BING v. John Erreca, Director of Public Works of the State of California, et al., Defendants and Respondents.

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District Court of Appeal, Second District, Division 3, California.

Anna H. BING, Plaintiff and Respondent, v. CITY OF DUARTE, etc., et al., Defendants and Appellants, John Erreca, Director of Public Works of the State of California, et al., Defendants and Respondents.

Civ. 28613.

Decided: August 01, 1966

William Camil, City Atty., City of Duarte, for appellants. John H. Klenke, Los Angeles, for respondent Anna H. Bing. Thomas C. Lynch, Atty. Gen., Dan Kaufmann, Asst. Atty. Gen., Richard S. Cohen, Edward P. Hollingshead, Deputy Attys. Gen., for respondent Alan Cranston, State Controller. Harry S. Fenton, Chief counsel, R.B. Pegram, Ceputy Chief Counsel, Richard C. East, Sacramento, Charles E. Spencer, Jr., George W. Miley, Los Angeles, for respondent John Erreca, Director of Public Works. Harold W. Kennedy, County Counsel, Los Angeles County, Gorden W. Treharne, Deputy County Counsel, for amicus curiae.

The defendants, the City of Duarte, a municipal corporation, Robert L. Poff as its treasurer and five members of its city counsel, a such members, appeal from the judgment herein rendered against them and in favor of the plaintiff in an action for declaratory relief and for a writ of mandate.   The foregoing named defendants as a group, for the purpose of convenience, will be hereinafter referred to as the City.   The other defendants named were Robert Bradford as Director of Public Works of the State of California, Alan Cranston as Controller of the State of California, and the State of California.   The later group of defendants, for the purpose of convenience, will be referred to herein as the State.   Prior to judgment the State of California was dismissed pursuant to a written request therefor made and filed in behalf of the plaintiff;  certain successor city councilmen were substituted in as defendants, and John Erreca was substituted in as a defendant in the place of Bradford as Director of Public Works.

The facts out of which the controversy arises are substantially as follows:  In 1957, the State Department of Public Works, Division of Highways, commenced studies for the route of the Foothill Freeway through the City of Duarte.   After various communications between the City and the Department and after at least two meetings, the City endorsed a general route which ran south of Central Avenue.   On May 20, 1959, the State Highway Commission adopted the route endorsed by the City and which was delineated in general, but without exact measurements or legal descriptions, on a map sent to the City.

On June 13, 1960, the City duly adopted, and thereafter published as required by law, a resolution of intention initiating Improvement District No. 7 for the construction of sanitary sewers to be paid for by assessments on the various parcels of land within the improvement district.   The district was predominantly a developed residential area through which the freeway route passed.   The public street of work of improvement and the proceedings had and done in connection therewith were carried out under the provisions of the Improvement Act of 1911, Parts 1 to 5, Division 7, Streets and Highways Code.   The total cost of the improvement to the district was the sum of $406,936.42.   The work of improvement was fully completed by the contractor and approved and accepted by the City prior to October 17, 1961.

On October 25, 1960, the City Clerk of the City of Duarte, recorded in the office of the County Recorder of Los Angeles County a “Notice of Award of Contract in Proposed Assessment District,” pursuant to the provisions of section 5248 of the Streets and Highways Code.1

Between October 12, 1960, and October 4, 1961, the State had acquired title to 57 parcels of land all within the boundaries of Improvement District No. 7, to be used in connection with the construction of the Foothill Freeway.

Prior to October 17, 1961, the City had instructed its assessment engineer to prepare an assessment roll and diagram and assess under the provisions of the Improvement Act of 1911, each and all of the units of real property located in the improvement district for the total cost of the public improvement and to submit such proposed assessments, assessment roll and diagram to the City Council at its regularly designated meeting and assessment hearing to be held on October 9, 1961.   The assessment roll presented by the assessment engineer to the City Council on October 9, 191, omitted the 57 parcels of State-owned property.   The City Council then instructed the assessment engineer to modify the assessments, assessment roll and diagram to include the 57 parcels of State-owned property and to submit the modified assessments, assessment roll and diagram at the assessment hearing to be held on October 14, 1961.

