Palmer v. Burnham
52 P. 664
Cal.
1898
Check Treatment
HARRISON, J.

Action upon a street assessment. A demurrer to the complaint was sustained, and the plaintiff has appealеd from the judgment thereon. The sufficiency of the demurrer is presented by the respondents upon two propositions:

1. In the resolution of intention the city council described the, work to be done in the improvement of the street as follows, viz: *365“That Broadway (describing the portion thereof) he graded to the official subgrade for macadamizing”; and it is ‍​‌​​​​​​‌​‌‌‌​‌‌​‌‌​​‌‌​​​​‌​​​​​‌​‌​​​‌​‌‌​​‌‌​‍objected that by this resolution no jurisdiction to order the work was obtained, for the reason that section 2 of the street improvement act only empowers the city council to order any portion of a street to he “graded or regraded to the official grade.” By the first section of this act the city council is empowered to establish the grades of the streets, but is not precluded from establishing a “sub-grade,” in order that it may properly and systemаtically cause the streets to he prepared for use, and it is alleged in the complaint that at the passage of this resolution an official subgrade for macadamizing had been established by the city council (describing thе same). The grade of a street is the degree of its inclination from a horizontal line, and, as used in the street imprоvement act, includes the height of its surface above the line of the established base; hut it is entirely consistent with the еstablishment of the grade of a street that there he also established a subgrade for macadamizing, i. e., a line of elevation above the base to which the street is to be reduced prior to laying thereon the material with whiсh it is to he macadamized, since such sub-grade may he upon the same line of inclination as the grade itself. If such subgrаde has been established, it is an official grade for that purpose, and the work of grading the street to the suhgrade may he ordered by the city council. Such an order indicates by its terms that it is only a portion of the work necessаry for preparing the street for use, and that it is the purpose of the council to cause the street to bе macadamized, upon the completion of which the whole surface of the street will he at the official grade. The establishment of a suhgrade for this purpose is in harmony with the purposes of the statute, and is more consistent with its spirit than to require the street to be filled in to the official grade and then have a portion thereof rеmoved for the purpose of preparing it for macadamizing. The expression in Warren v. Riddell, 106 Cal. 352, is to he read in the light of the quеstion then before the court, viz., that a contract to grade ‍​‌​​​​​​‌​‌‌‌​‌‌​‌‌​​‌‌​​​​‌​​​​​‌​‌​​​‌​‌‌​​‌‌​‍a street to the line of the official grade was not satisfied by grading it to a different line.

2. The contract for doing the work was entered into with the superintendent of streets August 2, 1889, and it is alleged that *366the superintendent “fixed therein the time for beginning said work to be within fifteen days from the date thereof, and the time for completing said work to be within one hundred and eighty days thereafter.” The superintendent extended the time of completing the work February 4, 1890, by ninety days, and afterward by seventy days additional. The plaintiff alleges that he сompleted the work “according to the terms of the contract with its said extensions of time.”

Whether the contract was thus completed depends upon whether it ‍​‌​​​​​​‌​‌‌‌​‌‌​‌‌​​‌‌​​​​‌​​​​​‌​‌​​​‌​‌‌​​‌‌​‍had expired or was in force at the date of the first extension (Beveridge v. Livingstone, 54 Cal. 54), and this depends upon the construction of the word “thereafter” in the above averment. Section 6 of the aforesaid act provides that the superintendent of streets “shall fix the time for the commencement, which shall not be more than fifteen days from the date of the contract, and for the completion of the work under all contracts entered into by him.” Unless this provision is complied with, the contract is invalid (Libbey v. Elsworth, 97 Cal. 316), and unless there is a definite pоint of time named in the contract at which the work is to be completed, or from which the time within which it is to be completed is to be computed, the time for its completion is not “fixed.” “Thereafter,” as used in the second member оf the above averment in the complaint, refers ■grammatically to the same point of time as “thereof” in the first member, viz., the date of the contract, and is moreover the legal construction to be given to the act alleged to have been performed by the superintendent. The superintendent did not fix any day for the commencement of the work—the allegation that he fixed the “time” therefor to be “within fifteen days” ■from the date of the contrаct left to the contractor to determine the particular day within that time on which he would begin bis work (Rauer v. Lowe, 107 Cal. 229)—and, as he could not know in advance upon what day the contractor would begin the work, it cannot be assumed that the supеrintendent intended the time for its completion to run from that day, as that would be to permit the contractor ‍​‌​​​​​​‌​‌‌‌​‌‌​‌‌​​‌‌​​​​‌​​​​​‌​‌​​​‌​‌‌​​‌‌​‍rathеr than himself to fix the time for its completion. As the superintendent must be deemed to have acted legally, and as his act, if possible, is to be construed so as to make it effective rather than nugatory, it must be held that *367the word “thereafter” in this averment of the complaint refers to the date of the contract, and that the superintendent fixed thе time for completing^ the work to he within one hundred and eighty days after the date of the contract. This would expirе January 29, 1890, and, as the extension was not made until February 4th, it appears from the complaint that no lien was created thereby.

The demurrer was, therefore, properly sustained ‍​‌​​​​​​‌​‌‌‌​‌‌​‌‌​​‌‌​​​​‌​​​​​‌​‌​​​‌​‌‌​​‌‌​‍and the judgment is affirmed.

Van Fleet, J., Garoutte, J., McFarland, J., Temple, J., and Henshaw, J., concurred.