Klassen v. City of San Carlos

WOOD (Fred B.), J. Shortly after the filing of our former opinion upon this appeal (Cal.App.) 303 P.2d 33, section 5375 of the Streets and Highways Code (added to the code by Stats. 1st Ex. Sess. 1950, ch. 65, p. 526) for the first time came to our attention. As that section appeared to have a significant bearing upon the issues herein, we ordered a rehearing, upon our own motion, for the purpose of considering it and to give counsel an opportunity to submit briefs as to the applicability, if any, of its provisions. That has been done and we are persuaded that section 5375 does apply and requires an affirmance of the judgment appealed from.

This action was brought by plaintiff as a citizen and taxpayer of the city of San Carlos pursuant to the provisions of section 526a of the Code of Civil Procedure. He alleges that after the commencement of a certain street improvement proceeding under sanction of the Municipal Improvement Act of 1913 (Sts. & Hy. Code, §§ 10000-10609), the city council contributed moneys for the improvement out of the city’s general fund, and did so despite the fact that the resolution of intention “made no mention of a contribution from any general fund of the City Treasury.”

This, plaintiff claims, the city had no power to do. We so held in our opinion as first filed herein, predicated upon section 10201 of the 1913 act and the apparent lack of authority therefor expressed in the Improvement Act of 1911.* But section 5375 of the 1911 act compels the opposite conclusion.

It says that if in the opinion of the legislative body of the city the public interest will be served, that body “may provide for making a contribution to the cost of any project, or for the payment of any part of the cost thereof or of the expenses incidental thereto, instead of assessing the cost thereof in any assessment heretofore or hereafter levied.” This it may do “notwithstanding no provision is made therefor in the resolution of intention or said contribution or payment is in addition to that provided in said resolution.” The Legislature could hardly have expressed itself more emphatically. If applicable here, section 5375 demonstrates that San Carlos’ city council had complete authority to make the questioned contributions; the complaint does not and can [227]not be made to state a cause of action; the demurrer to the third amended complaint was properly sustained without leave to amend; and the judgment must be affirmed.

Section 5375 is applicable here. At the time of its enactment (1950) section 2a of the Municipal Improvement Act of 1913 read as follows: ‘ ‘ The provisions of the Improvement Act of 1911, as now or hereafter provided, relating to contributions, is [are] incorporated herein by reference.” (Stats. 1949, ch. 976, § 5 at p. 1764; emphasis added.) The fact that when the 1913 act was codified in 1953 (§ 2a becoming Sts. & Hy. Code, § 10205; Stats. 1953, ch. 192, p. 1176, at p. 1183), the words “as now or hereafter provided” were deleted, did not operate to void the incorporation of section 5375 which had been effected in 1950. Moreover, we do not consider that the deletion of those words in the process of codification reflects an intent to change the meaning of the provisions of section 2a, in view of the long declared policy of the Code Commission to avoid substantive change (see Final Report of the Code Commission, 1953 pp. 11 and 12) and the practice of the Legislature in that regard (see Sobey v. Molony, 40 Cal.App.2d 381 [104 P.2d 868]), especially in the light of the declarations appearing in sections 2, 3 and 4 (particularly § 2) of the Streets and Highways Code.