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District Court of Appeal, Second District, Division 2, California.

CITY OF LOS ANGELES, a municipal corporation of the State of California, Petitioner, v. Milton OFFNER, Respondent.*

Civ. 24709.

Decided: June 06, 1960

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., John D. Barrett, John F. Feldmeier, Weldon L. Welber, Deputy City Attys., Los Angeles, for petitioner. Thomas F. McBride, City Atty., Concord, William W. Coshow, City Atty., Redding, (Sturgis, Den-Dulk, Douglass & Anderson, Eugene K. Sturgis, Oakland, of counsel), for amici curiae City of Concord, a municipal corporation, and City of Redding, a municipal corporation, on behalf of petitioner. Wm. Mackenzie Brown, Roscoe R. Hess, Los Angeles, for respondent.

Mandamus to compel respondent, as acting secretary of the Board of Public Works of the City of Los Angeles, to discharge his official duty1 of posting and publishing notices inviting proposals or bids for certain sewer construction work to be done under the Improvement Act of 1911 (§§ 5000–6794, Streets & Highways Code).2 This he has refused to do because of alleged invalidity of subdivision (i) of § 5024 of said Act (as codified). That subdivision was added in 1959 and adds to the definition of ‘incidental expense’ of the improvement the following: ‘In the event that the construction of sewers or appurtenances incident thereto shall have been ordered, any charge that shall have been established by the city as a condition to the providing of sewer service to properties in the assessment district.'3 The entire section is set forth in the margin, emphasis indicating changes made in 1959.4 The matter is submitted upon petition and general demurrer thereto.

Respondent argues that for various reasons the city's sewer connection charge cannot be included in the assessment for benefits growing out of the improvement, that essentially it is not and cannot be an incidental expense of the improvement.

The sewer connection charge is imposed by § 64.16.1(a) of the Los Angeles Municipal Code (Ordinance No. 107840). As amended December 1, 1957 (Ordinance No. 110308), it provides: ‘Sec. 64.16.1. Connection Charge for Outlet Facilities (a) Before granting a permit to connect any lot or parcel not already connected to a public sewer or house connection sewer pursuant to the provisions of Sec. 64.12, except applications filed by a department of this City, the Board shall require, in addition to all other charges and fees imposed by Sec. 64.12 to Sec. 64.22, inclusive, 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 * * *.’ The quoted portion is followed by exceptions which are not material here. Respondent specifically says that ‘[w]e wish to state clearly that herein we make no attack upon Section 64.16.1 of the Los Angeles Municipal Code.’ We thus start our discussion with a valid sewer connection charge impliedly conceded to be reasonable in amount as well as basically legal.

Ordinance of intention No. 115574, adopted on February 11, 1960, declares the intention of the city council to order the improvement of ‘the Avenue San Luis and Shoup Avenue Sewer District’ by doing the following work: ‘That Avenue San Luis, between the southerly prolongation of the easterly line of Lot 1290, Tract No. 6170, * * * and the northwesterly prolongation of the southwesterly line of Lot 1237 of said Tract, be improved by the construction of sanitary sewers and appurtenances and house connection sewers; and that Shoup Avenue, between a point 850 feet northerly of the easterly prolongation of the northerly line of Gilmore Street and the northerly line of Ventura Boulevard, * * * be improved by the construction of sanitary sewers and appurtenances and certain house connection sewers. * * *’ It also provides that the proceeding be had pursuant to the Improvement Act of 1911, and that serial bonds be issued to represent each assessment of $50 or more remaining unpaid for 30 days from date of recordation of the warrant. Section 7 says: ‘That the incidental expenses of the work to be charged upon the district described herein 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; and that any incidental expenses incurred for consummation of this work in excess of these limitations shall be, and are hereby ordered to be, defrayed from the budgeted funds of the departments concerned.

‘Notwithstanding said limitation, 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.’

On April 1, 1960, ordinance No. 115829 ordering the doing of ‘the work described and referred to’ in the ordinance of intention was passed.

It should be observed in limine that the improvement consists of constructing sanitary sewers and appurtenances and house connection sewers. These are new sewers and the connection of the assessed property with the main sewer or the house connection sewer is a sine qua non to the existence of any such facility that can be of practical benefit to the property. Without an actual connection between house or lot and sanitary sewer (main, lateral or connecting), there is no sewer at all so far as actual usability or benefit is concerned. To establish that the making of the connection or the payment of its cost is not and cannot be lawfully considered an incidental expense of the main project requires something more than mere assertion. Unless it be found that there is no immediate or real relationship between the two, the declaration of the legislature that such a charge is properly included in an assessment as an incidental expense is enough.

