Reis v. Graff (1875) · DecisionDepot

Reis v. Graff

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1875 No. No. 4597Published

Before: Rhodes

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Holding. The court held that a legislative act validating a void assessment creates a lien only as of the date of the act's passage, rather than retroactively, and therefore cannot support an action commenced before the act took effect.

Issues

Whether a legislative act validating a void assessment operates retroactively to create a lien as of the date of the original assessment.
Whether an action to enforce an assessment can be maintained if the lien was created by a statute enacted after the action was submitted for decision.

Disposition. Reversed and remanded

Quotations verified verbatim against the opinion

“The assessment, in our opinion, if it became a lien by virtue of the act in question, became such at the date of the passage of the act, and did not take effect, by relation, as of a prior date.”

“There being at the commencement of the action no lien in fact upon the property, and the lien created by the act not taking effect as of a prior date, the action cannot be maintained.”

Synopsis

Conte act foe Steeet Impeovement in San Feanoisco.—If, in a proceeding to improve a street in San Francisco, the Board of Supervisors do not make an order for the publication of the notice of the award of the contract, all the proceedings subsequent to the award, including the assessment, are void.

Act Validating Void Assessment.—An act attempting to validate a void assessment on a lot in a city for a street improvement, if it has that effect, does not, by relation, make the assessment valid as of the date when it was levied, but only validates it at the date of the passage of the act.

Action to Enfobcb Lien.—An action cannot be maintained to enforce a lien for a street improvement, which lien did not exist at the time the action was commenced.

By the Court, Rhodes, J.: The Board of Supervisors not having made an order for the publication of the notice of the award of the contract, all the proceedings, including the assessment, subsequent to the award, were void. (Donnelly v. Tillman, 47 Cal 40; Donnelly v. Marks, Id. 187.) The plaintiff relies upon the act of March 25, 1874 (Stats. 1873-4, p. 589), as not only validating the assessment, but as having a retrospective operation, which necessarily affects this action. The action had been finally submitted for decision before the passage of the act.

Assuming that the Legislature may itself make the assessment, or what amounts to the same thing, validate a void assessment, does the act have the effect to make the assess-, ment valid, by relation, as of the date of the invalid assessment ? or does it become valid only at the date when the act took effect? The act does not furnish a new rule of evidence, nor does it merely cure irregularities or formal defects in the proceedings or the assessment; but if valid it creates a lien upon property which before the passage of the act was not chargeable with the lien, and gives the contractor and his assigns a cause of action for its enforcement. The assessment, in our opinion, if it became a lien by virtue of the act in question, became such at the date of the passage of the act, and did not take effect, by relation, as of a prior date. There being at the commencement of the action no lien in fact upon the property, and the lien created by the act not taking effect as of a prior date, the action cannot be maintained.

Judgment and order reversed, and cause remanded for a new trial.

Neither Mr. Chief Justice Wallace nor Mr.. Justice Niles expressed an opinion

Reis v. Graff

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