Lent v. Tillson

The statute in question contains many provisions. The first section provides that, subject to the provisions of the act, Dupont street in San Francisco should be increased to the uniform width of 74 feet (measuring westerly from its then easterly line) from the northerly line of Market street to the southerly line of Filbert street, the grades of the intersecting cross-streets to be adjusted by the board of supervisors so as to make them conform to the grade of the west line of Dupont street to be established by the board of supervisors, which was empowered to pass all necessary orders for that purpose. The second section provides that the value of the land taken for the widening of the street, and the damages to improvements thereon or adjacent thereto, which may be injured thereby, and all expenses whatsoever incident to such widening, 'shall be held to be the cost of widening said street, and shall be assessed upon the district hereinafter described as benefited by said widening, in the manner hereinafter provided.' The district declared to be benefited, and upon which the cost of making the improvement was directed to be assessed, is defined in the act, and it was provided that in case Dupont street be not widened further north than Bush street, then the districts to be benefited 'shall be bounded on the north by the southerly line of Bush street, and on the south by the northerly line of Market street.' Section 3. The majority in value of the property owners fronting on Dupont street, between Market and Bush streets, were allowed to defeat the proposed improvements between those streets, and to relieve that portion of the assessment district from any burden on account of it, by filing a written protest at any time within 30 days after the notice provided for in section 6 of the act to be presently referred to. No such protest was filed. The act also provided that unless within that time a majority of property owners fronting on Dupont street, between Bush and Filbert streets, should petition for it, there should be no widening north of Bush street, and that portion of the assessment district should be excluded. No such petition was filed, and the widening was limited to the four blocks between Market and Bush streets. Section 12.

The mayor and auditor of the city and county of San Francisco, together with the city and county surveyor, and their successors in office, were constituted a 'Board of Dupont-Street Commissioners,' the mayor to be ex officio president of the board. Section 4. The board of supervisors of the city and county were authorized, if they deemed it expedient that Dupont street be widened in the mode prescribed, to express such judgment by resolution or order within 60 days after the passage of the act, and if they failed to do so no further proceedings were to be had or taken, under the act, for any purpose, and the street was not to be widened. Section 21. As soon as convenient after the passage of such a resolution or order by the board of supervisors, the Dupont-Street commissioners were directed to 'publish a notice, for not less than ten days, in two of the daily papers printed in the city of San Francisco, informing property owners along the line of said street that the board is organized, and inviting all persons interested in property sought to be taken, or which would be injured by said widening, to present to the board maps and plans of their respective lots, and a written statement of the nature of their claim and interest in such lots.' Section 6. The board of commissioners, having prepared and adopted suitable maps, plans, and diagrams, were required to ascertain and determine and separately state in a written report, to be signed by at least a majority of its members, the description and actual cash alu e of the several lots and subdivisions of land and buildings included in the land taken for the widening of Dupont street, and the damage done to the property along the line of the street, specifying and describing in their report each lot and subdivision or piece of property taken or injured by the widening of the street, as far as an accurate description thereof was furnished by the owners, and setting down against each lot, subdivision, or piece of property the names of the owners, occupants, and claimants thereof, or of the persons interested therein, as lessees, incumbrancers, or otherwise, and the particulars of their interest, as far as they could be ascertained, and the amount of value or damage determined upon for the same, respectively. If, in any case, the board found that conflicting claims of title existed, or were in ignorance or doubt as to the ownership of any lot of land, or of any interest therein, the lot was to be set down as belonging to unknown owners. The board was also directed to embody in a written report a description of the subdivisions or lots of land included in the districts designated in section 3 of the act, and to set against each lot or subdivision the amount in which, according to the judgment of the board, such lot will be benefited by reason of the widening of the street, relatively to the benefits accruing to other lots of land within the designated districts; also setting against each lot of subdivision the names of the owners, lessees, and claimants thereof, so far as the same can be ascertained conveniently, and, if not ascertained, setting them down to unknown owners. Error, however, in the designation of the owner or owners of any lot taken or assessed was not to affect the validity of the assessment. Suitable maps, plans, or diagrams, showing the property taken and assessed for the improvement, in lots and subdivisions, with the names of the owners, lessees, and claimants, as far as known to said board, were to be attached to the report. 'Such report,' the act provided, 'as soon as the same is completed, shall be left at the office of said board daily, during ordinary business hours, for thirty days, for the free inspection of all parties interested, and notice that the same is so open for inspection for such time and such place shall be published by said board daily, for twenty days, in two daily newspapers printed and published in said city and county.' Section 7.

