The herald., 1896-09-05
MAIN STREET BONDS
Pull Test Of the Supreme Court Sustaining
Their Validity


Their Validity
The decision handed down by the su-
preme court in the case Of I. w. He'll
man VS.. ]. H. Shoulders, treasurer Of the
city of Los Angeles, ct al, affecting the
validity of the Main street bonds. came
to hand yesterday.
After a re-examination Of this case
by the court in bank we are satisfied"
says the court, with the views ex-
pressed in the orNlion Of Mr.. Justice
Temple, filed upon the hearing Of the
case in department two, and that opin-
ion, with the suggestions which we deem
it proper here to add in response to the
petition for hearing In bank, will stand
as the opinion of the court.
Counsel strenuously contends that
the bonds in question cannot be con-
sidered as the bonds of the municipality,
but that they are in legal effect the obli-
cations of several property owners, or
are not the obligations of anyone. We
cannot see any distinction between
these bonds and those considered In the
case Of Lent VS.. Tillson, referred to In
the opinion in department. In each case
they are made payable only out Of
special fund to be raised by assessment
on the property benefited; it is espe-
cially declared in each act that the
city should in no event be liable upon
them, and no personal liability for their
payment is by either act imposed on any
one. The fact that in one case the bonds
are to be paid generally out of fund
raised by assessment on all the prop
erty benefited, and in the other case
are to be paid severally by assessment
on each particular lot, cannot affect the
question of legislative power. The bur-
den upon the property Is precisely the
same in either case. Liens upon prop
erty where no person is bound to per-
form the obligation are common in our
law Civil code 2S90), especially in cases
of taxation, and in cases of this charac-
ter no personal liability can constitu-
tionally be imposed upon the property
owner. (Taylor VS.. Palmer, 81 Cal, 241.)
But, If these bonds could not be con-
sidered municipal obligations, the result
would be the same. So far as theques-
tions in this case are concerned, the
bonds really cut no figure. and might as
well be eliminated from the case. The
effect of the act in question is precisely
the same, so far as the property owners
are concerned. as if it had provided that
any delinquent assessment of $50 or
more should be payable in annual in
stallments for such number of years.
not exceeding ten, as the council should
fix, with interest at a rate to- be deter
fault of the payment of any installment,
the property should be sold to pay the
assessment. Since the legislature might
constitutionality have provided (as it
did in the original Vrooman acO that
the property should be sold at once to
pay the entire delinquent assessment,
the owner cannot complain of provis
ion allowing him an extension of time
within which to pay any installment.
The only possible question could be as
to the authority of the council to fix the
rate of interest. We agree with counsel
for respondents that the imposition of
interest may be well supported as legit-
innate penalty for delinquency, from
which the owner may protect himself
by paving the assessment when due.
AS to fixing the rate of interest. that. as
said. in the opinion In department. is a
matter of contract merely. The city
council is authorized to contract for the
doing of the work. and must in it's reso-
luton of intention fix the rate of inter-
est. This is one of the terms upon which
bids are invited, and presumably enters
into the price bid. If the rate of interest
as fixed is high, the presumption is that
the price bid will be proportionately
low We can, therefore, seen no such in
equality as to affect the uniform
operation of the law, or to distinguish
this case from the ordinary class of mu :
2. AS to the publication of the ordi-
nance or resolution of intention. it may
be added that appellants contention is
practically disposed of by the case of
Los Angeles VS.. Teed. "a Pac. Rep,
$50, 5S2.)
3. Counsel for appellant contends that
the notice of sale published by the treas
urer was insufficient, because it did not
state the amount of the costs and the
penalties. This point is made for the
first time in the petition for rehearing,
and the respondents have had no oppor-
tunity to reply to it. This fact itsel.
would be a sufficient reason for ignoring
it.. Moreover it must be remembered
that this is a suit in equity for an in
junction to restrain a sale for the collec-
tion of tax; and no such injunction will
/. lie to correct mere errors or irregulari-
ties in the proceedings, even such as
would render the sale void-certainly
not when the plaintiff makes no offer tc
pay what is due. (Easterbrook VS.
O'Brien, 9S Cal. 671.)
The judgment and order are affirmed