« AnteriorContinuar »
The next objection is, that the board adopted a false rule for the assessing of damages and benefits. The only rule laid down, if such it may be called, is found in section seven. It is this : “The board shall ascertain and determine the actual cash value of the land taken for the widening, etc. • • * and shall set against each lot the sum in which, according to the judgment of the board, the lot has been benefited by the widening," etc.
It is a matter of great practical difficulty to determine accurately whether the results reached by the board were correct or incorrect. Probably no two boards that could be appointed would entirely agree as to damages and benefits adong the line of a given street. It is more matter of opinion. Hence the law requires of the board its best judgment in the premises ; and when so exercised, their determination will not be disturbed except for very grave causes(reasons).
In the case of Piper's appeal, 38 Cal., 530, the Supreme Court discuss the matter at great length. The court say: “The law, in the first place, requires three commissioners to be appointed to make the appraisement and assessment. They are not, like jarors, selected by lot out of all citizens possessing the statutory qualifications--good, bad, and indifferent, and of every grade of capacity and intelligence—but are selected with special reference to their fitness to discharge the particular duties devolved upon them by law in the given case. * * It is their duty to investigate the subject thoroughly ; examine witnesses if deemed important ; obtain all the information within their power ; reflect upon the subject, and finally embody the result of their retlection and investigation in their report.” The opinion then quotes largely from 'numerous cases decided in other states, and concludes by refusing to disturb the report. It will be observed that the case in 38 Cal. was an appeal from the order of the County Court confirming the report. There is no doubt of the legitimate power of the Supreme Court, on such appeal, to review the order of the court, also the report of the commissioners, and to reverse such order or modify the report, as in its judgment, the ends of justice may require.
But this is not an appeal; and this conducts us to the examination of two questions: First. Did the County Court acquire jurisdiction to deal with the report, and if it did, is its judgment of confirmation final ? The power of the County Court to consider the report is contained in section 8 of the act. Sec. tion 7 directs that the report, when completed, shall be left for 30 days at the office of the board for inspection, and that notice that the same is so open for inspection shall be published daily for twenty days in two daily newspapers. This is all the provision the statute contains touching the subject of notice between the time the report is completed and its presentation to the County Court. Section 8 provides that any interested person, feeling himself aggrieved by the report, may; within the 30 days mentioned in section 7, petition the County Court for an order compelling the board to file the report with the court.
The object of this portion of section 8 is not very apparent, because the section concludes : “But in case no such petition shall be filed with said County Court within the time above limited, the report shall be presented by the board to said court, with a petition that the same be approved and con. firmed." It thus appears that the report is destined to reach the County
Court in any event: first, upon petition of an aggrieved party, and, second, in the absence of such a petition, it is to be presented by the board. No such petition having been filed, the report was presented to the conrt by the board.
Thus it does not clearly appear that the 20 days' publication was a prerequisite to the presentation of the report by the board ; but that the failure of an aggrieved person to petition the court was the precedent fact from which the board derived its power to present its report to the court. Plaintiffs insist, however, that the twenty days' publication was of jurisdictional consequence, and that a departure from the statute in this particular prevented the County Court from acquiring jurisdiction. They claim that the statute, in prescribing a publication of twenty days, means twenty secular days. The notice was published twenty secular days in one newspaper, and twenty-one days, includ. ing Sundays, in the other. It is urged by the plaintiffs that the statute should be strictly construed. A strict and literal construction would hold that pnbli. cation for twenty days, including Sundays, was sufficient. This is plain, because the statute makes no qualification nor exception. It simply says it shall be published daily for twenty days. The Supreme Court has held, in several cases, that a notice directed to be published for a period of ten days, Sundays excepted, is duly published if it appear in the newspaper for eight secular days. That is, if the first day is Saturday, June 1st, and the last day is Monday, June 10th, the publication is good, though the notice did not appear either on the 2d or 9th. It is evident that the Legislature did not intend to exclude Sundays in the clause under consideration ; first, because there are no words indicating such intention ; and, second, because wherever in the act.such intention existed, it is expressed. · In section 1:1 this language occurs : “ The Mayor * * *
shall advertise for the period of sixty days by notice published daily, Sundays excepted.” Again, in section 13, “shall advertise daily, for the space of ten days, Sundayx excepted ;" and again, in same section, " for the period of sixty days, Sundays excepted." Thus showing clearly that wherever the Legislature intended to exclude Sundays it has plainly said 80. It was suggested at the argument that the phrase "period of twenty days" means something different from the phrase “twenty days.” I cannot perceive the difference. If one person informs me he spent sixty days in London, and another person says he remained in London for a period of sixty days, I infer that the stay of one was equal to that of the other-neither longer nor shorter. Besides, in the 21st section of the act under consideration, the Legislature uses the phrase "sixty days " and the phrase "period of sixty days," as synonymous. If, then, the County Court's jurisdiction depended opon the publication for twenty days, as prescribed by section 7 of the act, as plaintiffs insist it did, it is clear that the section was strictly complied with and that the jurisdiction attached.
