149 P. 560 | Cal. | 1915
Plaintiff appeals from a judgment in favor of defendant and from an order denying plaintiff's motion for a new trial.
The action was to foreclose the lien of a street assessment for work on San Pablo Avenue in the city of Oakland. The findings of the court were in substantial compliance with the defendant's answer, and, in brief, were to the effect that the contract between the superintendent of streets and the plaintiff was made before the expiration of ten days after the posting and publication of the notice of award of contract; that the contract as recorded was different from the one actually signed, the lands within the district described in the recorded *275 contract never having been subjected to an estimate as required by law; and that San Pablo Avenue was an accepted street when the contract for the work was let. If the finding last mentioned be correct and if the force and effect attributed to it by the court be warranted, we need not consider the other findings which are questioned by the appellant, because in that event we must hold that the land of defendant abutting on San Pablo Avenue was not subject to assessment for street work. The finding with reference to the ordinance accepting San Pablo Avenue is as follows: "That on the 4th day of February, A.D. 1889, the said city council of the said city of Oakland, by ordinance No. 1071, entitled `An ordinance providing for the acceptance of the roadway of San Pablo Avenue from its intersection with the westerly line of Broadway to the northern boundary line of the city of Oakland,' duly accepted said San Pablo Avenue as a public street; and that ever since said 4th day of February, A.D. 1889, the said San Pablo Avenue was and now is an accepted public street of the said city of Oakland."
Appellant attacks the ordinance mentioned in the finding quoted above upon several grounds. Certain informalities in the adoption of the ordinance are discussed in the briefs and are said by appellant to be fatal to its validity. By the terms of the by-law that portion of the roadway "required by law to be kept in order or repair by any person or company having railroad tracks thereon" is excepted from the city's acceptance. This, according to appellant's views, was an unlawful deviation from the powers of the city. The ordinance purports to accept the "roadway" of San Pablo Avenue and the alleged failure to include the curbing in that designation is relied upon by plaintiff as a fatal defect therein. The ordinance is also attacked because it contains no recital that the part of San Pablo Avenue sought to be accepted had been fully constructed to the satisfaction of the superintendent of streets and of the city council. Appellant also condemns the ordinance because at the time of its adoption no datum plane had been officially adopted by the city of Oakland and no official grade had been established thereon. As a consequence, it is argued, the work approved and adopted was in contemplation of law no improvement at all. The argument is also advanced that by the change in the constitution giving cities full control over "municipal affairs" the status of San Pablo Avenue, established by the mandate of a *276 general statute ceased to be of any avail as against the city of Oakland, which was not bound by a condition which, by a declaratory ordinance the city had recognized as being in existence; and furthermore that the city after the said amendment to the constitution was not bound, under the law to refrain from assessing property abutting on San Pablo Avenue for the improvement of that street. It was also urged against the position of respondent that by failing to appeal to the city council for relief because of the existence of "Ordinance No. 1071" he waived his defense based thereon and is estopped upon principles of equity from setting it up in this action.
Section 20 of the General Street Law [Stats. 1885, p. 160], is substantially as follows:
"Whenever any street . . . has been or shall be fully constructed to the satisfaction of the superintendent of streets and of the city council, and is in good condition throughout, and a sewer, gas-pipes and water-pipes are laid therein under such regulations as the city council shall adopt, the same shall be accepted by the city council, by ordinance, and thereafter shall be kept in repair and improved by the said municipality; the expense thereof, together with the assessment for street work done in front of city property, to be paid out of a fund to be provided by said council for that purpose; provided, that the city council shall not accept of any portion of the street less than the entire width of the roadway, (including the curbing), and one block in length, or one entire crossin. . . . The superintendent of streets shall keep in his office a register of all streets accepted by the city council under this section, which register shall be indexed for easy reference thereto."
The court found the history of the passage of the ordinance as follows: "Said ordinance was passed on the 7th day of January, 1889, and from the minutes of the city council of said city it appears that on the 21st day of January, 1889, the mayor of said city vetoed said ordinance, whereupon the consideration of the same was made a special order for the next regular meeting of said city council, to wit: February 4th, 1889, upon which last named date the city council of said city of Oakland, by a vote, did not sustain said veto of said mayor, but at that time and place said city council of said city passed said ordinance, six (6) councilmen voting in the *277 affirmative and one (1) councilman voting in the negative; and that at said time seven (7) members constituted the city council of the said city of Oakland." Appellant makes the point that the ordinance was not "reconsidered" and passed over the mayor's veto, but we think the records of the city council do show that the action of the council was substantially a reconsideration and passage of the by-law.
