City of Los Angeles v. Offner

• Decision Date: 06 January 1961
• Citation: 55 Cal.2d 103,358 P.2d 926,10 Cal.Rptr. 470
• Court: California Supreme Court
• Parties: , 358 P.2d 926 CITY OF LOS ANGELES, Petitioner, v. Milton OFFNER, Respondent. L. A. 25841.

Page 470

10 Cal.Rptr. 470

55 Cal.2d 103, 358 P.2d 926

CITY OF LOS ANGELES, Petitioner, v. Milton OFFNER, Respondent.

L. A. 25841.

Supreme Court of California, In Bank.

Jan. 6, 1961.

Rehearing Denied Jan. 31, 1961.

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., John D. Barrett, John F. Feldmeier and Weldon L. Weber, Deputy City Attys., Los Angeles, for petitioner.

Thomas F. McBride, City Atty. (Concord), William W. Coshow, City Atty. (Redding), Sturgis, Den-Dulk, Douglass & Anderson and Eugene K. Sturgis, Oakland, amici curiae on behalf of petitioner.

William Mackenzie Brown and Roscoe R. Hess, for respondent.

SCHAUER, Justice.

The City of Los Angeles seeks mandate to compel respondent, secretary of the city's Board of Public Works, to post and publish notices inviting bids for certain sewer construction work authorized by city ordinance pursuant to the Improvement Act of 1911 (as codified in Sts. & Hys. Code, §§ 5000-6794). The ordinance which declares the city council's intention to construct the improvement includes, as part of the proposed special assessment, 'a connection charge for outlet facilities' purportedly authorized by subdivision (i) of section 5024 of the Streets and Highways Code (added to such section by Stats.1959, ch. 158 and ch. 825). ¹

Respondent refused to post and publish notices as ordered by the city council, and now demurs to the petition for mandate, on the ground that it does not state facts sufficient to constitute a cause of action in that subdivision (i) of section 5024 and the ordinances providing for the special assessment and directing the local improvement are unconstitutional. Respondent urges that subdivision (i) improperly purports to permit inclusion in a special assessment of 'charges' which are not part of the actual costs and expenses of the local improvement; that such statute is unconstitutionally indefinite; and that the ordinances providing for the proposed special assessment and directing the improvement are invalid because they include such a 'charge' in the assessment. For the reasons hereinafter stated we have concluded that the subject statute (Sts. & Hys. Code, § 5024, subd. (i)) and the local legislation insofar as it includes the charge purportedly authorized by subdivision (i) are invalid.

Los Angeles Ordinance 115574 (adopted and approved in February, 1960) declares the intention of the city council to improve a described sewer district by construction of sanitary sewers and appurtenances and house connection sewers in accordance with certain plans and specifications. The ordinance provides that the proceedings for the improvement shall be had in accord with the Improvement Act of 1911, and that 'the estimated total cost and expense of the improvement is $390,372.26.' ² It further provides, among other things, as follows:

'Sec. 3. The said contemplated work or improvement, in the opinion of the Council, is of such nature that the costs and expenses should be assessed in proportion to estimated benefits arising therefrom; ³ and the Council hereby makes the assessable costs and expenses of said work or improvement chargeable upon a district which district the Council hereby declares to be the district benefited by said work or improvement and to be assessed to pay the costs and expenses thereof.'

'Sec. 7. That the incidental expenses of the work to be charged upon the district * * * shall be in the amount of the actual costs incurred in connection with the work described herein, provided, however, that the amounts to be assessed for such expenses shall, in the aggregate, in no case exceed either 12% of the contract price or $500, whichever is the larger (but see the exception declared in the next paragraph); and that any incidental expenses incurred for consummation of this work in excess of these limitations shall be * * * defrayed from the budgeted funds of the departments concerned.

'Notwithstanding said limitation, ⁴ in addition to the said incidental expenses of the work, a charge for outlet facilities, that has been established by the City in an amount equal to $400 per acre as a condition to the providing of sewer service to properties in the assessment district, will be assessed as an incidental expense against such properties therein as may be served by the proposed sewers and subject to the charges in accordance with Section 64.16.1 of the Los Angeles Municipal Code.' (Italics added.) This charge of $400 an acre gives rise to the present litigation.

Section 64.161.1 of the Los Angeles Municipal Code (as amended December 1, 1957) provides (with immaterial exceptions) that 'Before granting a permit to connect any lot or parcel not already connected to a public sewer or house connection sewer * * *, the Board shall require, in addition to all other charges and fees imposed by Sec. 64.12 to Sec. 64.22, inclusive (which concern various other sewer charges), the payment by the applicant therefor of a fee for a connection charge for outlet facilities of an amount equal to $400 per acre of the property to be served * * *.' A preliminary spread of the proposed assessment based on estimates shows that the total amount of these charges of $400 an acre to be assessed against the properties in the district will be $46,934.

