Mulville v. City of San Diego , 183 Cal. 734 ( 1920 )

I dissent. The facts are that a part of the city of San Diego bordering on the ocean was organized into a municipal improvement district. The city was authorized by statute to issue bonds of the district for the purpose of supplying the funds with which to construct "therein" an improvement of the character of that involved here, to wit, a wharf or pier. The city sought to issue bonds of the district for the purpose of making this improvement, and its action is now nullified solely because the pier projects out into the ocean beyond the legal boundary of the improvement district, so that it is not physically wholly "therein" with respect to the district. I cannot agree with such a narrow and absolutely literal construction of the statute. The main opinion concedes that if the improvement had been a sewer instead of a pier it might have projected without the limits of the district, into the ocean, for instance, and still would have been an improvement within the district within the meaning of the statute. Why the difference?

In Cochran v. Village of Park Ridge, 138 Ill. 295, 300, [27 N.E. 939, 940], the court, in overruling the objection to a village constructing a sewer extending beyond its limits, said:

"But what is the object and true scope of the improvement under consideration? Is it one within or outside of the incorporated limits of the village? The object was to furnish sewerage for the inhabitants of the village. The improvement was for the benefit of those residing within the incorporated limits of the village, and for them alone. But in order to make the sewer a success, — in order to make the improvement of any benefit to any person in the village — it must have an outlet. No outlet could be found within the incorporated limits. It became, therefore, absolutely necessary to extend the sewer a short distance outside of the incorporated limits in order to allow an outlet. In order to carry out the true scope and object of the ordinance providing for the improvement it became necessary to expend money outside of the incorporated limits of the village. But it does not follow because that is the case, that the assessment here is made for an improvement outside of the village. The construction of the sewer from the incorporated limits of the village to the Desplaines River is not an improvement in that territory, but is one for the village, rendered a necessity from the geographical condition of the land upon which the village is located."

The construction of the pier from the dry land within the district out into the ocean is not an improvement of the ocean or the land beneath it, but is one for the district, and is one whose projection beyond the shore line which is the legal limit of the district is necessary if its object is to be accomplished and if it is to be of any benefit to the district. In every sense but a most technical one, a pier or wharf projecting out into the ocean over no man's land is a part of and within the territory on the shore from which it starts.

The main opinion proceeds on the hypothesis that if the legal limits of the district had been extended out into the ocean to or beyond the end of the pier, the proceedings under attack would have been valid. But requiring the limits of the district to be so extended is a wholly futile thing. The district is in effect nothing more than an assessment district. The extension of its limits out into the ocean would mean merely the inclusion within the district of lands beneath the ocean, belonging to the state and incapable of private ownership, and upon which no assessment could by any possibility be laid. For the purposes of assessment, and that is the real purpose of the district, the situation would not be changed one iota by the inclusion of these lands.