The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1890-09-17
HELD TO BE LEGAL.
Charters Not Above Legislative
Enactments.
The Supreme Court Afirms That the Street
Opening Act of 1899 Is Constitutional.
Dis,en,in Views.

An important decision was rendered by
the Supreme Court yesterday. sustaining the
validity of the act Of the Legislature of 1889,
providing for the opening and widening of
streets. The decision covers many pages Of
legal cap, and is written by Justice Works,
and concurred in by Justices Thornton,
Mcfarland and Paterson. Dissenting
opinions are filed by Chief Justice Beatty
and Justice Fox. The decision is of great
importance to this city as well as to interior
municipalities.
The case is entitled j. M. Davis against
the city of Los Angeles and W. E. Norford,
Superintendent of Streets, an action to de-
clare void an assessment made against the
respondents property for the payment Of ex-
pen3es of opening and widening certain
street in said city. In the lower court de-
murrer was interpOsed and overruled. The de-
PENDANTS failed to answer and judgment was
rendered, they preferring to stand upon the
demurrer. Many able counsel were en-
ployed on both sides and numerous briefs
were filed in the case. The appeal was from
the judgment overrulng the demurrer.
APPEALED ON TWO GROUNDS.
The appelan is based their appeal on two
grounds. First, they attacked the act of
1889 as unconstitutional; secondly, it was
claimed that the special charter of Los An
geles contained ample provisions for the
opening and widening OF streets, and that
therefore, the statute is not applicable to
that city. The latter claim was chiefly relied
upon, and is first considered b. the court.
In regard to the claim that the charter
shalt stand, because both it and the statute
are. taken together, inconsistent AMI r-
reconci bic, the Supreme Court holds that
the charter is subject tO general laws. The
only QueSiiOn to be considered is whether
the statute is al law, aud the court
holds that this has been decided by mmyy
ably considered cases. The appe lants based
their claim that the statute was not general
by urging that it was passed particularly
for the lift of San Francisco. The
Supreme Court rules that it must be gov
erned by the language of the statute, and
that it is general.
1t is also contended that the statute is I'M
constitutional, because it provides for the
taking of property without due process OF
law, because the notice provided Tor may be
giyen generally by posting, and no personal
notice to each Of tho parties is required: The
court holds that the Legislature has the I'M
doubted right to say what notice shall be
gwen in this class of'cases, as long as the
notice required is reasonable and the pro-
ceedirgS are not arbitrary. 1t holds that the
notice provided in this act is sufficiently
definite.
AN ACT OF THE CITY.
Finally it was contended that the statute
is in violation of Section - of Article NJ of
the Consultation of the STATE, because 1t
delegates TO a special commission the power
to perform municipal functions. The court
says that conceding without deciding that
the opening or widening of public high
ways within city is a municipal function,
it does not appear that any such functions
were delegated to this commission.
The Commissioners act under the direc-
ton of the city authorities and their acts
are not binding until the same are approved
by the City Council. Therefore the act
done is the act Of the city and not OF the
Commissioners. The complaint also con-
tanned an allegation that the property in
the assessment district was not all assessed.
This allegation, the court holds, rendered
the complaint sufficient.
The decision states that all the numerous
briefs have been given the most careful con-
siderati0n, but it must be held that the
statute under consideration Is valid, aud
that it is in force within the city of Los
Angeles. But the allegation in the COM
plant, that the property was not all
sessed, rendered it sufficient, and the de-
murrer should have been overruled. Judg-
ment is therefore affirmed.
NOT IN FORCE IN LOS ANGELES.
Justice Fox is OF the opinion that the act
of 1889. under which the proceedings conf
pldlueu VI Ill INC CGoo "OlC Hou; uVoo hos
apply to municipalities acting under char
tiers framed, adopted and established as pro-
vded for in the Constitution, and that sa id
act is not in force within the limits of the
city of Les Angeles.
Justice Fox concurs in the judgment, but
does not concur in what is said in support of
the proposition that the act OF 1889 Is in
force in the city of Los Angeles.
Chief Justice Beatty concuIs in the judg-
ment and, in the main, in the opinion Of
Justice Fox. He believes that the statute is
unconstitutional on two grounds:
First-It does not, when tested by the lib
eral doctrine of Lent VS.. Tilson az Cal,
4Gi), provide for any proper notice TO owners
of property affected.
Second-It permits assessments upon the
property supposed to be benefited in excess
of the benefits.