Gadd v. McGuire

This is an original proceeding in this court for a writ of mandamus to compel respondents, as members of the board of public works of the city of Los Angeles, to execute a contract which the city council has awarded to petitioner under the act commonly known as the “City Boundary Line Act.” The points to be considered involve only the constitutionality of that act.

The City Boundary Line Act was adopted in 1911 (Stats. 1911, p. 1018). In 1923 the legislature amended both the act and its title. As thus amended, the title now reads: “An act to provide for the establishment and change of grade of public streets, avenues, lanes, alleys, courts, places and rights of way forming the exterior boundaries of any municipality, whether partly or wholly within or without said boundaries, or extending into the territory of two or more municipalities, or extending into the territory of one or more municipalities and unincorporated territory, and providing for work upon and the improvement thereof, and providing for the construction of sanitary and storm sewers, drains and drainage systems, together with any and all appurtenances and appurtenant work in connection with any of such work or improvements; to assess the whole or any

It will be sufficient for our purposes to state the general features of the statute without going into detail. The act declares that its provisions shall apply to and authorize the improvement of any street which extends along the boundary line between two municipalities, or which extends along the boundary line of any municipality and unincorporated territory in the county, or which extends from or through one or more municipalities into or through unincorporated territory. Whenever the public interest and convenience may require, and whenever the city council or other legislative body of each of the municipalities and the board of supervisors of the county, having jurisdiction over any portion of the territory proposed to be included in an assessment district to be formed under the act, shall consent to the formation of such assessment district and to the commencement of a proceeding for the construction of the improvement, the city council of such consenting municipalities and the hoard of supervisors of such consenting county are authorized and empowered to do any of the work provided for by the act. This work includes the construction of sanitary sewers, storm sewers, drains, and drainage systems for sanitary or drainage purposes in or along the streets which form or cross the exterior boundary or boundaries of such municipalities, or which extend into or through the territory of two or more of the municipalities, or which extend into or through one or more of the municipalities and unincorporated territory in the county. It is declared that the city council in each municipality and the board of supervisors of the county in which such municipalities are situated shall have concurrent jurisdiction of all proceedings under the act, provided that the city council or the board of supervisors which is first to pass a resolution of intention to do the work shall thereafter have exclusive jurisdiction of the work and of all proceedings covered by the resolution of intention.

Speaking generally, it may be affirmed that, from the passage of the resolution of intention to the time when the

Section 37 (added by the act of 1923—Stats. 1923, p. 637) provides for the issuance of improvement bonds to represent the assessments. It is declared in this section that if the resolution of intention authorizes the issuance of such bonds, whether in incorporated or unincorporated territory, they “shall be issued under the provisions of an act of the legislature of the State of California entitled ‘An act to provide a system of street improvement bonds to represent certain assessments for the cost of street work and improvements within municipalities, and also for the payment of such bonds,’" approved February 27, 1893, and all acts amendatory thereof or supplementary thereto; and said act and amendments thereto are hereby incorporated in and adopted as a part of this act.”

The city of Los Angeles is organized under a freeholders’ charter. The city council of that city, with the express consent of the board of supervisors of the county, evidenced by a resolution adopted by the latter body, passed a resolution of intention whereby it inaugurated proceedings under the City Boundary Line Act for the construction of a storm sewer system, known as the “Main Street Storm Sewer

It is conceded that the purpose of the contemplated storm sewer system is to remedy a condition which has resulted in a serious inconvenience to the residents of, and in the substantial destruction of property in, the entire improvement district described in the resolution of intention. All proceedings up to and including the award of the contract seem to have been regularly had and taken pursuant to the requirements of the statute; but respondents, deeming the act unconstitutional, have refused to execute the contract, notwithstanding its award to petitioner by the city council. We shall consider the objections to the act in the order in which they are presented in respondents’ brief.

[1] 1. It is contended that in so far as it affects the city of Los Angeles the act violates section 6 of article XI of the state constitution, which makes city charters paramount to general laws with respect to “municipal affairs.” It is claimed that the construction of so much of the proposed sewer system as lies within the city’s corporate limits is a “municipal affair” which has been definitely committed to the city by its charter.

