City of Napa v. Easterby

McKinstry, J.: The Act to reincorporate the City of Napa was approved February 24,1874. Sections of the Act were amended March 29, 1876, and again amended April 1,1878. — 516 — The bill of exceptions alleges that plaintiff “ read and put in evidence ” ordinances of the Board of Trustees of the City of Napa, Nos. 42, 74 and 77. The ordinances, as they purport tp be recited in the bill, adopt and recognize the “ grade and sewer maps and system of grading and sewerage represented on said maps and accompanying diagrams ” prepared and reported by Wm. P. Humphreys, as the “ official system of grades and sewerage of the City of Napa,” etc. The bill of exceptions does not show any objection to the ordinances when they were offered. Ordinance No. 42 was adopted December 7,1874, Ordinance No. 74, September 19, 1878, and Ordinance 77, January 23, 1879. Section 9, of the City Charter provides: “ The Board of Trustees shall cause to be published in some newspaper in the city all ordinances which shall be certified and signed by the President and Clerk of the Board, and no ordinance shall take effect and be in force until ten days from the first publication thereof.” It is urged by appellant: First.—Plaintiff failed to prove that the ordinances were published. Second.—Plaintiff failed to prove that the Board of Trustees caused them to be published. Section 9 of the City Charter proceeds: “A copy of such ordinance published or purporting to have been published by authority in the official newspaper of the city, shall be prima facie evidence that such ordinance has been regularly and legally passed and authenticated, and that the provisions of the ordinance are as published, and that such ordinance was published by the order of said Board of Trustees at the date when said publication purports to have been made.” It may be said that, inasmuch as no objection was made to the ordinances when offered, and as by Section 9 of the Charter, an ordinance may be proved, prima facie, by production of a copy purporting to be published by authority in the official newspaper, this Court, in support of the action of the Court below, will presume that Ordinances 42, 74 and 77 were thus proved. Further, inasmuch as the charter provides that — 517 — no ordinance shall take effect and be of force until after publication, they were not valid or effective ordinances unless published, and, consequently, the recital in the bill of exceptions that plaintiff “ put in evidence ” the ordinances, must be held to be a recital that the ordinances were duly published. But an ordinance, res ipsa, although it may have no binding effect until after appropriate publication, is a different thing from its publication. It may be proved by the original entry of it in the proper book, or perhaps by certified copy or from the printed volume of ordinances. We are not authorized to infer that it was properly published because it was passed, and the provision of the charter which makes the newspaper publication evidence prima facie of the ordinance, does not make the ordinance itself presumptive, or any, evidence of the newspaper publication. Even if it should be admitted, however, that we should presume the ordinances and their publication to have been proved below by the newspaper copy, we cannot say, in the absence of the evidence of the publication in the newspaper, when they took effect, or that they were in force when the proceedings were taken which are the foundation of this action. Section 9 provides that the production of the newspaper copy shall prove, prima facie, that an ordinance was published “at the date when said publication purports to have been made.” We can only tell the date at which a publication purports to have been made from the publication itself. The charter requires that the Board of Trustees shall “ cause to be published ” all ordinances. This means that the Board shall order the publication. (Temple, J., in Chambers v. Satterlee, 40 Cal. 521; Donnelly v. Tillman, 47 id. 41; Donnelly v. Marks, id. 191; Himmelmann v. Satterlee, 49 id. 387; Reis v. Graff, 51 id. 90.) It is true, Section 9 of the Charter of the City of Napa provides that the newspaper copy of an ordinance shall establish, prima facie, that the ordinance was published by order of the Board, at the date'when said publication “purports to have been made.” But, in the absence of the notice or publication, we can not say what was its purport. It follows that, as the case is presented, it does not appear either what was the order of the Board of Trustees, or that the publication— — 518 — if made at all—was made in accordance with any order of the Board. At a stage of the trial different from that at which the plaintiff "put in evidence” the ordinances above mentioned, plaintiff called J. E. Walden as a witness, who testified: “I am foreman of the Napa Reporter. “Q.—Was the Napa Reporter an official paper in 1874? “ Counsel for defendants objects as incompetent, etc. “Witness—Ordinance No. 42 was published December 12, 1874.” This clearly shows that the Ordinance No. 42 was proved as an independent fact, and that the distinct fact of its publication was sought to be established by the oral testimony of the witness Walden; in other words, that the Ordinance 42, its contents and the regularity of its passage and adoption, and the order of the Board directing it to be published, were not proved by the production of a copy of the ordinance as published. But Section 9 of the Charter makes a copy of the order published by authority, etc., alone presumptive evidence of the matters therein mentioned, including the fact that the ordinance was published by order of the Board. The statement of a witness that the ordinance was published creates no presumption that it was published by order of the Board of Trustees. It follows again that the case does not show that the Board “caused to be published” the Ordinances 42, 74 and -77. It does not appear, therefore, that the official grade has ever been established by any ordinance of the Board of Trustees. But if it had been proved that the Ordinances 42, 74 and 77 had been duly published by order of the Board; the question would remain: Did the Board have power, by ordinance, to declare and adopt “ an official system of grades ” for the city of Napa ? Doubtless, it would seem more convenient to establish by one ordinance a system of grades having reference to a common level. It would also seem peculiarly proper that the Board of Trustees should have power to establish a symmetrical plan