Himmelman v. Danos

35 Cal. 441 | Cal. | 1868

By the Court, Sanderson, J.:

The complaint commences with an averment that the Board of Supervisors, on the 12th of February, 1866, awarded the contract under which the street work in question was done, to one Kenney, assignor of the plaintiff. Hone of the precedent steps which the statute prescribes are generally or specially alleged; or, in other words, the facts conferring jurisdiction upon the Board are not stated. The complaint is silent as to the notice of intention, and as to all steps which, following the course of the statute, precede the awarding of the contract. The several steps, however, which follow the award are alleged either specially or generally. It is insisted on the part of the defendant that for these reasons the complaint fails to state a cause of action. We consider the point well taken.

If, admitting all the facts stated to be true, the liability of the defendant does not follow as a legal conclusion, the complaint is bad. This is true of every complaint, regardless of the subject matter. The performance of all conditions which are precedent to the liability of the defendant, whether founded upon a contract or a statute, must be alleged in some form, either general or special. In actions upon contracts, a general allegation of performance of conditions precedent is declared sufficient by our statute. (Practice Act, Sec. 60.) But a general allegation of the performance of conditions prescribed by a statute has not been so declared, and is not, therefore, sufficient. (Dye v. Dye, 11 Cal. 163; People v. Jackson, 24 Cal. 680.)

The same rule prevails as to judgments and determinations of Courts, tribunals, Boards, and officers of inferior or special jurisdiction. ■ In favor of such the law intends nothing; hence, if the liability of the defendant depends upon them, the facts conferring jurisdiction must be specially alleged at common law; but under our statute, an allegation that the judgment or determination was duly given or made is declared sufficient. (Practice Act, Sec. 59.)

In the present case the liability of the defendant depends upon the performance of the several steps enumerated in the statute by the officers of the city Government. The complaint must show, by either special or general averments, of the character permitted by our statute, that the various provisions of the statute under which it is sought to charge the defendant were complied with, for, unless they have been complied with, the defendant is not liable. (Blanchard v. Beideman, 18 Cal. 262.) According to the mode of procedure prescribed by the statute, the award of the contract is not the first step to be taken by the Board of Supervisors, yet the complaint is entirely silent as to all previous steps. In relation to them there is no allegation either special or general. If they were not taken, the Board had no power to award the contract, and hence no liability was cast by it or the subsequent steps, however regular they may have been upon the defendant. In short, the liability of the defendant cannot be affirmed in view of the facts stated, and for that reason the complaint is defective.

The alleged sufficiency of the complaint is grounded, however, by the respondent, upon a provision found in the thirteenth section of the statute in relation to street improve-meats, (Stats. 1863, p. 531,) which is to the effect that the assessment, warrant, and diagram, with the affidavit of demand and non-payment, shall be prima fade evidence of the defendant’s indebtedness, and of the right of the plaintiff to recover. Upon that head it is sufficient to say that the provision in question does not establish a rule of pleading, but a rule of evidence only. The recitals in a tax deed are declared by statute to be prima fade evidence of the proceedings recited, but it has never been supposed that a party who sets forth a tax title was thereby excused from alleging that those proceedings were had. The reverse has been decided by this Court. (Russell v. Mann, 22 Cal. 133.)

The next question which claims our notice relates to the record which the statute requires to be made of the assessment, diagram, and warrant.

The statute provides that the assessment, diagram, and warrant shall be recorded, and when recorded the amount of the assessment shall become a lien upon the lots assessed for the period of two years from the date of the record, unless sooner discharged. That from the date of the record all parties in interest shall be deemed to have notice. That after the assessment, diagram, and warrant have been recorded, the same, upon request, shall be delivered to the contractor, or his agents or assigns, who are authorized to demand payment of the same. (Sec. 10.) The statute further provides that the contractor shall make demand in a certain mode, and make a sworn return of his proceedings to the Superintendent within a certain time; and that “ thereupon the Superintendent shall record the return so made in the margin of the record of the warrant and assessment, and also the original contract referred to therein, if it has not already been recorded, at full length, in a book to be kept for that purpose in his office, and shall sign the record.” (Sec. 11.)

The case shows that the assessment, diagram, and warrant, and also the return or affidavit of demand and non-payment relied on in this action, were copied in a book kept in the office of the Superintendent for the purpose above indicated. Under this copy the following words were written: “ Recorded this 9th day of October, A. D. 1866.” This certificate, however, was not signed by the Superintendent, or by any one for him. Unless this unauthenticated copy can be considered a “ record,” the plaintiff, at the commencement of the action, had not acquired the lien which he seeks to enforce against the property of the defendant; for, as already shown, the statute makes not the assessment, diagram, and warrant, but the “ record” of them in the proper book, the foundation of the lien. Without the “ record,” no lien exists, and the plaintiff has no cause of action.

If this record (so called) was without objection in the matter of authentication, it would fail to make a case for the relief which the plaintiff seeks. The copy of the assessment, diagram, and warrant, as given in the record, has no separate date showing that it was made some time prior to the copy of the return. So far as the record shows, the assessment, diagram, and warrant, and the affidavit or return of demand and non-payment, were all copied into the book on the same day, to wit: the 9th of October, 1866. The affidavit was, of course, sworn to before it was recorded, and the demand therein recited was made before the affidavit was sworn to. The demand, therefore, must have been made before the assessment, diagram, and warrant were recorded, and, therefore, at a time when there was no lien upon the lot and no obligation resting upon the defendant to discharge it. Hence the demand, when made, was of a claim nonexistent, and therefore nugatory, and a failure to pay on the part of the defendant conferred no right of action upon the plaintiff.

But independent of the foregoing consideration, we think the copies found in the book cannot be received as a ‘.‘record,” for the reason that they were not signed by the proper officer. It is true that it is not, in terms, provided that the record of the assessment, diagram, and warrant, which, according to the plan of the statute, precedes by several days the record of the return or affidavit of demand and non-payment, shall be separately signed by the Superintendent, but it is, in terms, provided that the record, when completed by the addition of the contract and the return, shall be signed by that officer. But if there was no express provision to that effect, the official signature of the Superintendent would be none the less material. The making of the record is an official act, and its official character must be made to appear upon its face, which can be done only by adding a certificate signed by the officer authorized to make the record. Until certified and signed by the proper officer, it is but waste paper, of which no one need take notice-. To become a record, it must be the official act of the officer authorized to make it—to become his act it must have His signature. Until signed it is the-act of no one, and is as valueless for any purpose as an unsigned deed or Sheriff’s return. The only difference between that which is record and that which is not, is the official stamp or authenticity which the former bears upon its face. The former proves itself, the latter does not. The former proves itself because it bears the stamp of an officer of the law, acting under the solemnities of an oath, or at least of official duty; and it is the official stamp, and nothing else, which makes it record.

The plain and obvious intent of the statute is, that a complete record of the proceedings of the Superintendent shall be kept by him. He is expressly required to record the contract which he makes, also the assessment, diagram, and warrant, which he makes upon the completion of the contract, and finally, the affidavit of demand and non-payment. Though not essential to the validity of the record, they should be recorded in the order of their coming. Like the summons, complaint, and answer in a judgment roll, they constitute different parts of the same record, and as in the case of the former, each separate part should bear the date of its making, and the whole when completed should bear the official signature of the proper officer. The question, whether the record of the assessment should be separately signed, is reserved.

Judgment reversed.

Neither Mr. Chief Justice Sawyer nor Mr. Justice Sprague expressed an opinion.