The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1899-06-28
MDoMAN ACT VOID.
DEC1sIoN TO THAT EFFECT BY
JUDGE BURNETT.
E3eat Of Act Considered and Points
Wherein 1t IL Unconstitu-
ttonal Are Noted.

through the courtesy of Alien r.
lennon of the Santa Rosa f'Repub-
mean the Record Union" is able TO
present to it's readers the full text OF
the late decision Of Judge Albert u.
burnett, Judge of the Superior Court
VI Sonoma County, declaring the Nroo-
man Act to be unconstitutional the
oecasion which is one of great import
ance TO all property owners is as fol-
lows:
In the Superior Court of the county
OF Sonoma, State of California.
Petaluma Paving Company, plaintiff,
vs.. James Singley ct al, defendants
This action was brought to foreclose
q lien for street assessment. 1t had its
origin in proceedings taken by the
Board of Trustees of the city of Peta-
luna, under and by virtue of an ACT
OF the Legislature of the State of Cali
1ornia, entitled An Act to provide for
work upon streets, lanes, alleys, courts,
places and sidewalks and for the con-
structfon Observers within municipali-
ties, approved March Is. 1885,
The complaint is in the usual form
The work done by the plaintiff was
grading to the official line and grade,
macadamizing, guttering, curbing ana
sidewalking the street on which defend
ants property abuts. The d1nerent
steps required by the statute seem to
have been carefully taken. The work
was duly accepted, no complaint to the
Trustees having been made concerning
it, The action was tried in this court
and plaintiff had Judgment; Defendant
SSingiey has moved for a new trial.
Y Tho xUhi oh ho
cided stand is taken involves the con-
stftutionality of the statute upon which
the action is based. Defendant contends
that it is opposed to the fourteenth
amendment to the Constitution of the
United States, which provides that mo
State shall deprive any person of life.
liberty or property without due process
of law" and also to Section 10, Article
I. of the Constitution of this State and
also to Section IA, Article I. of the Con-
stitution of this State, which provides
that private property shall not be
taken or damaged for public use with
out just compensation having been first
made to or paid into court for the
owner which compensation
shall be aseertained by jury, unless
jury be waived, as in other civil cases
in court of record, as shall be pre-
scribed by law" AS amended in 1888
Section 2 of the said Act of 1885 pro-
videss that whenever the public inter
est or convenience may require, the
City council is hereby authorized and
empowered to order the whole or any
portion, either in length or width of the
streets, avenues, lanes, alleys, courts or
places Of any such city graded or re-
graded to the official grade. planked or
replanked. paved or repaved, maeadan-
lied or remacadamized and it
may order any Of said work to be i'm
proved - provided that wheE
ever the grade of a street, avenue, lane,
alleys court or place shall hereafter be
changed the petition of the owners of
the majority of the feet fronting there
on, asking for grading the same to the
new grade shall be condition prece-
dent TO the ordering Of such grading to
be DONE
The subsequent section provides for
the procedure to be taken by the city
Council IN causing any work authorized
by the preceding section to be done. 1t
also enables the owners of a majority
of the frontage of the property fronting
on the proposed way or Improvement to
stay the proceedings for six months 1t
the issuance of the assessment roll all
owners of property affected who may
feel aggrieyed or who may have objec-
tions to any of the subsequent proceed.
ings of said Council in relation to the
performance of the work mentioned ir
the notice of intention shall file with
the clerk a petition of remonstrance,
wherein shall be stated in what respect
they feel aggrieved, or the proceeding.
to which they object, such petition or
remonstrance shall be passed upon by
the said City Council and its decision
therein shall be final and conclusive
Section, Z Of the Act provides that
''the expenses incurred for any work
authorized BY this Act = shall
be assessed upon the lots and lands
fronting thereon 'i* each lot or
portion of a lot being separately as
sessed in proportion to the frontage, at
a rate per front foot sufficient to cover
the total expense of the work.
1t IS probably not necessary to quote
more extensively from the Act in order
to apply intelligently the constitutional
objection which has been made to it. It
will be noticed that the individual
owner of property along the line of the
proposed public improvement has no
voice in determining whether the said
improvement shall be made His land
is assessed for its proportion of the total
expense incurred without any reference
to the question of special benefit to the
said land. Indeed, the Act contains not
even legislative declaration that the
land along the proposed improvement
will be specially benefited or benefited
at all. The scheme proposed is for a
public and not a private Improvement.
The work is to be done whenever the
public interest or convenience may re-
quire'' There is no provision in the
law whereby it may be determined by a
judicial inquiry or otherwise whether
the land of the individual owner is to be
benefited ait all, to say nothing of
whether it will be benefited proportion
ally to the assessment to which it is
liable. In the case of Village of Nor
wood VS.. Baker. 112 U. S. 269, the Su-
preme Court of the United States has
said 1T has been adjudged that the due
process. of law prescribed by the four
teenths amendment to the Constitution
of the United States requires compen-
sation to be made or secured to the
owner when private property is taken
by State or under it's authority for
public use." Citing Chicago, Burlington
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