Opinion
Department 2.
SYLLABUS
A petition alleging that "the council duly passed an ordinance in writing" condemning certain property, and "that it is now necessary to condemn said land for public use," is a sufficient showing of the passage of the ordinance, (the same being set forth,) and of the necessity of taking the land referred to for public use.
The ordinance of the council is equivalent to a resolution, and the petition sufficiently describes the property to be condemned.
W. S. Stephenson, for petitioner.
John F. Godfrey, for defendant.
SHARPSTEIN, J., THORNTON, J.; MYRICK, J.
OPINION
SHARPSTEIN, J.
It is insisted on behalf of respondents that the demurrer to the petition was properly sustained,
First. Because it is not alleged that it is necessary to take the property sought to be condemned for any municipal or public use. It is alleged "that the council of said city, on the fourth day of November, 1882, duly passed and adopted an ordinance in writing" directing proceedings to be taken to condemn certain property of the respondents for the purpose of widening Main street, between Washington and Adams streets, and "that it is now necessary to condemn said land for public use agreeably to the provisions of said ordinance." We think this a sufficient allegation of the necessity of taking the land referred to for public use.
Second. Because it is not alleged that there was a publication (of the ordinance, we presume) in a newspaper published in Los Angeles once a week for two weeks. But the section of the city charter to which we are referred in support of this objection relates to the publication of notice of the presentation to the court. That notice is in the nature of a summons, and by appearing and demurring the respondents waived it. Third. Because the ordinance provides that "if, within twenty days from the publication of this ordinance, the owners of property fronting along Main street, or cross streets forming a junction therewith within the limits to be assessed, amounting to two-thirds of said frontage, shall make and file with the clerk of the council a written remonstrance against said proposed improvements thereupon, the same shall not be further proceeded with." The objectionable words are, "or cross streets forming a junction therewith." In the preceding section (2) the council had declared that "the assessment for the payment of the damages sustained by reason of said improvements shall extend on both sides of Main street, from Washington street to Adams street." By section 3 it was only the owners of property "within the limits to be assessed" who were authorized to remonstrate, and those limits were prescribed by section 2. This appears to us to be sufficiently certain.
Fourth. Because the petition does not show that any ordinance has ever been passed. We think it does. It alleges that the council "duly passed and adopted" the ordinance, a copy of which is set forth in the petition.
Fifth. Because it is made the duty of the common council, by section 8 of article 8 of the charter, to do by resolution what it attempted to do by ordinance. The latter, in our opinion, is the equivalent of the former.
Sixth. Because the property sought to be condemned is not sufficiently described. We think it is.
Judgment reversed, with directions to the court below to overrule the demurrer, with leave to the defendants to answer within 10 days after being notified thereof.
We concur: THORNTON, J.; MYRICK, J.