Witter v. Mission School District

CHIPMAN, C. Action to enforce payment of assessment for constructing a sidewalk in front of certain lots in the city of San [351]Luis Obispo, of which defendant, Mission School District, is alleged to be the owner in fee. Judgment passed for defendants on demurrer to the sufficiency of facts alleged, from which this appeal is prosecuted.

The complaint does not show whether the lots in question were or were not used by the district for school purposes, nor that any provision was made by the district for the payment of the debt out of its funds raised during the year the debt was created.

The only question presented by appellant is whether these lots were subject to assessments under the act of March 31, 1891 (Stats. 1891, p. 343). The act makes no exception as to owners of lots. The distinction between the term “assessment” and the term “taxation” was clearly pointed out in San Diego v. Linda Vista Irr. Dist., 108 Cal. 189; and it was there shown that there might be exemption from “taxation” under the constitution and the provisions of the Political Code, section 3607, where there would not necessarily be exemption from “assessments” of lands. Appellant relies upon this distinction and upon this case to support his claim. It was held in Mayrhofer v. Board of Education, 89 Cal. 110; 23 Am. St. Rep. 451, that the terms “any building” in the mechanics’ lien law did not include a public schoolhouse. In Whittaker v. County of Tuolumne, 96 Cal. 100, it was held that the word “person” used in section 1050 of the Code of Civil Procedure, giving a right of action in a certain case, did not include a county or authorize it to be sued. In Skelly v. School District, 103 Cal. 652, it was held that while a school district may be a person within the meaning of subdivision 5, section 543 of the Code of Civil Procedure, it could not be garnished “because laws made primarily to provide for individual rights will not be presumed to include the state when the effect might be to authorize a suit against the state or embarrass it in the discharge of its functions.” The principle of construction was stated in Mayrhofer v. Board of Education, supra, to be “that the state is not bound by general words in a statute, which would operate to trench upon its sovereign rights, injuriously affect its capacity to perform its functions, or establish a right of action against it.”

The proceeding here is to foreclose the lien of plaintiff on the [352]