There is a strong presumption of constitutionality of legislation (City of Ojai v. Chaffee, 60 Cal.App.2d 54, 61, 140 P.2d 116; People v. Superior Court, 10 Cal.2d 288, 298, 73 P.2d 1221; 45 Cal.Jur.2d § 115, p. 624), ‘and before it can be held invalid that presumption must be overcome, either by facts appearing upon the face of the statute or by such others as are matters of judicial notice.’ City of Ojai v. Chaffee, supra, 60 Cal.App.2d at page 61, 140 P.2d at page 120. Short of violation of some constitutional principle the legislature may define conclusively any terms it uses in a statute. See, § 5001, Sts. & Hwy. Code; B. P. Schulberg Productions v. California Employment Comm., 66 Cal.App.2d 831, 835, 153 P.2d 404; Trabue Pittman Corp. v. County of Los Angeles, 29 Cal.2d 385, 393, 175 P.2d 512; Fennessey v. Pacific Gas & Electric Co., 20 Cal.2d 141, 143, 124 P.2d 51.

Section 5024, Streets & Highways Code, specifies as incidentals numerous items which are not a part of physical construction of the sewers, e. g., engineer's work, attorney's fees, printing and advertising, ‘servicing and collecting any bonds,’ title searching, appraisal fees, ‘[a]ny other expenses incidental to the construction, completion, and inspection of the work in the manner provided for in this division.’ That such collateral concomitants of the total cost of a given improevement may be included in the assessment for the benefits of the same has been recognized in the decisions.

People ex rel. Doyle v. Austin, 47 Cal. 353, 358, held it proper to include a sum sufficient to cover interest to accrue on the bonds and such discount as might be suffered in converting them into cash. ‘We do not see on what theory it can be claimed that by this process the property is charged with anything more than the cost of the improvement. The interest on the bonds, and the discount, if any, on the sale of them, are incidental expenses incurred in providing a sufficient fund for the accomplishment of the work, without exacting in cash from the property owners the necessary sum. It is a provision for their benefit, which enables them to pay the cost of the improvement in easy instalments, instead of paying the whole sum on the completion of the work. As they will have the benefit of the credit, it is but just that they should pay the accruing interest and any discount which may be suffered in the sale of bonds. As before stated, the interest and discount are but incidental expenses of the enterprise, and, upon principle, stand upon the same footing as the compensation of the officers who superintend it.’ 47 Cal. at pages 358–359.

Burk v. Altschul, 66 Cal. 533, 534, 6 P. 393: ‘This is a street assessment case. The first point presented, that an item of $40 for printing was included in the assessment, has been repeatedly passed upon by this court adversely to the appellant.’

Roberts v. City of Los Angeles, 7 Cal.2d 477, 61 P.2d 323, involved an assessment for street lighting. In response to a contention that there was no power to assess appellant's property for the cost of electric current, the court said at page 490 of 7 Cal.2d, at page 328 of 61 P.2d: ‘We think there is no doubt that the furnishing of electric current comes within the classification of public improvements, in the same sense as does a permanent building or anything else of a permanent nature used in public utility construction. * * * The electric current is the main source of benefit to be derived from the improvement; it is the solar luminary, as it were, of a street lighting system, all other things being subsidiary to it. * * * ‘It is difficult to understand, therefore, why the cost of this mechanical part of the improvement can be charged to abutting property specially benefited by the lighting of the street while the cost of the electric energy, without which there can be no completed improvement, cannot be so charged. We think there is no room for such a distinction, that the mechanical contrivances and the electrical energy are but parts of a complete whole, and that it is the whole, and not one of the parts, that confers the benefits * * *.’ We are in accord with the reasoning of the Washington supreme court, which seems conclusive against the contention that electric current does not constitute any part of a public street lighting system or improvement and private property cannot be assessed for the costs of furnishing or supplying the same.'

Etheridge v. City of Atlanta, 167 Ga. 222, 145 S.E. 84, 85: ‘The petitioner alleges that the act of the General Assembly (Ga. Laws 1925, p. 840) amending the charter of Atlanta, by fixing said sewer charge at $1.50 per lineal foot of abutting property, is void because violative of the due process clause of the Constitution of Georgia.’ The Syllabus Opinion by the Court (145 S.E. at page 85): ‘In fixing the amount to be assessed against owners of abutting property to cover the cost of constructing lateral sewers and connections therewith to private property, the cost of building, repairing, and upkeep of trunk sewers and disposal plants may be considered; and for the privilege of connecting with such trunk lines a reasonable sum may be added to the actual cost of lateral sewers and property connections. The amount added, in the present case, is not shown to be unreasonable or confiscatory.’

