This action was brought to enjoin the sale of the plaintiffs' respective pieces of property for the nonpayment of assessments for the widening and extension of Encinal Avenue, in Alameda. The application for an injunction pendente lite having been denied, the plaintiffs paid the assessments under protest, and thereupon filed a supplemental complaint for the recovery of the amounts paid. Judgment was rendered for the defendants on demurrer and plaintiffs appeal. The assessments were made by authority of the Street Opening Act of March 6, 1889, as amended in 1909 and 1913. (Stats. 1889, p. 70; Stats. 1909, p. 1034; Stats. 1913, p. 376.)
[1] Appellants claim that the proceedings are void for the reason that three city officers appointed by the city council as commissioners for the assessment of the damages and benefits, to wit, the city clerk, the city auditor, and the city attorney, were disqualified because they were to be paid, as provided by the statute (Stats. 1889, pp. 71, 72, secs. 6, 8), from the assessments levied by them. There is no merit in *Page 521 this contention. If appellants' position is sound, it would invalidate every assessment for the purpose of state and county taxes and render impossible the performance of such services except by volunteer officers. It is contended that this disqualification also results from the vesting in these commissioners of an uncontrolled discretion, if the law be so construed, to exclude or include public property in the assessment of benefits. But there was no public land within the assessment district, as will be shown in the discussion of the next point. Appellants claim that the assessment is void for the reason that fourteen pieces of property belonging to the city of Alameda within the exterior boundaries of the assessment district were not assessed for benefits. There are two answers to this proposition: [2] First. In a district assessment the mere failure to assess a lot of land within the assessment district does not make the assessment void. The remedy for such an erroneous assessment is by objection to the city council. (Stats. 1889, p. 73, sec. 14; Larsen v. City andCounty of San Francisco, 182 Cal. 1, [186 P. 757].) Second. The city council expressly excluded such lands from the district to be assessed by the following proviso in said description: "Saving, excepting and excluding from said district all public streets, avenues, roads, places and parks, and any and all public property within the exterior boundaries of said district of lands hereinbefore specified and described." Previous to the enactment of section 9 of the statute, which authorized the commissioners to assess benefits against public lands, the liability of such lands for assessments for benefits accruing thereto by reason of local improvements depended upon the nature and character of the public ownership and the use to which it was applied. (Witter v. Mission School Dist., 121 Cal. 350, [66 Am. St. Rep. 33, 53 P. 905]; City Street Imp. Co. v. Regents of the University ofCalifornia, 153 Cal. 776, [18 L. R. A. (N. S.) 451,96 P. 801]; Tulare Irr. Dist. v. Collins, 154 Cal. 440, 443, [97 P. 1124]; 28 Cyc. 1117, 1118.) The effect of the statute was to authorize the local authorities to assess public property where, in their judgment, such property would be benefited by the improvement. [3] If, however, in the judgment of the city authorities such property was not benefited, they might so determine and thus exclude such *Page 522 property from assessment. This is, in effect, what was done by the city council.
The statute provides that before ordering the opening or extension of any street the city council shall pass a resolution of intention to do so, describing the opening or extension to be made and the land to be taken, "and specifying the exterior boundaries of the district of lands to be affected or benefited by said work or improvement, and to be assessed to pay the damages, cost, and expenses thereof." (Stats. 1889, p. 70, sec. 2.) It also provides for notice and a hearing at which any person interested may object to the extent of "the district of lands to be affected or benefited." (Secs. 3, 4 and 5.) If the objections are sustained, the proceeding terminates. If they are overruled, it goes forward. While the statute requires only the "exterior boundaries" of the district to be specified, it is reasonable to hold that if the council finds that any convenient delimitation of such boundaries would include parcels of land that in its opinion would not be benefited or affected by the proposed opening or extension, it could properly qualify the description by excepting such parcels, so that they would not form a part of the district. The council is empowered to determine the extent of the district benefited. It should be permitted to describe it accurately by making a proper exception of the land that may be within the fixed outer boundaries, but which are not benefited, in order that the resolution may not be inaccurate or misleading. Such a description would not make the proceeding void. The exception herein shown is obviously nothing more than a part of the description of the district, and if the council was of the opinion above referred to, the exception was necessary to make the description accurate. It must be presumed that it so decided and framed the description accordingly.
[4] The decision of the city council, determining the extent of the district benefited by the improvement, is conclusive except on appeal to that body. (United Real Estate Trust Co. v. Barnes, 159 Cal. 242, [113 P. 167].) The commission had no power to assess any portion of the benefits upon the public lands thus included within the assessment district.
It is contended that the city council never acquired jurisdiction because of the insufficient description in the resolution *Page 523 and notice of public work of the land to be taken. This contention is based upon the fact that after describing in great detail a strip of land eighty feet wide which was to constitute the street as widened and opened, the following exception is stated in the resolution and notice: "Excepting therefrom all lands now held by said city or the people of said state as open ways." Proceedings instituted under the same statute here involved were under consideration inCohen v. City of Alameda, 124 Cal. 504, [57 P. 377]. The description of the land taken in that case was modified by the following words: "Excepting therefrom all lands now held by said city or the people of said state as open ways." It was held that the sufficiency of the description was not impaired by the exception. It was there said: "If, as a matter of fact, a portion of the land within these boundaries has already been appropriated to public use, or is held by the city or state 'as open ways,' the land deemed necessary to be taken is sufficiently described by designating in the resolution the outer lines of the proposed improvement, without any mention of such open ways, or by excepting the same, without describing the exceptions. In either case the parties to be affected by the proposed improvement are fully notified of every fact neccessary for the protection of their interests." [5] Although the language of the exception here involved is somewhat different, the principle is the same, and upon the authority ofCohen v. City of Alameda, supra, it must be held that the description of the land to be taken contained in the resolution and notice is sufficient. The same reasoning would apply with equal force to the sufficiency of the description of the district to be assessed with its exceptions. These exceptions are equally definite.
The judgment is affirmed.
Shaw, J., Lawlor, J., Lennon, J., and Angellotti, C. J. concurred.