of grades for the whole city, irrespective of any application by property-owners. But an examination of the — 519 — charter—as the same read when Ordinances Nos. 74 and 77 were passed—will show not only that the Board had no power to establish a general system of grades, but the Board had no power to establish a grade for any portion of a street except upon petition of property-owners. The seventh subdivision of Section 11 of the Charter reads: “ The Board of Trustees are authorized and empowered to establish the grade of all streets, avenues and alleys, and to require and enforce conformity thereto.” But the second subdivision of the same section empowers the Board “ to provide for * * * working, grading, improving and repairing of streets, avenues and alleys,” and no one would claim that this language is to be construed without reference to the subsequent provisions which provide the manner in which the power to “ work, grade and improve” is to be exercised. The charter is to be read as a whole, and, in both instances, the .mode is the measure of the power. Section 18, commences: “ The City of Napa shall not pay for establishing the grade, grading, working, improving, or repairing streets, etc., but all such expenses shall be assessed upon the property fronting on such streets, avenues and alleys as hereinafter provided,” etc. Section 19. “ When the owners of more than one half in frontage of the property fronting on any street, or portion thereof, between the center line of two cross streets, * * * shall desire to have the grade established, or to grade, fill, plank, etc., and shall petition the Board of Trustees in writing, asking that the same may be done, the Board may order said work to be done as requested, at the expense of the property fronting on said street,” etc. Section 20. “The Board of Trustees may at any time, without petition, * * * provide for grading, filling, planking, paving, macadamizing, or graveling streets, * * * or otherwise improving or repairimg the same, and shall proceed in letting contracts and assessing the expense of such work upon the property chargeable therewith in the same manner as in cases of assessment made upon petition,” etc. (Stats. 1877-78, p. 1017, Amendment took effect June 1,1878.) Thus appears the evident purpose that the adjacent property shall pay for the establishment of the grade, and that the power to establish a grade shall be employed only by an — 520 — ordinance assessing the charge thereof, upon the property fronting on the street, or portion of street, where the grade is established. Not only so, but inasmuch as in every enumeration of powers conferred upon the Board of Trustees, the power to establish the grade is spoken of as a different thing from the power to provide for grading, and as by Section 30, the power to establish the grade, without petition, is not conferred upon the Board, the Board of Trustees has no power, without petition, to provide for grading a street, until after the grade of such street has been established upon petition. Certainly no street can be graded until its grade has been established, and its grade can not be established except upon the written petition of the owners of more than one half of the frontage. (Section 18.) We can not inquire whether this is the best system which could have been adopted. It is the system found in the t charter.' It is true, Ordinance No. 42 was passed prior to the adoption of the amendment of Section 30 of the City Charter found in the Act which took effect June 1, 1878. When No. 42 was passed, Section 30 read: “The Board of Trustees may at any time, without petition,provide for establishing grades * * * and for repairing streets,” etc. But in the same section it was provided that the Board “shall proceed in assessing the expenses of such work upon the property chargeable therewith, as therein before provided.” When therefore Ordinance No. 42 was adopted, the Board of Trustees had power to provide for establishing a grade “without petition.” But they could establish a grade only by providing for the payment of the expense of its establishment by means of assessments upon the property fronting upon the street, or portion of street, where the grade was to be established. The Board could order the work to be performed “at the expense of the property fronting on said street, avenue • or alley, to be assessed upon in proportion to the number of front feet of the several lots,” etc. (Section 19.) It is certain in no case would the grade be established until the assessment had been ordered, or, at least, made. Reading the several sections together it would seem evident it was — 521 — intended that, as a separate act, a grade should be established along a street, or a portion thereof, “between the center lines of two cross streets, or between the center line of a cross street and the terminus of a street.” (Section 19.) At all events, the assessment upon the adjacent property is part of the establishment of a grade. Even if it should be admitted, therefore, that, when Order No. 42 was passed, the Board had power by one ordinance (or “resolution,” even,) to establish the grade of all streets, avenues and alleys within the corporate limits of Napa City, such grades would become “established” only when (at least,) assessments had been levied upon the property fronting upon all the streets, avenues and alleys. The case shows, not only that such assessment was not ordered by the Board of Trustees, but that no such assessment was in fact made. On the contrary, it affirmatively appears from the record that the person whose “system of grading and sewerage” was adopted, and declared to be the “official system,” was paid for his services out of the city treasury. This, although Section 18 of the Charter provides that “the City of Napa shall not pay for establishing the grade” of streets, and Sections 19 and 30 that property fronting upon a street shall pay for establishing its grade. The Court below found: “6. That the grade of the street on which was done the work for which the assessment mentioned in the complaint was made, had been and was duly established at the time of the adoption of the resolution of intention hereinafter named.” From what has been said, it follows that the sixth finding is not sustained by the evidence. Judgment and order reversed and cause remanded for a new trial. Morrison, C. J., concurred. Myrick and Boss, JJ., concurred in the judgment on the first ground stated by McKinstry, J. Thornton, J., concurred on the second ground stated by McKinstry, J.