Dougherty v. Henarie

By the Court, Crockett, J.: The action is to enforce the lien of a street assessment, and a judgment having been entered for the plaintiff, the defendants, Henarie and Meyer, prosecute separate appeals. One of the points made by the defendant Henarie is, that the plaintiff’s lien, which was in force at the commencement of the action, expired by limitation before the judgment was entered, and therefore cannot be enforced. But this point was decided otherwise in Randolph v. Bayue, 44 Cal. 366. The only remaining point relied upon by the same defendant is, that the Court erred in allowing interest on the amount of the assessment. The contract under which the work was performed was awarded and entered into in the year 1867. Subsequently, by the Act of March 26th, 1868 (Stats. 1867-8, p. 363), it was provided that “ after the return of the assessment and warrant as aforesaid, all amounts' remaining due thereon shall draw interest at the rate of one per cent, per month until paid.” The assessment in this case was made March 8th, 1869, nearly one year after the passage of the Act. The argument of counsel is, that the rights of the parties were fixed by the contract, and by the law as it then stood; and that it was not competent for the Legislature, by a retroactive enactment, to impose a new burden, in the form of interest, on the property owner. The reply to this proposition is, that there was no contract Qr proceeding to which the property owner was either a party or privy prior to the assessment. The municipal authorities determined that it was expedient to improve a public street, and after the proper proceedings were had, awarded a contract for that purpose. The parties to the contract were the contractor on one side, and the Superintendent of Streets, acting in his official capacity, on the other. The law provided that the cost of the work should be borne by the property fronting on the improvement, and that on the completion of the work an assessment should be made by the Superintendent, apportioning the amount amongst the several parcels of property, upon a basis prescribed by the statute. On the róturn and recording of the assessment, [13]warrant and diagram, the several parcels assessed became subject to a lien for the amount of the assessment; and the Act of March 26th, 1868, provides that if not paid it shall bear interest from the date of the return and recording of the assessment and warrant. But the property owner had the opportunity, and it was his duty to pay, before the return of the warrant; and I know of no constitutional impediment which estops the Legislature from enacting that if he neglects this duty, the amount due shall thereafter bear interest. It impairs the obligation of no contract; and certainly of none to which he was a party; and is not retroactive, as it operates only on assessments made after the passage of the act. The liability of the property commenced with the issuing of the assessment, diagram and warrant, and the lien attached and became complete on the recording of these instruments. Long before these events occurred, the amendatory Act was in force, providing that if default was made in the payment, after a proper demand, the amount due should thereafter bear interest. If the statute had provided that the judgment to be rendered for the amount due should bear interest, it would be equally liable to the objection now raised. But provisions of this character affect the remedy only, and not the contract.