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District Court of Appeal, Third District, California.


Civ. 5348.

Decided: September 17, 1935

Hewitt & Anderson, Hewitt, McCormick & Crump, C. S. Price, and George W. Crouch, amicus curiæ, all of Los Angeles, for appellant. Ray L. Chesebro, City Atty., Frederick Von Schrader, Asst. City Atty., and Jerrell Babb, Deputy City Atty., all of Los Angeles, for respondents.

This appeal involves the validity of an assessment levied by the city of Los Angeles for the maintenance of lighting posts and appliances and the furnishing of electric current for the lighting of a portion of Sunset boulevard for a period of fourteen months. This action was brought by plaintiff, a property owner, to concel the assessment against him. Judgment in the trial court was in favor of the defendants.

The statute involved in these proceedings is the “Public Works and Utilities Act.” Deering's Gen. Laws, p. 2679, Act 5215.

Appellant contends that the furnishing of electric current is not within the scope of the title of the statute, and that, therefore, as to any provision within the act for such furnishing of electricity the statute is unconstitutional under article 4, § 24, of the Constitution.

It is also contended that the assessment is invalid in that it includes certain items of incidental expenses, part for collection fees and part for supervision fees, and also a charge for “estimated cost of repairs and renewals.” None of these items are assessed separately, but all are included in the total on which the assessment is based.

Appellant concedes that the city council observed in form all the steps required by the statute.

The complaint herein states a cause of action. The case of Hannon v. Madden, 214 Cal. 251, 5 P.(2d) 4, is not in point. This assessment is attacked because of alleged illegality, making it void. City Securities Co. v. Harvey, 176 Cal. 682, 169 P. 380.

Proceedings for public improvements, the expense of which is to be assessed upon private property, are strictly in invitum.

The assessment is to be regarded as an entirety, and is void if it appears upon the face that a portion of it is for expense which is not legally chargeable upon the property assessed. Ryan v. Altschul, 103 Cal. 174, 37 P. 339.

The assessment complained of here includes the cost of collecting the same, based on an estimate and itemized as “collection fees $309.” This estimated amount is to be paid to the bureau of assessment of Los Angeles, which handles the collection of assessments from various districts within the city, maintaining a clerical force paid by the city from its general fund.

Similarly the assessment includes a “supervision fee,” listed at $426. This is also an estimated amount, based on the law of averages, for a future service, and the supervision work is done by city employees, paid by the city, which is reimbursed to the extent of this estimated amount for the lighting district's share of the supervision costs.

There is also the item of estimated costs of repairs and renewals. This is based on estimates for future repairs, which may or may not be needed, which estimates also are made on the law of averages from the experiences as to breakage, etc., over a period of time in the past.

The statute in question here, in section 2, subd. 2, provides that the board of public works of the city shall make an estimate of the costs of said improvement and of the incidental expenses in connection therewith. This is the only mention of “incidental expenses” and the term is not defined in the statute, as it has been in most improvement acts.

A person who is to be assessed is entitled to know the work for which the assessment is to be levied. Williamson v. Joyce, 137 Cal. 107, 69 P. 854. In this case the person cannot know what he is paying for under the head of repairs and renewals. It may be several light posts and globes will be broken during any year, and it may be they will not. There is nothing to show the assessment payer but an estimate. Such a description of the work as used here in this respect is insufficient, and renders the proceeding void.

There seems to be no authority for the inclusion of the incidental expenses hereinabove mentioned, that is, the collection and supervision fees, and for this reason also the assessment is invalid.

Although article 4, § 24, of the Constitution is to be liberally construed, it seems plain that the title of the act involved here does not embrace the furnishing of electric current which is mentioned at the end of section 1 of the act. The portion of the title (St. 1913, p. 421) applicable is as follows: “An act to provide for the acquisition, installation, construction, reconstruction, extension, repair and maintenance by municipalities of waterworks, electric power works, gas works, lighting works, and other public works and utilities.” The word “maintenance” would not cover the furnishing of electricity, as the maintaining of a street lighting system, and the use of it for lighting are two different things.

The assessment being considered invalid for these reasons, it is unnecessary to pass on the constitutional questions raised.

The judgment is reversed and the cause remanded with directions to enter judgment for the plaintiff as prayed for.

Mr. Justice pro tem ROSS delivered the opinion of the court.

We concur: PULLEN, P. J.; THOMPSON, J.

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