Cohen v. City of Alameda

WILBUR, J.

This action was brought to enjoin the sale of the plaintiffs’ respective pieces of property for the nonpayment of assessments for the widening and extension of Encinal Avenue, in Alameda. The application for an injunction

pendente lite

having been denied, the plaintiffs paid the assessments under protest, and thereupon filed a supplemental complaint for the recovery of the amounts paid. Judgment was rendered for the defendants on demurrer and plaintiffs appeal. The assessments were made by authority of the Street Opening Act of March 6, 1889, as amended in 1909 and 1913. (Stats. 1889, p. 70; Stats. 1909, p. 1034; Stats. 1913, p. 376.)

[1]

Appellants claim that the proceedings are void for the reason that three city officers appointed by the city council as commissioners for the assessment of the damages an"d benefits, to wit, the city clerk, the city auditor, and the city attorney, were disqualified because they were to be paid, as provided by the statute (Stats. 1889, pp. 71, 72, secs. 6, 8), from the assessments levied by them. There is no merit in

[521]

this contention. If appellants’ position is sound, it would invalidate every assessment for the purpose of state and county taxes and render impossible the performance of such services except by volunteer officers. It is contended that this disqualification also results from the vesting in these commissioners of an uncontrolled discretion, if the law be so construed, to exclude or include public property in the assessment of benefits. But there was no public land within the assessment district, as will be shown in the discussion of the next point. Appellants claim that the assessment is void for the reason that fourteen pieces of property belonging to the city of Alameda within the exterior boundaries of the assessment" district were not assessed for benefits. There are two answers to this proposition:

[2]

First. In a district assessment the mere failure to assess a lot of land within the assessment district does not make the assessment void. The remedy for such an erroneous assessment is by objection to the city council. (Stats. 1889, p. 73, sec. 14;