Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing (Denied, Granted) 34 Cal. 310 at 316.
Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.
To the complaint of the plaintiff, filed in this cause, a demurrer was interposed by defendant on the ground that the facts therein stated did not constitute a cause of action. The demurrer was sustained by the Court below, and judgment final thereon entered for defendant, and plaintiff appealed therefrom to this Court.
COUNSEL:
That the act of the respondent, as Superintendent of Streets, in making the assessment in question, was purely ministerial, and therefore he is liable to plaintiff for his failure to comply with the requirements of the law, whereby the assessment was rendered illegal, and resulted in the loss to plaintff of the amount of the assessment to Davis' property; and cited Smith v. Davis , 30 Cal. 587; Yates v. Lansing, 5 Johns. 297; Weaver v. Devendorf , 3 Denio, 117; Emery v. Bradford , 29 Cal. 75; Mygatt v. Washburn , 15 N.Y. (1 Smith) 316; The People v. The Supervisors of Chenango Co., 1 Kern. 573; Freeman v. Kenny, 15 Pick. 44; Bassett v. Porter, 4 Cush. 494; Dickinson v. Billings, 4 Gray, 42; Adsit v. Brady, 4 Hill, 630; Wilson v. The Mayor of New York , 1 Denio, 599; The Rochester White Lead Co. v. The City of Rochester, 3 Comst. 466; Tracy v. Swartwout, 10 Pet. 94; and Brown v. Lester , 13 S. & M. (Miss.) 392.
They further argued that the acts, resulting in the defects or illegality of an assessment, from which a party aggrieved must appeal to the Board of Supervisors, in order to save his legal rights, are of a judicial character solely, and such as the Board may make valid by affirming, and become res adjudicata when passed on by the Board; that plaintiff did not, therefore, fail in his duty in not appealing to the Board of Supervisors, because the defects in the assessment, caused by the neglect of duty on the part of the respondent, complained of, being a failure to perform a ministerial duty, the Board would have been powerless to remedy the defects in the assessment in question on appeal; and cited Emery v. Bradford , 29 Cal. 86.
As to the general rules governing the liabilityof officers, appellant's counsel cited Bac. Abr., art. " Office and Officers," o, and cases there cited; Lick v. Madden , 25 Cal. 209.
Sharpstein & Hastings, for Appellant, argued:
C. H. Parker, for Respondent.
I. The act of respondent complained of is a judicial or quasi-judicial act. (Weaver v. Devendorf , 3 Denio, 117; Vail v. Owen, 19 Barb. 22; Brown v. Smith, 24 Barb. 419; Hill v. Sellick, 21 Barb. 207; 29 Cal. 85; Griffith v. Follett, 20 Barb. 629.)
No private action will lie against an Overseer or Commissioner of Highways for neglect to keep the public bridges in repair (Bartlett v. Crozier, 17 John. 451; ) nor would it at common law. (Mower v. Leicester , 9 Mass. 247, and 23 Pick. 226.) The neglect complained of must be willful or malicious. There is no such allegation in the complaint; mere negligence, however gross, can never be equivalent to malice. (Morse v. The Auburn and Syracuse R. R. Co., 10 Barb. 621.)
The making of an assessment, as provided for by section nine, page three hundred and ninety-seven, statutes of 1862, is a quasi-judicial act; it is not a " purely ministerial" act.
II. The remedy by appeal to the Board is exclusive of all other remedies, on the well settled principle that where the right and the remedy are given by statute, the remedy provided by statute can alone be pursued. (7 Cal. 129; 6 Cal. 42; 3 Cal. 243; 5 Cal. 195-210; 9 Cal. 267; Smith on Statutes, Secs. 661, 667.)
III. All parties interested must take notice of the records and proceedings of the Board and Superintendent. They are public records. (24 Barb. 427; Sec. 19 of said Act.) " The only thing for the contractors to look to is, to see that the proceedings are all regular." (Emery v. Bradford , 29 Cal. 84.)
IV. The decisions made by the Board concerning the subject matter of street improvements, in pursuance of a power vested in them, etc., is final and conclusive. ( Emery v. Bradford , 29 Cal. 87, and cases there cited.)
