Brady v. King

53 Cal. 44

• Court: California Supreme Court
• Decided: July 1, 1878
• Docket: No. 4968
• Status: Published

Opinion

By the Court :

The “ resolution of intention ” was fatally defective, and, as a consequence, the Board of .Supervisors did not acquire power or jurisdiction to order the street work done. (Richardson v. Heydenfeldt, 46 Cal. 68; People v. Clark, 47 Ibid. 456; People v. Ladd, Ibid. 603.)

The Act of March 25th, 1874, “ To ratify and confirm certain ordinances,” etc., (Stats. 1873-4, p. 588) is in violation of the Constitution of the State, and therefore void. (People v. Lynch, 51 Cal. 15; People v. Goldtree, 44 Ibid. 323.)

As the attempted assessment was absolutely void, the act of the Legislature was an attempt to levy a contribution within a certain district, and to declare that each lot named in the original roll should pay a sum arbitrarily fixed. This would be to create a lien on defendants’ real estate, which, if the law were valid, the Courts would be compelled to enforce.

If this can be done, the Legislature may take the property of the citizen without any legal process, for there can be no difference between taking the property directly and imposing a lien upon it. But no person “ can be deprived of life, liberty, or property, without due process of law.” (Constitution, art. 1, sec. 8.)

The act of the Legislature is an attempt, at best, to levy an “ assessment ” within a city. The Legislature has no power to levy such assessment. (Taylor v. Palmer, 31 Cal. 240; People v. Lynch, supra.)

Judgment reversed and cause remanded, with directions to render judgment for the defendants.

Wallace, C. J., did not express an opinion in this case.