Ordinance 115829, adopted and approved in April, 1960, orders that the work described in Ordinance 115574 be done and that notices inviting bids be given as provided in the Improvement Act of 1911. As previously stated, respondent refused to publish and post the notices, and this litigation followed.

The theory of special assessments for local improvements such as the one here under discussion is stated as follows in County of San Diego v. Childs (1932), 217 Cal. 109, 117(5), 17 P.2d 734: 'The improvement must confer a special benefit upon the property assessed. (Citation.) The assessment can be levied only for the actual cost of the improvement 'and the local authorities cannot include in the assessment the expense of any other work than such as is necessary to complete the particular improvement in a reasonable and fair mode'. ((Italics added.) 2 Elliott on Roads and Streets, 4th ed., p. 892.)' The view that the Legislature cannot properly authorize a special assessment for a local improvement in an amount which exceeds the actual cost of the improvement and necessary incidental expenses, is also expresses or implicit in the following cases: Spencer v. Merchant (1888), 125 U.S. 345, 353, 355, 8 S.Ct. 921, 31 L.Ed. 763; Southwick v. Santa Barbara (1910), 158 Cal. 14, 19, 109 P. 610; Prospere v. City of New Port Richey (1929), 98 Fla. 508, 510 (124 So. 2); City of Camilla v. Cochran (1925), 160 Ga. 424, 431 (128 S.E. 194, 197 (3)); Davis v. City of Litchfield (1893), 145 Ill. 313, 325, 328 (33 N.E. 888, 21 L.R.A. 563); Union Building Assn. v. City of Chicago (1871), 61 Ill. 439, 442; Marion v. Paris (1931), 237 Ky. 305, 309 (35 S.W.2d 311, 313); State ex rel. Griffith v. City of Shelby (1938), 107 Mont. 571, 577 (87 P.2d 183, 186); Asheville v. Trust Co. (1906), 143 N.C. 360, 366 (55 S.E. 800); Mill Greek Sewer (1900), 196 Pa.St. 183, 187, 46 A. 312; Vincent v. South Bend (1915), 83 Wash. 314, 317-318 (145 P. 452); Bekkedal v. Viroqua (1924), 183 Wis. 176, 197 (196 N.W. 879, 887, 197 N.W. 707); Hardy v. Waukesha (1911), 146 Wis. 277, 278 (131 N.W. 352).

In Maryland Trust Co. v. Baltimore (1915), 125 Md. 40, 50 (93 A. 454), the court quotes as follows from Gray, Limitations of Taxing Power (1906), § 1883: 'Any substantial excess of assessment over cost would be general taxation of the particular district in disregard of all mandates of equality. A law which should direct or inevitably compel such a result would doubtless be held void anywhere in the United States as an act of confiscation.' The Maryland legislation there under consideration did not 'direct' or 'compel' such result but, according to the construction thereof urged by the city, would have permitted it. It is held (at pages 50-&51 of 125 Md., at page 458 of 93 A.) that 'Although the usual constitutional mandate enjoining equality and uniformity in taxation does not generally apply to special assessments for local improvements, if a statute permitted a municipality to make such assessments in excess of the cost of the improvements, and the expenses incident thereto, it would unquestionably be contrary to Article 15 of our Bill of Rights, for such assessments would require those so assessed to contribute to the support of the government, to the extent of the excess, as other taxpayers are not required to do.' The Maryland court also (at pages 48-49 of 125 Md., at pages 457-458 of 93 A.) rejects the contention of the City of Baltimore (at pages 42-43 of 125 Md., at page 455 of 93 A.) that 'it makes no difference to the (assessee) * * * whether the aggregate benefits assessed exceed or fall short of the cost of the improvement, because the (assessee) * * * cannot be injured so long as its assessment does not exceed the actual benefit received by it.'

The principles of equality and uniformity invoked by the Maryland court are similarly applicable to local special assessments in California. Specifically, an assessment exceeding the cost of the improvement, so as to furnish revenue to the city would violate the general principle of equality stated in section 1 of article XIII of our state Constitution, which provides that 'All property in the State except as otherwise in this Constitution provided, not exempt under the laws of the United States, shall be taxed in proportion to its value * * *.'

Even more obviously obnoxious to constitutional principles than the construction urged by the City of Baltimore (and rejected by the court) of the statute considered in the Maryland Trust Co. case, the legislation which we pass upon here (both state and local) purports to authorize an assessment in an amount greater than the cost of the local...