88 P. 367 | Cal. Ct. App. | 1906
Lead Opinion
Plaintiffs are severally the owners of parcels of real property in the city of Los Angeles against which liens are claimed under certain proceedings taken by the city for the improvement of Temple street. Defendant Tryon-Brain Company, a corporation, was the contractor, and performed the work of laying cement sidewalks and building cement curbs along certain portions of said street. Upon completion of the work the rights of defendant company under their contract were assigned to defendant O'Dea. Certain irregularities in the proceedings taken by the city and alleged defects in the form of contract made with the Tryon-Brain Company formed the basis for this suit, by which it was sought to have it adjudged that the assessments made against the several pieces of property owned by plaintiffs to secure payment of the contract price for the doing of said work were void, and that no liens attached for the benefit of defendant contractor. A statement of facts was agreed upon in the lower court, and upon submission of the cause judgment was entered for plaintiffs and defendants have appealed.
The proceedings for the improvement of Temple street were taken under authority of the act of the legislature known commonly as the Vrooman act (Stats. 1885, p. 147), and acts amendatory thereof. Respondents contend that at the time the city council attempted to order the work to be done it had not acquired jurisdiction, because twenty days *387 had not expired after the publication by the street superintendent of a notice of the intention to have the work performed, when the council adopted an ordinance directing the work to be done. The Vrooman act provides that after the resolution of intention has been passed and adopted by the city council, the street superintendent shall "cause a notice similar in substance to be published for six days in one or more daily newspapers published and circulated in said city . . ." and that "at the expiration of twenty days after the expiration of the time of said publication by said street superintendent . . . the city council shall be deemed to have acquired jurisdiction to order any of the work to be done, or improvement to be made, which is authorized by this act." From the agreed statement of facts it appears that the street superintendent published the notice required of him to be published, in a daily newspaper for six days, commencing on April 9, 1903, and ending on April 15, 1903, one of the intervening days being Sunday. On May 4, 1903, the nineteenth day after the last day of publication of the notice by the street superintendent, the city council adopted an ordinance ordering the work to be done. This ordinance was signed by the mayor of the city on May 11, 1903, and published for two days thereafter, to wit, on May 13, and 14, 1903.
It is conceded by appellants that if the order made by ordinance providing for the doing of the work was complete on the fourth day of May, when the ordinance was adopted, that this order was a nullity and made without jurisdiction; but it is argued that the ordinance did not become final until after approval by the mayor and publication for two days; and that therefore the order so made should be deemed to have been made as of the date when the ordinance was signed by the mayor or published. There is probably no doubt that the city council in directing street work to be done under authority of the act here under discussion, might do so by simple resolution; in fact, it has been so held in the cases of Los Angeles v.Waldron,
The city council here adopted the ordinance ordering the work to be done on the nineteenth day after the expiration of the last day of publication of the street superintendent's notice. The order of the council was complete upon the adoption of the ordinance; there was nothing left to be done by that body respecting its order after adoption of the ordinance by vote taken and recorded. But the council had acquired no jurisdiction to take any step essential to the validity of an order directing the work to be done until the full term of twenty days had run. If its order made on the nineteenth day was valid, as well might it then have adopted the ordinance on the first, third or any other day after the termination of the period of publication of the street superintendent's notice. It appears clearly that the ordinance of May 4, 1903, directing the work of improvement to be done, was prematurely adopted, without jurisdiction, and was ineffective and void for any purpose. The subsequent proceedings taken, therefore, failed to give any support to defendants' claim to rights of lien against the property of plaintiffs.
The further contention of respondents, that the provision in the specifications obligating appellants to assume responsibility for loss by reason of damages which might accrue rendered the contract invalid, should also be sustained. The contract executed between the city and appellants contained a *389
provision that the work should be done according to "specifications on file in the office of the city clerk of said city which are known as specifications No. 54 and 55, and made part of this contract." Incorporated in these specifications was the following condition: "All loss or damage arising from the nature of the work to be done under this agreement or from any unforeseen obstruction or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, or from any encumbrances on the lines of the work, or for any act or omission on the part of the contractor, or any person or agent employed by him, not authorized by this agreement, shall be sustained by the contractor." This condition became a part of the contract. A provision similar to this was held in the case of Blochman v. Spreckels,
Other minor points are argued in the briefs of counsel, but as those discussed are determinative of this appeal, it will be unnecessary to consider them.
The judgment appealed from is affirmed.
Gray, P. J., concurred.
Concurrence Opinion
I concur in the judgment upon the ground first stated in the opinion. *390