Whiting v. Townsend

Morrison, C. J.: This action was brought to enforce a lien for planking Larkin street from Tyler to McAllister (except that portion required by law to be kept in order by the railroad company-having tracks thereon), and for reconstructing the sidewalks on said street. Plaintiff had judgment in the Court below. Defendant moved for a new trial, which was denied, and this appeal is taken from the judgment, and also from the order denying the motion for a new trial.

The first objection we will notice is to the sufficiency of the complaint. The pleading on behalf of the plaintiff in this proceedings is regulated by §13 of the Act of April 1st, 1872, and it is therein provided what facts the complaint must contain. The complaint in this case was sufficient, under that section of the statute, and must be so treated by the Court. It is claimed that when the Legislature undertook to provide a rule of pleading for this class of cases, it usurped judicial functions, and the act is therefore void. We cannot concur in this con[518]elusion. All the rules of pleading in this State are prescribed by legislative acts. The • Code of Civil Procedure determines what facts shall be stated in a complaint, and how they shall be stated; what objections may be taken by demurrer, and how they shall be taken; and if not taken, the Code provides that many, indeed nearly all, of the enumerated objections shall be waived. It is unnecessary to enlarge upon this point in the case. The matter of pleadings, it must be conceded, is a proper subject for legislative regulation.

The second point relates to the resolution of intention. It is claimed, on behalf of the appellant, that the words “ except that portion required by law to be kept in order by the railroad company having tracks thereon,” destroys all certainty as to the particular portion which the board intended should be planked at the expense of the property owners. The statute imposes upon a railroad company having its track upon a street' of a city the obligation “ to plank, pave, or macadamize the entire length of the street used by its track, between the rails, and for two feet on each side thereof, and between the tracks, if there be more than one, and to keep the same constantly in repair, flush with the street, and make good crossings.” (Civ. Code, § 498.) This is the requirement of a general statute, of which the Court was required" to take judicial notice, and of which every citizen is presumed conclusively to have knowledge. The meaning of the exception would not, therefore, have been rendered more certain if this provision of the Code had been incorporated in it. The rule “ cerium est quod cerium, reddi potest ” is plainly applicable here.