City of Los Angeles v. Oliver

The appellant is one of several hundred defendants in an action brought by the City of Los Angeles for the purpose of condemning some 370 separate parcels of land, one of which is owned by him, for the widening of existing streets and the opening of new streets in that city. The proceedings were taken and the action instituted under the provisions of the Street Opening Act of 1903 (Stats. 1903, p. 376, and acts amendatory thereof). Appellant makes no complaint as to the regularity or validity of any of the proceedings prior to the commencement of the action. His appeal is from the interlocutory judgment of condemnation therein.

Complaint was filed and summons issued August 6, 1926; appellant’s answer was filed December 7, 1926, and the order appointing referees and setting the case for trial as to those defendants who had demanded jury trials was made July 30, 1927. Pour answers were filed and several defaults entered subsequent to the last-mentioned date. The trial as to those parcels of land the owners of which had demanded jury trials was set for December 5, 1927. Appellant was not one of these, he having waived trial by court or jury; so that as to parcel 141, owned by him, the hearing was before three referees, appointed as aforesaid and was held in September, 1927. On July 29, 1927, an amendment to the Street Opening Act of 1903 went into effect, relating to the time as of which the value of land taken or damaged should be ascertained. The referees’ report was filed April 12, 1928, and on May 11th the hearing on said report was set for June 4, 1928. Appellant filed his exceptions to the referees’ report on May 31st. On May 24, 1928, the jury trial, as to the parcels the owners of which had demanded such trial, was had before Judge Keetch, it having been continued to that date from the time originally set. The hearing of appellant’s exceptions to the report of the referees was had on July 16 and 17, 1928, before Judge Shaw. July 16th an interlocutory judgment as to the parcels involved in the jury trial was signed by Judge Keetch. On November 28, 1928, Judge Shaw signed and there was entered the interlocutory judgment with respect to those parcels as to which the trial had been before the referees, confirming the referees’ report as to the compensation awarded appellant as the owner of parcel 141 and, as to the parcels of others who had filed exceptions, modifying it as to some and confirming it as to others. Thereafter and within due time appellant moved for a new trial. There appears to have been no ruling on this motion, so that under the provisions of section 660 of the Code of Civil Procedure, it is

Appellant urges many grounds for reversal, most of them having to do with what we believe to be the most important question presented on this appeal, namely, the constitutionality of the amendment to the Street Opening Act of 1903 above referred to, as applied to actions pending at the time it went into effect.

At the time the proceedings were instituted which culminated in the condemnation suit, and at the time that action was commenced and summons was served upon appellant, section 10 of the Street Opening Act of 1903' stood as follows: “For the purpose of assessing the compensation and damages, the right thereto shall be deemed to have accrued at the date of the issuance of summons, and its actual value at that date shall be the measure of compensation for all property to be actually taken, and the basis of damages to property not actually taken, but injuriously affected, in all cases where such damages are allowed by the provisions of this act, provided, that in any case in which the issue is not tried within one year after the date of the commencement of the action, unless the delay is caused by the defendant, the compensation and damages shall be deemed to have accrued at the date of trial.” (Stats. 1925, p. 242, sec. 4.) At its session in 1927 the legislature enacted a statute amending the title and several sections of the Street Opening Act, which amendatory statute, as we have noted, went into effect July 29, 1927, and after the instant case had been set for trial. The only portions of this 1927 law with which we are here concerned are those amending section 10 above set forth and those relating to the effect of such amendment as to pending proceedings. Section 10 was amended only as to that portion which we have italicized, the portion preceding the word “provided” being left as it was before the amendment. As so amended the latter portion of the section was made to read: “ . . . provided, that in any case where a motion to set the action for trial, as provided in section 8 of this act, is not made within one year after the date of the issuance of the summons therein, the right to compensation and damages shall be deemed to have accrued at the date of the hearing of the motion to set the action for trial.” (Stats. 1927, p. 1146, sec. 8.) The last section

