Chase v. Scheerer

COOPER, C.

This action was brought to quiet plaintiff’s title to the premises described in the complaint, being in the city of Los Angeles, and to have the claim of defendant Scheerer declared to be unjust, and the certificate of sale issued to him declared void. The complaint sets forth fully and in detail the proceedings in regard to an assessment, claimed to have been levied upon plaintiff’s said lot for the improvement of Lopez Street, the various steps leading up to said assessment, the issuance of a bond, and a sale by defendant Hartwell as city treasurer to defendant Scheerer on the fifth day of August, 1898, and the issuance of a certificate of sale to said Scheerer. The defendants demurred to the complaint upon the ground that it does not state facts suf

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ficient to constitute a cause of action. Their demurrer was overruled, and they declined to answer. Judgment was accordingly entered for plaintiff as prayed. This appeal is from the judgment, and the sole question is as to whether or not the complaint states a cause of action. Does it appear from the complaint that the contract and proceedings for grading Lopez Street were defective in so material a matter as to render the assessment upon plaintiff’s lot void? It is provided in the “Vrooman Act” (Stats. 1885, p. 147 et seq.) that “whenever the public interest or convenience may require, the city council is hereby authorized and empowered to order the whole or any portion of the street . . . graded or regraded to the official grade, . . . and to order sidewalks, sewers, manholes, culverts, curbing, and cross-walks to be constructed therein, and to order any other work to be done which shall be necessary to make and complete the whole or any portion of said streets. ...”

The authority to let contracts for grading and improving the public streets is, by the express provisions of the said act, vested in the city council. The legislature has vested the power to make contracts for grading and otherwise improving the public streets in a body chosen by the voters of the municipality. Such power is in the nature of a public trust, for the public benefit, and cannot be vicariously exercised. The city council is the governing body of the corporation, and by it the discretion of the municipality is properly exercised. It cannot shift the responsibility so given to it by delegating its powers to others. The above propositions are elementary. (1 Beach on Public Corporations, sec. 276; Tiedeman on Municipal Corporations, sec. 113; 1 Dillon on Municipal Corporations, 4th ed., see. 96.) It is said by the latter author: “Thus where, by charter or statute, local improvements, to be assessed upon the adjacent property-owners, are to be constructed in‘such manner as the common council shall prescribe’ by ordinance, it is not competent for the council to pass an ordinance delegating or leaving to any officer or committee of the corporation the power to determine the mode, manner, or plan of the improvement. Such an ordinance is void, since powers of this kind must, as above shown, be exercised in strict conformity with the charter or incorporating act.”