Swamp Land District No. 121 v. Haggin

McKinstry, J. The action is brought to enforce liens for assessments upon tracts of land belonging to defendant within a swamp land district.

A demurrer to the complaint was sustained in the court below, and plaintiff having declined to amend, final judgment was entered in favor of defendant, from which judgment plaintiff has appealed.

It is contended by respondent that it appears in the complaint the district was created and organized under the Act of March 28, 1868, while the further averments show that the assessments were attempted to be made under the provisions of the Political Code.

Inasmuch as it is not alleged that plaintiff was reorganized under section 3478 of the Political Code, the demurrer was properly sustained if respondent correctly construes the complaint. (Rec. Dist. No. 3 v. Kennedy, 58 Cal. 124.)

The averments of the complaint with reference to the creation and existence of plaintiff as a reclamation district are as follows: “That as plaintiff is informed and believes, plaintiff, Swamp Land District Number One Hundred and Twenty-one is, and ever since the 22d day of December, 1870, has been, a municipal corporation, to wit: a swamp land district or reclamation district created, organized, and existing under and by virtue of the laws of the State of California, claiming in good faith to be a corporation, and a swamp land or reclamation district, and as such doing business and exercising corporate powers and the powers of a swamp land district under the laws of the State of California. That said district was established by an order of the board of supervisors of the county of Kern, in the. State of California, which order, as plaintiff is informed and believes, was duly given and made,” etc.

No force can be given to the allegation that plaintiff claimed [207]“in good faith” to be a corporation. It is urged by appellant, however, that if it was a corporation de facto when the assessment was levied, defendant can neither object that it had no legal existence nor that the assessment was not levied in accordance with the statute in force, and applicable to the particular district. But the action is not brought to determine the right of plaintiff to property owned by it in ordinary proprietorship, or to enforce a contract entered into with a third person. It is an attempt to enforce a burthen imposed in invitum upon the property of another, and can be maintained only in case the authority to impose it was conferred by statute. (2 Dillon on Mun. Corp. 3d ed. 763, 769.) If the mode of levying the assessment must be found in the statute, and if the mode differs in case the corporation was formed under one statute from that which may be pursued by a corporation formed under another statute, it would seem to follow that a complaint is insufficient unless it appears from it that the corporation was formed under the law which authorizes the levy of the assessment in the manner in which it is alleged to have been levied. The power is measured by the mode, since the statute under which the corporation exists limits the exercise of the power to the mode therein provided. The right to proceed under any particular act is jurisdictional, and must be pleaded. (Dec. Dist v. Kennedy, supra.)