Dougherty v. Hitchcock

| Cal. | Jul 1, 1868

Lead Opinion

By the Court, Rhodes, J.:

It is provided by section nine of the Act of 1862, relative to the improvement of streets in San Francisco, that after the contractor has fulfilled his contract, etc., the Superintendent shall make an assessment to cover the sum due for the work performed and incidental expenses. This is an ■ official act on the part of the Superintendent, and its character and authenticity can be attested in only one manner, and that is the official signature of the Superintendent. Its official character must be made to appear on its face. In Himmelman v. Danos, ante, 441, it is held that the copies of the assessment, warrant, and diagram found in the Superintendent’s book could not be considered as a record until signed by the Superintendent, because the making of the record was an official act, and its official character must be made to appear on its face; The document cannot be regarded as an assessment, and, standing by itself, is was clearly inadmissible.

But it is contended that it was helped out by the warrant, which was signed by the Superintendent, and countersigned by the Auditor, and was attached to the assessment. This position might be maintained if the two papers constituted only one official document; but they are distinct, and each must be in truth what it purports to be before they can be attached together for the purposes specified in the Act. The position contended for would make a summons without the signature of the clerk valid, if it was attached to the other papers constituting the judgment roll.

It is further contended, that as the statute, in providing for the assessment, warrant, and diagram, expressly requires only one—the warrant—to be signed by the Superintendent, it was not intended that either of the others should be signed, and the rule, that the mention of the one is the exclusion of the others, is relied upon to sustain the position. There would be great merit in the argument if either of these documents could be regarded as official, in the absence of an official signature. Its application in respect to the signature of thé Auditor is very apparent. But the statutory requirement'that the warrant should be signed by the Superintendent was an unnecessary repetition, for the issuing of the warrant as necessarily imports and includes its signature as the averment that a summons was issued by the clerk imports that it received his official signature. This view is illustrated by the positions taken in Himmelman v. Danos in respect to the provisions of the next section of the statute. It is there provided that the Superintendent shall record the assessment, diagram, warrant, and the return, and the contract also, if it has not already been recorded, “ and shall sign the record;” and upon the question whether the copies of the first three constituted a record capable of creating the statutory lien, it was held that they did not amount to a record, because the signature of the Superintendent was wanting from the copies.

The street work mentioned in the resolution of intention is the grading of Clay street from Taylor to Jones, and from Jones to Leavenworth streets, and the crossing of Clay and Jones streets. The Board ordered that work to be done; the advertisement for proposals was for the same work—the bidders being notified to put in separate bids for each block and the crossing—and by the resolution of award, the con-, tract for the whole work was awarded to the lowest bidder at specified prices for each block and the street crossing. The contract was entered into between the Superintendent and the contractor for the grading of one block only—that from Jones to Leavenworth streets. It is very apparent from this statement that the contract was wholly unauthorized by the resolution of the Board. The resolution of intention and its publication confer upon the Board jurisdiction to proceed in the prescribed mode to order the proposed work to be done, and in the exercise of the jurisdiction thus acquired the Board has no power to act upon any other or different work. The proposed work is a distinct and entire subject matter. There is a manifest propriety in confining the Board to the specific improvement mentioned in their resolution. The owners of the adjoining lots may be quite willing that the proposed improvement should be made, but they may have well grounded objections to a work either of a greater or less extent. Suppose Clay street had been graded from Kearny to Taylor street. The lot owners might desire that the grading should be continued to Leavenworth street, but if they were sane they would not consent that the block between Taylor and Jones streets should be passed by, and that a vast chasm should be dug in the street by the excavation of about forty thousand cubic yards of earth from the block between Jones and Leavenworth streets. The resolution of award is the letter of authority to the Superintendent, and he has no more power to contract for the performance of only a part of the work therein specified than of additional work. The execution of the contract by him was purely a ministerial act, and a contract that does not accord with the award is as destitute of binding force as one executed in the absence of an award. A contract authorized and executed in the mode prescribed by the Act is indispensable to the validity of the_ assessment. This defect is not cured by the failure of the lot holders to appeal to the Board, because had an appeal been taken, the defect could not have been remedied by the Board.

Judgment reversed.

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Concurrence Opinion

Sprague, J., concurring specially:

I concur in the judgment upon the last point discussed.