It is true that the charter of the city of Los Angeles contains an express grant of power to make street improvements and to provide that the costs and expenses thereof shall be a lien upon the abutting property or on property in districts benefited thereby. But it also is expressly declared in that instrument that these powers shall be “supplemental, additional and alternative powers to those conferred upon municipalities by the general laws of the state

It would be as rash as it certainly would be unwise to attempt any general, comprehensive definition of the term “municipal affairs,” as used in our constitution. Such a definition, if it shall ever become practicable, must be a matter for the future—the result of a gradual and progressive process of judicial exclusion and inclusion. This much, however, we think may be safely predicated: An improvement may not be said to be a “municipal affair,” within the meaning of the constitution, if it is not of special concern to the inhabitants of, or to the owners of property in, the particular city or town, or to the inhabitants of, or owners of property in, some portion of such city or town, simply as such inhabitants or property owners. If it is of general concern to the inhabitants and property owners of a city or town, or of a portion of a city or town, in common with inhabitants or property owners of the state at large, or of a portion of the state outside of such city or town, it is not a purely “municipal affair,” as those words are used by our organic law.

[3] By the act in question, and under its sanctions, a county and one or more cities or towns may unite for the common benefit of all the interested inhabitants or property owners within the improvement district for the purpose of effecting an improvement which does not lie wholly within any one city or town and which does not concern alone or especially the inhabitants or property owners of any one city or town. In this way there may be accomplished what it would be impossible for any one of the municipal agencies jointly engaged in the common enterprise alone to achieve. For the purpose of paying the expense of such an improvement an assessment district may be formed which, like the improvement itself, lies partly within and partly without each of the constituent municipal units jointly engaged in the common undertaking. For these reasons the improvement, while in a certain sense partaking of the characteristics of a municipal affair, in that municipalities are interested therein, is essentially much more than a municipal affair.

What we have just said respecting the community of interest which the inhabitants and property owners of the city possess in common with the inhabitants and property owners of contiguous unincorporated territory in the construction or improvement of a through highway as a single enterprise ..applies with even greater force to the community of interest possessed by such inhabitants and property owners in the

These considerations can lead to but one conclusion: The improvement of the streets of a city or town, and matters of sanitation or of storm-water protection therein, are municipal affairs when the special benefits derived therefrom are limited to the inhabitants or property owners of such city or town. But in many instances street improvements, including sanitary and storm-water sewers, may and do become affairs of a broader scope which cannot be handled adequately by the municipal authorities of a single city or town for the reason that they directly and peculiarly affect the inhabitants and property owners of two or more cities or towns, or of one or more cities or towns and outside unincorporated territory, and they do so in such a way that the purposes sought to be accomplished by the improvement can be effected only by a single, comprehensive scheme of construction, all the parts of which are so related to one another that the omission of any one part would necessarily impair or destroy the usefulness of the remainder. In such eases

In Pixley v. Saunders, supra, the court, holding that the inclusion of a subsequently incorporated town within a sanitary district created under the Sanitary District Act of March 31, 1891, did not relieve the land within the town from taxes levied by the district, said: “ . . . while generally the question of sanitation is a municipal affair, in many instances it is one of broader scope, which cannot be adequately handled by the municipalities of a single town.” In Pasadena Park Improvement Co. v. Lelande, supra, the court expressed itself as follows: “ . . . cases may arise where the matter is not simply and without complication a municipal affair, but where, partaking of the characteristics of a municipal affair, in that the municipality is interested therein, it may essentially be much more than merely a municipal affair. . . . Thus it is quite apparent that a municipality, and a municipality alone, may be injuriously affected by the unrestrained floods of some innavigable stream. Upon the other hand, the injurious effects may reach far beyond the boundaries of the municipality and even of the county, and in the latter class of cases it is more than a municipal affair. It is an affair in which the state

