O. T. Johnson Corp. v. City of Los Angeles

This action was brought to enjoin the defendants the City of Los Angeles and certain of its officers from expending any money in furtherance of a proceeding initiated under the Street Opening Act of 1903 (Stats. 1903, p. 376), including the cost of the prosecution of a pending action in condemnation. A general demurrer to the complaint was overruled. The defendants stood on their demurrer and declined to answer, whereupon a judgment of injunction was entered as prayed. From this judgment the defendants appeal.

On January 22, 1923, the council of said city adopted an ordinance entitled: “An ordinance declaring the intention of the city of Los Angeles to order the opening, widening and extending of Mines avenue between the easterly boundary of the city of Los Angeles and a point distant three hundred feet, more or less, westerly of Lorena street, and Ninth street between Lorena street and San Julian street, and of Tenth street between San Pedro street and Burck place, and of Country Club drive between Burck place and a point one hundred twenty-five feet westerly from said Burck place, in the city of Los Angeles, county of Los Angeles, state of California. ’ ’ This ordinance was approved by the mayor and published on February 1, 1923. In and by said ordinance it was ordained in section 1 thereof that the public interest and convenience required, and it was the intention of the council to order, that the streets therein named (described precisely as set forth in the title) be opened, widened, and extended. Section 2 described more particularly the lands to be taken. This description is a technical description by courses and distances of the exterior boundaries of the proposed improvement, covering eighteen pages of printed transcript. A series of maps prepared by the city engineer in August, 1923, for use in connection with the condemnation proceeding, was submitted at the oral argument for our enlightenment upon this appeal. From these maps, but not from the technical description in the ordinance, it is ascertained that the proposed improvement contemplates a street of uniform width extending from the easterly to the westerly boundaries of the city. Section 3 of the ordinance contains a description of the assessment district by courses and distances, covering forty pages of printed transcript.

Thereafter, on February 2 and 5, 1923, the board of public works caused notices of public work to be posted. These notices- described the proposed improvement precisely as described in the title of the ordinance of intention. The same form of notice was published in the official newspaper on February 7 and 8, 1923.

Within thirty days after March 4, 1923, the alleged effective date of the ordinance of intention, written protests against the proposed improvement were filed. The council heard • protests filed on and prior to March 9, 1923, but refused to hear or consider protests filed after that date.

Thereafter the council on June 28, 1923, adopted the final ordinance ordering the opening, widening, and extending of said streets, describing the same in the identical language used in the title and in section 1 of the ordinance of intention and in the notices of public work as posted and published. The city attorney then instituted an action in the superior coxirt to condemn the lands alleged to be necessary for the improvement claimed by the city to have been authorized by the proceedings preliminary thereto, but the said action has not proceeded to judgment.

The plaintiffs are the owners of lands within the assessment district which are subject to assessment on account of said improvement if the same be carried to completion as proposed.

Because of the demurrer and the refusal of the defendants to answer, all of the material allegations of the complaint are of course admitted to be true. From these allegations and the record before us it appears that Mines Avenue is a public street extending from the easterly boundai’y

The respondents first attack the proceedings on the ground that the improvement actually intended and sought to be carried out by the condemnation proceeding and the improvement described in the ordinance of intention and notices of public work are fatally at variance, in that the improvement described in the ordinance of intention and notices includes the opening and widening of Tenth Street between San Pedro Street and Main Street, and the improvement as actually attempted to be carried out between San Pedro Street and Main Street consists of the opening of an entirely new and unnamed street between Ninth and San Pedro Streets and Tenth and Main Streets, and that therefore the property owners within the assessment district were not charged with notice of the proposed improvement as required by law. We think this contention must be sustained. [1] The proceeding is in invitum. It is conceded by counsel for appellants that in such a proceeding the property owner “is entitled to an accurate compliance with those specific requirements of the statute which the legislature deems important to safeguard his interests. These are the mandatory and jurisdictional provisions of the statute.” This statement is in line with the well-established rule that the requirements of the statute essential to jurisdiction must be complied with. (Flynn v. Chiappari, 191 Cal. 139 [ 215 Pac. 682 ]; 19 Cal. Jur. 166-168, and cases cited.) [2] An ordinance of intention properly affording notice is essential to the jurisdiction of the council to order the improvement. (Pacific Paving Co. v. Verso, 12 Cal. App. 362 [ 107 Pac. 590 ].) The act requires that the ordinance “briefly describe the improvement proposed,” and it has been held that the description of the work as required by the statute is a jurisdictional prerequisite. (Fay v. Reed, 128 Cal. 357 [ 60 Pac. 927 ]; 19 Cal. Jur. 237, and cases cited.) “Unquestionably the giving of the notice required by the act is one of the steps necessary to confer upon the council jurisdiction to order the work done. ‘Proceedings for street assessments, being in invitum, must, in order to charge the property of the owner, be based