There can be no question but that the legislature intended to make the amendments of 1927 applicable to pending matters. The last-quoted section makes that clear beyond reasonable controversy. Appellant earnestly contends, however, that it had no power to do this, because the Constitutions, state and national, guaranteed him the right to just compensation upon the taking of his property for public purposes, and he had a vested right to have the amount of that compensation ascertained in the manner and as of the time specified by the law as it stood when the action was commenced, namely, as of the date of the trial, and that the ascertainment of the value of his property as of the date of the issuance of summons operated to deprive him of a substantial part of the just compensation to which he was entitled under the constitutional guaranties and thus deprived him of vested rights. In this connection it must be borne in mind that while the trial as to appellant’s land was had more than one year after the commencement of the action, the order setting the case for trial was made before the expiration of the year. If, therefore, the amendment of 1927 to section 10 of the Street Opening Act was constitutional and applicable to pending actions, the date as of which value was to be ascertained and compensation awarded was August 6, 1926, that being the date of issuance of the summons ; while if the amendment was unconstitutional as ap

Upon this question of the applicability of the 1927 amendment to the pending action two able and learned judges have disagreed. Judge Keetch, presiding at the jury trial, in which appellant’s land was not involved, ruled, and instructed the jury, that the date as of which the value of the land taken and the amount of severance damages was to be ascertained was the date of the trial; Judge Shaw, before whom was heard the referees’ report and the exceptions thereto, ruled that the date to be considered for this purpose was the date of issuance of summons in the action. Appellant bases one of the points upon which he relies for a reversal, to which we shall later advert, upon the conflicting rulings of these two able trial judges.

There is no question but that the statute of 1927 is, so far as this case is concerned, a retroactive or retrospective law. These terms are used synonymously (Rairden v. Holden, 15 Ohio St. 207 ; Gray v. Toledo, 80 Ohio St. 445 [ 89 N. E. 12 ]) to denote a law which operates on1 matters which have occurred, or rights or obligations which existed, before the time the law went into effect. {Smith v. Mathews, 155 Cal. 752 , 761 [ 103 Pac. 199 ]; People v. Allied Architects Assn., 201 Cal. 428 , 436 [ 257 Pac. 511 ].) While the Constitutions of some of the states forbid the enactment of retrospective laws (Cooley’s Constitutional Limitations, 8th ed., p. 773), our own contains no such inhibition, nor is there any provision of the United States Constitution that prohibits a state from passing laws of this nature. In Baltimore & Susquehanna R. R. Co. v. Nesbit, 10 How. (U. S.) 395, 401 [ 13 L. Ed. 469 ], the United States Supreme Court said: “That there exists a power in the state governments to enact retrospective or retroactive laws is a point too well settled to admit of question at this day. The only limit upon this power in the states by the federal Constitution, and therefore the only source of cognizance or control with respect to that power existing in this court, is the provision that these retrospective laws shall not be such as are technically ex post facto, or such as impair the obligation of contracts.” In the earlier case of Watson v. Mercer, 8 Pet. (U. S.) 110 [ 8 L. Ed. 876 , see, also, Rose's U. S,

In California it has been held “that it is no objection to the validity of a statute to say that it is retrospective in its operation.” (Pignaz v. Burnett, 119 Cal. 157 [ 51 Pac. 48 , 49], See, also, Von Schmidt v. Huntington, 1 Cal. 55 ; Baird v. Monroe, 150 Cal. 560 [ 89 Pac. 352 ], and Craycroft v. Superior Court, 18 Cal. App. 781 [ 124 Pac. 1042 ].) As to such a law the element of its retrospective action enters into the consideration of its constitutionality only for the purpose of determining whether or not it interferes with some right vested before its enactment or whether it impairs the obligation of a contract. As said in Galland v. Lewis; 26 Cal. 46 : “In all cases where laws confessedly retrospective have been declared void, it has been upon the ground that such laws were in conflict with some vested right, secured either by some constitutional guarantee or protected by the principles of universal justice.” Again, in Pignaz v. Burnett, supra, following the statement above quoted from that case the court said: “The question is, Is the amendment an ex post facto law, or does it impair the obligation of contracts? And, also, perhaps, whether it deprives anyone of vested rights. If it does none of these things it is no objection to' it that it applies to pending eases or past transactions.” In the present case the only one of these questions with which we are at all concerned is that relating to vested rights, this being a civil action and the element of contract not being involved.

