Chambers v. Satterlee

WALLACE, J.,

delivered the opinion of the Court, Temple, J., and Crockett, J., specially concurring. Rhodes, C. J., dissenting. Sprague, J., expressed no opinion.

The plaintiff recovered upon an assessment for grading a portion of Yan Ness Avenue, in San Francisco, under the Consolidation Act, as amended in 1862-and 1863. This ap'peal is taken from judgment and order denying a new trial.

The first point presented by the appellant for our consideration assails the constitutionality of the statute under which the proceedings were had. It is argued that the leading principle of the Act (vicious in itself as it is said)' which directs that each lot shall be assessed in proportion to its frontage, and at a rate per foot front upon the street to be graded, is at war with both the letter and spirit of the Constitution. In support of this view the last clause of Section 8, Article I, of that instrument is cited: “Nor shall property be taken for public use without just compensation.” It is, however, scarcely necessary to remark that this clause merely fixes a limitation upon the otherwise unrestrained power of eminent domain inherent in the State Government, and that neither the power itself nor its limitation is involved in the proceeding now in question.

It is next urged that the statute is unconstitutional, because, as it is said, it .imposes a tax to be levied, not upon an ad valorem principle, and in aid of the point Section 13, Article II, of the Constitution is appealed to: “Taxation shall be equal and uniform throughout the State. All property in this State shall be taxed in proportion to its value, to be ascertained as • directed by law; but assessors and collectors of town, county and State taxes shall be elected by the qualified electors of the district, county or town in which the property taxed for State, county or town purposes is situated.” The aim really had in view by the framers of the Constitution in adopting this clause, and the jealousies it was designed to allay, are yet fresh in the recollection of most of us, and these were in no wise connected with the mere local proceedings of a municipality. The conclusive answer, however, to this last objection is, that the burden in question here is an assessment merely; and though its imposition is an exercise of the taxing power, it is not in itself that “taxation” mentioned in the Constitution and there required to be laid upon property “ in proportion to its value.” The distinction in this respect between such an “assessment” upon the one hand, and such “taxation” upon the other, may be said to have already become firmly fixed in the constitutional jurisprudence of the State, and we think it too late to question its soundness now, even if we really entertained a doubt of its correctness in the abstract, which we do not.

It was directly asserted by this Court more than ten years ago, in the case of Burnett v. The City of Sacramento, (12 Cal. 76), in which case Mr. Justice Field, with the concurrence of both his associates, speaking with reference to the levy of an assessment upon property to pay for grading the adjacent street, said: “The thirteenth section of Article XI of the Constitution does not cover the case. * * * For the expenses of such improvements it is competent for the Legislature to provide, either by general taxation upon the property of all the inhabitants of the county or town in which they are made, or upon property adjacent thereto and specially benefitted thereby.”

This distinction, as applied to the present Consolidation Act, was pointed out and maintained with marked ability, and upon the most elaborate research, in the case of Emery v. The San Francisco Gas Co. (28 Cal. 345); it was again expressly recognized in the subsequent cases of Emery v. Bradford, (29 Cal. 82), and Walsh v. Matthews, (Id. 123). At a still later period, in Taylor v. Palmer, (31 Cal. 240), the question again came under , review in this Court, and this distinction was pointed out and maintained with great clearness and force. Since the decision in Taylor v. Palmer, (supra) until now, the constitutionality of the Act lias not been seriously questioned, so far as we know, but bas been assumed as the basis of decision in the numerous street assessment cases which, have in the meantime been determined in the Courts. We think, therefore, that the constitutional validity of the Act (at least to the extent to which it was maintained by the majority of the Court in Taylor v. Palmer,) must be considered as definitively established here.

The validity of the proceedings resulting in the assessment is, however, questioned upon other grounds.

It is said that there was no official grade already determined for Van Ness Avenue, when the Board resolved to grade it. But it'is evident that the appellant is mistaken in this proposition. It did not, as he supposes, require the signature of the persons composing the Board of Engineers to be attached to the maps and profiles, prepared under the statute (Acts 1863-4. p. 460,) in order that these maps and profiles should become valid. Section 3 provides that the approval of the Board of Supervisors, shall impart validity to them. Besides, if the signatures of the engineers were ever material for that purpose, they clearly ceased to be so, upon the passage of the Act to ratify and confirm certain or-inances, etc, (Acts 1865, p. 166.)

