Mathes v. City of Long Beach

DRAPEAU, J.

Plaintiff contractor was the successful bidder for the construction of an ornamental lighting system on Santa Fe Avenue in the city of Long Beach. The work was planned by the city, and plaintiff bid for it, in accordance with the provisions of the Improvement Act of 1911 (Sts. & Hy. Code, § 5100 et seq.)

The contract was executed by the contractor and by the city. The contractor furnished to the city the bonds and contracts of indemnity called for by the contract. Prior to the time fixed for commencement of his work, the contractor brought this action to determine whether the contract was or was not valid. This action is authorized by section 5266 of said code.

[475]

In Ms complaint the contractor questioned the validity of the contract and of the proceedings leading up to it, in 19 particulars.

After the case was submitted for decision, the trial judge prepared a memorandum opinion evidencing a prodigious amount of work and research. Subject, of course, to its legal limitations on review

(Strudthoff

v.

Yates,

28 Cal.2d 602 [170 P.2d 873];

Southern Calif. Jockey Club, Inc.

v.

California Horse Racing Board,

36 Cal.2d 167 [223 P.2d 1]), the opinion has been of great help to this court.

In his memorandum opinion the trial judge directed findings and judgment for the city on all of the issues presented. After hearing on objections to the proposed findings, the judge reiterated his original conclusions, with one exception.

Inasmuch as the decision in this ease must turn upon that exception, the finding is as follows:

“This Court further finds that none of the matters alleged or questions of law raised by Paragraph XV of the said complaint in any wise affect the validity of the proceedings described in Paragraphs IV to XIV inclusive of the complaint on file herein, and the Court therefore finds that all of the allegations of Paragraph XV as to matters of fact therein alleged are untrue, except the Court finds that it is true that there is no authority under the Improvement Act of 1911, or otherwise, for the inclusion in the contract described in Paragraph XIV of the complaint, a true copy of which is annexed to the answer of the defendants, City of Long Beach and James Kincaid and marked ‘Exhibit A’ of the covenants and conditions contained in said contract and which are set forth and described in subparagraph 8 of said Paragraph XV of said complaint, and which constitutes Paragraph XVII of said contract, and the Court further finds that the inclusion of said paragraph as a part of said contract imposed upon the contractor a burden unauthorized by statute and imposed upon the owners of property within the assessment district affected by the proceedings described in the ordinance, a burden not authorized by law, in that the imposition of such burden by the terms of said Paragraph XVII of said contract, the property in said assessment district might be subjected to charges and assessments without receiving any benefit from the work done and without the completion of the work described in the contract. The Court further finds that none of the owners of property within the assessment district affected by the proceedings described in