56 Cal. 350 | Cal. | 1880
Thornton, J. :
This is an appeal from a judgment for defendants in an action brought to enforce the lien of a street assessment on a parcel of
“ This cause came on regularly to be heard before the Court sitting without a jury, on the 11th day of September, 1877, when the parties appeared by their respective counsel, ready for trial. A jury having been expressly waived, both parties produced documentary and oral evidence for and against the issues therein; and after argument by counsel the case was submitted to the Court, and after having fully considered the same, the Court finds the following facts :
“ !• That the plaintiff, by competent evidence, established prima facie the facts alleged in the complaint in this action.
“ 1. That a petition to the Board of Supervisors of the city and county of San Francisco, to have that portion of Center (or Sixteenth) street lying between Potrero avenue and Nebraska street, crossing Utah street, and being two blocks in extent, graded and macadamized, was made and signed by three-fourths of the property owners in frontage fronting thereon, in November, 1872. That said petition embraced the work mentioned in the complaint in this action. That at the time of signing said petition one-half of the property owners fronting upon said portion of said street, that is, those between Utah street and Potrero avenue, entered into an agreement with one P. Donohue, a street contractor of said city and county, and the assignor of the plaintiff, by which he agreed to grade and macadamize said street in front of their property, at the price of 3) cents per square foot, and 12 cents per running foot for curbing the same. That in consequence of said agreement the said one-half owners signed said petition, and the same was presented to the Board of Supervisors of said city and county, in November, 1872; and in compliance therewith, said board passed a resolution of intention to have the said portion of said Center street described in said complaint graded and macadamized. That pursuant to such resolution, the subsequent proceedings were had, and the contracts for grading and macadamizing said portion of said street were awarded to said P. Donohue; and the superintendent of public streets, highways, and squares of said city and county, at the time, in pursuance of said award, entered*352 into said contracts with said Donohue for the grading and macadamizing said portion of said street at the following prices, to wit:
“ For grading, 49-J cents per cubic yard; for macadamizing, 33 cents per square foot; for curbing, 12 cents per running foot.
“ That the assessment mentioned in said action is made out against all the property fronting on said work, at the prices stated in said contracts with said superintendent of streets; but those owners who entered into said agreement with said Donohue settled and paid for said work in front of their property, according to the prices fixed by said agreement. That the price for grading and macadamizing said portion of said street amounts to $4.67 per front foot, under the contracts with said superintendent of streets; but under said agreement with said portion of the property owners, is $1.93 cents per front foot. That said Donohue, at the time said agreement was entered into between him and said property owners, was a street contractor, and engaged in grading a street called Potrero avenue, in the vicinity of said work, and that said defendants did not sign said agreement or petition. That without these owners who entered into said agreement, there was not a majority of property owners in frontage who signed said petition. That said portion of said street had never been graded prior to said petition, neither had it been graded for two blocks on each side of said work.
“ 2. There is no entry in the record-books of the superintendent of public streets, highways, and squares of said city and county, signed by said superintendent or deputy, or otherwise, certifying that the work mentioned in said complaint has been performed and completed in accordance with the terms of the contract and specifications, as required by § 26 of the act concerning streets in the city and county of San Francisco, approved April 1st, 1872, and found in the Statutes of California for the year 1871— 72, page 822. There is no entry whatever of the completion or acceptance of said work.
“ 3. That the defendant Bundy resided .upon the premises described in said complaint, at the time said assessment was. issued, and for more than ten days thereafter.
*353 “ As a conclusion of law, the Court finds that the assessment mentioned in said complaint is void, and there is no valid lien upon said premises for said work. Wherefore, judgment is hereby ordered to be entered for the defendants, with costs.”
It is contended on behalf of appellant, the judgment is not supported by the facts found. On the contrary, that the facts found show that the judgment should have passed for the plaintiff. The respondents contend that the second finding of fact (which see above) supports the judgment; and to maintain this position, they rely on § 26 of the act concerning streets in the city and county of San Francisco, approved April 1st, 1872 (see Stats, of 1871-72, p. 804), and the decision of the Court in Gately v. Irvine, 51 Cal. 172.
