Mar. 31, 1891.

V. Sewer Construction and District Assessments. It has recently been held by Judge Wade of the Superior Court of Los Angeles county in the case of White v. Harris, on demurrer to complaint, that the front-foot plan of assessment cannot be adopted when the work to be done is sewer construction, but that the mode of payment for sewer construction is that prescribed by section 27 of the act, and must be either by district assessment or out of the street contingent fund. In this connection the learned judge says:

"Defendant claims that the mode of payment for sewer construction is that prescribed by section 27, and must be either by district assessment or out of the street contingent fund, while plaintiff contends that the council may resort to either of these methods or to that prescribed by section. 7, subdivision 1. Assessment 'in proportion to the frontage, at a rate per front foot sufficient to cover the total expense of the work.' The language of section 27 is as follows:

"Whenever the city council deem it necessary to construct a sewer, then the said council may in its discretion. determine to construct said sewer and assess the cost and expenses thereof upon the property to be affected or benefited thereby, in such manner and within such assessment district as it shall prescribe, and the lien therefor upon said property shall be the same as is provided in section nine of this act; or said conncil may determine to construct said sewer and pay therefor out of the street contingent fund.'

"Plaintiff's contention hinges upon the words 'in its discretion.' If this section stood alone, so far as any reference to sewers is concerned, there could be no doubt whatever that the discretionary authority of the council was limited to the two methods of payment therein mentioned. There are, however, several other references to sewers. Section two mentions sewers, and they are not expressly excepted from the provisions of section seven, as to assessments by frontage. The exceptions are (1.) of repairs, etc., on railroad streets; (2.) work done and assessments made in districts, and (3.) street crossings and street junctions, set out in section seven, subdivisions two to seven, inclusive. It does not seem reasonable that the mention of street work at crossings, or where one street terminates in another street, 'main' streets and 'small or subdivision' streets (whatever those terms may mean) were intended to have reference to the making of sewers. mention is also made of assessment by districts, in several other places than in section twenty-seven. It is a method of payment not strictly confined to sewer construction.

But

And yet it is peculiarly adapted to this sort of work. Assessment by frontage would seem to be notably inapt for the purpose of paying the expense of constructing a sewer. The rule would seem to be almost universal that one would have ingress and egress to and from his lot by means of the street in front thereof. The rule is not nearly so uniform that one would discharge his sewage through a conduit laid on the street upon which he fronted. The topography of the ground and many other circumstances might include a particular lot in an assessment district for a sewer laid upon another street, for the reason that the lot 'would be benefited thereby.' The probabilities of such being the case were fully discussed when the demurrer in this case was argued. Taking all the different sections of this difficult statute into consideration, it seems that the correct interpretation of section twenty-seven is that the discretion with which the council is there clothed is to choose which of the two methods of securing payment therein mentioned it will adopt. Had it been intended to include the method of assessment by frontage, it would have been so easy for the legislature to have so expressed itself, while the subject of sewers was before it as the chief subject of consideration, that the omission seems significant. The assessment in this case was clearly not made by districts nor was there any district established so far as the pleadings show."

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The learned judge says in effect that if it had been the intention of the legislature to include assessments for sewer construction in the method of assessing by frontage, the legislature would have so expressed itself while treating of the subject of sewers in part II of the act. But the act does provide as follows: "The expenses incurred for any work authorized by this act [Sec. 2 of the act specifies the work which the act authorizes to be done, and includes sewer construction] shall be assessed upon the lots and lands fronting thereon, except as hereinafter specifically provided; each lot or portion of a lot being separately assessed, in proportion to the frontage, at a rate per front foot sufficient to cover the total expense of the work." [Section 7, subdivision 1.] And section three of the act expressly recognizes the application to sewer work of the front foot method of assessment. Section three provides that "when the work or improvement proposed to be done is the contruction of sewers, man-holes, culverts, or cesspools, crosswalks or sidewalks, and curbs, and the objection thereto is signed by the owners of a majority of the frontage liable to be assessed for the expense of said work, as aforesaid, the

said city council shall, at its next meeting, fix a time for hearing said objections," etc.

The last sentence of subdivision 8 of section 7 likewise recognizes the applicability of the front-foot method of assessment to work of this kind. It provides that "when sewering or resewering is ordered to be done under the sidewalk on only one side of a street for any length thereof, the assessment for its expenses shall be made only upon the lots and lands fronting nearest upon that side," etc.

or

Part II of the act, which includes section 27, was inserted in the act as it was originally passed, i. e., before the adoption or passage of any subsequent amendatory acts. At that time, section 3 of the act did not, as it does now, give the council authority to adopt the district assessment plan, whenever, in its opinion, the contemplated work improvement is of more than local or ordinary public benefit, and therefore section 27 was necessary as a specially enabling provision to enable the council to adopt the district assessment plan whenever a sewer was to be constructed. And, as sewer construction is very often a work or improvement of more than local or ordinary public benefit, it follows that some such specially enabling provision was wise and just. See notes to section 27 of the act for a further consideration of this subject.

