Tibbits Pacific Co. v. Firth

NOURSE, J.

Plaintiff sued to foreclose a lien for street improvements under proceedings in accordance with the Vrooman Act (Stats. 1885, p. 147). The assessment which was the basis of the action was made by the board of public works of the city of Los Angeles on September 4, 1915. The trial court, acting under the provisions of section 12¼ of the act (added in 1913, Stats. 1913, p. 409), held that the assessment was unenforceable because an extension of the time for completion of the improvements was made two days after the time given by a previous extension had elapsed. The court found that the work was actually done in good faith under a valid contract; that the proceedings were within the power of the city, and that the only informality in the proceedings was that regarding the extension of time for completion. It thereupon ordered that a reassessment be made in accordance with section 12¼. This was done and notice was duly given. No objections were made to the reassessment and it was accordingly approved, confirmed,' and recorded on July 23, 1917. The defendant refused to pay the reassessment and this suit was then commenced to collect the sum found due thereon. From the judgment in favor of plaintiff, defendant prosecutes this appeal.

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The only point involved is the construction of section 12¼. Appellant concedes that the legislature had constitutional power to enact it. Its provisions were strictly followed in the present litigation. Briefly, the section provides that “Whenever any assessment made and issued under

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the provisions of this act . . . (has) been set aside by any court of competent jurisdiction . . . then the superintendent of streets shall cause a new assessment to be made for the same purpose. ... It is hereby made the duty of any court of competent jurisdiction in rendering its judgment holding invalid any assessment ... to make a finding as to whether or not the issuing of such assessment was entirely without the power of the said city to issue, and if not, then what omission, irregularity, illegality, informality or noncompliance with the requirements of the statute . . . has occurred. ... In the event that the court shall find that the work . . . was done in good faith under the contract ... it shall be the duty of the said court to order the making of a new assessment.” The section then provides that the city council may without such order set aside an assessment which is irregular and order a new assessment to be made. Such assessment, whether made after decree of court or pursuant to a resolution of the council, shall be based upon the special benefit of the improvement to the respective lots assessed and shall become a charge upon the property notwithstanding the previous irregularity, informality, or defect. The purpose and intent of the section is declared to be to make the cost and expense of all local improvements payable by the real estate benefited by the improvements actually made though the proceedings may not have been in full technical accord with the statutory requirements. Upon the filing of the new assessment the city 'clerk is required to advertise the fact, stating the time set for hearing objections. After hearing had, the council may revise, correct, and modify the assessment and shall thereupon pass a resolution approving and confirming the same. “Such decision shall be a final determination of all matters relating to the actual benefits derived from the improvement by the respective lots. ’ ’