By the section just mentioned (Stats. 1871—72, p. 822), it is provided that the superintendent of public streets, etc., and his deputies, shall take charge of and superintend all street work and improvements, and shall see that the contract made for. doing such work is strictly fulfilled in every respect; and further, that it shall be the duty of the said superintendent, or one of his deputies, to enter upon the record-book, to be kept in the office of said superintendent for public inspection, entries under appropriate headings, showing how often, at what time, and by whom the work has been inspected, and in what manner the same is being performed ; and on the completion of said work, and prior to the issuance of the assessment therefor, if the work has been performed and completed in accordance with the terms of the contract and specifications, an entry certifying to the same, signed by the superintendent, or one of his deputies who have had charge of and superintended the work performed.
Respondents urge, that the entries and certificate to be made, as required in the section just cited, are a prerequisite to the making of any assessment; and as there were none such made in this case, the assessment is invalid. Is this the proper interpretation of this section ? In considering this question, reference must be had to other portions of the act, of which this section forms a part. Its meaning can only be arrived at by examining the entire act. (See Brown’s Legal Maxims, 555, ex antecedentibus, etc.)
Sow, in view of the provisions of the act under consideration, can the compliance by the officers mentioned in § 26, with its provisions, be regarded as essential to the validity of the assessment ? It is conceded, that, in one point of view, it is mandatory to the officers whose duties are prescribed in it. A failure to comply with the provisions may be a neglect of official duty for which the superintendent may be responsible in a private action or public prosecution : but does it follow, as a consequence of such neglect, that the validity of an assessment is impaired? As far as his official obligation extends, it may be conceded that it is mandatory. But as regards his duty to the contractor and the lot owner, is it not directory ?
If it is essential to the validity of the assessment, there can be no question that the assessment in this case is invalid, for it is expressly found that the provisions of § 26 were not complied with. (See second finding.)
“ There is a known distinction,” said Lord Mansfield, in Rex v. Loxdale, 1 Burr. 447, “ between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory. The precise time in many cases is not of the essence.” Our attention is here challeng-ed to the rule, and an application of it is given. (Shaw v. Randall 15 Cal. 384; Touhy v. Chase, 30 id. 524; People v. Lake County, 33 id. 487.
The rule is thus stated by an able and learned author: “ When statutes direct certain proceedings to be done in a certain way or at a certain time, and a strict compliance with these provisions of time and form does not appear essential to the judicial mind, the proceedings are held valid, though the command of the statute is disregarded or disobeyed. In these cases, by a somewhat singular use of language, the statute is said to be directory. In other cases, the statute is held to be imperative or
The rule is here stated with sufficient clearness. It is a rule of “ construction or interpretation,” and under it, as under all such rules, arises what the author above cited call “ questions of application” (p. 316). The rule is plain and simple, as are the rules of law generally; but to apply them, “ hoc opus estS As a rule of construction or interpretation, we must, as in all such cases, seek to arrive at the thought of the Legislature. The thought points and indicates the intent. Many rules have been announced as aids to enable us to discover the thought and consequent intent of the law-making power. Of these rules, it may be said, as of all such rules, that they are to be used as servants, not as masters: as servants to assist in the search, not as masters to stop the search, or bind by an arbitrary decree. If implicit obedience to rules be yielded, which may in the particular cases where they are announced be properly and fittingly used and applied, it may be found that the rule, instead of leading to a proper solution, misleads and candes one astray from a right conclusion. (See remarks of Field, J., in Ferris v. Coover, 10 Cal. 628.)
It would be useless to spend time in stating these rules. Most of them may be found in Sedgwick on Statutory and Constitutional Law, edition above cited, and in the opinion of Dwindle, J., inserted in the report of the case of Harris v. Supervisors, 52 Cal. 558.
