Santa Clara Valley Land Co. v. Meehan

TYLER, P. J.

Action to restrain and enjoin defendant as an officer of the city of San Bruno from selling certain property of the plaintiff, under an assessment levied for the purpose of acquiring a municipal water system.

A demurrer to the complaint was sustained without leave to amend, and it was adjudged that plaintiff take nothing by its complaint and that defendant recover his costs. This is an appeal from the judgment.

The complaint recites that the city of San Bruno is a municipal corporation of the sixth class, organized and existing under the Municipal Government Act (Stats. 1883, p. 93, as amended), and that defendant Meehan is its city marshal and

ex-officio

tax collector; that plaintiff is the owner of a number of parcels of land situate therein and is a taxpayer of said city; that prior to the twenty-sixth day of May, 1920, the San Bruno water system, a privately owned corporation, supplied the municipality and its inhabitants with water; that on the last-mentioned day the board of trustees of the city passed its resolution of intention to acquire the water system, and thereafter the city engineer made and presented to the trustees his report pursuant to the resolution, which report contained all the necessary data upon the subject; that proceedings were thereupon had under which an assessment district was established in conformity with the report, the area including every lot of land situated in the city, as shown upon the records, and such lots were assessed for the acquisition of the water supply; that subsequently defendant caused to be published a notice of sale of the property within the district upon which the assessment had become delinquent, and thereafter he sold the same for the amount due under the assessment. It is then charged that defendant will, unless enjoined, execute and deliver to the purchasers deeds

[533]

to the property so sold in conformity with his certificates of sale.

There is no dispute concerning the • regularity of the proceedings leading up to the purchase, but in seeking relief from the effect of the assessment .appellant assails the validity of the improvement, contending that as his property already enjoys the advantage of the existing privately owned water distributing system no benefit whatever is derived by it under the sale of such system to the municipality, and that its acquisition, therefore, does not constitute an improvement justifying an assessment. It is further contended that in so far as the Public Utilities Act of 1913 (Stats. 1913, p. 421) purports to authorize the purchase of existing waterworks and to assess the costs thereof against real property to the exclusion of personal property, it is unconstitutional and void.