67 P. 786 | Cal. | 1901
This is an appeal from a judgment for defendants in a suit brought by the plaintiff, as assignee of E. Donnelly, to enforce a street assessment.
The land in question is a lot of the defendant Mrs. Berendes, fronting on K Street, between Tenth and Eleventh avenues, in the city and county of San Francisco; and the assessment was for the grading, curbing, and macadamizing of the southerly half of K Street and adjoining sidewalk, between the avenues named. The complaint contains all the averments necessary to show the validity of the assessment, and, among others, the averment that the "resolution ordering the work to be done" was "duly made and passed" by the board of supervisors. This allegation is denied by the answer; and the issue thus made presents the only questions that will require consideration.
The only findings in the case are, in effect, that on or about November 1, 1897, the defendants entered into a contract with Donnelly "to perform street work in front of the property" in question, and, the work having been performed to their satisfaction, paid him in full therefor; that this work was embraced in the work subsequently awarded to Donnelly by the board of supervisors, and provided for in his contract; and that no work was done on the lot in question by the plaintiff, to whom Donnelly's contract was assigned immediately after it was awarded.
The last finding is attacked in the specifications as being unsupported by the evidence; but the point is not urged in the appellant's brief, and does not seem to be well taken. The other specifications go rather to the sufficiency of the findings than to the sufficiency of the evidence to justify them. The sole question, therefore, is as to the sufficiency of the findings to support the judgment.
The findings are not as explicit as they might be with regard to the character and amount of work performed by Donnelly under his contract with the defendants. But it is found that the "plaintiff . . . performed no work in front of the *180
property" in question; and from this it must be inferred that the work done by Donnelly for the defendants was not only embraced in, but was coextensive with, the work in front of defendant's lot, subsequently ordered by the board of supervisors; and also that it conformed to the requirements of the law as to grade, etc., and was satisfactory to the street superintendent. For, by the express provisions of the law, these were necessary conditions to the acceptance of the work and the subsequent assessment. (Finlayson's Street Laws, sec. 6, p. 61; sec. 8, p. 84); and it must be presumed "that official duty has been regularly performed." (Code Civ. Proc., secs. 1959, 1963, subd 15.) "The findings of the trial court are to receive such a construction as will uphold rather than defeat its judgment thereon; and whenever from the facts found by it other facts may be inferred which will support the judgment, such inference will be deemed to have been made by the trial court." (Perkins v. WestCoast Lumber Co.,
The question is thus presented, whether, under the provisions of subdivision 10 of section 7 of the Street Improvement Act (Finlayson's Street Laws, 65-66) the board of supervisors had the power to include in the work ordered the work in front of the defendant's lot, which had already been performed. These provisions distinguished between grading and other work. The former may be done by the owner only "after obtaining permission from the council," and upon the condition of afterwards obtaining the prescribed certificate of the chief engineer and filing the same with the superintendent of streets. And when these conditions are complied with, the effect is not to exclude his lot from the subsequent assessment and precedent proceedings, but merely to allow him a credit for the work done. The board of supervisors, therefore, did not exceed its powers in including in its order for the work the grading already done. But with regard to other kinds of work the provision of the law is different. It is simply that the owner of land fronting on a street may do the work, without requiring either permission of the board or certificate of the engineer; and it is expressly provided that the "work so done at the expense of such owner or owners shall be excepted from the order ordering *181
work to be done, . . . provided that the work so done . . . shall be upon official grade, and in condition satisfactory to the street superintendent at the time said order is passed." Here, as we have said, it must be inferred from the findings that the work conformed to the official grade, and was satisfactory to the street superintendent; and it follows that, in including in the order for the work the macadamizing and curbing already done in front of the defendant's lot, and in including her lot in the subsequent assessment, the board acted in contravention of the express prohibition of the statute, and therefore in excess of its powers. The order of the board, and the assessment based thereon, were therefore void. (Capron v. Hitchcock,
Nor, as is claimed by appellant's counsel, was the lack of power of the board of supervisors to make the order supplied, or the assessment validated, by the failure of the defendants to avail themselves of the "petition of remonstrance" or "appeal," provided by sections 3 and 11 of the act, respectively.
The latter remedy is given only to parties aggrieved by the acts of the superintendent of streets, and has no application to the precedent acts of the council or board. All the decisions in which an appeal is held to be the exclusive remedy are cases of the former kind, — as, for example, the cases cited by appellant: McVerry v. Boyd,
These decisions, as we have said, do not apply directly to acts of the council preceding the assessment; but the principle of the decisions applies, a fortiori, to cases involving the validity of such acts; and "by parity of reason" it must be concluded that a void act of the council cannot be validated by failure of the party affected by the act to avail himself of the remedy provided by section 3 of the statute. (Capron v. Hitchcock,
It is unnecessary to determine the precise meaning and effect of the concluding clause in section 11 of the act, providing "that no assessment shall be held invalid, except upon appeal to the city council, for any error, informality, or other defect in any of the proceedings prior to the assessment," etc. It is sufficient to say that it cannot be fairly construed as intending to excuse the performance of acts necessary for the acquisition of the power to act, and hence constituting "conditions precedent to the exercise of the power." (Hewes v. Reis,
We advise that the judgment be affirmed.
*183Haynes, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed.
McFarland, J., Temple, J., Henshaw, J.
Hearing in Bank denied.