87 Cal. 40 | Cal. | 1890
This is an appeal by defendant from a judgment enforcing a street assessment against a lot on Lombard Street.
The case was heard in Department, and the judgment was affirmed, and the facts of the case are stated in the opinion then rendered by Commissioner Gibson (filed July 8, 1890.) A hearing in Bank was ordered, because it was strenuously urged that the decision was in conflict with Mulligan v. Smith, 59 Cal. 206, and Kahn v. Supervisors, 79 Cal. 388. But, after argument on rehearing, and mature consideration, we are satisfied with the conclusions reached in Department.
(It may be remarked, also, that it is doubtful whether the points which appellant seeks to make against the petition and to the rulings of the court are properly presented in the record.)
The judgment and order denying a new trial are affirmed.
Paterson, J., Fox, J., Sharpstein, J., and Thornton, J., concurred.
The following is the opinion above referred to, which was rendered in Department Two July 8, 1890:—
Defendant appeals from a judgment rendered in an action brought by plaintiff as the assignee of one J. S. Dyer, a street contractor, to recover an assessment for $323.91 for grading Lombard Street from Broderick Street to the west line of Lyon Street, in San Francisco, which had been levied upon a lot designated as No. 10 on the diagram attached to and made part of the assessment, and also from an order denying a new trial.
By section 4 of the act of April 1, 1872 (Stats. 1871-72, p. 804), pursuant to which the street was graded, it is provided that no work of the character mentioned can be ordered by the board of supervisors, “unless the majority of the frontage of the lots and land fronting on the work proposed to be done and described in said resolution, or which is to be made liable for such grading, except public property-, shall have been represented by the owners thereof, or by their agents, in a petition to the said board of supervisors, stating that they are the owners and in possession, or agents, of the lots named in the petition, and also requesting that such improvement or street-work shall be done.”
The petition, on its face, show's that the petitioner is the owner of the entire frontage on each side of Lombard Street between Baker and Lyon streets, and 137-£ feet on the latter street south from its junction with Lombard Street, and the same distance north on the same street from the junction of the last-mentioned streets; that there are six 50-vara lots fronting on Lombard street between Baker and Broderick streets, and that the crossing formed by Baker and Lombard streets had been graded. The frontage of petitioner on Lombard Street is not shown in feet, nor is it shown that one of the 50-vara lots is public property (a school lot), that should for that reason be excluded from the computation of frontage.
Now, while the failure to show these two facts makes the petition uncertain, on its face, as to whether the petitioner is the owuier of a majority of the frontage- to be affected or not, it does not make it appear that the petitioner is not the owner of more than one half of the frontage to be affected by the proposed improvement; for if it did, the petition wmuld be fatall}' defective. The statement that he is the owner of two lots, being the entire frontage on both sides of one of the twro blocks he seeks to have graded, and 137½ feet north and the same distance south on I^yon Street, from its junction with
In exercising the jurisdiction thus obtained, and in granting the petition, the board of supervisors must necessarily have found that the petitioner was the owner of a majority of the frontage to be affected by the proposed improvement. Even if, as seemingly suggested by counsel for appellant, the act referred to does not provide, in express terms, for any determination of the matter of a petition, clearly, where a board is empowered to receive a petition, and is invested with discretion in regard to the subject-matter, it has the implied power to determine whether it shall be granted or not.
The law makes it the duty of the board, upon receiving a proper petition for the grading of a street, to publish a resolution of its intention to perform the work, and thereafter make an order that it shall be done. Can it be reasonably contended that if a petition sufficient upon its face should pray for the grading of a street already graded, the board would have to perform the idle ceremony of publishing a resolution of intention to perform the work, and order the same to be done, regardless of the falsity of the apparent necessity of the grading shown by the petition? Assuredly not. To determine the necessity for the work requires the exercise of judgment on the part of the board, and in order to properly reach the consideration of this fact, it -would first have to determine whether the petition were sufficient or not.'
The amount of frontage owned or possessed by the petitioner being, then, one of the jurisdictional facts that the board had to pass upon, its determination of the same in favor of the petitioner is and was conclusive against the collateral attack of appellant at the trial. (People v. Hagar, 52 Cal. 171.) And by the terms of the
“ All owners of lands or lots, or portions of lots, who may feel aggrieved, or have objection to the ordering of the work described in said notice, .... shall file with the clerk of the board of supervisors a petition or remonstrance, wherein they shall set forth in what respect they feel aggrieved; .... which petition or remonstrance shall be passed upon by said board of supervisors, and their decision thereon shall be final and conclusive.”
This provision is intended to enable parties in interest to reach any irregularity or defect in the petition itself, or matter connected with the granting of it, and to be their only remedy. There is no evidence here that appellant ever availed itself of the opportunity thus given to be heard. It therefore waived all objections to the form of and the granting of the petition.
In Jennings v. Le Breton, 80 Cal. 9, in applying a similar provision in section 12 of the same act, providing for an appeal to the board of supervisors respecting the acts of the superintendent of streets, it was held that an appeal to the board was the only remedy for any grievance caused by the official acts of the superintendent of streets, and that a failure to appeal was a waiver of all objections thereto. (See cases there cited.)
The statute under consideration provides for the publication of a notice of intention, in the form of a resolution, to make the proposed improvement, after receiving a sufficient petition therefor, and for a hearing upon the same at the instance of any person in interest who may feel himself aggrieved. This, we are convinced, presents a different case from that of Mulligan v. Smith, 59 Cal. 206; affirmed in Kahn v. Board, 79 Cal. 388. There it was held that the petition -presented to the mayor of Gan Francisco for the opening of Montgomery
The appellant also urges that as that portion of Lombard Street sought to be improved was divided into two separate portions by the crossing of Baker Street, which had previously been graded, the board of supervisors could not, under section 3 of the statute, order two separate and distinct portions of a street thus divided to be done as one piece of work. By that section, the board of supervisors are authorized to order the whole or any portion of a street graded. It is obvious that two blocks on a street may embrace the whole or only a portion of it; and we do not think that because the Baker Street crossing had been previously graded, which it is conceded could be done separately, the two blocks divided by such work could not be included in one petition, resolution of intention, order, contract, and assessment.
Dyer, the assignor of plaintiff, entered into his first contract, based upon regular proceedings, to do the grading for fifty cents per cubic yard, but before the expiration of the time within which he was required to commence the work under this contract, pursuant to section 6, and within two days after the contract had been entered into, and without any request on the part of Dyer to be relieved from the contract, the board of supervisors passed and published another resolution of intention, which resulted in a second contract with the same Dyer, to perform the wrork at sixty cents per cubic yard, under which contract he performed the work.
On these facts the appellant bases his remaining ob
For these reasons, we think the judgment and order should be affirmed.
Foote, C., and Vanclief, C., concurred.
The Court. —For the reasons given in the foregoing opinion, the judgment and order are affirmed.