A “vested right,” as that term is used in relation to constitutional guaranties, implies an interest “which it is proper for the state to recognize and protect, and of which the individual could not be deprived arbitrarily without injustice” (6 R. C. L. 308; Campbell v. Holt, 115 U. S. 620 [ 29 L. Ed. 483 , 6 Sup. Ct. Rep. 209 , see, also, Rose's U. S. Notes]). Thus it may be said that so far as the ex

value of the land taken and the damage, if any, to land not taken, but the value of which has been diminished by reason of the severance therefrom of the parcel taken. More than this it does not imply. {Pacific Gas & Electric Co. v. Chubb, 24 Cal. App. 265 [ 141 Pac. 36 ].) “The adjective ‘just’ only emphasizes what would be true if omitted— namely, that the compensation should be equivalent to the property” {Monongahela Nav. Co. v. United States, 148 U. S. 312 [ 37 L. Ed. 463 , 13 Sup. Ct. Rep. 622 , see, also, Rose's U. S. Notes]). Beyond providing that this compensation “shall be,ascertained by a jury, unless a jury be waived,” as it was by appellant in the instant case, the Constitution contains no provisions as to the procedure by which the amount of the compensation—the value of the land taken-—is to be established. Consequently, “the procedure by which this just compensation is to be ascertained is as much the subject of statutory law as is the procedure by which the property is to be taken. There is no way to exercise the right of eminent domain except as prescribed by statute, and there is no way for the property owner to secure just compensation for his property except by statute law.” {Pacific Gas etc. Co. v. Chubb, supra.) It would thus appear that the procedure by which the amount of compensation is to be ascertained and determined is not within, or a portion of, the right guaranteed by the Constitution and therefore vested in the property owner. That the fixing of some particular date as of which values shall be ascertained is a matter of procedure would seem self-evident. As said in City of Pasadena v. Porter, 201 Cal. 381 [ 53 A. L. R. 679 , 257 Pac. 526 , 530], “it is necessary, for the purpose of assessing compensation and damages in eminent domain proceedings, that the right thereto shall be deemed to have accrued at a fixed date.” Or, to state it in a slightly different manner, “the value of the property at some period antedating the judgment could alone be awarded to the owner, because the award must be made by

“The effect of section 47 is to provide a scheme for the condemnation of property by the public corporations mentioned therein, by a proceeding wherein the value is to be fixed by the railroad commission, and the right and power of such public corporation to condemn the property is to be determined by the superior court. The enforcement thereof is also given over to the superior court. The appellant contends that if it shall be construed to provide for the taking of the property at the time of the judgment in the superior court, upon payment of the value previously fixed by the commission, it would be unconstitutional. The argument is that the owner is entitled to the valué of the property at the time it is taken, and that he cannot be deprived thereof for public use upon payment as compensation of the value fixed at a previous time, unless it shall appear that there has been no increase in value up to the time it is taken. So far as the provisions of the Constitution of California are concerned, the proposition is without merit. . . . Nor is the enactment, we think, violative of the clauses of the federal Constitution prohibiting a state from depriving a person of his property without due process of law, or denying him the equal protection of the laws. It is not to be doubted that, irrespective of any more specific requirements in state constitutions, the due process clause of the fourteenth amendment requires compensation to be made or secured to the owner of private property taken by authority of the state for public use. (Chicago, B. & Q. R. R. Co. v. Chicago, 166 U. S. 226 [ 41 L. Ed. 979 , 17 Sup. Ct. Rep. 581 , see, also, Rose's U. S. Notes].) But section 47 of the Public Utilities Act provides in express terms for the ascertainment, and the payment to the owner, of ‘just compensation' for property taken. It is contended that the scheme of valuation is not fair to the owners of public utilities, in that the value is fixed as of the time of the hearing by the railroad commission, which must precede the commencement of the formal condemnation suit. Under the general law relative to eminent domain, the value of property taken is assessed as of the date of the issuance of summons. (Code Civ. Proc., sec. 1249.) It is settled by our decisions that this rule (the equivalent of which is found in many other states, 15 Cyc. 721) involves no violation of constitutional right. (Citing cases.) On analysis it will be found that