At the hearing held on October 14, 1961, the City adopted the assessments, assessment roll and diagram , as amended, to include the 57 parcels of State-owned property and directed that the same be filed and recorded and that the warrant be issued by the street superintendent in accordance with the provisions of the Improvement Act of 1911.

The assessment roll and diagram as modified and the warrant were recorded in the office of the County Recorder of Los Angeles County on October 17, 1961.   On the same date a warrant was duly issued by the Street Superintendent of the City of Duarte authorizing and empowering the plaintiff, as assignee of the contractor, to demand and receive the several assessments upon and as shown by the assessments, assessment roll and diagram attached, all within Improvement District No. 7.

On November 17, 1961, the City issued to the plaintiff 601 of its Improvement Act of 1911 Bonds, payable to the plaintiff or her order, including 57 bonds in the aggregate amount of $37,792.42, constituting liens on the 57 parcels of State-owned property.

When the State learned that the City intended to assess the State-owned property, the District Right of Way Agent and the Senior Right of Way Agent for the Division of Highways on July 19, 1961, met with the City Administrator of the City of Duarte and advised him that it was their interpretation of the law that the City of Duarte could not assess the State-owned properties within the improvement district.

Of the 57 parcels of State-owned property within the district and involved in the disputed assessments, two were large undeveloped lots and 55 were developed with single family residences.   As of the time of trial six residences had been removed and approximately 45 of the remaining residences were occupied.

The State and the City had not, at the time of trial, entered into the customary freeway agreement under Streets and Highways Code, section 100.2, governing street closures, separation structures and freeway connections.   Actual commencement of the construction of the freeway was scheduled for 5 to 6 years from the date of trial.

The plaintiff filed claims with the State and City respectively for the payment of the principal and interest due on the 57 bonds and such claims were denied.   Both the State and the City have refused to pay any part of the principal and interest due on the 57 bonds and each refuses to make any provision for the payment of them.   The State contends that the City is liable, and the City contends that the State is liable, for the payment of the disputed bonds.   The State claims that the assessment was invalid and therefore the lien created by the bonds is void.

Neither the State nor the City contend that there was any impropriety in the procedural steps adopted by the City and leading up to the levy of the assessment and the issuance of the bonds.   The controversy rests upon the right to tax State-owned lands within the improvement district title to which was acquired prior to October 17, 1961, the date upon which the assessment attached as lien upon such property.

Subsequent to October 17, 1961, the State has acquired additional parcels of real property within the boundaries of the improvement district against which there were outstanding and unpaid bonds.   No question is raised as to the liability of the State to discharge the obligation under these bonds.

The court entered judgement as follows:  “That only the 57 Improvement Act of 1911 bonds here in controversy are invalid and unenforceable and do not constitute and create a valid lien upon or against the 57 units or parcels of State-owned property described therein, and against which they have been levied and issued.   That the application of the provisions of Streets and Highways Code Section 5248 does not result in making these bonds valid and enforceable against such properties nor does it render any of such property subject to the lien therefor, such property having been acquired by the State prior to October 17, 1961, that being the date of the recording of the assessments in the City of Duarte Improvement District No. 7 and that being the date that the liens for such assessments were created and attached to all other real property in said District, including any and all other State-owned real property, located in said district, under the provisions of Section 5273 of the Streets and Highways Code.

“That the 1911 Improvement Act District No. 7 assessments made on October 14, 1961, by defendant CITY OF DUARTE and the members of its City Council, upon and against such 57 units or parcels of State-owned property and acquired by the State prior to October 17, 1961, are void and invalid, but only as to such 57 units and parcels of property.

“That the said 57 units or parcels of State-owned property acquired prior to October 17, 1961 are not subject to a lien for the 1911 Act Improvement assessments made in said District No. 7, and the provisions of Section 5248 of the Streets and Highways Code do not create such a lien.

“That any and all property acquired by the State of California for State highway purposes within said District No. 7 on and after October 17, 1961, is subject to and charged with, and must bear, the full amount of the assessment and re-assessment made and levied against the same for the 1911 Act improvements within said district, and a valid charge and lien therefore is created and imposed upon and against any and all such State-owned property.

