THE MONTGOMERY AVENUE CASE, 54 Cal. 579

In the late Supreme Court, by the Court: It is claimed by the appellant that the act upon which these proceedings are based is unconstitutional and void, because it neither defines an assessment district nor provides for the location and definition of such district by any local authority. It is not necessary to decide whether or not the provision which empowers the Commissioners to report the lots they may find to be benefited, is a grant to them of the power to create an assessment district.

The act of itself is impracticable, and can never be carried into effect, inasmuch as (admitting that such lots as the Commissioners may subsequently report as benefited may be held to be a district) it is manifest that it can not be known whether the Commissioners are disinterested when they are appointed and sworn. Yet the very first step, in the proceedings provided by the act, is the appointment by the County Court of “three citizens, who are freeholders in said city and county, * * * and not interested in said proceedings,” as Commissioners of assessment.

It is apparent, upon the reading of the act, that no freeholder in the city and county can be without interest in the proceedings, in the absence of any defined assessment district, because every such freeholder must have an interest to decide that his own real property is not benefited by the change of grade. If so plain a proposition needs any authority to sustain it, it is amply supported by Powers' Appeal, reported in 29 Michigan (Reports, 511. Judgment and order reversed. Crockett, J., dissented.