Section 4. The owners of a majority in frontage of lots and lands fronting on any street, avenue, lane, alley, place or court, or of lots or lands liable to be assessed for the expense of the work petitioned to be done, or their duly authorized agents, may petition the city council to order any of the work mentioned in this act to be done, and the city council may order the work mentioned in said petition to be done, after notice of its intention so to do has been posted and published as provided in section 3 of this act. Amendment approved March 31, 1891, statutes 1891, page 199.]

[Section 4 was amended in 1889 by act of March 14, 1889, statutes '89, p. 160; and again in 1891 by act of March 31, 1891, statutes '91, p. 199.]

Except where the work to be done is the grading of a street, avenue, lane, etc., to a new grade-the old grade having been changed since the amendment of March 11, 1893, to section 2 of the act-the council may, under section 3 of the act, on its own motion, or on petition of less than a majority of the frontage, inaugurate proceedings to do any of the work which the act authorizes to be done the council in that case taking the chances of the proceedings being barred for six months by the filing of "written objections" signed by a majority of the frontage, as provided for by section 3. By section 4 it is provided that the owners of a majority of the frontage, or their duly authorized agents, may inaugurate the pro

In either

ceedings by filing a petition petitioning the council to order to be done any of the work mentioned in the act, in which case the council, if it deems it proper to do so, may order the work mentioned in such petition to be done. case the object of the law is to make the wishes of the owners of a majority of the frontage, as to certain classes of work, controlling in the matter. If the proceedings are begun under section 3 of the act, the owners of a majority of the frontage may, as to certain classes of work, stop all proceedings by filing written objections. If the proceedings are begun under section 4 of the act, i. e., inaugurated by a petition signed by a majority of the frontage, the will of the majority thus expressed is controlling upon the minority if the council sees fit to order the work to be done. But the law aims to collect the wishes of the majority once and only once. Whenever a majority appears either way, there is no need to collect further the votes of the owners. Therefore, section 3 provides for written objections when there has been no sufficient petition, and section 4 provides for such a petition without providing for any objections to be filed. If such objections are filed they are of no avail, and cannot bar the work. If, after filing the petition provided for by section 4, some of the owners change their minds, this will not avail to stop the proceedings.

Judge Shaw, of the Superior Court of Los Angeles county, in an opinion delivered in the case of Charnock v. City of Los Angeles, passing upon a motion for an injunction, compares these provisions of sections 3 and 4 of the act, and, in this connection, says: "The proceedings were instituted under what is known as the Vrooman act, which provides [here section 4 is quoted in full.] In this proceeding the initiatory step was a petition to the council signed by a majority of the owners. Afterwards, and within the time limited after the passage of the resolution of intention, a protest, also signed by the owners of a majority of the frontage, was duly delivered to the clerk of the council. This was signed by some of the persons who had previously signed the petition, and without their names would not have had a majority of the frontage.

"It is contended by the defendant that the provisions of section 3 of the act concerning the protest of a majority of the frontage against the work, and the consequent stay of proceedings for six months, have no application to a proceeding begun by petition under section 4.

"I am of the opinion that this is the correct interpretation of the act.

. 4

Mar. 31.

"Section 1 of the act invests the city council with jurisdiction to order to be done on the streets any of the work mentioned in section 3 under the proceedings thereinafter prescribed.

"Section 2 gives the council power, of their own motion. and without request or petition from any person, to begin the proceedings whenever in their opinion the public interest or convenience may require the work.

"Section 3 outlines the method of procedure in detail. It provides that they shall first pass a resolution of intention to do the work and describe the work therein. Then certain notices are to be given by the street superintendent. At this stage of the case an objection in writing by the owners of one-half or more of the frontage stops the proceedings for six months unless. within that time the owners of one-half or more of the frontage shall petition for the same to be done. Each of these may be by one-half only, which is not a majority. This objection is the only means by which the owners of the property can interfere with the proceedings when they are instituted by the council of its own motion. It seems to me that the provision was inserted for the sole purpose of giving the owners of the frontage the power to check the council to the extent of a six months' stay. Without this they would be entirely powerless and the council would have full control. There was, therefore, a good reason for inserting this provision and making it apply to a proceeding begun by the council without petition. But there is no good reason for making this provision apply to a case begun upon the voluntary petition of the owners of a majority of the frontage asking for the doing of the very work in question.

"It would appear silly to allow the owners to stop work which is ordered upon their own petition. Such a construction of the act ought not to be made unless the language clearly requires it either expressly or by implication. This it does not do.

"Section 4 prescribes the method of proceeding when the work is ordered on the petition of the owners. In the first place it requires the petition of more than one-half the frontage. It implies that the petition must describe the work desired to be done, and the council have no authority under this section to order any other work done. The language is: The city council may order the work mentioned in said petition to be done.' Therefore this section gives no authority for other work. In my opinion it calls for the application of the rule: 'Expressio unius est exclusio alterious.' It declares that the council may order