the distinction between the code provisions and those of the Public Utilities Act is formal rather than substantial. Section 47 creates a special proceeding in eminent domain. The ascertainment of value by the railroad commission, and the subsequent action in the superior court, in which the previous finding of value is made conclusive, are both parts of that proceeding. The hearing by the commission on the question of value is merely a step in the litigation prosecuted to enforce the right of eminent domain. In effect, therefore, the value is fixed as of the date of the institution of the condemnation proceeding, as it is in cases prosecuted under the code sections alone.” (Italics ours.)

In City of Pasadena v. Porter, supra, a similar point was raised as to the very section of the Street Opening Act of 1903 involved in this case. That section as it then stood read: “For the purpose of assessing the compensation and damages, the right thereto shall be deemed to have accrued at the date of the order appointing referees or of the order setting the cause for trial, as the case may be . . . ” (Stats. 1909, p. 1038, sec. 5.) Examination of the transcript in the case cited discloses that the complaint was filed and summons issued July 11, 1924, that the order appointing referees was made January 23, 1925, and that the hearing of the referees’ report and the exceptions thereto was had July 20, 1925. The chief bone of contention was the allocation of the compensation as between the owner of the fee in certain land taken and the owner’s lessee. Both the referees and the court had, at the respective hearings, accepted January 23, 1925, as the date from which damages should be computed. The appellant owner contended “that the damages awarded the tenant should date only from the time of the actual loss of possession by the tenant” and that the amount awarded the tenant was excessive “because it includes an allowance for account of rent for a period between the date of the appointment of the referees and the date of the final decree, or the date when the tenant will lose possession, during all of which period the Gekco Company has had, and will retain, the possession, use and enjoyment of the entire premises. Such a proceeding, she asserts, amounts to a violation of article I, section 14, of the state Constitution, which provides that private property shall not be taken or damaged for public use without just com

It is a well-settled rule of law that the legislature may change rules of procedure, or remedies, and that such changes may be made applicable to pending actions, provided, of course, that under the guise of a mere change of procedure or substitution of remedies vested rights are not destroyed or the obligation of contracts impaired (Buck v. Canty, 162 Cal. 226 [ 121 Pac. 924 ] ; Aikins v. Kingsbury, 170 Cal. 674 [ 151 Pac. 145 ] ; Bassford v. Earl, 172 Cal. 653 [ 158 Pac. 124 ]), and so long as a reasonably efficient remedy remains (Kerchhoff-Cuzner Mill and Lumber Co. v. Olmstead, 85 Cal. 80 [ 24 Pac. 648 ]; Lantz v. Fishburn, 17 Cal. App. 583 [ 120 Pac. 1068 ]). As said by Judge Cooley in his work on Constitutional Limitations, “the bringing of suit vests in a party no right to a particular decision.” (Cooley’s Constitutional Limitations, 8th ed., p. 789.) When a law only affects the remedy or procedure, “all rights of action will be enforceable under the new proce

These principles apply in proceedings in eminent domain as well as in those of a different nature. As said in Secombe .v. Milwaukee & St. Paul Ry. Co., 23 Wall. (U. S.) 108, 117 [ 23 L. Ed. 67 ] : “It is no longer an open question in this country that the mode of exercising the right of eminent domain, in the absence of any provision in the organic law prescribing a contrary course, is within the discretion of the legislature.” (Italics ours.) The same principle is thus enunciated in Springfield etc. R. R. Co. v. Hall, 67 Ill. 99 : “The state has the right to say on what terms it will allow its right of eminent domain to be exercised, so long as anything remains to be done by the corporation in order to complete the condemnation of the land”; and as held in St. Joseph etc. R. R. Co. v. Shambaugh, 106 Mo. 557 [ 17 S. W. 581 ], it is competent for the legislature to change the method or procedure to be used in assessing damages for condemnation as to pending actions. 11 The rule of law upon this subject is, that whatever belongs merely to the remedy, adapted for the acquisition of a right, may be altered according to the will of the state, provided the alteration does not impair the obligation of a contract; and such a result is not worked where a substantial remedy is left to the parties according to the ordinary course of justice.” (Long's Appeal, 87 Pa. St. 114 .) The appellant in that case was the owner of land sought to be condemned by a railroad company, under the power of eminent domain delegated to it by the state. The law at the time the proceedings were commenced provided for the ascertainment of compensation by “viewers,” no right of appeal from their report being given to either party. Prior to the hearing as to value a new law went into effect which gave either party a right of appeal from the assessment of the viewers. Long took such appeal, and on motion of the railroad company it was “struck off,” or as we would say in this state, dismissed, and from the decree of dismissal Long appealed to the Supreme Court. We again quote from the opinion: “Here, then, we have the two rights clearly defined and recognized; the company’s

