Haskell v. Bartlett

34 Cal. 281 | Cal. | 1867

By the Court, Sanderson, J.:

Street assessments in San Francisco are not contracts within the meaning of the statute in relation to interest. (Statutes 1850, p. 92.) - Hor is there any provision in the statutes in relation to street improvements in that city which allows interest upon street warrants. (Statutes 1862, p. 391; 1863, p. 525.) The thirteenth section of the latter Act gives the contractor or his assignee a right of action for the amount of the assessment only; nothing is said about interest. “

The appellant’s objection to the publication of the notice of intention should have been sustained. These actions can be sustained only by showing a strict compliance with the provisions of the statutes under which the city works when improving her streets. Under those statutes a notice of intention must be published in the newspaper which has the contract for the city and county printing daily for a period of ten days, except on Sundays, on which days it need not be published. (Taylor v. Palmer, 31 Cal. 244.) The paper which does the city printing must be a city paper, that is to say one which is published in the city (Statutes 1856, pp. 163, 164, Secs. 68, 69); which is to say, printed and circulated in the city, for a printing without a circulation is not a publication. The case shows that the Daily Alta California had the contract for the city printing; that two editions of that paper are generally issued each day, one in the morning and the other in the evening; that the morning edition circulates in the city and country, and the evening edition in the country only and never in the city. That no morning edition was issued on two of the ten days upon which the notice ought to have been published, but that an evening edition was issued on those days, but whether the notice was in those editions the record does not show. A publication in the evening edition, which does not circulate in the city, is not a publication in the city, and not a compliance with the provisions of the statutes to which we have referred. To make the publication good, in view of the fact that no morning edition was issued, it must appear that the notice was in the evening edition on both days, and that on each day the edition was circulated among the city subscribers. (Olcott v. Robinson, 20 Barb. 149; Davis v. Sims, 4 Bibb, 465; Blackwell on Tax Titles, 243.)

Order denying a new trial reversed and new trial granted.

Neither Mr. Justice Sawyer nor Mr. Justice Rhodes expressed an opinion.