Ferri v. City of Long Beach

SLOSS, J.

The plaintiffs; owners of property in the city of Long Beach, brought this action against the city of Long Beach, and the members of its board of public works, to enjoin the enforcement of a street assessment by the sale of the plaintiffs’ property, and to have the assessment declared void.

The proceedings which are attacked were had under the “Street Opening Act of 1903,” as amended. (Stats. 1903, p. 376; Stats. 1909, p. 1035; Stats. 1911, pp. 855, 894; Stats. 1913, p. 429.) The city authorities undertook to order the widening- of a street in Long Beach, and to assess the cost of the improvement upon a certain district, which included the lands of the plaintiffs. Section 1 of the act gives to the city council power to order such work to be done. Section 2 provides that before ordering any improvement to be made, the city council shall pass an ordinance declaring its intention so to do. Section 3 provides for the publication and posting of notice of the passage of said ordinance. Such notice is

[646]

to be posted at certain points, and “shall state the fact and date of the passage of said ordinance and briefly describe the improvement proposed, and refer to said ordinance of intention for a description of the assessment district and for further particulars.” Under section 4, persons interested are authorized to file written protest within thirty days after the first publication of the notice; a time for hearing such protests is to be fixed, and the board is to pass upon the same. At the expiration of the time within which protests may be filed, or after the denial of protests which have been filed, the city council acquires jurisdiction to order the improvement.

From the findings of fact it appears that the ordinance declaring the intention of the council to order the improvement was passed on the twenty-ninth day of December, 1911. (It was passed on its first and second readings on the twenty-second day of December, 1911, but was not finally passed until December 29th, which must, of course, be taken as the date of its passage, within the meaning of the act.) The posted notice, in addition to stating that the ordinance of intention was passed on the twenty-second day of December, 1911, briefly described the improvement, and referred to said ordinance for further particulars. Notwithstanding the discrepancy between the actual date of the passage, of the ordinance and the date recited in the notice, the court found that the proceedings had been conducted in substantial compliance with the law, and that the assessments levied were legal. Judgment was entered accordingly in favor of the defendants, and from this judgment the defendants appeal.