The record-union., 1899-06-28

fully assessed or not had no possible
bearing or effect upon any material is
sue in this action Further on it said:
Whether the money thus rendered and
paid into court for their use had been
obtained by plaintiff through regular
or irregular assessments of the prop
erty of others did not concern the ap-
pellants, nor affect the right of the
plaintiff to condemn their lands which
had not been assessed. The proceedings
to assess and to enforce the payment
of assessments are entirely distinct
from actions to condemn land. II
those whose lands had been assessed
to pay for the Improvement had COM
planned, a different question would have
been presented.
Eachus vs. Los Angeles etc. Ry. Co.,
1O3 Cal 614, is entirely different from
the case at bar. 1t was an action
brought by the owners of properly 10
recover, damages caused to their lot
by the acts of defendant in making an
excavation in the street In front OK
their property for the construction OF
a railroad, and thereby cutting off their
access to the street The question OIL
damages is discussed with his usual
elearness by Justice Harrison, but II
throws no light upon the inquiry here
except it may inferentially. He makes
this observation concerning Art. l.,
Sec. IA, of our State Constitution:
Prior to the adoption of this Consul
tuition it was held that an abutung
owner was not entitled to compensa-
ton for any injury to his property re-
sulting from a lawful change in the
grade of the street fronting thereon;
but in Reardon VS.. San Francisco, 6o
Cal. 1872, it was held that this provls-
ion of the Constitution gave him a
remedy that he did not previously nave,
and authorized recovery for such IN
direct or consequential damage 10 h's
property as he might sustain over ana
above that sustained by him in common
with other abutters or the pupllc III
general While not directly IN point
here, the suggestions are Significant az
to the meaning and scope of said pro-
vision of the Constitution.
Davies VS.. City of Los Angeles, 90
Cal. 81, was an action to declare Vo4u
an assessment made against respond
ent's property for the payment OF the
expenses of opening and widening d
certain street and to enJoln the Ell
forcement thereof. The proceedings OF
which complaint was made were nao
under and in conformity to the Act OF
the Legislature of 1889, providing for
the opening and widening of streets
statutes of 1889, page 1O). Said ACT
provides plan for assessing and ap-
portioning damages and benefits, ana
is less vulnerable than the Legislation
under discussion. But in that case
Chief Justice Beatty, in his dissenting
opinion, presents the proper view when
he declares that the Act is unconStitu-
tional in that '.it permits assessments
upon the property supposed to be ben
Gifted in excess Of the benefits. 1t
seems strange that amy other view
could have ever possessed the Judicial
mind. 1t may be that the progressive
spirit of the age has blinded some of
the judiciary to the constitutional
rights of the individual. That is not
true progress, however, which takes
away from the humblest citizen any OF
the guarantees of the Constitution.
Plaintiff also cites Spencer VS.. Mer-
chant, 125 o. S. 345 1t may be re-
marked that this case has been relied
upon by our own Supreme Court
in some of the cases hereinbefore REF
ferred to. The syllabus in that case
is as follows: After an assessment fot
improving a street was partly paid.
it was declared void for want of any
provision for notice and hearing and