There was no formal proof of the publication of the ordinance as required by law (Stats. 1862, p. 353), but there was proof of all of the usual formalities of the passage of an ordinance over the mayor's veto. Mr. Thompson, the city clerk, testified that the exhibit which was received in evidence was the original record. Evidently there was no written entry of the publication of the ordinance. Respondent's council contend that formal proof of publication was not a prerequisite to the admission of the ordinance in evidence. In this behalf he quotes from the opinion written by Mr. Justice Van Fleet in Santa Rosa City R. Co. v.Central Street Ry. Co., 4 Cal. Unrep. 950, [38 P. 988]. That opinion is not authoritative for the reason that the case was reheard and the judgment was affirmed by reason of a failure of the court to agree. Originally Justices McFarland and Fitzgerald concurred in the opinion of Justice Van Fleet and Justice Garoutte concurred in the judgment, while Justices Harrison and De Haven dissented. After a change in the personnel of the court, Justices Van Fleet, Garoutte, and McFarland adhered to their belief that the judgment should be reversed for the reasons given in Justice Van Fleet's opinion, while Justices Henshaw, Harrison, and Temple were of the opinion that it should be affirmed. As the chief justice was disqualified the judgment stood affirmed by reason of the failure of a majority of the associate justices to agree. It does not appear, however, that the matter of failure to prove publication of the ordinance and Justice Van Fleet's discussion of that phase of the case caused the diversity of views. (Santa Rosa City Railroad v. Central Street Railway Co.,
In Van Buren v. Wells,
But appellant attacks the ordinance on the ground that it fails to recite that the work on San Pablo Avenue had been fullyconstructed to the satisfaction of the superintendent of streetsand of the city council, or that the street was in good conditionthroughout. The ordinance does recite the construction of the roadway to the satisfaction of the superintendent of streets and the city council. The omission of the word "fully" before "constructed" we deem not important. Satisfaction sufficient to cause the councilmen to vote to accept the street must be regarded as full satisfaction for all practical purposes. There was no recital that at the date of the passage of the ordinance the street was "in good condition throughout." It is argued that where the jurisdiction of an inferior tribunal depends upon facts to be ascertained by such tribunal, its records must affirmatively show the existence and determination of such facts.Bedell v. Scott,
In the ordinance in question that part of the street which according to law was required to be kept in order by a railroad company was excepted from the operation of the by-law and the curbing was not specifically mentioned as a part of the "roadway" which the city accepted. Both of these omissions are specified by appellant as fatal to the efficacy of the ordinance. Beaudry v.Valdez,
Because no datum plane had been established and officially adopted by the city of Oakland prior to the adoption of ordinance No. 1071, appellant insists that the attempted acceptance of San Pablo Avenue was beyond the power of the city council. It is true that without a datum or basis fixed for the grade of a street a contractor may not know how far he may be compelled to go in filling or grading and therefore it is proper that a grade should be fixed before the letting of public contracts for street work. But this is not a question between the city and a contractor or a prospective bidder whose rights are in danger of being violated because of the nonexistence of an official grade. When a municipality engages with the owners of property to keep the roadway of a street in repair it makes such engagement in view of the existing facts and the existence or nonexistence of an official datum plane is entirely immaterial to the force and validity of its ordinance of acceptance.
It is also suggested that respondent's failure to appeal to the council for relief estopped him from maintaining this defense, that being presumed to know of the existence *282
of the ordinance he remained silent while the work was being done, and the failure to present his objections and his defense to the city council precluded him from an assertion of such defense before any other tribunal. But the presumption of knowledge did not attach to the respondent with any greater strength than it applied to the city or to the contractor. What could the council have done to remedy the situation? It could not have removed the effect of the ordinance. The council had the right to order the improvement and the property owner could not question that right, but he could contest the contractor's right to collect from him after the work was completed. In Flickinger
v. Fay,
In opposition to the superior court's conclusion that no lien could attach upon the property for the improvement made, for the reason that at the time the contract was made San Pablo Avenue was an accepted street, we are favored with an elaborate brief by one of the amici curiae wherein it is argued that no exemption existed by reason of the ordinance provisions. In support of this contention counsel insists that section 20 of the Vrooman Act before its repeal in 1911 (which was subsequent to the completion of the work here *283
considered) created no vested or contractual right when it was complied with, and that the exemption therein provided for was a mere gratuity, revocable at the will and pleasure of the power bestowing the gratuity. The question whether or not exemptions of this sort create a contractual relation has been twice before this court, but it was not decided either time. (San Francisco v.Certain Real Estate,
Our conclusion with reference to this branch of the case makes it unnecessary for us to discuss the other alleged errors.
The judgment and order from which plaintiff has appealed are affirmed.
Henshaw, J., and Lorigan, J., concurred.
Hearing in Bank denied.