JUDGES: Sawyer, J.
OPINION
SAWYER, Judge
By the Court, Sawyer, J., on petition for rehearing:
To render an assessment for street improvements valid, the various acts prescribed by the statutes must, in all essential particulars, be strictly performed. This principle is so well settled everywhere that it is unnecessary to cite authorities. Section nine of the Act, which provides for making street improvements in San Francisco, as amended in 1862 (Laws 1862, p. 397), prescribes what an assessment shall show; and among other things, it " shall show * * * the name of the owner of each lot or portion of a lot, (if known to the Superintendent,) if unknown, the word 'unknown' shall be written opposite the number of the lot," etc. There is no authority for making an assessment, that does not embrace these essentials. There is no authority to make an assessment strictly in rem without reference to owners, either known or unknown, or an assessment that shall affect the interest of any party, unless designated in the assessment by name, or, if unknown, it be so expressly stated. This is a part of the mode prescribed. After the assessment is made, a warrant is to be issued upon it, and " said warrant, assessment and diagram shall be recorded. When so recorded, the several amounts assessed shall be a lien," etc. (Sec. 10.) Now, it is " said * * * assessment " --that is to say, an assessment that shall show the name of the owner, if known, or, if unknown, shall so state--and no other, that shall, upon being recorded, " be a lien." " The contractor, or his assigns, shall call upon the person so assessed * * * if they can conveniently be found, and demand payment of the amount assessed to each." (Sec. 12.) How assessed? " So assessed" --that is to say, in the manner before stated. Whenever the persons so assessed, or their agents, cannot conveniently be found, or whenever the name of the owner of the lot is stated as " unknown" in the assessment, " the said contractor, his agent or assigns, shall publicly demand payment on the premises assessed." (Sec. 11.) The idea before expressed is carried out in this provision. All these provisions refer to the persons " so assessed," and none others. There are only two classes of cases in an assessment known to the statute: those where the parties are assessed as owners by name, and those where " the name of the owner of the lot is stated as unknown" --not is unknown, merely, but is so stated in the assessment. A demand must always be made in both these cases, either personally, or upon the lot, depending upon the circumstances prescribed--but there is no provision for demand upon anybody else--upon anybody whose name is not in the assessment, or stated therein to be unknown; and, for the reason, no doubt, that the statute does not contemplate that anybody else will be affected. Nobody, except the person named as owner, is a party to the assessment at all, unless the owner is stated as unknown, and one not a party to the assessment in one of the modes designated, is in no way affected by it. As to him, there is not an erroneous, or irregular assessment, merely, but there is no assessment at all. There is no way in which a demand is authorized to be made upon anybody not designated in the assessment in one of the modes indicated. The warrant must in all cases be returned within a specified time with a return indorsed thereon, verified by oath, showing the nature and character of the demand. (Sec. 11.) This is a part of the proceeding prescribed: " The said warrant, assessment, and diagram, with the affidavit of demand and nonpayment, shall be prima facie evidence of such indebtedness, and of the right of the plaintiff to recover in the action." (Sec. 13.) This is the only evidence recognized for proving the indebtedness. The said warrant, assessment, etc., refer to the proceedings already cited. The warrant and assessment are not evidence without a demand, and an affidavit showing it. And the demand can only be made under the precise circumstances prescribed, and that is, when the owner is named, or when he is stated to be unknown. It is perfectly apparent that no such record, demand, return, etc., as is prescribed by the statute as the evidence of indebtedness, or of a lien, can possibly be made against an owner, who is not designated in the assessment by name, or whose name is not stated to be unknown. The proceeding does not affect such owner, because he is, in no manner whatever, made a party to it. And this is true, whether the assessment was made by the Superintendent and there was no appeal, or whether, on appeal, the Board of Supervisors have neglected to cause the name of the owner to be inserted, if known, or stated as unknown, if such is the fact. In the former case, the determination of the Superintendent, and in the latter, of the Board of Supervisors, is conclusive as to the matters embraced in the assessment. But conclusive or otherwise, those only are affected who have been made parties to the assessment in one of the modes prescribed. Either the Superintendent, or the Board on appeal by a party aggrieved, might make the owner a party, and thereby make an assessment against him in one of the modes prescribed; but until this is done, there is no assessment against him, and he is not affected.
