Gordon v. City of Los Angeles

WOOD (Parker), J.

Petitioners appeal from a judgment of dismissal which was based upon an order sustaining defendants’ demurrer to the amended petition without leave to amend,

Petitioners sought a writ of mandate to compel the city council to refund a special assessment, “or remove” the lien therefor, placed against their lot for the improvement of a major highway. The amended petition was based upon the provisions of amendments made in 1935 to the Improvement Act of 1911 (Stats. 1911, p. 730; Deering’s Gen. Laws, 1937, Act 8199) and to the Opening and Widening Act of 1903 (Stats. 1903, p. 376; Deering’s Gen. Laws, 1937, Act 8198). The provisions thereof pertinent to this case are now embodied in section 5551 of the Streets and Highways Code.

The amended petition for a writ of mandamus alleged in substance: that petitioners owned a certain lot in the city of Los Angeles, on which the principal and interest on the assessment bonds amounted to $9,755.50; that the defendant

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city of Los Angeles was a municipal corporation, and the individual defendants were members of the city council, the mayor, city clerk and the city treasurer; that on November 23, 1936, the Bureau of Assessments of the city of Los Angeles wrote to petitioner John Gordon, stating the “California State Legislature, at the 1935 Session, amended the Improvement Act of 1911 (Paving, etc.) and the Opening and Widening Act of 1903, to permit the re-assessing and the refunding of assessments levied upon

Major Traffic Arteries

under these two acts,” that the electorate of California had validated the legislation in the November 1936 election, the city council had passed a resolution expressing the desire to apply any “funds available for the purpose in the fairest and most equitable manner possible,” and under the council’s instructions the bureau of assessments was at that time preparing a detailed survey of all projects in the city which would be eligible under the law for the special assessment relief, that it would be unnecessary for petitioner to employ counsel— that he would be “thoroughly and impartially represented by the City” and that petitioner should “not become too optimistic, as no one can forecast the final result”; that on September 1, 1942, petitioners wrote and presented a letter to the city council requesting relief from the assessment, together with penalties, and accrued interest and taxes, which then totaled $9,755.50; that on September 2, 1942, the city clerk replied by letter and stated that the council had referred the matter to the finance committee; that on October 15, 1942, the city clerk wrote another letter to petitioners advising them that their (the petitioners’) communication was being “received and filed, the City having no funds available for this purpose”; that on February 15, 1943, the city engineer wrote to petitioner John Gordon to the effect that Laurel Canyon Boulevard had been classified as a major street, “under which classification % cent Major Street Gasoline Tax Funds” were available both for acquisition and improvement. The petitioners further alleged that section 5551 of the Streets and Highways Code is mandatory; that the city treasury “according to the last figures of the City Treasurer” had available for use in paying “any claims or moneys herein, the sum of $49,630,527.49, unallocated revenue to reserve funds under budgetary and charter appropriations according to the budget estimate is $1,335,759.43, and under bond redemption and interest funds up to June 30,