152 P. 296 | Cal. | 1915
The Ransome-Crummey Company began an action against Charles J. Costa and the Barber Asphalt Paving Company. The latter company filed a cross-complaint against the other parties to the action. Upon this cross-complaint the court made its findings and gave judgment that said company was entitled to a lien for $447.40 against the land of Costa upon a certain assessment for a street improvement. Thereupon Costa appealed to this court from the portion of the judgment declaring and enforcing the said lien. The title of the case is printed upon the transcript on appeal as we have given it above, upon the theory we suppose that such title should be the same as if the cross-complainant were the plaintiff.
Costa filed a general demurrer to said cross-complaint, which was overruled by the court. This ruling is now assigned as error. We think the demurrer should have been sustained.
The cross-complaint purports to allege a cause of action in favor of the Barber Asphalt Paving Company against Costa and others for the foreclosure of a street assessment for the expenses of improving St. James Street in San Jose for one block, extending from the easterly line of San Pedro Street to the westerly line of Market Street. The proceeding was taken under the provisions of the Vrooman Act and its amendments. (Stats. 1885, p. 147.) It is alleged that the resolution of intention was passed on October 6, 1911. With respect to the posting of the notice required by section 3 of said act, the allegation is that the superintendent of streets "posted conspicuously in front of each of the four quarter blocks adjoining and commencing upon the crossing of San Pedro Street and St. James Street, notices," etc., stating the contents of a notice regular in form. *140
The Vrooman Act, as it then stood, required that notices be posted "along the line of said contemplated work or improvement at not more than one hundred feet in distance apart, but not leas than three in all, or when the work to be done is only upon an entire crossing or any part thereof, in front of each quarter and irregular block liable to be assessed." The street improvement in question was for the single block between Market and San Pedro streets and did not include the crossing. In order to comply with the law it would be necessary to post notices along the line of the work, that is, along the block between said two streets. The length of said block does not appear. Costa's lot extends 92.85 feet along said block on St. James Street from the corner at San Pedro Street easterly toward Market Street. The law required the posting of at least three notices along the block, even if it were only one hundred feet long or less. The allegation does not show that three notices were posted along the line of the improvement. It shows that two were posted and this implies that nothing more was done in that respect. (Hahn v. Kelly,
The complaint contains other allegations concerning the making of the assessment for the expenses of the work which show that the warrant, assessment, certificate, and diagram, with the affidavit of demand and nonpayment, were regular in form, in all respects. Section 12 of the Vrooman Act provides that these documents "shall be held prima facie evidence of the regularity and correctness of the assessment and *141
of the prior proceedings and acts of the superintendent of streets and city council upon which said warrant, assessment, and diagram are based, and like evidence of the right of the plaintiff to recover in the action." (Stats. 1885, p. 157.) If the allegations of the complaint had been sufficient, and we were considering merely the sufficiency of the evidence to prove them, the proof of such warrant, assessment, certificate, diagram, and affidavit would be prima facie evidence of the posting of these notices in the manner required by the law, whether they had been actually posted or not, in the absence of contradictory evidence. But this provision of section 12 is held to be a mere rule of evidence and not a rule of pleading. It does not excuse the plaintiff from the necessity of alleging the passage of the resolution and the posting of the notices necessary to give the council jurisdiction to proceed with the work. (Himmelman v. Danos,
The objection is fatal to the sufficiency of the complaint. The demurrer should have been sustained.
The record presents another question which we deem it proper to determine, inasmuch as an amendment may remove the foregoing objection. The charter of San Jose adopts the Vrooman Act as a part of the charter, the same as if incorporated therein, "except where the provisions of said act conflict or are inconsistent with the provisions of this charter." (Stats. 1897, p. 616.) The charter was adopted in 1897 and, therefore, even without this excepting clause, its provisions relating to street improvements would, under the amendment of 1896 to section 6 of article XI of the constitution, prevail over those of the Vrooman Act wherever a conflict existed. (Law v. SanFrancisco,
Section 11 of the Vrooman Act provides for an appeal to the council to correct any defect or irregularity in the assessment or proceedings of the street superintendent, and declares that the determination of the city council upon the appeal shall be final and conclusive as to all errors and informalities which the city council might have remedied and avoided. It is well settled that persons who do not appeal are as fully concluded as if they had taken an appeal with respect to all defects which might have been cured on such appeal. If the contractor was not guilty of such fraud or collusion, the lack of the affidavit required on the completion of the work could easily have been remedied if it had been raised upon appeal. But such affidavit was necessary to give the street superintendent authority to make any assessment. An assessment made without it would be void, and a new assessment would be required. Under the rule of pleading and the decisions above mentioned, the complaint should have alleged facts showing a compliance with the provisions of said section 8 in this respect, if the affidavit was in fact filed. The allegation concerning the form and contents of the assessment, warrant, diagram, and certificate attached thereto, does not dispense with an averment of the filing and contents of the contractor's affidavit.
The provisions of section 6, requiring each bidder to place on his bid his affidavit that it is not sham and that he intends no fraud or collusion, presents a somewhat different question. It does not expressly forbid the letting of a contract to a *143
bidder whose bid does not comply with the requirement, nor declare that such affidavit shall affect the power of the council to award the contract to such bidder. To this extent it seems less imperative than section 8. Nevertheless, under the settled rules concerning proceedings to tax private property for public improvements, we think a substantial, if not a literal, compliance with this provision is a condition precedent to the power to enter into the contract. The object of the provision is to prevent fraud upon the property owner, and to avoid the necessity of proving frauds, which are never presumed, by eliminating, at the outset and before the work is begun, all dishonest and fraudulent bidders and collusive agreements between bidders. If it were merely directory, it could be entirely disregarded without invalidating the contract, unless the owners of property affected were unusually vigilant and were able to discover and prove the fraud or collusion. Thus the main object sought to be attained by this safeguard would be frustrated. Such proceedings "being ininvitum, must be strictly pursued in strict compliance with the law under which they are taken." (Brock v. Luning,
The judgment in favor of the Barber Asphalt Paving Company against Costa is reversed.
Sloss, J., and Lawlor, J., concurred. *144