The remaining question is, What was the effect of the judgment of the County Court? The eighth section of the act clothes the court with plenary power over the report. This is too clear for argument. The court may approve and confirm the report on its presentation ; or, if, in the opinion of the court, it needs any alteration or modification in any respect, the court directe the same to be made and refers it back for that purpose. And when finally altered and modified to conform to the views of the court, it shall be approved and confirmed. The statute does not enumerate or limit the particu. lars in which the court may direct alterations to be made, but gives the court complete control of the report, with power to direct all modifications which, in the opinion of the court, law and justice may demand.
The Legislature, in conferring upon the court this important and delicate power, must have had some object. It must have intended that the judgment of confirmation should be followed by some substantial results ; otherwise the the act were rain. It is a fundamental rule in the coustruction of statutes, that it is not to be presumed that the Legislature intended that the results of its deliberate act should prove of no effect. Construction of a statute is but following out the intendinent of the Legislature. The County Court is now a court of record, and its proceedings are construed with like intendments as the proceedings of courts of general jurisdiction. It has the same diguity, in a legal sense, that the Queen's Bench or Common Pleas of England ever had.
What, then, was the intention of the Legislature in clothing this court with the power to supervise, modify and finally confirm the report: It must have been to give to its order of confirmation the dignity and conclusiveness of a final judgment. If it does not amount to this, it amounts to nothing. This is also clearly shown by section 9 of the act. It says: “All damages, costs and expenses arising from or incidental to, the widening of said street being fixed and determined by the final confirmation of the report," the board shall prepare bonds, etc. This puts the matter beyond question, and the judginent of the court was the end of the proceedings, unless the same waa subsequently modified or reversed. It does not appear that any motion was ever made to set aside or modify the judgment, nor was any appeal ever taken therefrom. The judgment is, therefore, final and conclusive.
The plaintiffs insist that the rule of damages and assessments adopted was incorrect, and that the modifications ordered by the court were unjust and illegal. The answer is, even if this be true, they were merely errors committed by the court acting within its jurisdiction, and did not render the judgment void. They might have been corrected on motion or by appeal ; but as all parties in interest, by their failure to take either of these steps, are deemed to have acquiesced in the judgment, it is now too late to complain.
It is an old rule of equity that the granting of injunctions is a matter resting in the sound discretion of the court, and that no injunction will be granted whenever it will operate inequitably or contrary to the real justice of the case, or where there has been unreasonable laches or delay by the party seeking this form of relief. The plaintiff's stood by, without protest or objection, until the desired improvement had been wrought out through the agency of the report and judgınent now complained of ; the basis on which the work proceeded was the one which their silence adopted and approved. The money used in accomplishing the work was realized from the sale of boods to parties who had a right to rely on the sauctity of the judgment of the County Court. The lands of the complaining parties, at the inception of the widening scheme, fronted on a narrow and undesirable street; they now front upon a wide and elegant thoroughfare. The plaintiffs are enjoying the benefits of the scheme, and ought to pay the expenses legitimately adjudged against them. It is therefore ordered that the motion for an injunction be denied, and that the restraining order heretofore entered be vacated.
SYLLABUS OF THE
(June 12, 1878.)
SAMUEL K. CLINTON VS. THE STATE OF OHIO.
1. Under an indictment charging a violation of section four of "An act to provide against the evils,” etc., (S. & C. 1431,) it is not necessary to show that the nuisance existed at the time proceedings were commenced. It will be Bufficient to show that it existed, in fact at sometime during the period named in the indictment.
2 No one is rendered incompetent to be a witness on account of relig. ious belief ; nevertheless, every one offered as a witness in a court must take an oath or affirmation before giving testimony.
3 A person who believes in the existence of a Supreme Being, who will, either in this life or the life to come, inflict punishment for false swearing, may be sworn as a witness.
4 A witness cannot be cross-examined as to any fact which is collateral and not material to the issue, merely for the purpose of contradicting him.
5 Answers elicited from a witness on cross-examination, as to his religious belief or his previous declarations in relation thereto, being collateral and not material to the issue, will not serve as a foundation to call witnesses to contradict him. Judgment reversed.
(Cleveland Law Reporter.)
WOMEN IN THE COURTS. The Judiciary Committee of the U. S. Senate hold the view that women are admissible to practice as barristers in the United States Courts. A bill went before the committee recently, providing that women who have been members of the Bar for three years in any State or territory, shall be admited to practice in the Supreme Court of the United States, and that no, person shall be excluded from practising as attorney or counsellor before any court of the United States, on account of sex. Holding the view that there is now no law excluding females from the Bar in the courts mentioned, the Senate saw no necessity for the passage of the bill, and accordingly reported adversely to it..
