Opinion
Department Two
Appeal from a judgment of the Superior Court of San Luis Obispo County. V. A. Gregg, Judge.
COUNSEL:
William Shipsey, for Appellant.
W. H. Spencer, for Respondent.
JUDGES: Vanclief, C. Haynes, C., and Searls, C., concurred. McFarland, J., Temple, J., Henshaw, J.
OPINION
VANCLIEF, Judge
Action of the nature of the common-law action of assumpsit to recover from the defendant city three hundred and sixty-two dollars and twenty-five cents for publishing a delinquent assessment list, pursuant to section 16 of the act of the legislature of March 6, 1889 (Stats. 1889, p. 70), entitled "An act to provide for laying out, opening, extending, widening. .. . any street,. .. . and to acquire land," etc., for those purposes. It appears from the complaint that the delinquent assessments, a list of which was published by plaintiff, were levied by the defendant in a proceeding under said act to widen Chorro street, and that plaintiff, being the proprietor and publisher of a newspaper, published said delinquent list in his paper at the instance and request of the defendant and its superintendent of streets; that the service was reasonably worth the sum demanded, but that defendant refused and failed to pay therefor any sum whatever.
The court sustained a demurrer to plaintiff's complaint; and thereupon, the plaintiff declining to amend, rendered judgment in favor of the defendant. The plaintiff brings this appeal from the judgment on the judgment-roll.
It appears that the demurrer was sustained on the ground that the complaint does not state facts constituting a cause of action; because, although it states that there was in the general fund of the treasury of the defendant more than sufficient money to pay the same, there is no allegation that there was any money in the special fund applicable to the expenses of widening Chorro street.
Appellant admits that there was no money in said special fund exclusively devoted to the payment of the expenses of widening Chorro street, but contends that he was not restricted to such funds for the payment of his demand; and whether or not he was so restricted is the only question presented by his appeal.
Respondent contends that section 8 of said act prohibits the defendant from paying plaintiff's demand from any fund except the special fund raised by assessment for the purpose of widening Chorro street. Section 6 of the act, after providing for the appointment of commissioners to make the assessment, etc., further provides that, "for their services, the commissioners shall receive such compensation as the city council may determine from time to time.. .. . Such compensation shall be added and be chargeable as a part of the expenses of the work or improvement."
Section 7 authorizes the commissioners to employ such assistance, legal or otherwise, as [41 P. 792] they may deem necessary and proper; also to rent an office and provide such maps, diagrams, plans, books, stationery, lights, postage, expressage, and incur such incidental expenses as they may deem necessary. Section 8 of the act is as follows:
" All such charges and expenses shall be deemed as expenses of said work or improvement, and be a charge only upon the funds devoted to the particular work or improvement as provided hereinafter. All payments, as well for the land and improvements taken or damaged as for the charges and expenses, shall be paid by the city treasurer, upon warrants drawn upon said fund from time to time, signed by said commissioners, or a majority of them. All such warrants shall state whether they are issued for land or improvements taken or damaged, or for charges and expenses, and that the demand is payable only out of the money in said fund, and in no event shall the city be liable for the failure to collect any assessment made by virtue hereof, nor shall said warrant be payable out of any other fund, nor a claim against the city."
Counsel for appellant contends that the decision of the question under consideration depends upon the construction to be given to the phrase, "all such charges and expenses," in section 8; and, as this phrase immediately follows sections 6 and 7, it refers only to the charges and expenses mentioned in those sections which may be incurred by the commissioners; and does not refer to the expense of advertising authorized to be incurred by the superintendent of streets. Conceding this, yet the subsequent parts of section 8 clearly prohibit the drawing of a warrant for any charge or expense of the improvement on any other than the special fund raised by assessment; and expressly declare that "in no event shall the city be liable for the failure to collect any assessment" made by virtue of the act; and that no warrant shall be a claim against the city. The decision, therefore, is not solely dependent on the construction of the single phrase above mentioned, but upon the construction of the whole section of which that phrase is only a small part. Besides, there is no question that the expense of advertising the list of delinquent assessments is one of the necessary expenses of the improvement, and I perceive no reason, and none has been suggested, why its payment should not be restricted to the same fund out of which alone the expenses of legal services, rent, stationery, and other incidental expenses are to be paid.
I think the court below correctly construed the eighth section of the act, and that its judgment should be affirmed.
For the reasons given in the foregoing opinion the judgment is affirmed.