In at least two of the cases last cited the work and the proceeding for its accomplishment were undertaken by a corporate or political entity separate and distinct from either the city or the county. Thus in Pixley v. Saunders, supra, the work was done and the tax levied by a sanitary district created under the Sanitary District Act of March 31, 1891. But under the act here in question, as in the statutes under review in Pasadena Park Improvement Co. v. Lelande, supra, and Anaheim Sugar Co. v. County of Orange, 181 Cal. 212 [ 183 Pac. 809 ], neither the district to be assessed nor the territory to be improved has any separate or distinct corporate existence de jure or de faeto. Under this act the city or the county which inaugurates the proceeding by passing the necessary resolution of intention becomes the state’s mandatary to let the contract, to supervise the performance of the work and to conduct all the proceedings. Nor can we see any reason why the legislature may not give such a mandate to the city or the county which is the first to pass the resolution of intention, although it is claimed by respondents that the city or county which exercises the mandate becomes a “special commission,” within the meaning of section 13 of article XI of the constitution, and that, therefore, the act violates that section of the state’s organic law. But as this presents the question which is argued by respondents as their third point, we shall defer its consideration until we reach it in its order.

[5] 2. As their second objection to this statute, respondents claim that it violates section 12 of article XI of the consti

[6] 3. Respondents’ third objection is that the act vio-, lates section 13 of article XI of the constitution. That section reads, in part, as follows: “The legislature shall not delegate to any special commission, private corporation, company, association or individual any power to make, control, appropriate, supervise or in any way interfere with any county, city, town or municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes or assessments or perform any municipal function whatever.” It has recently been decided that a municipal corporation, whether a city or a county, is not embraced within any of the classes enumerated in this section of the constitution. That is, it has been decided that a municipal corporation is not a “special commission,” “private corporation,” “company,” “association” or “individual,” within the meaning of those words as used in this consti

But, say respondents, when a city, town, or county, having inaugurated the proceeding by passing the necessary resolution of intention, exercises the exclusive jurisdiction which is conferred upon it by the city boundary line act and accepts a mandate to perform work in another municipal corporation and to levy special • assessments upon property situated in such other municipal corporation, the city, county, or town so accepting such mandate becomes a “special commission” within the meaning of section 13 of article XI, and as such special commission it makes a municipal improvement in, and levies taxes and performs municipal functions for, such other municipal corporation. Respondents’ position would be unanswerable if it were true that the city, town, or county upon which the act confers the mandate to do “the things of which it is given exclusive jurisdiction were engaged in the supervision of a municipal improvement or in the performance of a strictly municipal function. The conditions which the City Boundary Line Act is designed to remedy extend beyond the boundaries of any one municipality. Where the evil to be remedied reaches beyond the boundaries and jurisdiction of any one municipality—whether such extra-municipal ill be due to an unimproved roadway extending into one or more other municipalities, or to unsanitary conditions due to the lack of a suitable regional sanitary sewer system, or to a widespread overflow of rain waters—a proceeding to correct the evil by a single comprehensive scheme of improvement on lands in an improvement district which embraces a portion of all of the municipalities affected by the evil conditions is, as we have shown, more than a mere municipal affair. In such cases the evil to be remedied is one in which the state is interested. In Pasadena Park Improvement Co. v. Lelande, supra, the court, speaking of an analogous situation, said: “It is an evil in which the state becomes interested, and it does no violence to the reserved rights of municipalities to say that in such cases the state directly or through its mandataries may take steps to correct the evil.” In that case the county acted as a mandatary to do protection work on, and to levy assess

[7] 4. It next is claimed that the act violates the principle that there shall be no taxation without representation. Because the municipal corporation which inaugurates the proceeding is given the exclusive jurisdiction thereof, it is said that the owners of the assessed lands which are located in the other municipalities affected by the proceeding are taxed by a body which is not elected by them and in which they have no representation. Without doubt it is a fundamental principle in republican government that the people who are to pay the taxes for the support of the government must vote thereon, either directly or by their legal representatives, state taxes being levied under laws passed by the state legislature and local taxes under the votes of the people concerned or their duly authorized officers or agents. (1 Cooley on Taxation, 4th ed., sec. 416.) It also may be conceded that when the courts are called upon to declare a statute unconstitutional it is not essential that there should be found in the organic law some specific inhibition which has been disregarded, or some express command which has been disobeyed. (People v. Lynch, 51 Cal. 26 [ 21 Am. Rep. 677 ]; Britton v. Board of Commrs., 129 Cal. 337 [ 51 L. R. A. 115 , 61 Pac. 1115 ].) But we fail to perceive how this statute contravenes the principle that taxation and representation shall go together.