Any person interested in any piece or parcel of land situated within the district defined and described in section 3 of the act, or in any of the lands taken for Dupont street, or in any improvements damaged by the opening of that street, feeling himself aggrieved by the action or determination of the board, as shown in its report, was entitled, at any time within the 30 days mentioned in section 7 of the act, to apply by petition to the county court of the city and county of San Francisco, setting forth his interest in the proceedings had before the board, and his objections thereto, for an order requiring it to file with that court its report, and such other documents or data as may be pertinent thereto, in its custody and used by it in preparing the report. 'Said court is hereby authorized and empowered to hear said petition, and shall set the same down for a hearing within ten days from the date of the filing thereof; and the party filing said petition shall, on the day he files the same, serve a copy thereof on at least one of the members of the board of commissioners; and said board may appear by counsel, or otherwise, before said court, in response to said petition. Said board may file a written answer to said petition with said court. Testimony may be taken by said court upon said hearing, and the process of the court may be used to compel the attendance of witnesses, and the production of books or papers or maps in the custody of said board or otherwise. It shall be in the discretion of said court, after hearing and considering said application, to llo w said order or deny the same; and, if granted, a copy thereof shall be served on said board, and it shall proceed to obey the same according to the terms of the order to be prescribed by the court. But in case no such petition shall be filed with said county court within the time above limited for the filing thereof, the said report shall be presented by the said board to the said county court, with a petition to the court that the same be approved and confirmed by the court. The court shall have power to approve and confirm said report, or refer the same back to said board, with directions to alter or modify the same in the particulars specified by the court in the order referring the same back, and thereupon the said board shall proceed to make the alterations and modifications specified in the order of said court. The alterations and modifications aforesaid being made, the report shall be again submitted to the said court, and if the court, upon examination, shall find that the alterations and modifications have been made according to the directions contained in said order, the said court shall approve and confirm the same by an order to be entered on its minutes; but if the said board shall have neglected or failed to make the alterations and modifications set forth in the order of reference, the court may again refer the report back to said board, and so on until its original order of alteration and modification shall have been complied with by said board, and the said court shall then approve and confirm said report.' Section 8.

All damages, costs, and expenses arising from, or incidental to, the widening of the street, being fixed and determined by the final confirmation of the report, as in the act provided, the board was to issue bonds of the city and county of San Francisco, in such form as they might prescribe, in sums of not less than $1,000 each, for such an amount as shall be necessary to pay and discharge all such damages, costs, and expenses; the bonds to be known and designated as the 'Dupont-Street Bonds,' and payable in 20 years from their date, unless sooner redeemed, as in the act provided, bearing interest at 7 per cent. per annum, payable semi-annually at the office of the treasurer of the city and county, such interest being evidenced by coupons attached to each bond and signed by the president of the board. Section 9. Any person or persons to whom damages were awarded, according to the provisions of the act, upon tendering to the board a satisfactory deed of conveyance to the city and county of the land for which damages were so awarded, was entitled to have bonds in an amount equal to the sum of the damages awarded for the lands so conveyed, together with damages for the improvements thereon or affected thereby; and the bonds so issued and delivered were to be in full compensation for all damages for lands and improvements taken and improvements injured, as contemplated in the act. Section 10.

