the assessment involved in this case was not made in conformity to the requirements of the law, and so was not binding upon them, and that the court erred in excluding the proper evidence.
3. Without expressing any opinion as to the validity of the warrant tendered in satisfaction of the assessments sued for, we think the court did not err in finding that the assessments were not in fact satisfied by the tender.
As pleaded and proved, the warrant was for a larger sum than the aggregate amount of the assessments, and was owned by D. O. Mills & Co., a banking corporation doing business at Sacramento.
Under some arrangements made with the defendants, it was tendered to the county treasurer only for the purpose of having the assessments indorsed upon it, and not to be given up and canceled. This was not sufficient. (Pol. Code, sec. 3465.)
Nor was the tender in court at the trial of any avail. Such a tender is not authorized by any statute that we are aware of.
For the error above noted, the judgment and order should be reversed, and the cause remanded for a new trial.
The Court. -- For the reasons given in the foregoing opinion, the judgment and order are reversed, and cause remanded for a new trial.