Farley v. Reindollar

Plaintiff having performed certain street work upon a street of the city of Oakland under the Improvement Act of 1911 (Stats. 1911, p. 730), brought his suit to foreclose an assessment lien on the property of defendant Reindollar. A general demurrer to his complaint was sustained and from the judgment which followed plaintiff has appealed. It is conceded that in all respects saving one the complaint is sufficient. The particular in which it was found to be insufficient is the following: The complaint alleged that a protest against the doing of the proposed work was made by certain owners of property; that defendant was not one of the *Page 704 protestants and, "That the said city council proceeded to hear and pass upon said protest at the next regular meeting of said city council, after the filing of said protest, to wit, on the eleventh day of July, A.D. 1911, and thereupon and at said time, by resolution, duly continued and adjourned said hearing to the twenty-fourth day of July, A.D. 1911, at the hour of 11:30 A. M. of said last-named day, and that due notice was given to said protestants of the time and place of hearing said protest. That the hearing of said protest carne on regularly before said city council at a regular meeting thereof, at the time and place set for said hearing, and said protestants being personally present, or being duly represented at said hearing, the said council, after due consideration by its resolution number one hundred and eleven (111) N. S., duly and unanimously overruled and denied said protest, and sustained the aforesaid resolution of intention number thirty-eight thousand two hundred and ninety-nine (38,299)." The law governing the right to protest and the procedure after protest is found in section 6 of the act of 1911, and so far as it pertains to this consideration the language of the section is as follows: "At the next regular meeting of the city council after the expiration of the time within which said protest may be so made, the city council shall proceed to hear and pass upon all protests so made and its decision shall be final and conclusive. . . . The city council may adjourn said hearing from time to time." Respondent's view, which successfully he impressed upon the trial court, is that this language made it imperative upon the city council to pass on the protest and to decide the protest at its next regular meeting, or, failing to do this, its jurisdiction to proceed further was lost. Even if this statute did not authorize, as in terms it does, an adjournment of the hearing from time to time, no court would hold that such a tribunal lost jurisdiction to proceed with a matter which it had regularly taken up for hearing because it continued that hearing to some other not unreasonable nor forbidden date. It would require some positive declaration of law to abridge the general right which belongs to all legislative, ministerial, and judicial officers to continue the hearing and consideration of a matter over which they have acquired jurisdiction within reasonable limits and *Page 705 bounds of time. Thus, to instance but one of many similar conditions which will readily occur, if the law declared that all protests must be heard and disposed of within one month after the filing of the protest or all power and jurisdiction to proceed further should be at an end, here would be a peremptory and mandatory time limit fixed within which the council must act or lose the power to act. But all this is superfluous in view of the fact that the law itself makes express provision for continuances and adjournments of the hearings — just such continuance and adjourned hearing as the pleading declares was regularly ordered and at which adjourned hearing, as the pleading further declares, every protestant was present and was heard. But two cases from our state are cited by respondent in support of his most untenable position. Unhesitatingly we declare that if either in fact supported that position it would call for immediate repudiation in the light of the plain language of the law. But neither does so. The first of those is Stoner v. City Council of Los Angeles, 8 Cal.App. 607, [97 P. 692]. There a protest was filed under a law which declared that the protest should be laid before the council at its next regular meeting and that "the council shall hear all such objections at said meeting, or at any other time to which the hearing thereof may be adjourned." The protest was not laid before the council either at its next nor at any of several succeeding regular meetings. The council thus never acquired jurisdiction, and so never, after having acquired jurisdiction, did it continue the hearing. After a considerable lapse of time the council took up the matter of the protest, and the court of appeal very properly held that there had been a failure on the part of the council to acquire jurisdiction of the proceeding by virtue of its neglect to take up the matter of the protest for hearing at its next regular meeting. Here the matter of the protest was taken up at the next regular meeting of the council and the hearing was duly adjourned to a later and not unreasonable date. The second case is SouthernConstruction Co. v. Howells, 21 Cal.App. 330, [131 P. 756]. In that case the law provided for an appeal to the council by disaffected property owners, and declared that after the filing of such an appeal "notice of the time and place of the hearing shall be published for five days." The required publication was not made, and again the court of appeal, with strict *Page 706 legality, held that the publication was made jurisdictional to the right of the council to pass on the appeal. Enough has been said to show the inappositeness of both of these cases, and for the reasons given the judgment appealed from is reversed. Melvin, J., and Lorigan, J., concurred. Hearing in Bank denied. In denying a hearing in Bank, the court filed the following opinion on April 25, 1917: