The Delta independent., 1923-07-06

a construction may reasonably be put
upon them that would make them
valid. BY restricting these sections
to subsequent acts or proceedings in
improvement districts, they may be
held valid. It would be a strange
doctrine to lay down that after the
city council had, on March 2, 1928,
cited these plaintiffs and other prop
erty owners to file, on April 2, pro-
tests and objections. II any they had.
Ito the proposed ordinance creating
the improvement district, and they
had complied with the request and
made known their objections, and the
council had disregarded the same
and had proceeded to. and on the same
day did. enact the creating ordinance,
that a suit to protect and maintain
their vested rights could not be main
tanned because of this subsequent leg
islation. The test Of the right to be-
gin the action is not to be determined
as of the time when the complaint is
] filed but when the alleged wrongs
were committed.
| There is another reason why this
motion was improperly dismissed It
is apparent that the city attorney
realized that the act of 1928 does not
apply, unless it was adopted, or un-
less it was properly determined, and
in the proper way. that future pro-
ceedings heretofore begun under the
1899 act should be concluded under
the 1928 act. Sec. 40 of the 1928 act
provides that If local improvements
are constructed 'fn pursuance of this
| act, the same shall be made to appear
in the original petition and in the or
dinance authorizing the improvements.
Plaintiffs contend that thereby the
property owners are the ones who
must determine whether the proceed
| ings shall be wholly, or in part under
this act. Whether that is 80 or not,
we do not now decide. We shall as.
sumo, but only for our present pur-
poses, that the city council may deter
mine whether proceedings begun un-
der another may be concluded under
this act. In the unverified motion to
dismiss, the defendant says: "Defen-
| dant herein, hereby adopts all and
singular the provisions of said House
Bill No. 1856 touching and concerning
all and singular the matters and
! things set forth in plaintiffs said COM
i plant" A mere declaration by the
city attorney, in an unverified motion,
that House Bill No. 1856 is hereby
adopted" that is, by the city attor-
ney's declaration is not the act of the
| city council. 1t is not even a state
| hot ha o;t,
| any action, whatever, as to whether
| further proceedings after this bill be-
| came an act, will be concluded there
under. II the city council has in the
appropriate way, adopted this House
| Bill. 1t Is not made to appear in this
case. Nor is there any statement that
the city council has determined that
future proceedings are to be conclud-
ed under the later act. Second, if it
has. and was invested with such
over, the proceedings up to the time
that act became effective, and the
rights Of the parties with respect
thereto, including the right to begin
this action. are to be determined by
the 1899 act. AS the trial court has
not passed upon the sufficiency Of
the complaint on the theory that the
act OF 1899 is controlling, but based
| its judgment upon the ground that
the 1928 act prohibits the begin.
ming Of this action, we express no
opinion upon some OF the legal is
sues raised by the complaint, which
| depending as they do, upon evidence,
may become immaterial There are
two questions, purely questions OF
law, concerning which we think 1t
proper to express an opinion, not
only for the guidance of the court
upon new trial. but to save its
time and avoid unnecessary or pro-
longed litigation. Unless some spe-
cific charter or statutory authority
confers 1t. the city council OF Delta
has not the power to include local
improvement district, property stu
ate outside the city limits. !.
In this charter the City OF Delta
has adopted the statutes of the state,
and amendments thereto relating to
the issue OF bonds, Save that no
vote OF the qualified electors OF the
city who are tax payers under the
law, authorizing such issue" The city
says that this provision is limited to
general municipal bonds, which are
obligations OF the entire city, to be
paid out OF the funds raised by taxa
tion under general levy. We do
not think 80. The language is mo
bond ISSUE" and that is sufficient to
include local improvement bonds.
Clause "e" OF Section Article Xxx
OF the Constitution, includes as one