Gualco v. City of Bakersfield

KOFORD, P. J.

These actions, consolidated into one appeal, are all for the purpose of quieting title against certain street assessement liens arising from public proceedings taken for the paving of certain portions of Twentieth and Twenty-first Streets in the City of Bakersfield. Judgment was for defendants upon demurrers to the complaints.

Appellants advance two main reasons for the invalidity of the assessment liens. First: That in addition to following the procedure of the Improvement Act of 1911, which requires notice for bids to be published for two days only, the public authorities of the city should have gone further and published this notice for five days because of the provisions of section 136 of the charter of the City of Bakersfield. (Stats. 1915, p. 1552.)

Section 136 of the charter provides: “In the erection, improvement and repair of all public buildings and works, and in furnishing any supplies and materials for the same, or for any other use by the city, when the expenditure required for the same exceeds the sum of five hundred dollars, the same shall be let by contract, and shall be let to the lowest responsible bidder, after advertising for sealed proposals for the work contemplated for five consecutive days in the official newspaper. ...”

The charter does not contain any clause expressly providing for public proceedings for street improvement, but such are provided for by section 161 in an indirect way. This section reads as follows:

“Section 161. Whenever any municipal function or affair arises, for which no provision is made by this Charter or ordinance, the law of the state applicable thereto shall govern. Any law of the state applicable may be made the law of the city by ordinance.”

Street improvement by assessment proceedings is a well-known and recognized function of municipalities and it is likewise known to require a complete scheme of procedure by which its cost may be legally assessed against the property benefited by it. Inasmuch as the charter makes no direct reference to street improvement proceedings and

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does not prescribe a method for taking such proceeding, the effect of section 161 above quoted is to say that such improvements shall be done according to the general law governing that subject matter. If, therefore, it be conceded any conflict exists between section 136 and the Street Improvement Act of 1911, it would not be a conflict which should be resolved in Yavor of section 136 on account of the matter being a municipal affair. It would be a conflict between two sections of the charter—one section of the charter saying advertise five days and the other saying do it according to general law, viz., advertise two days.