The statute of 1872, in the sections preceding § 26, has provided, in our judgment, adequate securities to the lot owner as to the assessment in all its elements; and we cannot see why it is necessary to provide again, by § 26, additional securities on the same subject-matter, in the manner which its provisions prescribe. As to the essentials of these provisions, they have already been dealt with, and dealt with thoroughly, in the preceding sections. Every provision of this section has been already made substantially in the previous sections, except a showing as “ to how often, at what time, and by whom the work has been inspected,” and as to the manner in which the work
We cannot perceive why it is necessary or essential to provide these securities to the property owner again by § 26, which have already been provided as strong as language can express them. But it is said that no record is required of many things of which by § 26 a record is ordered to be made, and to be made, too, by the superintendent or his deputies. IIow far is this correct? We have seen that several things are to be made matters of record by the superintendent. The contract (§ 11), warrant, assessment, and diagram (§ 10), the return on the warrant of the contractor, or his agent or assigns, with references showing the connection of those papers (§ 11), are to be recorded. This is to be done in books of record to be kept in the superintendent’s office (§ 11), and all those records are during office hours to bo open to the inspection of any citizen wishing to examine them, free of charge (§ 18). It is true, that there is no record required by any other section than twenty-six of “how often, at what time, and by whom the work has been inspected, and in what manner the work is being performed ” ; but we cannot see that this is essential to the assessment, since the work, if the officers do their duty (and we must presume that they have done so until the contrary is shown by some evidence), has been inspected in its progress; the work has been done, and the superintendent is bound to know by the other sections of the act, when he comes to exercise his judgment in making the assessment, in what manner the work has been performed. Why should these things be written down? If it is intended as a security to the property owner, it should have been more plainly expressed. The implication is not strong enough to indicate that the failure on the part of the officer was intended to render the assessment null. It would have been an easy matter to express such intent
It may be said of the entry required in the last clause of the section (26) certifying that the work has been performed and completed in accordance with the terms of the contract and specification, and signed by the superintendent, or any of his deputies, who had had charge of and superintended the work performed, as was said of the other requirements of this section, that it had already been substantially required to be performed. This was done by the officer in adjudging the assessment due to the contractor, and issuing a warrant therefor. (§ 10, and particularly that portion of it just following the form of the warrant given.) In fact, the provisions of § 26 were made with an entirely different object. The intent of it was to have a record made, not for the protection of the owner especially or particularly, but “for public inspection” (as in the section stated), that every one, owner or contractor, or the mayor, or a supervisor, or other official or citizen who might desire to know what street work was going on, and what was the condition of such work in process of execution. The failure to do what is directed in the act may subject the officer to be proceeded against for a neglect of official duty (see Penal Code, § 772), but no such consequence is visited on the assessment as
It is urged, that this question has already been decided (Gately v. Irvine, 51 Cal. 172) adversely to the conclusion we have reached in this case. It does not appear from the opinion in the case cited that the point was considered by the Court. The opinion is in these words: “We think the Court below was mistaken in supposing that the oral evidence rejected contradicted the record. It only went to prove when the record was made. ”
But it is argued, that the Court must necessarily have considered and decided the question in the case cited. The question presented for consideration by the Court in this case came thus before it. The book of reports from the superintendent’s office was offered in evidence, in an action to enforce an assessment for street work done in the city and county of San Francisco. This record appeared to be complete in all its parts, as required by § 26. The defendant proposed to prove that the certificate to the report was not written or signed until October, 1874, after the assessment had been made. The plaintiff objected to the offer, because the matter was irrelevant, and the Court sustained the objection. The question to be decided was thus presented, and the Court disposed of it as we have seen. It docs not ap
Upon a careful consideration of the opinion in the case referred to, it is clear to us that the Court did not pass on the relevancy of the testimony excluded, but upon its competency.
The Court appears to have'overlooked the real point of the objection, and to have decided on a point not made by counsel in the case. No objection of competency Avas made. Having-disposed of the question as to the evidence by holding it competent, nothing further is said. For the foregoing reasons, Ave do not think the question before us was considered or decided by the Court in Gately v. Irvine.
But if it Avas considered and decided as contended for, avc are of opinion, with unfeigned respect for the learning and judgments of our predecessors, that, as far as regards the question before us, such judgment Avould be outside of the lines of the law, and should not be regarded as a binding precedent.
We pass to the first finding. Docs it support the judgment of the Court beloAV ? It is urged, that this finding shoAvs a fraud committed by the contractor, which vitiates the assessment, and therefore no judgment should be rendered sustaining it. The finding is'briefly this: The Board of Supervisors, on a petition made in November, 1872, to have a portion of Center street, lying betAveen Potrero avenue and Nebraska street, crossing Utah street, and being two blocks in extent, graded and macadamized, ordered the Avork to be done. The petition Avas made and signed by three-fourths of the property owners of the frontage affected. At the times of signing the petition, one-half of the OAvners of the property fronting on that portion of Center
The foregoing statement comprises all the facts found bearing on the contention between the parties as to the legal effect of this finding.
