51 Cal. 86 | Cal. | 1875
The Board of Supervisors not having made an order for the publication of the notice of the award of the contract, all the proceedings, including the assessment, subsequent to the award, were void. (Donnelly v. Tillman, 47 Cal 40; Donnelly v. Marks, Id. 187.) The plaintiff relies upon the act of March 25, 1874 (Stats. 1873-4, p. 589), as not only validating the assessment, but as having a retrospective operation, which necessarily affects this action. The action had been finally submitted for decision before the passage of the act.
Assuming that the Legislature may itself make the assessment, or what amounts to the same thing, validate a void assessment, does the act have the effect to make the assess-, ment valid, by relation, as of the date of the invalid assessment ? or does it become valid only at the date when the act took effect? The act does not furnish a new rule of evidence, nor does it merely cure irregularities or formal defects in the proceedings or the assessment; but if valid it creates a lien upon property which before the passage of the act was not chargeable with the lien, and gives the contractor and his assigns a cause of action for its enforcement. The assessment, in our opinion, if it became a lien by virtue of the act in question, became such at the date of the passage of the act, and did not take effect, by relation, as of a prior date. There being at the commencement of the action no lien in fact upon the property, and the lien created by the act not taking effect as of a prior date, the action cannot be maintained.
Judgment and order reversed, and cause remanded for a new trial.
Neither Mr. Chief Justice Wallace nor Mr.. Justice Niles expressed an opinion
