Eaton v. Hanlon

Seawell, J.

This appeal is from a judgment in favor of plaintiff in an action brought to foreclose a street improvement lien upon the property of defendant Hanlon, situate on Mariposa. Street between Potrero Avenue and Utah Street, city and county of San Francisco. It presents . substantially the same questions that were decided in

Fay Improvement Co.

v.

Hanlon, ante,

p. 709 [227 Pac. 482]. The assessment was made under the same procedure referred to in that case with the exception that the amended charter of 1917 was in effect at the time the proceedings in this ease were commenced, instead of the charter of 1913, as in the other ease. The interest of the Hibernia Savings and Loan Society, a corporation, is that of a mortgagee.

The amount of the street improvement assessment against said property amounted to the sum of $1,334.075, which was an amount greater than fifty per centum of the value at which said property was assessed for municipal purposes, exclusive of improvements thereon, upon the assessment-book of the city and county current at the time of the inception of the improvement proceedings.

That the charter conferred upon the board of supervisors authority to adopt section 29 of the Street Improvement Act is made plain by a perusal of its provisions. Section 33, article VI, chapter 2, of the charter, to the effect that the above limitation shall not apply to any assessments made payable in installments, is about as clear as language can make it. The argument that it is mandatory under the charter of 1917 to require the owner of the property to pay in installments, whether he so desires or not, is not in harmony with the provisions of the charter or the general rules of law. Both the charter and city’s improvement ordinance provided that if the assessment exceeds one-half of the assessed value of the property provision

must

be made by the board of supervisors that the owner of the property be permitted to pay in installments if he so desires. The right to impose an assessment greater in amount than fifty per cent of the actual value of the property is dependent upon whether the board of supervisors

[717]