Fanning v. Schammel, No. 9253

No. 9253 | Cal. | Jan 28, 1886

McKee, J.

— Action to foreclose a street assessment lien for street work alleged to have been done under a contract for grading Montgomery Avenue in the city and county of San Francisco.

The contract required that the work should be completed within sixty days. The work was not completed within the time; and under the law the contract expired. Subsequently, however, the board of supervisors of said city and county extended the time; but it had no jurisdiction to revive and validate a dead contract. The order of extension was, therefore, unauthorized and void. (Beveridge v. Livingstone, 54 Cal. 54" court="Cal." date_filed="1879-07-01" href="https://app.midpage.ai/document/beveridge-v-livingstone-5439511?utm_source=webapp" opinion_id="5439511">54 Cal. 54; Owens v. Heydenfeldt, 6 W. O. R. 149; Torrens v. Townsend, 6 W. C. R. 149.)

But nearly a year after the order of extension by the board of supervisors, the legislature, on the 19th of March, 1878, by an act entitled “An act to ratify and confirm certain orders and resolutions of the board of supervisors of the city and county of San Francisco, relative to street work on Montgomery Avenue,” etc., made valid, ratified, and confirmed “ all orders and resolutions heretofore from time to time passed by said board of supervisors, .... in relation to street work done, in whole or in part, on Montgomery Avenue, in said city and county, and all contracts and assessments for such street work, .... and all other proceedings under and in accordance with the provisions of such orders and resolutions” (Stats. 1877-78, p. 341); and it is contended that all the proceedings in connection with the assessment for said street work were thereby validated.

But so far as the statute attempts to vitalize a dead contract and validate a void assessment for street work, it is unconstitutional and void. (People v. Lynch, 51 Cal. 15" court="Cal." date_filed="1875-07-01" href="https://app.midpage.ai/document/people-v-lynch-5438873?utm_source=webapp" opinion_id="5438873">51 Cal. 15; People v. McCune, 57 Cal. 153" court="Cal." date_filed="1880-07-01" href="https://app.midpage.ai/document/people-v-tibbey-5440094?utm_source=webapp" opinion_id="5440094">57 Cal. 153; Brady v. King, 53 Cal. 44" court="Cal." date_filed="1878-07-01" href="https://app.midpage.ai/document/brady-v-king-5439296?utm_source=webapp" opinion_id="5439296">53 Cal. 44.)

Judgment affirmed.

Boss, J., and McKinstey, J., concurred.