To a similar effect is the decision in Title Insurance & Trust Co. v. Lush et al., 15 Cal. App. 358 [ 115 Pac. 53 , 54], There the proceedings were for the widening of a street under the same act involved in this case. The condemnation action was commenced in 1907 and the interlocutory judgment awarding compensation for property taken and damaged was entered in January of 1910. Thereafter, in conformity with the procedure provided in the act, an assessment on the property declared to be benefited by the improvement was prepared and filed with the clerk of the city council, to which assessment protests were filed by certain of the owners of the property assessed to pay for the cost of the improvement, including, of course, the damages awarded. November 15, 1910, these protests were sustained by the council, but that body failed and refused to either confirm, modify or correct the assessment or to order a new assessment, but instead directed the preparation of an ordinance abandoning the proceedings. At the time the condemnation suit was commenced, the act of 1903 permitted the city to abandon the proceedings by ordinance and to dismiss the action without prejudice at any time prior to the payment of the compensation awarded to the defendant property owners, but in 1909 section 14, containing this provision, was amended so as to provide that the city council might at any time pi'ior to the entry of the interlocutory

A consideration of the authorities just passed in review, and especially those immediately preceding the one last noted, inspires a somewhat different but closely related view of the point now under scrutiny. The Constitution provides for the taking of private property for public use upon the rendition of just compensation. It is not worth while to cite authority for the practically self-evident statement that the moment when, in a long chain of proceedings, the taking is deemed actually to occur is necessarily a matter for legislative determination. Now it is plain that a declaration that the value of the property to be taken is to be ascertained as of a certain time is practically equivalent to a statement that the time named is that upon which the taking is to be deemed to have occurred. Again, if the legislature is to fix the time of taking it is evident that the power is a continuing one and that an original exercise of it neither exhausts it nor affects the right to change the time first fixed as often as to the legislative will may seem expedient. Therefore, if the legislature fixes the time of

We have discussed at some length the constitutional question which enters into a number of the points raised by appellant for the reason that this is a case of first impression in this state and, as far as we have been able to discover, elsewhere. Our conclusion is that the right vested by the Constitution in the owner of property to receive just compensation upon the taking thereof does not include the right to have that compensation ascertained and assessed in any particular mode or as of any particular time, and that the amendment affecting the date as of which the value of appellant’s land was to be ascertained was one relating merely to procedure which it was within the power of the legislature to make applicable to pending actions.

Our ruling on the point just discussed is of course determinative of appellant’s contentions that the court below erred in overruling his objection to the hearing of the referees’ report for the reason that the value of his property was fixed therein as of the date of the issuance of the summons and in its rulings on certain objections to evidence as to value, which objections were based on appellant’s theory as to the unconstitutionality of the 1927 amendment, as well as his claim that the court erred in rejecting his offer to prove the value of the land as of the date of the hearing of the exceptions. As to the last-mentioned point it suffices to say that there can be no error in rejecting an offer to prove where the evidence if admitted would have been irrelevant or immaterial (Logan v. McMullen, 4 Cal. App. 154 [ 87 Pac. 285 ]), and since, as we have held, the amendment of 1927 to section 10 was applicable, the value of appellant’s property at a time subsequent to that of the issuance of the summons was immaterial.