Respondent, after quoting 48 Am.Jur. § 49, page 605, to the effect that an assessment cannot exceed the total benefits or the cost and incidental expenses of the improvement, says: ‘But nowhere in this article on Special or Local Assessments is there any statement that an assessment goes beyond costs and includes benefits resulting from the improvement. It is this distinction between Costs and Benefits that we decry as the unconstitutional feature of the legislative authorization that the sewer connection charge (which is not a cost of the construction of the sewer) be included in the assessment. * * * We are not for a moment contending that there may not be a benefit to the abutting property to be able to connect to this sewer or to any other sewer, but to levy a Special Assessment in the amount of benefits instead of in the amount of costs, throws over completely the entire theory of Special Assessments and violates the California and Federal Constitutions ‘in the matter of due process and the taking of a private property for a public use without the payment of compensation.’' Again: ‘The fundamental fallacy in the City's memorandum and in the Legislation is the theory that because special assessments are based on special benefits, the amount of such special assessments can be in the amount of such special benefits.’ The argument reflects confusion of thought as will appear from reference to some of the salient features of the procedures under an assessment act, referring specifically to Improvement Act of 1911 and to a district assessment (§ 5180).

The superintendent of streets estimates the benefits arising from the work with respect to each parcel. ‘* * * He shall thereupon assess upon and against the lands in the assessment district the total amount of the costs and expenses of such work, and in so doing shall assess the total sum upon the several lots or parcels of land in the assessment district, benefited thereby, in proportion to the estimated benefits to be received by each of the said several lots or parcels of land.’ § 5343. All costs and expenses are spread over the properties in the district in proportion to benefits. The assessment includes ‘incidental expenses' (§ 5361), as that term is defined in § 5024. After the construction work has been satisfactorily performed a warrant for collection of assessments is delivered to the contractor (§ 3571), but only after payment to the superintendent of streets of the incidental expenses not previously paid by the contractor (§ 5374). At this point the city receives its connection charge in cash and the property owner whose assessment includes his share of that charge may pay forthwith or let instalment bonds be issued (§§ 6420–6422), same to run for ten years in the instant case. When that occurs the property owner is automatically released from any personal obligation to pay the city's connection fee and, as we have said, the city receives the same at once and in cash. There is of course an assessment for benefits up to but not exceeding costs and expenses; any benefits in excess of that cannot be assessed. This is basic to public improvement assessment proceedings. Clearly, the incidental expense to the contractor (§ 5371), but only after charge—is not a benefit to the property owner; it is a burden. Equally plain is it that that charge lies at the heart of the whole procedure in the instant case. Without its payment there can be no usable sewer; it is paid by the contractor to the city and he recoups through collection of assessments or the bonds; the owner is never subject to personal obligation to make that payment and is given ten years (if he so elects) to discharge the obligation.

The argument that subdivision (i) of § 5024 may be applied to a sewer installed in a prior proceeding under the act, or without invoking a street assessment act, requires no consideration. Such a situation is not presented here. The instant work consists of construction of new sanitary sewers and house connection sewers as a single project. Without connection with each other those sewers are dead things and no benefit whatever accrues to any lot owner.

The case of Biggart v. Lewis, 183 Cal. 660, 192 P. 437, is pertinent. It involved the meaning of ‘incidental expenses' in a statute providing for formation of county irrigation districts, etc. Stats.1913, p. 785. The holding was that legal services rendered in promoting the formation of the district were not embraced within the statutory phrase ‘an estimate of the cost of the proposed improvements and of the incidental expenses in connection therewith.’ But the court's discussion of the meaing of incidental expenses is persuasive of the validity of § 5024, subdivision (i) here under consideration. At pages 668–669 of 183 Cal. at page 440 of 192 P. it is said: ‘Fairly construed, the provision of the act requiring the petition for the creation of the district to contain ‘an estimate of the cost of the proposed improvements and of the incidental expenses in connection therewith’ has reference, as do the required provisions of the ordinance calling the election, wholly to such expenses as are generally and incidentally necessary to the construction and the maintenance and operation of the plant and business of the proposed district after it has actually come into being as a legal entity. * * * In short, a distinguishing and dominating characteristic of an incident is to be found in the fact that it always and necessarily appertains to a pre-existing and principal thing, and manifestly the pre-existing and principal thing dealt with by the act in question is the probable cost as a whole of the proposed improvement when finally formulated into a going corporate concern.' The payment of the sewer connection charge at bar is essential to the development of a ‘going concern’ of any value whatever to the property owners who are to be assessed for its cost.

