Page images

ation financially as though said payment had not been made by the former owners. In that view of the case, it would appear plain that no injury to plaintiffs has been shown.

Moreover, we think the said section 3466 12, as amended, is the law applicable to the case, and that it cannot be said that there has been a destruction or impairment of any vested right.

Appellants call attention to the fact that several sections of the Political Code were amended at the same time as said section 3466142 in 1911, among them being section 3478 of said code. The last made said amendment applicable to all reclamation districts with three exceptions or provisions, as follows:

1. “Any proceeding which shall have been already commenced for the levy or collection of assessments in such district when this section takes effect.” 2. “Any act done or performed in relation to the affairs of such district prior to such last mentioned date." And 3, it shall not affect "the indebtedness of such district theretofore incurred excepting as to the method of liquidating such in. debtedness". Only by virtue of these provisions could it be said, if at all, that the amended section does not control said Spurrier assessment. [3] But without a specific analysis of these provisions it is sufficient to say that said assessment involved "the method of liquidating the indebtedness of the district", and, therefore, the amended statute is expressly declared to be applicable to such a case.

The inquiry as to whether there was in plaintiffs, or the former owners of the land, any vested right to said credit leads to the consideration, as suggested by respondent, of the nature of a reclamation district, the character of the obligation created by assessments and the relation between the district and the landowner as to the assessment and its payment.

These districts are undoubtedly "governmental agencies to carry out a specific purpose". (Reclamation District No. ì v. Sherman, 11 Cal. App. 407.) And the local assessment levied in return for the benefits conferred upon the property assessed by the improvements for which the assessment is levied is a species of tax. (Cooley on Taxation, page 416.) It is true that the method of apportionment in the local proceedings is different from that involved in the general burdens imposed by taxation for state and municipal purposes, but in each case the assessment is an exercise of the taxing power.

Taxes are not debts, nor founded upon contract, but they are charges upon persons or property to raise money for public purposes. (Ferry v. Washburne, 20 Cal. 318.)

A swamp land assessment is a charge imposed upon property by authority of the legislature and the fact that it is only a lien upon the property assessed and not a direct charge against the owner is immaterial. (People v. Hulbert, 71 Cal. 72.)

The levy of a street assessment is based upon the governmental power of taxation. (Hornung v. McCarthy, 126 Cal. 17.)

The legislature must originate the power to tax and prescribe the rules under which taxes are to be levied, but the determination of the amount, even of a state tax, may be referred to some other

authority. The amount of the local taxes is determined in various ways. In some cases they are fixed by the legislature or under its direction and in other cases they are determined by local boards, which exercise a quasi-legislative authority. (Birler v. Board of Supervisors, 59 Cal. 698.)

The courts are very generally agreed that the authority to require the property specially benefited to bear the expense of local improvements is a branch of the taxing power or included within it. (French v. Barber Asphalt Paving Company, 181 U. S. 324.)

"A tax is an enforced contribution for the payment of public expenses. It is laid by some rule of apportionment according to which the persons or property taxed share the public burden, and whether taxation operates upon all within the state, or upon those of a given class or locality, its essential nature is the same.” (Houck v. Little River Drainage District, 239 U. S. 266.)

These assessment charges are based upon the benefit which accrues to the property by reason of the improvement and, there. fore, the liability therefor persists against the property until some suitable legislation is enacted which will enable the governmental agency to enforce the same. (Page and Jones on Taxation by Assessment, sec. 958.)

Hence, if an illegal tax is voluntarily paid no recovery in the absence of statutory authority will be permitted. (Justice v. Robinson, 142 Cal. 199.)

The method of levying taxes is a question of legislative policy and there exists no contract between the taxpayer and the legislature that the same policy will be continued and that the method of levying taxes will not be changed. (Bailey v. Maguire, 22 Wall. 215.)

Herein, the legislature, in amending section 3466 1/2, changed the policy of levying reassessments in reclamation districts, and this did not, for the reasons heretofore stated, deprive appellants or their predecessors in interest of any contractual right. 141 The case relating as it does to the method of taxation for the promotion of a governmental purpose, does not involve section 10 of article i of the constitution of the United States or section 16, article I of our state constitution, which plaintiffs claim would be violated if section 3466 12, as amended, is to be applied to the situation.

Of course, it can not be said that the law "impairs the obligation of a contract” if there was no contract between the state and the owners of the land.

The broad ground upon which the United States supreme court declares the authority of the legislature to change the law rests is that the law making power “is not making promises, but framing a scheme of public revenue and public improvement" and where it announces its policy by the enactment of a statute "it may open a chance for benefit to those who comply with its conditions, but it does not address them and therefore makes no promise to them. [5] It simply indicates a course of conduct to be pursued until circumstances or its views of policy change. It would be quite intolerable if parties not expressly addressed were to be allowed to set up a contract on the strength of their interest in,


and action on, the faith of a statute, merely because their interest was obvious and their action likely, on the face of the law". (Wisconsin v. Powers, 191 U. S. 379.)

Moreover, assuming that a question of vested interest might arise under the application of said sections of the code, still this case must fail since it was a mere expectant or contingent interest at the time of the amendment of the statute. [6] Such rights are contingent when they are only to come into existence on an event or condition which may not happen or be performed until some other event may prevent their vesting. (Pearsall v. Great Northern Railway, 161 U. S. 673.)