Appellant further contends that section 10 of the act in question violates section 11, article I, of the state Constitution, which requires that “all laws of a general nature

One of the objections urged against the constitutionality of the Public Utilities Act in Marin Municipal Water District v. Marin Water etc. Co., supra, was based upon an alleged discrimination between the mode of condemning property under the general law and that provided by section 47 of the act for condemning the property of public utilities in certain cases. Answering this objection, the Supreme Court said: “None of these discriminations, we have seen, goes to any matter of essential justice or fundamental right. The constitutional provision under consideration does not prohibit a state from establishing different rules of procedure for different classes of cases or of litigants, provided

Turning from these statements of the general rule to the application thereof to the point urged by appellant, we find that it has been uniformly held that laws relating to the acquisition of private property by municipal corporations for public improvements and prescribing the manner in which the right of eminent domain shall be exercised by such municipalities as well as the procedure to be followed in actions to enforce that right are to be regarded as general laws relating to all persons in a class founded upon a sufficient legal distinction. Thus in Clute v. Turner, 157 Cal. 73 [ 106 Pac. 240 , 242], where it was contended that the Street Opening Act of 1889 (Stats. 1889, p. 70) was unconstitutional because not a general law, it was said: ‘ ‘ The class to which the act applies is a well recognized class, to which general legislation of the character mentioned in the title of the act may be addressed—namely, municipalities, and the - subject of that legislation, the laying out and opening of streets and other public places, is one usually committed to such municipalities, either by charter or general laws, as matter of municipal concern, and a law which

A further attack is made by appellant upon the constitutionality of the amendment based upon the claim that both section 13 of article I of the state Constitution and the Fourteenth Amendment to the federal Constitution have been violated by the application of the provisions of the 1927 amendment to1 this pending case. Both of these constitutional inhibitions are against the deprivation of any person of life, liberty or property “without due process of law.” As applied to judicial proceedings the phrase “due process of law” imports an orderly proceeding adapted to the nature of the case in which a person is accorded an opportunity to be heard and to defend, enforce and-protect his rights (County of Santa Clara v. Southern Pac. Ry. Co., 18 Fed. 385 ). It has the same meaning as the expression “by the law of the land,” as used in Magna Carta. (Den ex Dem. Murray's Lessee v. Hoboken Land etc. Co., 18 How. (U. S.) 272 [ 15 L. Ed. 372 ].) It means a process which, “following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by the law; it must be adapted to1 the end to be attained; and wherever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought” (Hagar v. Reclamation District, 111 U. S. 701 [ 28 L. Ed. 569 , 4 Sup. Ct. Rep. 663 , 667, see, also, Rose's U. S. Notes]). It was undoubtedly the purpose of the

Having disposed of the various constitutional questions presented by appellant we now turn to Ms claim that whether or not Judge Keetch was correct in ruling that the 1927 amendment did not apply and in instructing the jury that compensation was to be ascertained as of the date of the trial (as provided in section 10 of the Street Opening Act of 1903 prior to such amendment and as it stood when the action was commenced), his view of the law as so expressed was binding upon Judge Shaw at the subsequent hearing of the referees’ report and the exceptions thereto. Appellant’s argument is based upon the theory that, as held in People v. Grace, 77 Cal. App. 752 [ 247 Pac. 585 , 588], the Superior Court is but one tribunal no matter into how many departments it may be divided, and “an order made in one department during the progress of a case can neither be ignored nor overlooked- in another department in which the case falls by transfer.” We dispute not the correctness of tMs premise, but are unable to accept the conclusion which appellant draws therefrom. An order is thus defined: “Every direction of a court or judge, made or entered in writing, and not included in a .judgment, is denominated an order.” (Code Civ. Proc., sec. 1003.) Manifestly, if an order has been made in the course of an action it is binding on the litigants and court alike so long as it has not been set aside. In People v. Grace, supra, an order had been made granting a defendant in a criminal case a trial as to his sanity. The case was transferred to another department of the court which proceeded to try the defend