“That this action is not barred by the provisions of Sections 5369, 5660, nor 6427, of the Streets and Highways Code.

“That this action is not barred by the provisions of the First Validating Act of 1962.

“That neither the CITY OF DUARTE, nor its named officials sued herein, is liable to plaintiff for the payment of the principal amount of the 57 disputed bonds, plus interest thereon.   Under the facts of this case, Sections 5301, 5302, 5302.5 and/or 5303 of the Street and Highways Code do not result in imposing such liability upon said defendants.

“That the defendant State officials named herein shall not be called upon or required to authorize the approval for payment of, or order the payment of, or be required to pay to plaintiff, the amount of the principal and interest on the 57 disputed 1911 Act bonds.

“That plaintiff is not entitled to recover attorney's fees from any of the defendants herein.

“Except as affected by the re-assessment provisions hereof, as hereinafter mentioned and ordered, plaintiff's request for an alternate writ of mandate is denied.

“That the defendant CITY OF DUARTE and the defendant members of the City Council of the City of Duarte, be and they hereby are ordered, directed and required to forthwith institute and initiate all necessary and proper proceedings to make a full re-assessment of and in the Improvement District No. 7 here involved, excluding therefrom the 57 units or parcels of State-owned properties covered by and described in the 57 1911 Act bonds here in controversy, and to include in such re-assessment the sum of $37,792.42 being the principal amount of said 57 bonds, together with interest thereon at 6% per annum, compounded semi-annually, from November 17, 1961 to the date of the recording of such re-assessment;  and to further include therein and to make such re-assessment against all remaining properties in the said District, including all State-owned properties located in said district and acquired by the State on and after october 17, 1961;  such re-assessment to be retroactive to October 17, 1961 as to all properties located within said district, including such State-owned properties;  said re-assessment to be made against all such properties in said district and new, additional or different bonds to be issued to plaintiff may be necessary or required, all in accordance with the provisions of Streets and Highways Code Sections 5500 to 5511, inclusive.

“That the defendants, JOHN ERRECA, as Director of Public Works of the State of California, and ALAN CRANSTON, as Controller of the State of California, be and they hereby are ordered, authorized, directed and empowered to forthwith approve for payment to plaintiff, the total amount of the aforesaid re-assessment made and levied against and upon any and all State-owned property located in said City of Duarte Improvement District No. 7, and acquired by the State on and subsequent to October 17, 1961, and that they, and each of them, be ordered, directed and empowered to forthwith pay to plaintiff the total amount of such re-assessment so made, plus interest thereon at 7% per annum from the date of the recording of such re-assessments until paid.

“That plaintiff have and recover from defendant CITY OF DUARTE and its named officials, and from the named defendant STATE officials, her costs of suit herein, hereby fixed in the sum of $51.11.

“That the Court retains jurisdiction of the subject matter of this litigation for the purpose of making and entering herein any such other and further orders as may b necessary to carry into full force and effect the provisions of this judgment and the re-assessment herein ordered.”

The appeal is by the City from this judgment.

The City urges five grounds upon which it claims that the judgment should be set aside.   They are:  “1. The recording of the notice under Section 5248 resulted in the parcels of property involved in disputed assessments becoming subject to the assessments placed thereon by the City of Duarte.

“2. The action against the City is barred by the Statute of Limitations, Section 5660.

“3. The cause of action attempted to be set forth in the complaint is barred by the provisions of the ‘First Validating Act of 1962’, Bill Chapter 16, of the 1962 First Extraordinary Session of the California Legislature, Assembly Bill No. 6.   Said First Validating Act of 1962, by its terms, was effective on April 11, 1962.   Said First Validating Act of 1962 had the effect of validating the bonds herein question, if it be conceded that they were not valid prior to that time, which these appellants do not concede.   Section 6427 had the same effect.

“4. Resolution of Intention No. 60–49 for Assessment District No. 7 of the City of Duarte, the assessment district under which the bonds here in question were issued, was duly published on June 30 and on July 7, 1960, all in accordance with the provisions of the Improvement Act of 1911.   This action is barred by the provisions of Section 5369.

