Title Insurance and Trust Co. v. Lusk

Street Improvement Begun Under Act of 1903—Continuance Under Act of 1909—Bight of Abandonment—Entry of Interlocutory Judgment.—Although a street improvement was begun in 1907 under the act of 1903, which authorized, the city council to abandon the proceeding at any time before payment of the compensation awarded to the defendants, yet where it was pending at the time of the act of 1909, which required its continuance thereunder, an abandonment thereafter by the city council was expressly limited by that act to the time of the entry of the interlocutory judgment in favor of the several defendants for the sums determined as damages for the taking of the lands.

Ib.—Constitutional Change of Pending Proceeding—Limitation of Abandonment—Change of Remedy.—The provision of section 11 of the act of 1909 that proceedings for a street improvement pending at the time of the passage of that act shall be continued under the provisions of that act is not violative of the constitutional inhibition against vested rights because of the limitation of the right of abandonment under that act, as it only affects the remedy of abandonment as distinguished from the right.

Id.—Power of Legislature to Change Remedies.—Remedies must always be under the control of the legislature; and where a reasonable remedy is provided, it is immaterial that it alters one previously existing.

Id.—Remedy not Unreasonably Impaired—City not in Position to Object.—The city is not in a position to object that the remedy of abandonment was unreasonably impaired, since the record shows that nearly nine months elapsed between the passage of the act of 1909 and the entry of the interlocutory judgment, during which time it had notice of the limitation upon the remedy of abandonment and dismissal imposed by section 14 of that act; and the remedy cannot be said to be unreasonably impaired.

Id.—Refusal of City Council to Proceed With Objections to Assessment—Claim of Further Right to Abandon—Mandamus.— Where the city council, after the interlocutory judgment, refused to proceed with the hearing of objections to the assessment of damages, under an unwarranted claim of a further right to abandon the proceedings, mandamus will lie to compel the city council to perform the official duty, as required in section 19 of the street law of 1909, to pass upon and determine the questions involved in the protests against the assessment, and either to confirm and modify the assessment or to order a new assessment.

Id.—Proper Remedy by Writ of Mandate—Absence of Adequate Remedy.—Under section 1085 of the Code of Civil Procedure a writ of mandate may be issued to compel the performance of an act which the law specially enjoins as a duty resulting from an office, where there is, as in this case, no other plain, speedy and adequate remedy open to the petitioners for the writ.