[4] With the foregoing considerations in mind the question is: Does the description in the ordinance of intention and in the notice of public work as published meet the requirements of the law? It is to be observed that said description specifies Tenth Street between San Pedro Street and Burek Place as one of the streets to be opened, widened and extended. Eeferenee to the map discloses that Burck Place is many blocks west of Main Street. It also appears that Tenth Street approaches and extends to San Pedro Street from the east and proceeds westerly from San Julian Street. Between San Pedro Street and San Julian Street Tenth Street is not open. When the ordinance of intention proposed to open, widen, and extend Tenth Street from San Pedro Street to a point westerly from Main Street the only reasonable inference or conclusion to be drawn from the language employed in the description was that it was contemplated to open Tenth Street from the point of its intersection with San Pedro Street westerly therefrom where at the time it was not then open, and thus provide a through street. But instead of carrying out the improvement as so described the appellants admittedly propose to open an entirely new and unnamed street from the inter

[5] It is insisted by the appellants that the opening of the new street from Ninth and San Pedro Streets to Tenth and Mam Streets should, considering the improvement as a whole, be deemed an extension of Tenth Street from San Pedro* Street to Burck Place. It is urged and it may be assumed that, in a comprehensive and unrestricted sense, the phrase “to extend” means to enlarge or to expand in any direction. But when used in conjunction with the phrases “to open” and “to widen” it can only mean a prolongation of the street from one of its termini and in its same general direction. (Mayor of Monroe v. Ouachita Parish, 47 La. Ann. 1060 [ 17 South. 498 ]; Owen v. Chicago, 53 111. 95.) Certainly it may not be said that the phrase “to extend” may thus be used to convey the idea of opening an entirely new street paralleling for some 1,800 feet a street officially named and described as the one to be opened, widened and extended. [6] It has been held

Appellants again insist that, in view of the magnitude of the project, a substantial compliance with the statute has taken place. The record may not be so construed. If, under the notice given in this case, the city may not only fail to improve the street noticed for improvement for a distance of 1,800 feet, but also open a new street parallel therewith for that distance and not noticed for improvement, it might be urged with equal assurance that a new and unnamed and unmentioned street could be opened paralleling the street described in the notice for a mile or more — a proposition not possible of approbation under our street laws.

[7] It is also insisted by the appellants that, as section 3 of the act provides for a reference in the notice of public work to the ordinance of intention for a description of the assessment district “and for further particulars,” and as the notice in this case contained such reference and as the eighteen-page description by courses and distances in section 2 of the ordinance of intention was, from an engineering standpoint, a correct description of the land to be taken, therefore the notice was sufficient. But the phrase “further particulars” contemplates that the brief description contains some particulars of the essential parts of the proposed improvement, in order that the property owner be charged by reference with the further particulars (White v. Harris, 116 Cal. 470 [ 48 Pac. 382 ]), and there is no hint or intimation in the brief description of the proposed improvement of the new and unnamed street. Our conclusion on this point would not require that the brief description be greatly extended. It would seem to be a simple matter to have included therein a reference to “a new street from Ninth and San Pedro streets to Tenth and Main streets” with, of course, the omission of any reference to Tenth Street between San Pedro and Main Streets, if, as is admitted here, that portion of Tenth Street was not to be improved.

The case of McGarry v. Ellis, 54 Cal. App. 622 [ 202 Pac. 463 ], cited and relied- on by appellants, does not sustain their position. In that case, the language of the improvement act of 1911 [Stats. 1911, p. 730] was involved wherein the notice was required “to briefly describe the work or the assessment district or both” and to refer to the ordinance of intention for further particulars. The notice in that case described the work and also the assessment district as including the entire city, but did not state that certain lots were excepted from the district. Said notice was properly held sufficient because the property owner was given notice that his property was included in the district and the omission to state that certain lots were excepted was declared immaterial.

[8] A serious objection is also urged by the respondents to the sufficiency under the statute of the provisions of section 6 of the ordinance of intention. The city had the

[9] Respondents contend that there was also a fatal noncompliance with the statute when the ordinance of intention failed to designate the fund from which the city’s portion of the expense was to be paid. Appellants in reply state that it is no concern of the property owner from what fhnd the city’s portion is to be paid and that the language of the act is reasonably susceptible of the construction that the ordinance shall state merely that the city's portion shall be paid “out of such fund as the city council may designate.” We think the proper construction of the language of the act requires that the fund be designated in the ordinance of intention and that such designation is for the benefit of the property owner and jurisdictional. The appellants concede the correctness of the rule laid down in Dehail v. Morford, supra, wherein this court said that “every requirement of the statute which has a semblance of benefit to the owner must be observed in order to give the municipality jurisdiction in the premises.” If the fund be desig

[10] The respondents attack the said proceeding on additional grounds which are treated rather extensively in the briefs. Some consideration of these further objections is deemed essential to a proper disposition of the case. It is insisted by them that the amendment to the Street Opening Act of 1903 authorizing the municipality to pay a portion of the cost of improvement is void for the reason, so it is claimed, that the title of the act does not embrace the subject of the amendment and is therefore legislation contrary to the provision of section 24 of article IV of the constitution. Estate of Melone, 141 Cal. 331 [ 74 Pac. 991 ], is relied upon. In that case the specific enumeration of sub' jects in the title of the act in question was held to be exclusive. Here the title is general and does not assume to be an index of the particular matters embraced in the act. In general terms it provides for the condemnation of property necessary or convenient for the laying out, opening, widening, and extending of public streets within municipalities. The constitutional provisions requiring the subject of the act to be embraced in its title must be liberally construed and “all that is required to be contained therein in order to meet the* constitutional requirements is a reasonably intelligent reference to the subject to which the legislation is to be addressed” (Estate of Wellings, 192 Cal. 506 , 519 [ 221 Pac. 628 ] ; McClure v. Riley, ante, p. 23 [ 243 Pac.

