Banaz v. Smith

TEMPLE, J.

Action to foreclose lien for construction of a sewer in the city of Los Angeles, under the so-called Yrooman Act, passed March 18,1885, as amended in 1889,1891, and 1893.

The second amended complaint was demurred to for insufficient facts. It was overruled, and the appellant answered. Judgment was for plaintiff, and this appeal is from the judgment and from an order denying a new trial.

1. Most, if not all, points urged here arise upon the demurrer. The first is, that the authority given the contractor to collect is in violation of section 13 of article XI of the constitution. That section reads as follows: “The legislature shall not delegate to any special commission, private corporation, company, association, or individual any power to make, control, appropriate, supervise, or in any way interfere with any county, city, town, or municipal improvement, money, property, or effects, whether held in trust or otherwise, or to levy taxes or assessments, or perform any municipal functions whatever.”

Upon a mere reading, it is perfectly obvipus that there is here no delegation of a municipal function. The contractor acts only as the agent or servant of the city. He has no dis

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cretion, and can create no liability, nor can he impose any duty or exercise any control or authority over any one. He makes no assessment, levies no tax, and performs no municipal function. The municipal officers who enforce the ordinances of the city do not perform municipal functions, and in the collection of the street-assessment the contractor does no more.

This precise point was decided in

Davies

v.

Los Angeles,

86 Cal. 37.

2. The council proceeded under the provisions of the so-called Vrooman Act, and it is contended that the city charter should have controlled.

The freeholders’ charter of Los Angeles was adopted in 1889.