It is next objected, that the resolution which was passed by the Board, expressing their intention to grade Van Ness Avenue, was not “published according to law.” A more accurate statement of the position of the appellant on this point would be, that it was not published according to the order of the Board. It will be .seen by reference to the statute) that the publication is required to be made for “ a period of ten days.” It appears that the Board in this instance, made an order that the resolution be published, for a period of ten days, from and after Monday, the 29th clay of July, 1867. It is not denied that publication for “a period of ten days,” was had before the Board proceeded further; but the point is, that the notice was not published for the particular period of ten days defined in the order— the publication not having commenced until July 31, 1867. It will be admitted, we think, that if there be a conflict between the statute and the order, the latter must give way. The jurisdiction of the Board of Supervisors in the premises-is derived wholly from the statute, and is vested in them, not absolutely or generally, but only in special cases, and under certain conditions, prescribed by the statute itself. There must be notice of the intention of the Board to order certain work to be done: the work itself must be such as is authorized by Section 3 of the Act; the notice must take on the form of a resolution, and no other kind of notice will be sufficient; it must describe the work to be done; it must be signed by the Clerk of the Board, and it must be published for a period of ten days. It is obvious, that if there be a substantial failure or omission, in any one of these several prerequisites, the jurisdiction of the Board to order the particular work will not have attached. And it is equally clear, that upon a concurrence of all these several conditions, the grant of jurisdiction to the Board becomes absolute to order the proposed work to be done

If the Board have authority, by its own order, to alter at its pleasure, in the slightest particular, any one of these prescribed prerequisites to the vesting of its own jurisdiction, we have not discovered whence such authority is derived. As we read the statute, the mere passage of the resolution here, had, for the time being, exhausted the whole power of the Board in the premises, and it could at that time proceed no further in that direction. Especially it could not assume to itself to make an order by which a new rule of publication should be put in force, and essentially differing from that one which the statute had theretofore provided. Eor instance; it could not require by its order, that the publication should be had for the period of eleven days, instead of the ten provided for by the statute. If it should enter an order to that effect, and the publication should proceed, it is clear that the jurisdiction, so far as it depended on publication, would attach at the expiration of ten days’ publication, .and without reference to the publication on the eleventh day. Otherwise the Board must be said to have derived its authority, from the observance of the terms of its own order, and not from a compliance with the directions of the statute — a proposition for which no one, of course, would contend.

If it should be asked why the Board could not be permitted to require the publication to be continued for the period of eleven days, a sufficient answer would be found in the fact that the statute had already dispensed with the necessity of eleven, when it fixed upon ten days as the proper period. As we have seen, its language is: “Published for a period of ten days,” etc. A period of ten days means any such period after the passage of the resolution and signature by the Clerk. The substitution of the adjective pronoun for the indefinite article used in the statute, would not make its import plainer in this respect. The exclusion, then, of that period of ten days, which commenced on July 31st, as a proper period of publication, has no countenance in the statute itself, which neither excludes it or authorizes the Board to do so. Such power, if it exist, renders the Board superior to the Act which created it, and set limit of its authority. It would be, in fact, a power in the Board to repeal the statute itself in this respect; for there is no practical difference between an order which should repeal the words of the statute, and one which would alter their essential meaning.

Nor do Aye see that it devolves upon the Board to undertake the direction of the publication of their resolution of intention in any case. That is provided for by the same statute which has empowered the Board to pass the resolution itself, and which then required both signature of the Clerk, and publication for a fixed period. Undoubtedly if the Board should think proper upon the passage of such a resolution to make an order that the Clerk should sign it, and that it should be published for the period of ten days, or simply published, which, as we have seen, means publication for ten days — in other words, if the Board choose to reenact the statute — no harm would result; but even then the required acts when done, would be referred for their validity to tbe statute, and not to tbe order of tbe Board. In so far as they would appear to have pursued tbe statute in these respects tbey would be beld valid, otherwise not.

It results from, these views, that tbe Board, to use tbe language of tbe statute, “acquired jurisdiction,” to order tbe work in question to be done.

It is next objected, that tbe assessment was made by tbe Superintendent of Streets to owners unknown — when, in fact, tbe proof showed that tbe officer did know who was tbe owner, etc.

Tbe statute provides (Section 9), that the Superintendent shall make an assessment which shall show tbe amount to be paid, etc., “tbe owner of each lot or portion of a lot, (if known to tbe Superintendent), if unknown, tbe word ‘unknown ’ shall be written opposite tbe number of tbe lot and tbe amount assessed thereon,” etc. Tbe word “unknown” was in this instance written opposite tbe number of tbe lot of appellant upon tbe assessment.