It will be observed, that the last clause in the finding is ambiguous, if taken literally and according to its grammatical construction. “ It,” as a question of correct syntax, in the sentence quoted above, from the finding, and designated by “ quotation marks? refers to the portion of Center street in which the work
Do the facts above stated, as found, show that the contractor Donahue committed a fraud of which the defendants can complain? The blocks on the Potrero are, in dimensions, four hundred by two hundred feet. The longer sides of the blocks are north and south. Center street runs cast and west, Potrero avenue, Utah and Nebraska streets, crossing it at right angles. The short lines of the blocks front on Center street. Potrero avenue is one hundred feet in width; Utah and Nebraska streets are eighty feet wide. It will be observed, that it is not found whether the defendants, or either of them, knew, at the time the petition was filed with the Board of Supervisors, of the matters found to have been done, by the contractor, which are alleged to bo fraudulent. Nor is there any finding when they first became aware of them.
It is averred in the defense setting up the matters alleged to be fraudulent, that, owing to the side agreement, the defendants “ were prevented from protesting against the said work, which they desired to do.” As to these averments, which were in issue, nothing is found at all. If the issue on these allegations is material, that is, if the allegations are requisite to make out the defense, the failure to find on it is an error, for which the judgment should be reversed, and the cause remanded, that a finding may be had on it. (Billings v. Everett, 52 Cal. 661.) But it is strongly implied, by the averment above quoted, that the defendants were aware of the matters of alleged fraud in time to have protested against the work. If they were ignorant of them, how can it be truthfully said they were prevented from protesting? Webster, after giving two definitions of the verb “ prevent ” (1st, to go before ; to precede ; 2nd, to be beforehand with; to get the start of; to anticipate; to fore
But we cannot sec how the defendants were prevented from protesting. The act complained of certainly put them under no duress, which would have stayed their hands in writing and signing and presenting a protest to the Board of Supervisors. If they did not know of the so-called fraudulent acts, did they, as found, constitute a fraud against the defendants ?
Courts and authors have always been cautious in attempting a definition of fraud. (Story’s Eq. Jur. § 186 ; Twyne's Case, 3 Coke, 80.) It docs and can assume so many shapes, it is in this regard so protean in character, that judges and text writers have cautiously abstained from the dangerous entanglements of a definition. “ Onmis definitio in jure periculosais an old maxim, to which constant heed should be rendered. Definitions of actual or constructive fraud are given in the Civil Code, §§ 1572, 1578. These definitions are very broad, but whether they embrace every species of fraud, it would be impossible, a priori, to say.
Judge Story thus states the rule: “ Fraud, indeed, in the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue or unconscientious advantage is taken of another. And courts of equity will not only interfere, in cases of fraud, to set aside acts done, but they will also, if acts have by fraud been prevented from being done by the parties, interfere, and treat the case exactly- as if the acts had been done.” (Story’s Eq. Jur. § 187. See cases cited in
It is evident, from the foregoing rule,- that fraud arises out of a breach of duty or obligation which one owes to another. Then if there is any fraud here, it must spring from the violation of a duty or obligation, which the contractor was under to the defendants. (Story’s Eq. Jur. §§ 204, 208.) What obligation or duty was due from the contractor to the defendants?