The friends of the measure regard this action of the Senate as an evasion of the issue. because, in point of fact, the Courts do not admit women to practice, and the U. S. Supreme Court has refused to entertain an application for admission in behalf of a woman. She is in the same positiou, therefore, as if expressly excluded by the law. It is generally conceded that if all restrictions were removed, not a dozen women in the Union would avail themselves of the liberty granted. The easiest solution of the difficulty would probably be to grant the privilege requested, and the anxiety to appear in the courts would then fade away.- Montreal Legal News.
SUPREME COURT. 5283--Shinn vs Young
5923--Adler vs Winkle
6118 - Hudson, Allmin'r vs Irwin et al Calendar for July Torm. 1878. 6086--Hardy vs Macpherson
6091 --Sampson vs Stickney et Court meets at San Francisco on Mon
THURSDAY. JULY 18th day, July 8, 1878, at 11 o'clock A M. 4707--Hoke vs Perdue The Clerk requests all applicants for ex. 5306--Hager vs Spect
fara 5336 --Belcher vs Chamberg et al amination to file their certificates before
6101.-S. F. Savings Union vs Dufficy et a Saturday, July 6th.
6125---- Bank of California vs Fresno Cana MONDAY, JULY STH.
and Irrigation Co. Motions.
MONDAY, JULY 22D 6045-E'c-parte Wm Smith, for writ of 5944_Miller vs Hendersou certiorari.
6069 - Laswell vs Gaemlick Examination of applicants, for admission 6085 - Jackson vs Stone to practice.
5587 ---Snow vs Kimmer et al TUESDAY, JULY 9TH,
5997---Winnegar et al vs Purrington et al
6061 --Osgood vs El Dorado Water and 10,304-People vs. Jones.
Mining Company 10,323-People vs. Carick. 10,331-People vs. Bailey.
TUESDAY, JULY 23D 10,337 --People vs. Van Deleer.
5354-Seymour vs Wood et al 10,316-People vs. Gibbs.
5433-Santa Clara Valley Peat Fuel Com. 10,347-People vs. Fung Ah Tuck. 10,348 - People vs. Bevans et al.
pany vs Tuck
5830—Prescott vs Salthouse et al 10,349--People vs. Platt.
5851-Hale vs McLea 10,352-People vs. Bell et al. 10.333--People vs. Felix.
5954-City of San Jose vs San Jose and
Santa Clara Railroad Company 10,334 People vs. Herrera.
WEDENSDAY, JULY 24th
6032-Sullivan vs Beardsley 5411-Felton et al. vs. Robinson.
6041 -Reynolds vs Groneville THURSDAY, JULY 11TH.
6056-In the matter of the estate of 6040-City of Los Angeles vs. Baldwin David Gharky, deceased et el.
6060-Otto, administrator, vs Mann 5878-Pollard vs. Leff.
6121 --Anderson et al vs Aguayo 5833-Stewart vs Tipton et al
THURSDAY, JULY 25TH. 6095 --People er rel, Tyler vs Cal. Bridge 3698-Bigley vs Nunan and Building Co.
4631–Hart et al vs Finnegan 6110--Watson vs Cornell et al
4770-Howden vs De Young MONDAY, JULY 15TH
4970-Lyons vs Beale et al 5884--City of Stockton vs Reid et al
4988–Winter vs Belmont Mining Co 5893 Vilhac vs Stockton & lone R. R. Co 6005 Hewell vs Lane
MONDAY, JULY 29TH. 6037 In the matter of the estate of Sames 5023--Brooks vs Carpentier et al Holbert, deceased
5040—Tulley vs Tranor et al 6109– Ferry vs Hammond
5117-Levy vs Haake et al 6123 -- Meroux vs Weber
5141-Shaw vs Wandesforde et al TUESDAY, JULY 16th
5400--Meagher vs Thompson 5586 --Smith vs Merchant et al
TUESDAY, JULY 30TH. 5793 - People ex rel Hastings vs Jackson Kel.
5481-Harkins vs Nelson & Devlin 5964 -Hidden vs Jordan et al
5496- Robinson vs Pittsburgh RR Co
5510-Ambrose vs Roper et al. 6042 Morgenstern et al vs Hilborn et al
5517—Read vs Mahoney et al. 6084 -Anderson et al vs Coleinan
5524--Clay vs Marriott. WEDENSDAY, JULY 17th
WEDNESDAY, JULY 31st. 5160_Young vs Thompson.
5531-Forbes et al vs McDonald e