138 P. 742 | Cal. | 1914
Appeals have been taken by the defendants and appellants in two cases from the judgments and orders denying motions for new trials. As the two actions are exactly similar they have been consolidated for the purposes of this decision
The plaintiff corporation, a contractor with the city of San Diego, sued to recover from the defendants an assessment levied for the paving of Fifth Street in said city. General demurrers to the complaints were filed but were overruled. There was no argument on said demurrers. The trial was had before the court without a jury, resulting, as indicated above, in judgments for the plaintiff.
Appellants contend that their demurrers should have been sustained. There was an allegation in each complaint that under the contract with the city, October 17, 1907, was fixed as the time for the completion of the work; that, on September 23, 1907, the common council authorized the superintendent of streets to extend the time within which the work might be completed, sixty days from and after October 17, 1907; that on September 25, 1907, that official "extended the time for the completion of said work for sixty days from and after the 17th day of September, 1907, and indorsed such extension of time on said contract." It was also averred that The Barber Asphalt Paving Company completed the work "before the 12th day of December, 1907." As the right to recover for the work depends upon its completion within the time limited by the contract or a valid extension thereof (Turney v.Dougherty,
Appellants assert that the assessment-roll was void on its face because the superintendent of streets assessed all of the pieces of property involved in the proceeding to improve Fifth Street to "unknown" owners. This, they say, was so flagrant a violation of the duty of the superintendent of streets that the assessment-roll amounts to nothing — is in defiance of the law requiring him to make the assessment in the name of the owner if known to him. It is argued that the superintendent of streets may not sit idly and refuse by inquiry or by inspection of assessment-rolls to discover the ownership of the property involved. Section 8 of the Vrooman Act (Stats. 1889, p. 166) provides that the assessment shall show "the name of the owner of each lot, or portion of a lot (if known to the street superintendent); if unknown the word `unknown' shall be written opposite the number of the lot." It has been repeatedly held that when the superintendent of streets makes his certificate that the ownership of a particular piece of property is unknown to him, such certificate is conclusive of the fact so certified and may not be collaterally attacked. There was such certificate in the proceedings now under review, and we cannot say, as matter of law, that the *189
officer making it was not ignorant of the ownership of all of the parcels of land which had been assessed. (Chambers v. Satterlee,
The next attack of appellants is made upon the authority of the officer of the plaintiff corporation to execute the contract with the city to pave Fifth Street. The basis of the said attack is the alleged insufficiency of the power of attorney held by C.A. Williams, who executed the contract on behalf of The Barber Asphalt Paving Company. It appears unquestionably that he held a power of attorney authorizing him on behalf of that corporation to enter into a contract "for laying asphalt pavement on Fifth Street in the city of San Diego"; but the contract which was actually executed provided for the paving of that street with "asphalt macadam pavement." Appellants believe that these verbal differences relate to methods and materials entirely distinct. There was some testimony given by experts tending to establish different meanings of the two expressions used respectively in the power of attorney and in the contract. Other witnesses testified that any pavement made with asphaltum might correctly be termed an "asphalt pavement." Upon this conflict the lower court might well decide that the term "asphalt pavement" was the general designation within which the specific name "asphalt macadam pavement" was properly included. Under such an interpretation the power of attorney was sufficient.
There was a stipulation in the contract that no person doing work thereunder in the paving of Fifth Street should be required to labor more than eight hours a day, except in cases of extraordinary emergency. Appellants assign this stipulation *190
as one which rendered the agreement void. It is admitted in the briefs of appellants that in California under the decisions such a provision in a contract does not render it void unless in the notices calling for bids or in the detailed specifications for the work a like requirement is inserted (Flinn v. Peters,
Appellants attack section 6 1/2 of the Vrooman Act. This is the section requiring a contractor to give a bond to the superintendent of streets which shall inure to the benefit of all persons who perform labor on or furnish materials to be used on the improvement. Mr. Page in his work on California Street Laws reviews the arguments for and against the constitutionality of this section of the statute. In section 153 this language is used by him: "We have already seen that the power to assess exists only for a public purpose. `The taxing power, whether it be executed in the form of general taxation or of local assessment, cannot be upheld, when the purpose in view can be judicially seen to be other than public.' Moreover, local assessments are upheld upon the theory of benefits. It is arguable that a bond solely for protection of laborers and materialmen is not for a public purpose; and it may also be said that it does not benefit the property. The requirement of such a bond clearly tends to increase the cost to the owners, for the contractor must consider its cost to him in making his bid. It might therefore be said to cast an unauthorized burden upon the property owner. Upon the other hand, the section may be upheld upon one of two theories. 1. It may be said that the requirement, by protecting claimants, makes the quick completion of the work more probable, because parties might hesitate to furnish labor or materials upon the personal credit of the contractor alone. This might be said to constitute a public purpose. 2. It is arguable that this requirement is merely incidental, that the increased cost is likely to be so small as to be unworthy of consideration, and that it is a reasonable regulation as to the procedure." We think that the arguments presented by Mr. Page in favor of the constitutionality of the section are sound and we unhesitatingly adopt them in declaring the constitutionality of said section 6 1/2 of the Vrooman Act. The case of Gibbs v. Tally,
Appellants introduced certain testimony tending to show that the pavement which The Barber Asphalt Paving Company agreed to lay was subject to a patented process. The court found that the asphalt macadam described in the complaint was not "a patented paving material composed by a patented process which the patentee controlled and retained absolutely the right to use and to sell to others, and which said patentee charged a royalty for" and that plaintiff did not alone hold the right to put down such pavement in San Diego and that defendants were not "deprived of the right to elect to perform the work provided for in said proceedings, and plaintiff did not control and monopolize said work as against all or any competitors." These findings are attacked as unsupported by the evidence.
We think they are supported. The showing of appellants that there was a patented process for that kind of pavement was very meager. There was no testimony that at the time the contract was made such patent existed. Mr. Creswell who acted for the plaintiff knew nothing of any such patent when he signed the contract. It was shown that plaintiff had constructed asphalt macadam pavement on many streets in San Diego and no question had been raised about its being a patented process.
The judgments and orders are affirmed.
Lorigan, J., and Henshaw, J., concurred.
Hearing in Bank denied. *193