When the Board of Supervisors had authorized a street to be graded, by a resolution of intention, on a proper petition, of which resolution notice has been given by a proper publication, all owners of lands or lots or portions of lots, who may feel aggrieved or have objection to the ordering of the work described in the notice, or who may have objections to any subsequent proceedings of the board in relation to the work, or to any of the acts of the superintendent of streets, in the discharge of any of the duties or obligations imposed upon him by virtue of his office, may file with the clerk of the board a petition or remonstrance, wherein they shall set forth in what respect they feel aggrieved, or the acts or proceedings to which they object, which petition or remonstrance must be passed on by the board, and their decision shall be final and conclusive; but the board shall not order the said work to be done, unless all objections and protests that may have been presented to and filed with their clerk shall have been disposed of by it. (§ 4 of Act of April, 1872, Stats, of 1871—72, p. 805.) The petition for grading must be signed by the owners or agents of the owners of a majority of the frontage of the lots fronting on the proposed work, or liable to be assessed for such grading. (§ 4.) Should the owners or agents of more than one-half in frontage of the lots and lands fronting on the proposed work, or liable to be assessed therefor, file with the clerk of the board written objections against any grading described in the notice of intention, at- any time before the expiration of the publication of the notice, the board is barred from proceeding further thereon for the period of six months, unless the owners or agents of a majority of the frontage of the lots fronting on the proposed work, or liable to be assessed therefor, shall petition anew for the work to be done. (§ 4.) The board is authorized to award
The contract is to be awarded to the lowest responsible bidder, cxccjit on a contingency which will be hereafter referred to. And here the contractor, who is the lowest responsible bidder, to whom the contract is to be awarded, is first mentioned. No trace of him is seen in the act until we reach this stage of the jiroceedings. (§ 6.) The notice of this award is to be published for three days (Sundays and non-judicial days excepted), and within five days after the first jiublication of the award, the owners of a majority of the frontage of the lots and lands liable to be assessed for the work may elect to do the work, and to enter into a written contract to do the whole work at the jirice for which it has been awarded, upon giving bond as jirovidcd in the act. (§ 6.)
This is all we find in the act in force when the work involved in the case before us was ordered and done, that throws any light on the relations between the defendants (who were owners) and the contractor, existing in the incijiiency of the contemplated work, and until it has progressed to the award of the contract. The statute fails to recognize the contractor as connected with the petition for the work, or any jirocecding regarding it, until he jiroffers a bid for it which is accepted. Even if he is owner of a lot fronting on the work, and liable to be assessed, he is regarded only as owner, and not as contractor. Certain rights and privileges are recognized as existing in the owner, and confirmed to him by the provisions of the act. But it is obviously the meaning and intent of the act, that each owner is to be protected to this extent, that he is entitled to have the work done by the lowest resjionsible bidder. The act certainly secures to him this measure of protection; and he is entitled to have .this jirotcction upon a fair and square
If, now, the contractor, before the contract is awarded, combines and confederates with a portion of the owners, by which this purpose is defeated, is not this protection taken away from the owner ? As in the case before us, by a collusive side agreement made with some of the owners, it resulted that the defendants were assessed for the work to the amount of §4.67 per front foot, and the owners who entered into the side agreement, though assessed for a UJce amount, were discharged on payment of §1.93 per front foot. The contractor and owners were willing that the work should be done, provided that the profit to the contractor should be made, not out of his friends who colluded with him, but out of those who did not sign the side agreement. It is too plain to elaborate it further, that the defendants, and each of them, were deprived of the right secured to them by the act of having the work done by the lowest responsible bidder, and that the devices of the contractor, and those who colluded with him, were a fraud on defendants, which vitiated the whole proceeding. The assessment has no foundation to it. It is vitiated with fraud from the beginning, and must be held to be a nullity.
Whether the defendants knew of the fraud or not in its inception and progress, whether they failed to protest or not, or to take any other step to put a stop to the proceeding, the result is the same. The fraud under any circumstances is fatal to the claims of the contractor, or his assignee, unless in some way condoned by the defendants. There is no condonation pretended in this case. The defense can be made under the 13th section of the Act of 1872. It arises under the third defense allowed by the section just above referred to. It was properly set up in this action. It follows, from the foregoing, that the judgment must be affirmed.
This conclusion is in harmony with what was said by Shafter, J., who drew up the opinion of the Court in Nolan v. Reese, 32 Cal. 486. In that case, an offer was made "to prove what was pleaded and found here. The learned judge said, in
Chambers v. Satterlee, 40 Cal. 513, was decided under the Acts of 1862 and 1863. By neither of these acts was this defense allowed. (See 40 Cal. 520.) Himmelmann v. Hoadley, 44 Cal. 224, was decided under the same statutes as Chambers v. Satterlee. The case of Himmelmann v. Hoadley, 44 Cal. 277, did not involve this point at all.
The judgment is affirmed.
Morrison, C. J., McEinstry, J.s and Boss, J., concurred in the judgment.
Myrick, J., and Sharpstein, J., dissented.