In the first place, while special assessments for local improvements are made in the exercise of the sovereign power of taxation, they are not levied or collected in the exercise of the general taxing power of the municipalities for the purpose of defraying the expense of the maintenance and administration of their governments. They are levied against the real property which is supposed to be specially benefited by the improvement, for the sole purpose of paying the cost and expense of the work, and they must be applied for that purpose and none other. Such an assessment does not create a personal obligation. It is but a charge against the property specially assessed. The lands assessed to pay the cost of an improvement may belong to very few of the voters of the municipality or district. Indeed, it is possible that all of the assessed lands in an improvement district may be

But, beyond all this, the fact remains that every property owner whose property is assessed under the provisions of this act is duly represented through one of the local legislative bodies consenting to the improvement. In this connection it is well to remember that in order tó satisfy the principle that the persons who pay the taxes are entitled to have a voice in the election of those who impose them, it is not necessary that the taxpayer should be an elector of the taxing district. As practically administered, the maxim that taxation and representation go together does not mean that no person—man, woman, or child, resident or nonresident— «hall be taxed unless he is represented by someone for whom he had actually voted. The maxim is only true when understood in a territorial sense. (1 Cooley on Taxation, 4th ed., sec. 21.)

When the principle is applied to special assessments for local improvements, it is satisfied if every purely legislative power essential to the imposition of the assessment is exercised by the proper legislative body. This is so far the reason that the principle is applicable only to the exercise of such powers as are essentially legislative. It has ho application to any power which properly may be performed by or be delegated to executive or ministerial officers. If, therefore, the act in question enables the legislative body of each of the municipalities engaged in the common enterprise to exercise all of the legislative power which is involved in the imposition of a valid local assessment, then it may confidently ■be affirmed that the statute fully vindicates the principle that in free governments the representatives of the people must impose the taxes which the people are to pay.

Every system of taxation consists of two parts: (1) the elements which enter into the imposition of the tax, and (2)

If, now, we apply these principles to assessments levied under the statute here in question, it will be seen that the act provides for the exercise of every purely legislative function by the proper legislative body. It will be recalled that, by the express terms of the act, no work can be done or assessments levied until the legislative body of each of the municipalities having jurisdiction over any territory proposed to be assessed shall have given its consent: (1) to the formation of the assessment district, and (2) to the commencement of a proceeding for the construction of the improvement definitely described in the resolution of intention. In this way the legislative body of each municipality having jurisdiction over any part of the territory to be assessed passes upon every purely legislative question which is involved in the imposition of assessments upon lands within its jurisdiction.

The passing of judgment upon those factors which enter into and necessarily determine the total amount to be as

Given the cost of the improvement, and the amount of each assessment, if the work is to be paid for by the front-foot method, is a mere matter of detail, involving only arithmetical calculations which may be delegated to any administrative agency. If a special assessment district is to be created, the elements which enter into and affect the amount of each assessment are: (1) the total cost of the improvement, and (2.) the extent and description of the assessment district. Given these two factors, and the rest is a mere matter of estimating the proportional benefit received by each lot and making the necessary arithmetical calculations—matters which may be delegated to any appropriate administrative agency.

From these considerations it follows that where the front-foot mode of assessment is adopted the only essential matters necessary to be passed upon by the local legislative body which represents the taxpayers of any part of the district are: (1) the nature of the proposed improvement, and (2) that it shall be made. And where the cost is to be spread over a specially benefited assessment district the only elements essential to the complete exercise of all of the legislative power involved in the imposition of the assessments

5. Finally, it is urged that the part of the act which authorizes the issuance of local improvement bonds is unconstitutional and that, therefore, the proceeding here under investigation, in so far at least as it authorizes the issuance of such bonds, is void. It will be recalled that the section which relates to bonds (sec. 37) adopts the provisions of the Street Improvement Bond Act of 1893. This it does by declaring that “said bonds shall be issued under the provisions of an act of the legislature of the State of California, entitled ‘An act to provide a system of street improvement bonds to represent certain assessments for the cost of street work and improvements within municipalities, and also for the payment of such bonds/ approved February 27, 1893,” and that “said act and the amendments thereto are hereby incorporated in and adopted as a part of this act.” (Stats. 1923, p. 637.) (Italics ours.)

