Schumacker v. Toberman

McKinstry, J.: Section 8 of article vi of “ An act to revise an act entitled an act to amend the charter of the city of Los Angeles,” etc. (Stats, of 1875-76, p. 709), provides, that damages incurred in extending a street shall be paid by the real estate fronting either side of the extension, and of the original street, from the commencement of the extension to a point on the original street to be fixed by the common council. The section closes: “ Provided, that, in all cases mentioned in this section, the real estate fronting a cross-street, or street fronting [forming ?] a junction with such street improved, and within one hundred feet of such street proposed or improved, shall also be assessed according to the frontage on such cross-street, or street forming the junction as aforesaid.”

In the case before us, the point fixed by the council in the original street is the north line of Jiequena street. I agree with the city council, that there was no authority for assessing the property fronting on the north line of Jiequena street. Requena street cannot properly be said to cross or front upon Los Angeles street between the termini of the lines of property declared to be benefited by the extension. The language of the proviso does not contemplate the assessment of any street upon one side alone. The first assessment was therefore void. It will not do to say that plaintiff’s assessment is less, if too much property has been assessed. The power of assessment can only be employed upon the theory of benefit received by the party assessed. It may be admitted, that the Legislature may empower the city to determine that a ¡^articular result will be a public benefit, and that such determination is conclusive; hut it is certain that no assessment can be valid, unless that which the political power has declared to be a public benefit is secured to the public, and to those who are taxed for it upon the supposition that it will be of peculiar benefit to them. The assessment, without doubt, is invalid, in so far as it is an attempt to affect property which cannot legally be made subject to it. It is capable of mathematical demonstration, that if the one hundred feet on Requena street cannot be made to pay the sum assessed upon them, sufficient money will not be raised to pay [511]for the property sought to be condemned, and such property cannot be taken for the street.

The Act of 1878, which is the sole authority for issuing the bonds, the issuing of which is sought to be enjoined, adopts the assessment which was entered of record January 12th, 1878, which assessment is, in my opinion, void. It provides for the issuing of bonds, bearing interest, to be redeemed by assessments upon all the property included in such void assessment. The Legislature cannot legalize a void assessment, nor can the Legislature, by direct act, make an assessment within an incorporated city. (Taylor v. Palmer, 31 Cal. 240; People v. Lynch, 51 id. 15.)