Levee District No. 1 v. Huber

McKinstry, J. The District Judge ought to have sustained plaintiff’s objection to the settlement or allowance of an exception to the ruling of the Court striking out a portion of defendant’s answer. The proposed bill, containing such exception, was not presented until more than three months after the ruling or decision was made. The order to strike out was made November 14th, 1879, and the “ proposed bill ” is dated March 26th, 1880, and of course could not have been presented until that day. It appears from the judge’s certificate, that, at the settlement of the bill, plaintiff’s attorney, “ having reserved the right so to do, objected to the allowance of that portion of the bill relating to the striking out of a portion of defendant’s answer, etc., * * * on the ground that the same was not presented in due time.”

The Act of March 20th, 1878, to organize Levee District No. 1, of Sacramento County (Stats. 1877-78, p. 853), defines the boundaries of the levee district, and provides for the election of three trustees, one assessor, and one tax collector. The seventh section provides that the assessor shall assess the real estate and personal property in the district, etc. In the case before us, the assessment was made by three commissioners appointed by the supervisors.

The fifteenth section of the act reads: “ If the board of trustees shall adopt any plan or scheme, or project any work of reclamation, * * * which, in their judgment, is more beneficial to one part of the district than to another, they may report such plan to the Board of Supervisors of said county in the manner provided by § 3455 of the Political Code. All subsequent proceedings for the purpose of assessing and collecting the moneys necessary to complete the work specified in said report shall be prosecuted under §§ 3456, 3459, 3460, 3461, 3462, 3463, 3465, and 3466 of the Political Code.” Section 3456 of the Political Code provides for the appointment, “ by the board by which the district was formed,” of three commissioners, “ who must view and assess upon the lands situated within the district a charge proportionate to the whole expense and the benefits which will result from such works,” etc. The Act of 1878 does not provide for any report of a plan, except where the [43]trustees have adjudged that one portion will be more benefited by the scheme projected than another. In the case at bar, the trustees did so adjudge—although their report, assuming it to be a plan, did not indicate their judgment as to which portions of the lands would be more benefited—as it may be assumed (without deciding the question) that the report or plan gave to the supervisors power to appoint commissioners. It will be seen, by reference to § 7, that, in ordinary cases, it is the duty of the assessor to assess all the real property in his district. This, separated from the fifteenth section, would seem to make the levee district a district for taxation or assessment purposes as well. It is, perhaps, a legislative declaration (which by all the cases is held conclusive) that all the lands within the district will be benefited.