We lately bad occasion in tbe case of Hewes v. Reis to define tbe import of the word “unknown,” when thus endorsed by tbe Superintendent upon tbe assessment, and we then beld that it amounted to an official certificate by tbe proper officer, that in point of fact tbe owner of tbe particular lot designated, was unknown to him. We think that when such a ceidificate has been given by tbe officer, it is conclusive of tbe fact so certified, and cannot be collaterally called in question in- an action brought upon tbe assessment upon which it is officially entered. A party who relies for recovery upon such an assessment, is not to be called upon Ijo embark in an inquiry as to tbe probabilities of tbe actual state of knowledge possessed by tbe officer at tbe time that tbe certificate was made but may rely upon it as conclusive, that in point of fact such ownership was unknown to tbe officer. This we understand to be tbe general rule as to tbe effect of such certificates, when collaterally assailed, and if such certificate be false in fact and damage has ensued, tbe party injured must seek bis redress by an action against tbe officer, directly alleging its untruth.

The nest objection is that the assessment is void because, while the order of the Board directed the street here to be graded — which of course means to the official grade — the specification actually annexed to the contract provided that the street should be “graded to the official height and line, except the roadway, which is to be graded twelve inches below the official grade — and when completed is to have a crown to the center of eighteen inches from the bottom of the gutter-ways.”

The conclusive answer to this objection, however, is that the appellant might have appealed to the Board of Supervisors, and it would have been their duty, if the objection had been well taken (a point upon which it is not necessary for us to express an opinion), to have directed the Superintendent to proceed to make a- contract in conformity with the order of the Board.

The statute (Sec. 12) provides for an appeal to the Board by any party “feeling aggrieved by any of the acts or determinations aforesaid of the said Superintendent;” etc. j!iow, one of the acts * * aforesaid, of the said Superintendent (as provided by Section 7), is to enter into all written contracts authorized by the Act; and the statute provides that, upon such appeal, the decision of the Board shall be final “ as to all errors and irregularities which said Board could have remedied and avoided.” The Board having obtained jurisdiction regularly in the first instance to order the work to be done; retains that jurisdiction until it is finally completed in the manner pointed out by law. This principle Was applied in this Court, in the case of Dougherty v. Foley (32 Cal. 402), where the Board having regularly acquired jurisdiction to order certain work done, a contract was awarded to a person who subsequently failed to comply with it on his part, and it was held that the Board, having acquired jurisdiction in the first place to order the work done, and having made the order, “the subsequent steps were ministerial in their character,” and that consequently the Board might re-let the contract without commencing de novo.

So, too, in Emery v. Bradford, (29 Cal. 75) an appeal was held to lay to the Board, from an erroneous determination made by the Superintendent, to the effect that the contractor had fulfilled his contract. Accordingly the owner of the lot, in a suit against him upon the assessment, was not permitted to prove ‘ ‘ facts showing that the work was not done in accordance with the said ordinance,” because he might have had that question determined by the Board. If, on such an appeal, the Board might have relieved a party from the assessment, on the ground that the work did not fulfill the contract, might it not relieve also in a case where the contract, in accordance with which the work was d'one, did not itself comply with the order of the Board under which it purported to have been made ? In either case, the real and ultimate point of inquiry is, as to whether or not the work had been, or was about to be, in fact, done, which the Board determined was necessary, andhad accordingly ordered to be done.

So, in the case of Nolan v. Reese, (32 Cal. 486), it was held that neither a fraud which affected “ the award of the work,” nor one which affected the “legality of the assessment,” could be shown in defence of an action against the lot-owner in the assessment, because these matters might have been decided by the Board on appeal.

We think that while the statute intended to leave open for judicial inquiry all questions which can be said to be of a jurisdictional character, its purpose was to submit all other questions to the decision of the Board itself. It is well enough for the appellant to come here to say that the Board had no jurisdiction to order the work done at all, but when he comes only to say that it was not well or sufficiently done, the Superintendent in the first instance, and the Board on the last resort, would seem to have been considered by the statute, and wisely considered, we think, as most likely to correctly determine that matter. It may be that in the understanding of the. Board and others who deal with these matters, a street graded in accordance-with the specifications here is up to the official grade; that the “officialgrade ” is defined, by usage and practice uniformly prevailing, to mean a crown in tbe center of tbe roadway and sloping to tbe gutterways; tbat those wbo enacted tbe law of 1862 so understood it; and it might be absurd to say tbat it could only be satisfied by a level surface extending from curb to curb, and it may be tbat an appeal, if taken to tbe Board upon this point, would have been, therefor, ineffectual.

However tbat may be, tbe jurisdiction of tbe Board over such questions is clear.

Tbe judgment and order denying a new trial are affirmed.