The mayor, auditor, and treasurer were authorized to sell bonds sufficient to realize money enough to meet and discharge all expenses and damages arising from the widening of the street, established by the report as finally confirmed. The money arising from their sale was to be known and designated as the 'Dupont-Street Fund.' As soon as the bonds were converted into money, as in the act provided, the board of commissioners were required to give public notice, in two daily newspapers published in the city and county, for at least ten days, that they were prepared to pay in full all damages and liabilities fixed by the final report of the board, (not then already discharged;) and, upon receiving from the parties entitled thereto the proper deeds or proper acquittances from those entitled to compensation, the board were to give to such party an order upon the treasury for the amount shown to be due, payable out of the 'Dupont-Street Fund.' Section 11. Provision was made by the act for the levy and collection annually, at the sae t ime and in the same manner as other taxes are levied and collected in the city and county, of taxes upon the lands described in the third section sufficient to pay the interest on the bonds as it matured, and also sufficient to raise one-twentieth of the principal, and to constitute a sinking fund for the redemption of the bonds; such taxes to be collected out of the land only, to be adjusted and distributed according to the enhanced values of the lands as fixed in the final report of the board, and to go into the hands of the treasurer of the city and county, as part of the Dupont-Street fund. Section 13. It was made the duty of the board of commissioners to cause block-books to be prepared, exhibiting the district declared by the act to be benefited by the opening of Dupont street, according to the blocks or fractional parts of blocks thereof, and the subdivisions, according to which the benefits were fixed and determined; also, in convenient book form, descriptions of the several subdivisions shown on such books,-the amount of benefits or enhanced value to the subdivision, as established by the confirmed report, by reason of the opening of the street, being set opposite to each description of the several subdivisions. The block-books and description note-books, being certified by the board, were to be held by the assessor of the city and county of San Francisco as a part of the records of his office until all the bonds issued in pursuance of the act were redeemed. Section 14.

In case any person to whom, or in whose favor, damages were awarded by the board should fail or neglect, for the period of 20 days after there were funds to the credit of the 'Dupont-Street Fund' sufficient to pay such damages, to ask for and receive from the board a warrant for the sum so awarded, it could draw a warrant upon the treasurer in favor of such owner or owners, and deposit the same with the clerk of the city and county, actompanied by a certificate of the treasurer that the warrant so drawn and deposited had been registered by him, and that there are funds in his hands to pay the same; and thereupon the board, on demand, was entitled to an order of the county court authorizing it to enter upon such piece of land and remove obstructions therefrom, and to throw open the lots so described as part of the street, and an execution could issue to the sheriff, commanding him to put the board in possession of such lot for the city and county; and thereafter, upon delivering to the county court a sufficient deed conveying said lot of land to the said city and county, the party so dispossessed was entitled to receive the value of the land so conveyed, or the warrant of the board therefor. Section 16. If the owners of any lands taken for the street failed or neglected, within the space of 30 days after the money was in the treasury to pay the same, to remove the buildings and improvements from such lands, and deliver possession of said lands to said board, on tender to them, respectively, of the sums a warded as the value of such lands, buildings, or improvements, then the board could, at any time thereafter, sell such buildings and improvements at public auction to the highest bidders, to be removed by the respective purchasers thereof; the sums bid at such sales to be paid in cash or in the warrants of the board; and if at such auction there shall be no responsible bidder for such improvements, with the obligation to remove them within the time specified in the terms of sale, the board was to remove the same at the cost of the 'Dupont-Street Fund.' Section 17. The street, when widened, was to be sewered, graded, sidewalked, and paved by the municipal authorities, the expense of such work to be assessed upon the adjacent property, or borne by the city and county, in the same manner as if the street remained of its original width. Section 18. The railway tracks in the street were required to be removed and changed to the center of the same by the street-railroad companies then using tracks threi n. Section 19.

The last section of the act (section 22) provided that the completion of the work should be deemed an absolute acceptance, by the owners of all lands affected by the act and by their successors in interest, of the lien created by it upon the several lots so affected, and operate as an absolute waiver of all claim in the future upon the city and county of San Francisco, and their successors in interest, for any part of the debt created by the bonds authorized to be issued. 'This shall be regarded as a contract between said owners and the holders of said bonds and said city and county, and this provision shall be stated on the face of the bonds.' St. Cal. 1875-76, c. 326, p. 433.

FIELD, J., dissenting. Affirming 14 Pac. Rep. 71.

''John Garber, Thos. B. Bishop, and Jos. H. Choate'', for plaintiff in error.

John Mullan, A. H. Garland, and H. J. May, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.