The opinion
Sprague, J., dissenting:
The proceedings authorized by the statute of March 30th, 1868, entitled “An Act to authorize the Board of Supervisors of the City and County of San Francisco to modify the grades of certain streets,” and the Act of February 1st, 1870, amendatory and supplemental thereto, are special proceedings, dependent for validity entirely upon these statutes in every step of their progress.
The powers and duties of the Board of Supervisors, the Commissioners appointed by such Board, and the Superintendent of Public Streets and Highways, as also the jurisdiction and powers of the County Court in the premises, are confined to and controlled by those special statutes.
This appeal is from the judgment of the County Court affirming the report of the Commissioners appointed by the Board of Supervisors to assess the benefits and damages to each separate lot of land within the limits of the district as defined by the statute, and the only questions as yet presented arise upon a preliminary motion to dismiss the appeal.
Without entering into a discussion of the provisions of the statute, which would be out of place in the decision of this preliminary motion, I deem it sufficient to state that some of the objections filed by the appellant to the second report of the Commissioners did present to the County Court questions involving the validity of the assessment of benefit to his property, as made by such Commissioners. By section eleven of the Act as amended, it is made the duty of the Commissioners to “first ascertain and determine the amount of damages resulting to any property injured or affected by *71 said work over and above all benefits, and * * * then proceed to assess the whole amount thereof, together with the amount due for all of said work, and also the costs and expenses of all proceedings had under this Act and the Act of which this is amendatory, including the fees of said Commissioners and of the counsel and clerk employed by said Commissioners, upon the lands and premises benefited by said change of grade, and which lie within the district aforesaid, as near as may be in proportion to the benefit which shall have accrued to such lot.”
From the above extract, it will be observed that the Commissioners are first required to “ascertain and determine the amount of damages resulting to any property injured or affected by said work over and above all benefits.” This involves an assessment of benefits and damages to each separate lot or parcel of land affected by the modification of grade contemplated by the statute, and to the aggregate excess of damages over benefits, thus ascertained, is to be added the cost and expense of all proceedings had under the Act, including the fees of the Commissioners and of the counsel and clerk employed by the Commissioners, and the aggregate of these several items is the amount which the Commissioners are required to assess upon the lands and premises benefited by said change of grade within the district, as near as may be, in proportion to the benefit which shall have accrued to each lot. Any error, therefore, or departure from the requirements of the statute in determining the aggregate amount to be assessed upon the property benefited, must, of necessity, involve the validity of the assessment upon any specific lot as its proportionate share of the aggregate amount to be assessed. Indeed, every act and duty required of the Commissioners, up to and including their final report, is a step involving the'validity of their final assessment of benefits to each separate lot, and any lot owner whose interest is affected by any intermediate or final *72 step of the Commissioners, may challenge the legality of their assessment upon the ground of error or non-compliance with the statute in any step of their proceedings, and such challenge would necessarily involve the legality of the final assessment upon each lot as its proportionate share of expenses.
The Legislature, then, having conferred upon the County Court jurisdiction of these special statutory proceedings, and devolved upon it a supervisory control of the acts of the Commissioners in making and returning an assessment, the legality of which is challenged in that Court; and the Constitution of this State having in express terms conferred upon this Court appellate jurisdiction in all cases involving the “ legality of any tax, impost, assessment, or municipal fine,” it 'would seem that section three hundred and fifty-nine of the Practice Act fully authorized this appeal.