“5. Each of the contested bonds contains a contractual provision [as shown on Ex. ‘B’ to the complaint, C.T. 15] which bars this action.”

All references hereinafter made to section numbers refer to section numbers of the Streets and Highways Code unless otherwise designated.

 As to the City's first contention it is obvious that section 5348 does no more than to provide notice to all persons that all property within the boundaries of the proposed improvement district shall be assessed at the time of the confirmation of the assessment to pay the costs of the improvement, notwithstanding the acquisition of the property by the State or governmental agencies mentioned.   The section does not establish a lien upon any of the property situated within the district nor does it fix the time when such a lien will attach.   Section 5372 2 specifically provides that the assessment shall attach as a lien upon the property assessed, when after confirmation of the assessment, such assessment is recorded in the office of the county recorder of the county in which the improvement district is located.  (§§ 5372, 3114 and 3115.)

 In using the words “Said recordation shall constitute notice to all persons,” it appears that the Legislature did not intend that the recordation of the notice provided for in section 5248 should constitute notice to the State.

Section 19 provides that “ ‘Person’ means any person, firm, partnership, association, corporation, organization or business trust.”   Section 700, subdivision (a) provides that “ ‘Person,’ in addition to the definition in Section 19, includes any city, county, public corporation, or public district.”

 A sovereign state is not a person.  (Berton v. All Persons, etc., 176 Cal. 610, 617, 170 P. 151.)   Statutes are originarily designed for the government of citizens and residents rather than the state, and it is settled that the state is not bound by general words of a statute or code provisions which would operate to trench upon its sovereign rights, injuriously affect its capacity to perform its function, or establish a right of action against it, unless the intent to bind it thereby otherwise clearly appears.  (Bayshore Sanitary Dist. v. San Mateo County, 48 Cal.App.2d 337, 339, 119 P.2d 752.)   Where no impairment of sovereign power would result, the Legislature may properly be held to have intended that a statute apply to governmental bodies even though it uses general statutory language only.   (Hoyt v. Board of Civil Service Com'rs., 21 Cal.2d 399, 402, 132 P.2d 804.)   There can be little doubt but that exercise of the power of a local improvement district to levy and collect taxes upon property owned by the state and used for freeway purposes would trench upon the sovereign rights of the state and would injuriously affect its capacity to construct and maintain freeways.

 It is settled that “While publicly owned and used property is not exempt from special assessments under the Constitution or statutory law of this state, there is an implied exemption of such property from burdens of that nature.   This rule is stated by Dillon as follows:  ‘The principle which makes property of the state or any of its political or municipal subdivisions nontaxable under general statutory provisions and in the absence of a positive direction therefor, according to the great weight of authority, also precludes the imposition of a special assessment for a street or other local improvement upon such property, unless there is positive legislative authority therefor.’   4 Dillon on Municipal Corporations, p. 2577, § 1446.   This rule has been uniformly approved and followed in this state.”  City of Inglewood v. County of Los Angeles, 207 Cal. 697, 703,704, 280 P.2d 360, 363.

 There is no positive direction or authority in the language of section 5248 for the imposition of an assessment upon state-owned property.   Had the Legislature intended to authorize such an assessment it could have done so in simple and concise language.   In the absence of such authority the City was without the power to levy an assessment against the 57 parcels of property acquired by the State before October 17, 1961, the date upon which the assessment attached as a lien upon property within the district, and to hold the State liable for the payment of the assessment or the bonds issued pursuant thereto.

The County of Los Angeles as amicus curiae urges that before the State may claim the exemption from the assessment the property against which the assessment is levied must at the time of the levy actually be in use in the performance of a public function.   Reliance for this claim is placed on the language contained in sections 5301 to 5303, and the holdings in City Street Imp. Co. v. Regents etc., 153 Cal. 776, 96 P. 801, 18 L.R.A., N.S., 461;  City of Fresno v. Fresno Irrigation Dist., 72 Cal.App. 503, 237 P. 772;  Southlands Co. v. City of San Diego, 211 Cal. 646, 297 P. 521;  Raisch v. Regents of Universityof California, 37 Cal.App. 697, 174 P. 943, and Witter v. Mission School District, 121 Cal. 350, 53 P. 905.