Sawyer, C. J., concurring specially:

The resolution of intention, the resolution ordering the work, and resolution awarding the contract, do not express the intention of the Board of Supervisors as clearly as they should. The question arising upon the resolutions is, whether the Board designed to make the improvements and let the work out in three separate contracts, or as one—that is to say, whether the work from Taylor to‘Jones streets waste be let as one job, the work from Jones to Leavenworth as another, and the crossing of Clay and Jones as another— or whether the whole was to be done as a single improvement and let in one contract., as one job, and, as a consequence, the expense be distributed equally over the whole. The difference between the two modes of letting may be highly important to property holders, and affect their interests in various ways. It may affect, the right of the Board to make the improvement at all, or increase or diminish the amount of the assessment on the individual property holders, or affect the right of a majority of the holders of property fronting on the contemplated improvement to take the contract themselves at the lowest bid. For instance, the owners of more than half the frontage on two, three, or more blocks, where the amount and cost of the work varies on each block, might object to the improvements as a whole—as one improvement—the expense to be distributed equally through the whole district to be improved, and, by objecting, prevent the work, while there might be no such objection if the improvement was to be made on each block as a separate work and distinct district, and vice versa. So, a part of the improvement might be made, while the whole might be prevented by objections.

So upon the large single contract a majority of the property holders may not desire to unite and take the contract, while, if let in separate contracts and performed as separate works, a majority of the owners on some blocks might desire to take the contract themselves. Unless the intention of the Board is clearly expressed on these points, property holders will be at a loss how to act. They will not be able to determine whether their interests will be best subserved by objecting to or favoring the work. The points made by appellant’s counsel make it necessary to construe the several resolutions referred to, under which the work now under consideration was authorized, if authorized at all. After giving the language of the Board the best consideration I am able, I am compelled to say, that I think the intention manifested in all the resolutions, from the declaration of intention to the awarding of the contract, is to make the improvement as one improvement, and let the whole as a single contract. Resolution Ho. 2,681, awarding the contract, speaks of but one contract, and awards that to Griffin. The price for different portions of the work is different; but this might well be, and it does not affect the question. It was necessary that there should be a separate estimate for the crossing, because it is to be assessed in part upon different property. The prior resolutions also seem to contemplate the work as one improvement. The work was, however, let in separate contracts, and the assessments finally separately made, the cost of improving each block on Clay street being assessed upon that block alone, and not the whole extended over the whole as one district. If, then, as I construe the resolution, the improvement was to be made as one improvement, and let as one contract, the authority given was not pursued.

The contract sued on was, therefore, unauthorized. The defect is not one that could be cured by appeal, for when the time for appeal came the work was done and the mischief past remedy. (Emery v. Bradford, 29 Cal. 86.) The contract made, did not pursue the authority, and was, therefore, wholly unauthorized. By the course pursued, the property holders were deprived of an opportunity to avail themselves of important rights, which the statute secures to them as a condition precedent to the levy of a valid assessment upon their property.

•Under section three of the Act of 1862, (Stats, of 1862, p, 391,) the Board of Supervisors are “empowered to order the whole, or any portion ” of a street graded or planked; and by section eight, “the expense of any work authorized by section three of the Act shall be assessed upon the lots and lands fronting thereon, except as hereinafter specially provided.” The jurisdiction to determine whether the whole or a portion, and if a portion, what portion, shall be done as a single improvement, is vested in the Board of Supervisors. The design is that all improvements of the kind should have some reference to the requirements of the locality, and that the expense should be distributed with some reference to the benefits conferred. In some instances, it would, doubtless, be just, that a single block should be improved, and the expense paid by that block. In others, on a single block the work might be very heavy and expensive, while, for several blocks beyond, it might be extremely light, yet the improvement on the single block, where the work is heavy and expensive, might be more advantageous to the other blocks beyond, where the work is light, than to the block itself. In such case, justice would require that the whole work should be made at once, as one improvement, extending over several blocks, and the expense distributed over the whole district or portion of the street thus improved and benefited. And it is with this view that the authority to determine the extent of the improvement is conferred upon the local Board, the members of which are supposed to be able to comprehend the wants of each locality, and merits of each particular ease. It is necessary to a proper execution of these important powers, and to protect the interests of property owners, that the determinations of the Board with respect to these matters should be distinctly and clearly expressed, to enable those interested to act intelligently, and when so expressed, that the proceedings under them should be strictly in pursuance of the authority given to the Boai’d. Unless the authority is pursued the proceedings will be void. The expenses of street crossings are assessed upon different property in part from that for the improvement of the other portions of the street, and for this reason the work must be kept separate, even if embraced in the same contract; and for this reason, also, it would, perhaps, be better to let it as a separate work. But, however this may be, when the Board determines to make an improvement as a single work, the expense to be distributed over the whole, and awards the contract upon that hypothesis, if the contracts are made, the work done in separate contracts, and the assessment made accordingly, the authority is not pursued, and the assessment for the expense is, consequently, invalid.

On the grounds indicated I concur in the judgment, but I am compelled to dissent as to the other points discussed in the opinion of my associates.