It is, however, claimed that the special statute under which these proceedings were had do not provide for an appeal—on the contrary, in effect, prohibit an appeal from the final judgment of the County Court in the premises. But if the Constitution of the State expressly confers appellate jurisdiction upon this Court of the subject matter involved in the judgment of the County Court, no Act of the Legislature can oust such jurisdiction; and it would require the most direct and unmistakable language in an Act of the Legislature to justify this Court in attributing to that department an intent to divest this Court of jurisdiction in any case or proceeding within its constitutional grant of jurisdiction. The language relied upon as in effect prohibitory of an appeal in the present case, is found in the thirteenth section of the amendatory Act, and, with its context, is as follows: “ Within twenty days after the' publication of said last mentioned notice, any interested party or parties dissatisfied with the report of said Commissioners, or any part thereof, may file with the Clerk of the County Court of said city and county written objec *73 tions to said report, or any part thereof, setting forth his or their grounds of objections. If no such objections are so filed within said period of twenty days, the report of said Commissioners shall be final and conclusive on all parties interested; and all assessments made and set forth in said report shall be a lien upon the respective parcels of land and property in said district upon which said assessments are charged by said report. But in case any such objections are so filed within said period of twenty days, the County Court of said City and County of San Francisco shall assign a day for the hearing and trial of said objections, and on the day assigned, or on such other day or days to which the same shall be adjourned, said Court shall hear the allegations of the party or parties so objecting, and shall take proof in support of and against said objections, and of said report and the assessments therein, and shall confirm the said report, or may modify the same, or may set the same aside, either in whole or in part, or, in its discretion, may refer the matter back to the same Commissioners with instructions, who shall thereupon proceed as hereinbefore provided, or according to said instructions. Upon the hearing of said objections before said County Court, it shall be competent for any party to introduce evidence, either in support of said objections or the report of said Commissioners; and in case said report should be referred back to said Commissioners by said County Court, then, upon a second report being made by said Commissioners, the same right of objection, by any party interested, shall exist as to said second or amended report as is hereinbefore provided as to said first report; and upon the coming in of said second or amended report (in case there should be any second or amended report), the said County Court shall have power to render a judgment as to said report, or as to any of the matter therein contained, and such judgment of said *74 County Court as to the premises shall be final and conclusive. And upon the final judgment of said County Court as to the premises, all assessments made and set forth in said report shall, from and after such final judgment, be a lien upon the respective lands and property in the district upon which said assessments are charged by said report.”
It will be observed, by a careful reading of this section, that even after the report of the Commissioners of assessment has first been filed with the Clerk of the County Court, the jurisdiction of the County Court is not invoked and does not attach until, under the notice published by the Clerk of the Court, some party interested in the proceedings has filed with the Clerk of the Court objections to the report of the Commissioners, or some part thereof. Until this is done there is no case in Court, and no occasion for the action of the Court; but when objections to the report are properly filed, there is a case or matter in Court of which the statute requires it to take jurisdiction, the parties to which are substantially the municipal corporation of the City and County of San Francisco, affirmatively proceeding under the statute on the one side, and the persons filing objections to the report of the Commissioners on the other. The issues are made by the report and objections thereto, and the Court is required to proceed to hear the allegations of the parties objecting to the report, and take evidence in support of and against such objections, and of said report and the assessment thereon, and shall confirm said report, or may modify the same, or may set the same aside, either in whole or in part, or, in its discretion, may refer the matter back to the same Commissioners, with instructions, etc.; and, in case such report should be referred back, then, upon a second report being made, the same right of objection by any party interested shall exist as to said second or amended report as to the first report; and, upon the hearing of objections to the second or amended report of the Com *75 missioners, the County Court is empowered to render a judgment as to said report, or as to any matter therein contained; and such judgment of the County Court as to the premises shall be final and conclusive. This judgment of the County Court upon the second or amended report of the Commissioners is the final and conclusive act of that Court in the premises, and terminates its power and jurisdiction therein. It has no power to .further review the action of the Commissioners, to re-refer any matter to them, or' hear further objections, nor in any manner, on motion for new trial or otherwise, to review its own action in the premises.
This, in my judgment, is the extent of the restriction imposed, and the language of the statute should not be construed as prohibiting a review of the final judgment of the County Court in the premises by a Court upon which the Constitution has conferred appellate jurisdiction of the specific matter involved therein, or as repealing by implication a general law authorizing appeals from such judgments.
The motion to dismiss, I think, should be denied.