Appellant’s next point is that the complaint fails to state a cause of action in that it discloses that the sum appropriated by the city council towards the expense of the proceeding was in violation of the charter of the city of Los Angeles. Section 2 of the Street Opening Act of 1903 as amended in 1925 (Stats. 1925, p. 238, sec. 1) provides that the “city council may, in its discretion, order and declare that the whole or any percentage of, or any sum toward the expense of said improvement be paid out of the treasury of the municipality, in which case the sum or percentage to be paid shall be stated in said ordinance of intention. ’ ’ Section 37, article III of the city charter (Stats. 1925, pp. 1024,

In support of his position appellant cites the ease of O. T. Johnson Corp. v. City of Los Angeles, 198 Cal. 308 [ 245 Pac. 164 , 170]. The proceeding there involved was under the Street Opening Act of 1903 prior to the 1925 amendment of section 2 thereof, that section then providing that “said city council may, in its discretion, order and declare that the whole or any percentage of the expense of said improvement be paid out of the treasury of the municipality from such fund as the council may designate, in which case it shall he so stated in said ordinance of intention.” The city’s only authority to pay a portion of the cost of an assessment proceeding taken under the act was derived from this section of the act itself, since the charter as it then existed contained no provision of the nature of section 37 of article III above quoted. Under these circumstances and

As an additional reason for rejecting appellant’s contention it may well be pointed out that if the city was without authority to appropriate any sum less than the whole cost of the improvement the action of the council in attempting so to do was ultra vires and section 5 of the

As to the point that the city charter authorizes the council to appropriate the whole but not a portion of the cost of the improvement it is only necessary to point out that the language of section 37 is permissive, not mandatory, and inasmuch as the appropriation is made before the amount of compensation to be paid the owners of property taken or damaged is ascertained in the trial of the condemnation suit, the total amount of which compensation forms the bulk of the expense of the proceeding, it would be manifestly impossible for the council to determine in advance what would be the entire cost and to appropriate that amount. Furthermore, we find no conflict between the permission thus accorded the council by the charter and the provision of section 2 of the act as amended in 1925 to the effect that the council may order “the whole or any percentage of, or any sum” toward the expense of the improvement to be paid out of “the treasury of the municipality,” and it is our duty to construe both of these laws, the charter and the statute, in so far as they deal with the same general subject matter, as though they were but one act, each referring to and supplementing the other, harmonizing them so far as possible so as to give force to each without destroying the meaning or intent of the other. (Spreckels v. Graham, 194 Cal. 516 [ 228 Pac.

Appellant next urges that the order setting the cause for trial and appointing referees was violative of section 8 of the act (Stats. 1927, p. 1145, sec. 6), which provides that when all defendants have answered or their defaults have been entered a motion may be made, on notice to those who have appeared, to set the case for trial, in that said order was made prior to the filing of several answers and the taking of several defaults against defendants failing to answer. Appellant’s own answer was filed more than seven months before the order setting the case was made; the state of the record was as open to him as to the city; he was served with notice of motion to set, and the record herein discloses no objection on his part to the setting of the case. He cannot be heard to raise such an objection for the first time on this appeal (2 Cal. Jur. 234; Griess v. State Investment & Ins. Co., 98 Cal. 241 [ 33 Pac. 195 ]). Moreover, if error was committed by setting, the case for trial before all answers were in and all defaults entered, appellant has failed to show in what manner, if at all, he was injured thereby. Such error, if error there was, was of the most harmless description and well within the purview of section 4% of article VI of the Constitution.

The next two points raised by appellant may be considered together, as they both rest largely upon the same argument. His contention is that the interlocutory judgment signed by Judge Keetch following the jury trial as to certain parcels of land “does not follow the verdict of the jury” in that it was, as to some of those parcels, based upon stipulations as to value instead of evidence submitted to the jury, and that the findings signed by Judge Shaw following the hearing of the referees’ report are open to the same objection. Appellant had no interest in any of the parcels to which these stipulations related, and it is difficult to see in what manner he could possibly be affected, since “the damage to one [defendant in an action in eminent domain] will in no particular depend upon damage to others. Neither party will be interested in any allowance for damages except his own” (Weiler v. Superior Court, 188 Cal.

We have carefully examined the other points made by appellant and find them without merit.

The judgment is affirmed.

Works, P. J., and Thompson (Ira F.), J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on January 2, 1930, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 30, 1930.

All the Justices present concurred.