Santa Cruz Portland Cement Co. v. Young

PETERS, P. J. Plaintiffs appeal from a judgment entered pursuant to an order sustaining without leave to amend defendants’ demurrer to a petition for a writ of mandate to compel defendants, members of the City Council of San Jose, to levy a reassessment on certain real property described in the petition. The demurrer was sustained on the ground that the petition showed on its face that the cause of action was barred by the statute of limitations, and by laches. The appeal approaches the frivolous, as the allegations of the complaint definitely demonstrate that the cause of action is barred by the statute of limitations.

So far as pertinent here, the petition, filed on May 8, 1941, alleged that in December, 1913, the City Council of San Jose, purporting to conduct proceedings for public improvements under the Vrooman Act (Stats, of 1885, chap. CLIII, p. 147, as amended; Deering’s Gen. Laws, 1923, Act 8194), caused to be created an assessment district in San Jose upon which assessments were levied; that after the improvements were made it was determined by the District Court of Appeal that there was a defect in the proceedings in levying the assessments, and that, for that reason, the bonds, liens, and assessments so levied were unenforceable (Beck, v. Ransome-Crummey Co., 42 Cal.App. 674 [184 P. 431], petition for [506]hearing denied by Supreme Court October 9, 1919); that on April 2, 1941, plaintiffs caused to be served on defendants a written request for a reassessment of the properties included in the 1913 assessment; that defendants have refused to order the reassessment; that plaintiffs are the owners and holders of the bonds, liens, charges and assessments, and that they are without remedy unless the reassessment is ordered.

An examination of the pertinent provisions of the Vrooman Act shows the following situation. When the assessment was declared void in 1919 in Beck v. Ransome-Crummey Co., supra, there was no provision giving holders of void bonds, liens, charges or assessments the right to demand a reassessment. That right was conferred by a 1921 amendment to § 12% of the act (Stats. 1921, chap. 378, p. 563). The section reads in part as follows:

“Whenever any assessment heretofore issued or which may be hereafter issued is or shall be void, or unenforcible, for want of sufficient authority for its issuance or from irregularities, or illegalities in the proceedings, or if bonds shall have been, or shall be issued to represent any assessments and such issuance shall not have been, or shall not be effective through the curative provisions thereof to make them valid and enforeible, then, in any of such events a reassessment therefor shall be issued. The true intent and meaning of this section is to make the cost and expense of work or improvement made through an attempted compliance with this act, payable by the real estate benefited by such work or improvement by making a reassessment therefor.