To support their contention that the bond features of the City Boundary Line Act are unconstitutional, respondents argue substantially as follows: The title of the Street Improvement Bond Act of 1893 limits its operation to the issuance of bonds to represent the cost of street work “within municipalities”; the word “municipalities” includes cities and towns, but not counties; therefore that act can have no operation in territory extending into the unincorporated limits of the county; hence, say respondents, any attempt to apply the provisions of the act of 1893 to lands which are beyond the scope of its title would violate section 24 of

We are by no means convinced that the title of the Street Improvement Bond Act of 1893 limits its operation to cities and towns. The word “municipality” is often used as a synonym of the term “municipal corporation.” (28 Cyc., p. 118.) [8] Whenever it appears that the legislature so intended, the terms “municipality” and “municipal corporation” will be construed to include a county or other quasi- municipal corporation. (28 Cyc., p. 118; Merchants Bank v. Escondido Irr. Dist., 144 Cal. 329 [ 77 Pac. 937 ]; Union Stone Co. v. Board of Freeholders, 71 N. J. Eq. 657 [ 65 Atl. 466 ].) That the legislature, since 1913 at least, intended that the word “municipalities,” as used in the title to the Street Improvement Bond Act of 1893, should be employed in its larger sense, so as to include counties as well as cities and towns, is made manifest by the fact that in a new section, added to the act in 1913 (Stats. 1913, p. 351), it is expressly declared that the work provided for by the Street Improvement Bond Act may be performed in “unincorporated territory of counties,” and that wherever the words “municipality,” “municipalities,” or “city” appear in the act, “they shall be and are hereby defined as including cities, cities and counties and counties, and are hereby expressly declared to be interchangeable with any or either of those terms.”

But regardless of whether the Street Improvement Bond Act of 1893 was or was not limited by its title to the issuance of bonds to represent assessments for work done in the incorporated territory of cities and towns, the machinery which that act provides for the issuance of bonds was adopted by the City Boundary Line Act for all of the purposes of the latter act—including the issuance of bonds to represent assessments on lands in the unincorporated territory of a county.

[9] The title to the City Boundary Line Act, as amended in 1923, declares that the act is to provide, among other things, “for a system of local improvement bonds to represent the assessments for such costs and expenses and for the payment and effect of such bonds.” These words in the title

[12] But, say respondents, if it be held that the City Boundary Line Act, by its reference to the Street Improvement Bond Act of 1893, incorporates into itself the machinery of the latter act for the issuance of bonds, then the effect is that the act of 1893 is “amended” by reference to its title, in violation of that provision in section 24 of article IV of the constitution which declares that “no law shall be revised or amended by reference to its title; but in such case the act revised or section amended shall be re-enacted and published at length as revised or amended.” The vice of this argument lies in its assumption that by adopting the provisions of the Street Improvement Bond Act the City Boundary Line Act amended the former. The earlier act was neither revised nor amended by the later act. Every one of the provisions of the bond act of 1893, in force when the City Boundary Line Act became a law, remained in full force for the accomplishment of every purpose for which it was originally designed. The later act, by virtue of its own terms, merely extends the provisions of the earlier act to the issuance of bonds to represent assessments levied under the later act. By so doing, the later act simply incorporates into itself those provisions of the earlier act which are suitable to its purposes. (State v. Board of Commrs., supra.) There is in this state no constitutional objection to such mode of legislation. (I n re Burke, 190 Cal. 326 [ 212 Pac. 193 ].)

Let the peremptory writ of mandate issue.

Works, J., and Craig, J., concurred.

A petition by respondents to have the cause heard in the " supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 22, 1924.

All the Justices concurred.