The section prior to said amendment provided that before credit should be given three circumstances must exist; first, an invalid assessment; second, payment before judgment of invalidity, and third, judgment of invalidity. The invalid assessment paid in 1909; the amended statute became a law on April 5, 1911, but the judgment of invalidity was not entered until May 11, 1911, or alter the repeal of the statute providing for the credit. [7] The interest was not vested, therefore, and it ceased with the repeal of the statute. (Anderson v. Wilkins, 9 L. R. A. [N. S.) 1145.)

The right to credit for such payinent is purely statutory. Hence, being in fieri at the time of the repeal of the statute it ceased with such change in the law. The subject is thoroughly discussed in Moss v. Smith, 171 Cal. 788, and we think the principie set forth therein is applicable to the present situation.

We conclude that in any event appellants have shown no injury or prejudice and, besides, no reason exists for holding that the state entered into a contract with them, binding itself to give them credit for such payment, and, finally, that if the statute did create a right or interest that under certain contingencies could not be destroyed by subsequent legislation, such right or privilege being purely statutory and not being vested, fell with the law that give it birth.

Other considerations might be suggested for an affirmance of the judgment, but think the foregoing sufficient and the judgment is affirmed.

We concur:



Civil No. 1856. Third Appellate District. June 27, 1918. HENRY KROHN and S. M. SPURRIER, Plaintiffs and Appellants,

V. RECLAMATION DISTRICT NO. 17 et al., Defendants and Respondents.

Appeal from the Superior Court of San Joaquin County-John Hancock, Judge.

For Appellants-D. V. Marceau, John A. Wilson; S. M. Spurrier, of Counsel.

For Respondents—George F. Buck and Clary & Louttit.

This action was brought to prevent the sale of the property of plaintiffs to enforce the lien of a reclamation tax and is a companion case to Spurrier v. Neumiller etc., this day decided. It is conceded that the decisive question is the same in the two appeals, and that is, whether the land should be credited with the payment of said invalid assessment. Having reached the conclusion that the lower court was correct in holding that no such credit should be given, it follows that we should affirm the judg. ment in this case, and it is so ordered.

We concur:



Civil No. 2398. First Appellate District. June 29, 1918. W. C. RAISCH, Plaintiff and Appellant, v. REGENTS OF THE

UNIVERSITY OF CALIFORNIA, Defendants and Respondents.

[1] TAXATION-UNIVERSITY PROPERTY NOT DEVOTED TO PUBLIC USE.—The regents of the University of California, being a private corporation charged with the public trust of the general government and superintendence of the University of California, private property held by them when actually devoted to public use is exempt from taxation for street improvement; otherwise, not.

[2] ID.-SPECIAL ASSESSMENT FOR BENEFITS.-Where any such lands are not directly and necessarily used for a public purpose they may be subjected to the payment of special assessments for benefits.

[3] ID.-STREET ASSESSMENT— PortioN OF LAND OF UNIVERSITY IN ACTUAL USE.-Before land, a portion of which is actually in use by the university for educational purposes, may be subjected to the lien of an assessment for street improvement it must be separable from the remainder of the property for the public use of which it is a part without injuring the property to which the occupied portions of it are already put.

[4] ID.—PORTION NOT DIVISIBLE WITHOUT INJURY.--If land of the university sought to be subjected to an assessment and to be sold in a foreclosure proceeding to pay the same, is not divisible from the remainder of the tract without injuring it for the uses to which the university is devoting such remainder, the portion sought to be severed is necessary for the use of the remainder of the tract.

(5) ID.-FORECLOSURE OF STREET LIEN ON UNIVERSITY PROPERTYSEVERANCE OF STRIP FROM BLOCK-INSUFFICIENT COMPLAINT.-In an action to foreclose a street assessment lien on a strip of land forming a portion of a block belonging to the University of California, the complaint fails to state a cause of action by merely alleging that the strip is severable and not necessary to the use of the remainder, where it is plain from the patent facts which appear on the face of the complaint that the severance of such strip would necessarily impair the present usefulness and value of the remainder of the block-about six-sevenths of its area--occupied by the buildings of the Affiliated Colleges of the university.

16] ID.-ASSESSMENT OF ENTIRE BLOCK-INVALIDITY AS TO PorTiOx Not DEVOTED TO PUBLIC ('SE.-An assessment for street work of a block of land belonging to the University of California, of which six-sevenths is occupied by buildings in use for university purposes, is wholly void, and cannot be enforced as to the oneseventh not so occupied.

Appeal from the Superior Court of the City and County of San Francisco-J. M. Seawell, Judge.

For Appellant-P. F. Dunne.
For Respondents-Warren Olney, Jr.

The regents of the University of California were, on April 1, 1911, and still are, the owners of an irregular shaped block of land in the city and county of San Francisco, bounded by First avenue, Parnassus avenue, Kirkham, sometimes called K, street, and Fourth avenue, embracing about 1312 acres of land. Raisch, a street contractor, did street work, consisting of grading and sewer construction, on Fourth avenue along the entire front of the university property, and also upon the intersections of that avenue with Kirkham street and Parnassus avenue. This work


« PreviousContinue »