McClain v. Wirsching

SHENK, J.

This is an application for a writ of mandate to compel the respondents, as the board of public works of the city of Los Angeles to execute a contract for the construction of certain street improvements awarded by the city council of said city to the petitioner herein.

On August 14, 1931, there became effective the act designated as the “Special Assessment Investigation, Limitation and Majority Protest Act of 1931”. (Stats. 1931, p. 1372.)

Section 1 of that act provides: “Before any ordinance or resolution of intention or other initial action prescribed by any law of this state may be taken by the legislative body of any county, city and county, or city in this, state, for the construction of any public improvement and/or the acquisition of any property for public use, when the cost of such construction or acquisition is to be paid in whole or in part by special assessments or through special assessment taxes upon lands, proceedings shall be taken as required by this act. ’ ’

Section 13 of the act provides: “This act shall not apply to any proceeding in which an ordinance or resolution of intention has been finally adopted before the date this act becomes effective.”

On August 13, 1931, the city council of the city of Los Angeles unanimously passed an ordinance of intention to do the street work and improvements described therein and providing that' the cost thereof be paid by special assessment against the property in the assessment district, and elected to proceed in accordance with the provisions of the “Improvement Act of 1911”. (Stats. 1911, p. 730.) This ordi

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nance of intention was approved and signed by the mayor of the city of Los Angeles on August 14, 1931. The ordinance was thereafter duly published as required by the city charter. Proceedings in accordance with the requirements of the “Special Assessment Investigation, Limitation and Majority Protest Act of 1931” were not taken. The petition for the writ is presented showing the foregoing facts and the further fact that the respondents have refused to execute the contract awarded to the petitioner on the sole ground that the provisions of said act of 1931 had not been complied with by the city council prior to the adoption of said ordinance. A demurrer to the petition presents but one question, viz.: Whether the proceedings taken by the city council up to and including August 13, 1931, were effective to bring them within the exception provided by section 13 of the act of 1931.