In denying a rehearing we deem it proper to say that we do not consider the points made by the petitioner relative to the alleged damage to its property resulting from the grading to the official grade available in this proceeding. (See Duncan v. Ramish, 142 Cal. 693, 694, [ 76 P. 661]; Hornung v. McCarthy, 126 Cal. 17, [ 58 P. 303]; Engebretson v. Gay, 158 Cal. 27, [1.09 P. 879].)
It is well settled that the fact that the property-owner "may have some cause of action founded upon rights reserved by that part of the constitution which deals with the exercise of the power of eminent domain does not make the assessment void." (Hornung v. McCarthy, 126 Cal. 17, [ 58 P. 303]; Duncan v. Ramish, 142 Cal. 686, [ 76 P. 661].) In the case last cited it was said substantially, that where the owner fails to claim any damage for a proposed change of grade, the law affording him proper opportunity to do so, he must be held to have waived "any right to object on that ground to the proceedings for the change of grade," and that while it may be that he still has a right of action against the city for any damage in fact suffered by reason of the change, a question not decided, he cannot defeat the assessment for the improvement by showing such damage.
It is apparent that the alleged demand did not arise out of the assessment, nor, indeed, out of the proceedings upon which it is based, and, therefore, is not available as a counterclaim." (See, also, Hornung v. McCarthy, 126 Cal. 17, [ 58 P. 303]; Duncan v. Ramish, 142 Cal. 693, [ 76 P. 661].) While the case cited deals with the propriety of a counterclaim, the reasoning is such as to exclude equally a cross-complaint.
Having pointed out the distinction in the constitutional powers provided to be exercised under the act, it is only necessary to say that it is generally agreed among the authorities, and in this state distinctly decided, that the legislature has the right, under the power of taxation, to confer upon municipalities the authority to require local improvements, such as the laying out or widening of streets, to be borne by those owning property in the vicinity of the improvement, and who are specially benefited by reason of it; that this is a legitimate exercise of the taxing power which the legislature may confer upon municipalities in making local improvements, and does not contravene the constitutional provision respecting the exercise of eminent domain. Emery v. San Francisco Gas Co., 28 Cal. 345; Hagar v. Supervisors Yolo County, 47 Cal. 222; Hornung v. McCarthy, 126 Cal. 17, [ 58 P. 303]; Duncan v. Ramish, 142 Cal. 686, [ 76 P. 661]. See, also, French v. Barber Asphalt Pav. Co., 181 U.S. 324, [21 Sup. Ct. 625], and People v. Mayor of Brooklyn, 4 N.Y. 419, [55 Am. Dec. 266], where these matters are exhaustively discussed.
In the final analysis, the governmental power of taxation is the foundation for the plan established by the statute for the improvement of public streets. ( Hornung v. McCarthy, 126 Cal. 17, 21 [ 58 P. 303].) The property owner who has thus been compelled by law to become a party to a contract for the improvement of streets may not claim an offset against assessments regularly levied or bonds regularly issued on the ground that the contractor who has performed the work has made a private contract with him to accept a less amount than the amount of the bonds.
The levy of a street assessment is based upon the governmental power of taxation. ( Hornung v. McCarthy, 126 Cal. 17, [ 58 P. 303].) The legislature must originate the power to tax and prescribe the rules under which taxes are to be levied, but the determination of the amount, even of a state tax, may be referred to some other authority.
' And likewise the right to reduce an assessment by way of counterclaim has been denied in the following cases, wherein it has been held that, by reason of the origin, obligatory force, and nature of such special assessments a property owner has no right to reduce the amount of his assessment because of the negligent performance of the work or for the other cause, and that, if damages have been sustained by him, it is not a proper subject of set-off or counterclaim against the amount of his assessment, unless authorized by statute. Indianapolis, etc., R. R. Co. v. State, 105 Ind. 37, 4 N.E. 316; Laverty v. State, 109 Ind. 217, 9 N.E. 774; Lux, etc., Stone Co. v. Donaldson, 162 Ind. 48, 68 N.E. 1014; Dawson et al. v. Hipskind et al., 173 Ind. 216, 89 N.E. 863; Himmelmann v. Spanagel, 39 Cal. 389; Hornung v. McCarthy, 126 Cal. 17, 58 P. 303; Pittsburgh v. Harrison, 91. Pa. 203; Burlington v. Palmer, 67 Iowa, 681, 25 N.W. 877; Whiting et al. v. Mayor, 106 Mass. 89; Mack et al. v. Cincinnati, 7 Ohio Dec. (Reprint) 49. Here no such right is conferred by statute, but is expressly legislated against, and the authority of the Legislature so to do is clearly established by the authorities cited. By providing that no suit shall be maintained after the expiration of 60 days to set aside any such assessment, or to enjoin the making of such improvements or levying or collecting any such assessment or installment thereof, or interest or penalty thereon, or issuing such bonds or providing for their payment, or contesting the validity thereof on any account, or for any reason other than for jurisdictional matters, assurance is given would be purchasers of such securities that an investment therein will be secure from litigation of the character enumerated after the time fixed by said section; and thereby the value of such bonds will b
And likewise the right to reduce an assessment by way of counterclaim has been denied in the following cases, wherein it has been held that, by reason of the origin, obligatory force, and nature of such special assessments, a property owner has no right to reduce the amount of his assessment because of the negligent performance of the work or for other cause, and that, if damages have been sustained by him, it is not a proper subject of set-off or counterclaim against the amount of his assessment, unless authorized by statute: Indianapolis, etc., R. R. Co. v. State, 105 Ind. 37, 4 N.E. 316; Laverty v. State, 190 Ind. 217, 9 N.E. 774; Lux, etc., Stone Co. v. Donaldson, 162 Ind. 48, 68 N.E. 1014; Dawson et al. v. Hipskind et al., 173 Ind. 216, 89 N.E. 863; Himmelmann v. Spanagel, 39 Cal. 389; Hornung v. McCarthy, 126 Cal. 17, 58 P. 303; Pittsburgh v. Harrison, 91 Pa. 206; Burlington v. Palmer, 67 Iowa, 681, 25 N.W. 877; Whiting et al. v. Mayor, 106 Mass. 89; Mack et al. v. Cincinnati, 7 Ohio Dec. (Reprint) 49. Here no such right is conferred by statute, but is expressly legislated against, and the authority of the Legislature so to do is clearly established by the authorities cited. By providing that no suit shall be maintained after the expiration of 60 days to set aside any such assessment, or to enjoin the making of such improvements or levying or collecting any such assessment or installment thereof, or interest or penalty thereon, or issuing such bonds or providing for their payment, or contesting the validity thereof on any account or for any reason other than for jurisdictional matters, assurance is given would-be purchasers of such securities that an investment therein will be secure from litigation of the character enumerated after the time fixed by said section; and thereby the value of such bonds will be
As to this we express no opinion. But that they cannot defeat the assessment for the improvement by showing such damage was expressly decided in Hornung v. McCarthy, 126 Cal. 17. It is clear that the nonpayment of any such damages does not affect the assessment to pay the cost of the work of grading, graveling, and curbing. The two are entirely distinct and independent.
The assessment liens would not be void because of any failure to first provide compensation to the lot-owner. The power of taxation, unlike that of eminent domain, may be exercised although damages have not been paid to the owner before the street work is done. (Hornung v. McCarthy, 126 Cal. 17; De Baker v. Southern Cal. Railway Co., 106 Cal. 260.) The act of March 9, 1893, was amended by the act of March 11, 1893, (Stats.