The court, in construing the language “while such property is so appropriated and used for the public purposes for which it has been so appropriated” contained in the last sentence of subdivision 3 of section 1240 of the Code of Civil Procedure, said “the word ‘used’ does not mean actual physical use at the date of the institution of the condemnation suit, but means property reasonably necessary for use, and which the circumstances reasonably show will be actually used within a reasonable length of time.”  (EAst Bay Mun. Utility Dist. v. City of Lodi, 120 Cal.App. 740, 750, 8 P.2d 532, 536.)   It has been said that where a county has been granted a strip of land or right of way over and upon such strip to be used and devoted to the purposes only of a county road, such strip or right of way being described with such certainty as to facilitate a ready identification thereof the act of acceptance of such grant upon the part of the grantee county operates ipso facto to establish it as a highway of the county, and this regardless of whether there is or is not a road on such strip.  (Watson v. Greely, 69 Cal.App. 643, 649, 232 P. 475.)

 There can be no doubt that the State, in acquiring land for freeway purposes and in constructing and maintaining freeways upon such land, is engaged in the performance of a public function.  (Bettencourt v. State of California, 123 Cal.App.2d 60, 63, 266 P.2d 201, 43 A.L.R.2d 545;  Zeppi v. State of California, 174 Cal.App.2d 484, 487, 345 P.2d 33.)   when then can it be said that the parcels of land so acquired are in use in the performance of the public function for which they were acquired?   Certainly there could no doubt that the improvement would be in use when the first motor vehicle passed over the freeway upon its completion.   Is it in use when the first shovelful of dirt is turned at the commencement of construction?

 It is apparent that in the construction of a freeway there are many steps to be taken between the time of its original planning until it is complete and ready for vehicular traffic to pass over it.   The acquisition of the land within the right of way of such freeway is only one of the many steps leading towards its completion.   We see no useful purpose in drawing fine distinctions in determining when the property acquired for freeway purposes “is in use in the performance of any public function,” as those words are used in section 5301.   We hold that parcels of real property acquired by the State for freeways are in use for such purposes from the time that title to such property is acquired either by purchase or by proceedings in eminent domain.   To hold otherwise could injuriously affect the State's capacity to construct and maintain its freeway.

 The City urges (2) that the plaintiff's cause of action against the City is barred by the provisions of section 5660.3  First of all the plaintiff's cause of action is not one of those proscribed by this section.   The section appears to have been enacted to require the owners of property within the improvement district to take prompt action to attack the proceedings which would impose a lien on their property.   Secondly, plaintiff being the owner of the assessment would have no means of knowing who the delinquent property owners would be, or what property would be subject to a delinquent assessment lien, until after the expiration of the full 30–day period mentioned in section 5660.  (Sections 6420, 6422.)   To apply the 30–day statute of limitations to plaintiff's cause of action here would be unreasonable and would be contrary to what the Legislature intended.   (Estate of Wilcox, 68 Cal.App.2d 780, 783, 784, 158 P.2d 32.)

The City urges that the plaintiff's cause of action is barred by the provisions of the First Validating Act of 1962 (Stats.1963, ch. 16, p. 173) and by the provisions of section 6427.   The 1962 Validating Act is a general statute.   The Improvement Act of 1911 contains specific provisions relating to it.

Section 5002 provides “This division provides an alternative system for doing the work authorized by this division and the provisions of this division shall not apply to or affect any other provisions of this code.

“Then any proceedings are commenced under this division, the provisions of this division and no other shall apply to such proceedings.”

Section 6427 provides that “Bonds issued pursuant to this part shall by their issuance be conclusive evidence of the regularity of all proceedings under this division leading up to such issuance.”