There is no merit in the assertion that subdivision (i) covers only a charge incident to exercise of the police power. In truth an improvement assessment proceeding involves the exercise of some degree of the prerogatives of taxation, eminent domain and police power (Spring Street Co. v. City of Los Angeles, 170 Cal. 24, 28–29, 148 P. 217, L.R.A.1918E, 197), primarily taxation (Cowart v. Union Paving Co., 216 Cal. 375, 381, 14 P.2d 764, 83 A.L.R. 1185). It necessarily draws to itself all the incidents of the main improvement and the assessment properly covers and includes all the incidental expenses. While it may be true that the city's connection charge is per se an exercise of the police power on the city's part, it takes on a different character when viewed from the standpoint of the costs of a sewer improvement; it there moves over into the domain of taxation and becomes a legitimate charge.

Other contentions advanced by respective counsel have been considered but they require no individual discussion. We find no merit in respondent's position. The demurrer is overruled.

Let the peremptory writ issue as prayed.


1.  Charter, City of Los Angeles, §§ 5, 75, 230 and 233 [Stats.1951, pp. 4685, 4396; Stats.1925, pp. 1099, 1100].

2.  All references to statutory sections will point to the Streets & Highways Code unless otherwise specified.

3.  This is not a new concept of incidental expenses. In 1899 ‘An act providing for the establishment and maintenance of sewer districts adjacent to municipal corporations' (Stats.1899, Ch. 66, p. 81), specified in § 4 that ‘Whenever a sewerage district shall be formed, as provided in this act, of territory adjacent to any municipality having a sewerage system, the sewerage system of said sewerage district must be connected with and have its outlet through the sewerage system of said municipality * * * and when connection is made with the sewers of the municipality, said board of supervisors, from the funds collected from the taxes above provided for, shall pay to said municipality annually the sum of money that shall be fixed as charges by the said board of supervisors and said legislative body of said municipality for the privilege of so connecting and maintaining connection with the sewer system thereof, and this amount may vary from year to year as the said board of supervisors and said legislative body of said municipality shall deem reasonable.’ (P. 82.) Carried into the Sewer Districts in Unincorporated Territory Act (Stats.1943, Ch. 765, p. 2541), now comprising §§ 4659–4667, Health & Safety Code, the idea of connection charges being incidental expenses was reflected in § 4665.5, Health & Safety Code, which provides: ‘As an alternate or supplemental method of raising the money to carry out the provisions of this chapter the board of supervisors may fix and collect use taxes, fees, tolls or charges for the use of facilities or lines maintained or operated by the district sufficient in amount to pay for the expenses, or a portion thereof, of the district in maintaining, operating, and repairing any works, lines, or improvements of the district and to defray all other expenses incidental to the exercise of any of the district's powers, including a sufficient amount of money, or a portion thereof, to pay to any city whose sewers shall be connected with pursuant to this chapter, the amount fixed as charges for the privilege of connecting with the city sewerage system or having the city maintain the sewer lines in the streets and public easements.’ Though this statute was repealed in 1959, the existence, powers and functions of existing districts were preserved by a saving clause (Stats.1959, Ch. 1309, p. 3581).

4.  Streets and Highways Code, § 5024: “Incidental expense' includes: ‘(a) The compensation of the engineer for work done by him, and attorney's fees for services in proceedings pursuant to this division; ‘(b) The cost of printing and advertising provided for in this division, including the treasurer's estimated cost of printing, servicing and collecting any bonds to be issued to represent or be secured by unpaid assessments; ‘(c) The compensation of the person appointed by the superintendent of streets to take charge of and superintend any of the work; ‘(d) The expenses of making the assessment, and of the collection of assessments by the superintendent of streets when directed by ordinance to receive payments pursuant to Section 5396 of this division, and of preparing and typing the resolutions, notices and other papers and proceedings for any work authorized by this division; ‘(e) The expenses of making any analysis and tests to determine that the work and any materials or appliances incorporated therein comply with the specifications; ‘(f) All costs and expenses incurred in carrying out the investigations and making the reports required by the provisions of the ‘Special Assessment Investigation, Limitation and Majority Protest Act of 1931’; ‘(g) The cost of title searching, description, writing, salaries of right of way agent, appraisal fees, partial reconveyance fees, surveys and sketches incident to securing rights of way for any work authorized by this division; and ‘(h) Any other expenses incidental to the construction, completion, and inspection of the work in the manner provided for in this division. ‘(i) In the event that the construction of sewers or appurtenances incident thereto shall have been ordered, any charge that shall have been established by the city as a condition to the providing of sewer service to properties in the assessment district. ‘All demands for incidental expenses shall be presented to the street superintendent, by an itemized bill, duly verified by the demandant.’

ASHBURN, Justice.

FOX, P. J., and KINCAID, J. pro tem., concur.