It is contended that Davis might have appealed, and he was therefore bound to appeal, and in default of pursuing that remedy, the assessment is good against him. This would be true if he had been assessed, but the difficulty is he was not. An " owner, * * * whether named in the assessment or not, * * * feeling aggrieved by any of the acts or determinations of the Superintendent in relation thereto, or having or making any objection to the correctness or legality of the assessment, shall, within thirty-five days after the date of the warrant, appeal," etc. This provision has full effect when limited to owners made parties in one of the modes prescribed; that is to say, by naming the owner, or designating him as unknown--for, in the latter case, he is not " named in the assessment." An assessment against Smith is not an assessment against Jones. An assessment against Smith may be valid as to any interest he may have in the subject matter, and everybody else who is a party to it, while it in no way affects Jones, or others not parties to it. Suppose an assessment should be made against Smith in respect to a lot owned by Jones, and in which Smith had no interest whatever, and a judgment for the amount should afterwards be recovered in a suit against Smith alone; no lawyer would be bold enough to maintain that Jones would be affected by the judgment, or that the judgment would be admissible in evidence against Jones in another suit, brought against him on the judgment. Should such a record be presented in evidence against him, the conclusive objection would be, that he was no party to that record. So when the assessment and warrant, upon which it was based, is presented to him for payment, or in evidence, he can say: " I am no party to that record. I am neither named in it, nor am I made a party as an unknown owner--the only modes known to the law by which I can be made a party. Smith is the only party affected." In this case, Davis, if he examined the assessment and warrant, did not find an assessment to which he was a party, or a warrant which ran against him, or that could affect him. He did not perceive that he was in any way aggrieved. As the proceedings did not affect him, he had no objection to them. He is, therefore, not in the category of those who were required to appeal. Had he been named in, or made a party to, the assessment, and more than his share had been imposed on him, or had he been assessed before the contract was fully performed, as was claimed to be the case in Emery v. Bradford, he would have been aggrieved and had some ground for complaint. It would then have been incumbent on him to appeal, or to submit to the unjust apportionment, or premature assessment. But why should he be called upon to complain, or find fault with an assessment to which he was no party at all, and by which he was, consequently, not affected? It is preposterous to say that his remedy is by appeal, when he has in no respect been injured, and stands in no need of a remedy. The assessment upon its face is not against him. He is no party to it. He does not need to have it corrected, modified or vacated. He is simply a stranger to it. Those who have an interest in making him a party to it, and of having an assessment made against him, have some interest in having it corrected or modified, and may have grounds of complaint of the omission of his name--may have grounds for feeling aggrieved--but he has none. The position of the petitioner substantially amounts to this: Under the provisions of the statute, any party aggrieved, or making any objection to the correctness of the street assessment, is authorized to appeal and have it corrected. If he does not appeal, the assessment is conclusive. Davis is not assessed at all. He is aggrieved, and has good ground of complaint, because he is not assessed; and because he is not assessed, the assessment is incorrect and illegal as to him. He is, therefore, bound to appeal for the purpose of having himself assessed, and if he does not avail himself of this, his only remedy, he is assessed already, and the assessment is conclusive. We are unable to perceive the force of this logic, or to find any inconsistency between the decision in Smith v. Davis and this case, or any of these cases, and Emery v. Bradford. To us, the difference between the position of Davis and Smith appears obvious, and is this: Davis had no grievance requiring redress, and stood in no need of a remedy, while Smith was aggrieved, required, and had a remedy, but did not pursue it.
The position maintained in the petition for rehearing was taken in the brief of counsel on the former argument, but its fallacy seemed so palpable to our minds that we did not think it required any special notice. It is now, however, so earnestly pressed by counsel of more than ordinary ability and candor, that we are bound to believe they are serious, and have some confidence in it, and we feel called upon to somewhat fully present the view impressed upon our minds.