 Section 6427 is a special act of the Legislature dealing expressly with the subject of the validation of bonds issued pursuant to the provisions of the Improvement Act of 1911 and ordinarily would control and take precedence over the provisions of the First Validating Act of 1962.   But this rule has no application if the two statutes can be reconciled, or if it is manifest that the legislative intention is that the general act should be of universal application notwithstanding a prior special act.  (45 Cal.Jur.2d, Statutes, § 120, p. 629.)   The bonds issued herein by the City contain the following:  “STREET IMPROVEMENT BOND * * * City of Duarte * * * Improvement District No. 7 (Sewer) * *.”   The provisions of the First Validating Act of 1962 are specifically made applicable to Municipal Improvement Districts, Municipal Improvement Assessment Districts and Municipal Sewer Districts as well as some 90 or more other public bodies having the power to tax and levy assessments.   There is little doubt that the Legislature intended that the provisions of the First Validating Act of 1962 should apply to proceedings had under the Improvement Act of 1911.   The statutes, however, are reconcilable and to in conflict with each other.   Both are curative acts and are intended to accomplish the same purpose, that is, to cure procedural defects.

In construing section 4 of the Street Bond Act of 1893 which contained language similar to the language contained in section 6427 above, the court said:  “The correct proposition is that, as the Legislature has power to devise any scheme for the assessment and levy of taxes for local improvements, provided such scheme includes such notice and opportunity for hearing to the owner of property taxes as will be sufficient to constitute the due process of law required by the Constitution, and otherwise complies with constitutional limitations and restrictions, so the Legislature, by a curative clause in the law establishing the scheme, may provide that the issuance of a bond or the execution of a deed in the enforcement of such levy or assessment shall be conclusive evidence of the regularity of the performance of all the required steps in the proceeding, excepting those that are necessary to constitute the due process of law, or to comply with any other constitutional prerequisite.   As to all there other statutory steps or acts, the same power which prescribes them in competent to declare that their nonobservance shall not be fatal to the validity of the tax, and that no inquiry may be made concerning them.”   (Chase v. Trout, 146 Cal. 350, 359, 80 P. 81, 84;  see also Walker v. Van Valkenburgh, 111 Cal.App. 538, 545, 295 P. 1068;  V.R. Dennis Construction Co. v. City of San Diego, 188 Cal.App.2d 833, 839, 10 Cal.Rptr. 894;  Capital Freight Lines v. City of Sacramento, 206 Cal.App.2d 279, 281, 23 Cal.Rptr. 752;  Hoffman v. City of Red Bluff, 63 Cal.2d 584, 592, 47 Cal.Rptr. 553, 407 P.2d 857.)

 In the case at bench neither the plaintiff or the State attack the statutory steps as such taken by the City leading up to the levy of the assessment and the issuance of the bonds.   The attack is upon the right of the City to levy an assessment upon state-owned property and to compel the State to assume and pay off the lien which, it is claimed, attached to such property as a result of the levy.   The levy of such an assessment is not merely a procedural step but is an attempt to establish a substantive right where none existed and section 6427 does not establish such a right.  (See People ex rel. Desert etc. Water Dist. v. Coachella etc. Water Dist., 232 Cal.App.2d 685, 693, 43 Cal.Rptr. 18.)

 If it can be said that the Legislature intended that the provisions of the First Validating Act of 1962 should apply to proceedings had under the Improvement Act of 1911, the first Validating Act of 1962 being a curative statute would not create a right on the part of the City to tax state-owned property where no such right otherwise existed under the law.

 The City urges (4) that plaintiff's cause of action is barred by the provisions of section 5369.4  This section is a curative act and cannot bar plaintiff's cause of action for the same reason heretofore pointed out as being applicable to section 6427.

 The City next urges (5) that each of the questioned bonds contains a contractual provision which bars plaintiff's cause of action.   In support of this contention the City relies upon the provisions of section 6424 5 and the following language in each of the bonds.  “This bond is payable exclusively from said fund, and neither the City nor any officer thereof is to be holden for payment otherwise of its principal or interest.”

The City contends that the “Respondent Bing should certainly be bound [by] the provisions of the bonds which she purchased and should not be allowed to change them unilaterally.”

The City cites no authority in support of their position on this point.   The work of the improvement has been satisfactorily completed and accepted by the City.   The plaintiff has financed and paid for this improvement.   She now seeks reimbursement for the funds thus advanced for the benefit of the City and the property owners within the improvement district.   If the contention of the City is to be sustained it would result in disastrous consequences upon the efforts of governmental agencies to finance local improvements by means of bond issues.

