O'Neil v. Brode

JAMES, J.

Plaintiff had judgment quieting his title to a certain parcel of land located in the city of Los Angeles, from which judgment defendant has appealed. Defendant’s claim of title to the land in question was based upon a deed issued by the board of public works of the city of Los Angeles, which deed had for its foundation a sale for delinquent assessment made under the authority of an act of the legislature approved April, 1909. (Stats. 1909, p. 1066.) This act authorized the acquiring of property by municipalities for purposes of public parks or public playgrounds. The trial court held with the plaintiff that there were such irregularities in the procedure adopted by the assessment officers and in the notice to redeem as given by the defendant, as to invalidate the deed. It is admitted by the plaintiff that all the proceedings taken up to the time when assessments became delinquent were regular.

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1. The first asserted defect consists in the failure of the board of public works to make a certificate upon the assessment-roll of the fact that the assessments had become delinquent. A certificate was in fact made, but was signed “Board of Public Works, by R. I. Follmer, Assistant Clerk.” Of course, it must be conceded that there was no authority in a clerk to execute the certificate on behalf of the board, so that the real question presented is as to whether the failure of the- board to make such a certificate was vital to the proceedings which followed. Section 18 of the act referred to, as relating to the making of assessments, after declaring that notice shall -be given by publication of the fact that the assess

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ment has been recorded in the office of the street superintendent (the board of public works acting in the stead of such an official under the charter of the city of Los Angeles), and that the sums assessed are due and payable within thirty days from the date of the first publication of the notice, provides that “on the expiration of said period of thirty days, all assessments then unpaid shall become delinquent, and the street superintendent shall certify such fact at the foot of said assessment-roll, and mark each such assessment ‘Delinquent,’ and add five per cent to the amount of each delinquent assessment.” The section immediately following provides that within ten days “from the date of such delinquency” the street superintendent shall begin the publication of a list of delinquent assessments, which shall contain a description of each parcel of the property delinquent, the name of the owner as stated in the assessment-roll, and the amount of the assessment, penalty, and costs due, including the cost of advertising, and shall append a notice that unless each delinquent assessment is paid, the property upon which such assessment is a ’lien will be sold at public auction at a time stated in the notice. It will be noted that the act declares that the unpaid assessments, upon the expiration of thirty days from the date of publication of the notice first referred to, shall become delinquent, and that the street superintendent shall, within ten days from the date of delinquency, begin the publication of a list of the delinquent assessments. The assessments under the express terms of the act are delinquent before the certificate is required to be made at the foot of the assessment-roll. The subsequent notice to be published by which the owners are to be informed that unless the delinquent assessments, together with penalties and costs, are paid, their property will be sold, is not required to contain the certificate so attached to the roll, and it does not appear that the making of such certificate is at all a prerequisite jurisdictional matter which must occur before the last notice to the property owner is published. It is not contended that there was a failure of the board to mark the overdue assessments “delinquent” as required by the act; hence, upon the roll itself there would be indicated which of the assessments had not been paid and were subject to the delinquency penalty. We think it was the fact of delinquency, rather than the attaching of a certificate as to that fact, which established the jurisdiction of the board