Southwest Paving Co. v. Wilson

CRAIG, J.

In this appeal the facts are not in dispute.

In so far as it is necessary to state them they are as follows:

The defendant is the street superintendent of the city of San Buenaventura. A proceeding under the Improvement Act of 1911 [Stats. 1911, p. 730] was instituted and a resolution of intention to improve certain streets within that city

[252]

was duly passed and published and notice of its adoption posted according to law. Bids were received and the petitioner was the lowest bidder. Thereafter and in due time the petitioner duly signed and executed a contract “to do and perform all of the work described in said resolution of intention,” etc. The defendant declined to sign this contract and also refused to approve the petitioner’s bond for the faithful performance of the work. The reason assigned for such refusals is the existence of certain alleged defects and irregularities in the proceeding. It is agreed that the petition correctly and completely sets forth the objections of the defendant. They are seven in number.

The first one which we will consider is in substance that the resolution of intention calls for the paving of Fir and Chestnut Streets up to the north line of Front Street. It is expressly provided in the resolution of intention that the plans and specifications are made a part thereof, and special reference is therein made to plan No. 308. But according to plan No. 308 the streets above mentioned were to be paved for a distance of about eight feet south of Front Street.

[1]

A proceeding for street improvement under the act of 1911 depends for its jurisdictional foundation upon the resolution of intention.

(Fay

v.

Reed,

128 Cal. 357 [60 Pac. 927].)

[2]

It is true that where an immaterial difference exists between the work provided to be done by the resolution of intention and that described in the plans and specifications the proceeding will not be rendered void, but the clear provision of the resolution of intention will govern.