The very purpose of plaintiff's cause of action is to compel the City to create and provide the fund contemplated by section 6424.   This will be accomplished, under the terms of the judgment, by a reassessment of the property, exclusive of the 57 parcels of state-owned property, under the provisions of sections 5500 to 5511.   The purpose of the law relating to reassessments is to make the cost of the work made through an attempted compliance with the provisions of the Improvement Act of 1911 payable by the real estate benefited by such work by making a reassessment therefor, (section 5501) and it is the duty of the City to take the proper steps, under the reassessment provisions, to provide the fund out of which the contested bonds may be paid.

 It appears that the State, in the acquisition of property within the assessment district subsequent to October 17, 1961, the date upon which the lien of the assessment attached, has been able to recoup the amount of the assessment by deducting it from the purchase price of the property.   The State claims that now it is impossible to recoup from the former private property owners the amounts which will be assessed against the property acquired after the lien attached solely because the City improperly included the State's property in the original assessment, and therefore the principles of equity and good conscience and statutory and case law require that the City be ordered to pay such amounts out of its general fund and the trial court's order with respect to the State paying such amounts should be modified accordingly.

The judgment in the court below was entered on January 27, 1964.   The State has not appealed from this judgment, and is not, therefore, in a position to attack it here.  (Briggs v. Nilson, 226 Cal.App.2d 342, 349, 38 Cal.Rptr. 68;  3 Witkin, Cal. Procedure, Appeal, § 72, p. 2229.)

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   “§ 5248.   Notice of the award of the contract shall be published by the clerk.“The clerk shall, upon payment of the statutory fee prescribed therefor, record a notice of the award of contract in the office of the county recorder.   Said recordation shall constitute notice to all persons that all property within the boundaries of the proposed assessment district shall be assessed at the time of the confirmation of the assessment under Chapter 16 (commencing at Section 5360) of Part 3 of this division to pay the costs of the improvement in proportion to the benefits which the property receives from the improvement, notwithstanding the acquisition of the property by the State or any of its agencies, or by any county, city, municipality or other public or municipal corporation.  * * * ”

2.   “§ 5372.  The warrant, diagram and assessment shall be recorded in the office of the superintendent of streets and may be recorded at any hour of the calendar day.   Immediately thereafter the superintendent of streets shall record a notice of assessment, as provided for in Section 3114, whereupon said assessment shall attach as a lien upon the property assessed, as provided in Section 3115.”

3.   “§ 5660.  No action, suit, or proceeding to set aside, cancel, avoid, annul or correct any assessment or reassessment, or to review any of the proceedings, acts, or determinations therein, or to question the validity of, or to enjoin the collection of the assessments or reassessments, or to enjoin the issuance of bonds to represent the same, shall be maintained by any person unless such actions is commenced within 30 days after the recording of the warrant, diagram and assessment or re-assessment, and thereafter all persons shall be barred from any such action or any defense of invalidity of the assessment or of bonds issued thereon or of the reassessment if such is made and of bonds issued thereon.”

4.   “§ 5369.  No assessment, warrant, or diagram, and no proceedings prior to the assessment, shall be held invalid by any court for any error, informality, or other defect in the same, where the resolution of intention of the legislative body to do the work, has been actually published as provided in this division.   When no appeal is taken or when the orders and determinations of the legislative body upon appeal have been complied with, and the legislative body is satisfied with the correctness of the assessment, the legislative body shall forthwith confirm the proceedings and the assessment and the street superintendent shall attach thereto a warrant bearing the date of such confirmation.”

5.   “§ 6424.  The bonds and interest thereon shall be paid at the office of the treasurer, who shall keep a fund designated by the name of the bonds, into which he shall place all sums paid him for the principal of the bonds and the interest thereon, together with all penalties thereon, and from which he shall disburse such sums, upon the presentation of proper coupons.   Under no circumstances shall the bonds or the interest thereon be paid out of any other fund.”

FRAMPTON, Justice pro tem.* FN* Retired judge of the Superior Court sitting under assignment by the Chairman of the Judicial Council.

SHINN P.J., and FORD, J., concur.

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