[11] Again, it is contended that the attempted appropriation of $1,500,000 by the city constitutes a gift of public money contrary to section 31 of article IV of the constitution. It is argued that, inasmuch as the city council has declared that the property within the assessment district is to be benefited by the proposed improvement, it must therefore follow that the improvement is of benefit to the property in the district and is of no benefit to the general public over and above that ordinarily received by the general public from all streets. It is further argued that, as the ordinance of intention provides that the property in the district shall be assessed to pay the cost of the improvement, such declaration means the payment of the whole cost. We think the declaration referred to must be read in connection with the provisions of section 6 of the same ordinance, which provides for the payment of a portion of the cost of the improvement. It must be assumed that the opening, widening, and extending of a public street within a city is a matter of general public interest and concern (Sinton v. Ashbury, 41 Cal. 528 ) and the question of the extent of such general public interest and concern is primarily one of legislative determination, and in the absence of fraud, and none is here suggested, such determination may not be inquired into (City of Oakland v. Garrison, 194 Cal. 298 [ 228 Pac. 433 ]).

[12] It is alleged in the complaint that at the time of the adoption of the ordinance of intention there was not, nor was there at any time during the fiscal year ending June 30, 1923, in the city treasury of Los Angeles any sum or amount sufficient to enable the city to pay the $1,500,000 proposed to be paid, and that the electors had not authorized the said indebtedness. As this allegation was admitted it is insisted that the indebtedness thus attempted to be incurred was unauthorized and contrary’ to the provisions of section 18 of article XI of the constitution, which provides that no city shall incur any indebtedness or liability in any year exceeding the income and revenue provided for

[13] It is contended that the ordinance of intention was not properly entitled as required by section 4459 of the Political Code. It is therein provided that official advertising, when published, must be preceded by words “describing or expressing in general terms the purport or character of the notice intended to be given.” This section was added tó the Political Code in 1903. In 1908 it was said by this court in Ex parte Young, 154 Cal. 317 [ 22 L. R. A. (N. S.) 330 , 97 Pac. 822 ], that there was at that time no statute which required ordinances of boards of supervisors to be entitled. In the same year the district court of appeal made the same declaration in Ex parte Yung, 7 Cal. App. 440 [ 94 Pac. 594 ], It is true that in each of those cases Ex parte Haskell, 112 Cal. 412 [ 32 L. R. A. 527 , 44 Pac. 725 ], decided in 1896, was cited as authority for the declaration, but then again, In re Johnson, 47 Cal. App. 465 [ 190 Pac. 852 ], decided in May, 1920, it was said that a title was not an indispensable part of a city ordinance. The section of the Political Code referred to does not appear to have been considered in any of those decisions, but it is significant that since their rendition the section has not been amended. Moreover, if that section be deemed to require that ordinances of boards of supervisors and of cities operating under general law be entitled, it would not necessarily follow that they would impose a like requirement on ordinances of a city operating under a freeholders’ charter. The manner of enacting city ordinances is a municipal affair. (In re Pfahler, 150 Cal. 71 [11 Ann. Cas. 911, 11 L. R. A. (N. S.) 1092 , 88 Pac. 270 ]; Morton v. Broderick,

[14] At the time of the adoption of the ordinance of intention section 19 8g of the city charter provided that an ordinance making or authorizing any contract should not go into effect until the expiration of thirty days from its publication, with certain exceptions, including contracts that require the payment by the city of less than $25,000, and it is urged that the ordinance in question authorized a contract for an expenditure in excess of $25,000 and therefore was not within the exception. But said section 198g at that time also contained a provision excepting from the thirty-day restriction “an ordinance . . . relating to . . . the opening, widening, straightening or extension of streets.” The ordinance of intention appears to be in this excepted classification and the thirty-day postponement provision had no effect upon it. It is not disputed that if the ordinance of intention was in effect on the date of its publication, then March 9th was the last day for the filing of protests. The city council therefore proceeded correctly in refusing to consider or pass upon protests filed after that date.

[15] Finally, it is insisted that the act of 1903 does not provide for a hearing to be had on the question of the respective portions of the general public and local benefits, and therefore due process of law is not accorded the property owners on that question. Without prolonging the discussion it is sufficient to say that we think the said act provides for all the notice and opportunity to be heard essential in that connection to the requirements of due process.

Waste, C. J., Seawell, J., Richards, J., Curtis, J., Lawlor, J., and Lennon, J., concurred.