Fay Improvement Co. v. Nelson (1921) · DecisionDepot

Fay Improvement Co. v. Nelson

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Nov 25, 1921 No. Civ. No. 4004.Published

Before: Richards

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Holding. The court held that the board of supervisors did not lose jurisdiction to complete street improvements by repealing an ordinance ordering the work, as jurisdiction was established by the initial resolution of intention and the subsequent delay constituted a mere informality cured by the ordinance.

Issues

Whether the street improvement ordinance of 1913 is unconstitutional.
Whether the repeal of an ordinance ordering street improvements divests the board of supervisors of jurisdiction to proceed with the work.

Disposition. affirmed

Synopsis

The facts are stated in the opinion of the court.

[360]

RICHARDS, J.

This appeal is from a judgment in the plaintiff’s favor in an action to foreclose a street assessment lien.

The street improvement work in question was done upon Forty-fourth Avenue between Anza and Fulton Streets, in the city and county of San Francisco, under the provisions of the street improvement ordinance of said municipality adopted on September 2, 1913.

[1]

The appellant hereih makes two main points. The first of these is that the ordinance in question is unconstitutional. No extended discussion of the argument urged in support of this contention need be made, since the question of the constitutionality of this and similar ordinances of said municipality has been set at rest by the decisions of the supreme court in the cases of

Mardis

McCarthy,

162 Cal. 98 [121 Pac. 389];

Hayne

San Francisco,

174 Cal. 185 [162 Pac. 625];

Bienfield

Van Ness,

176 Cal. 585 [169 Pac. 225].

The appellant’s next contention is based upon the following facts as shown by the record herein: On the fourteenth day of June, 1916, the board of public works of the city and county of San Francisco duly and regularly passed a resolution, pursuant to the provisions of the ordinance above referred to, that it was expedient that the street improvements in question herein should be made. Thereupon plans and specifications for the doing of said work were duly prepared as in said ordinance provided. On July 12, 1916, the said board of public works duly and regularly and in accordance with the terms of said ordinance adopted and passed its resolution of intention to recommend to the board of supervisors of said city and county the doing of said work pursuant to the provisions of said street improvement ordinance; and also immediately thereafter duly caused said resolution of intention to be posted and published as required by the terms of said ordinance. On August 18, 1916, the said board of public works duly passed and adopted a resolution recommending to the board of supervisors of said city and county that they order said improvements to be made, which resolution, accompanied by a diagram certified by the city engineer and showing in detail the separate lots, pieces, and parcels of land within the limits of the district to be assessed for said work, and the

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An examination of the other provisions of said ordinance discloses that nowhere is it provided therein that the board of supervisors shall within any specified or limited time act upon the recommendations of the board of public works in the way of ordering the said work to proceed; nor is it therein provided that said work shall be proceeded with or completed within any specified or limited time after the passage of the resolution of intention by the said board of public works. Jurisdiction to make said improvement and to bind the property of the appellant and of all others within the district for the expense of making the same was, we think, acquired by the due passage, publication, and posting of the resolution of intention under the express terms of the foregoing section of the Improvement Act of 1913, and was neither acquired nor lost by the passage or repeal of the ordinance of the board of supervisors of September 18, 1916. The ordinance of the board of supervisors of October 21, 1916, repealing said last-named ordinance did not purport to be an ordinance abandoning the proceedings already taken toward making the improvements in question. Section 7 of said Street Improvement Act embraces a provision that the board of superivsors “by an affirmative vote of not less than fifteen members may determine to abandon all proceedings -had and talten in the matter of the proposed improvement,” but the said repealing ordinance of said board enacted on October 21, 1916, did not purport to be passed under this provision, but at most must be construed as merely expressing the resolve of the board not to proceed at present with the making of the intended improvements, but to delay its orders in that respect to some more opportune time. In the entire absence of any showing that anyone, and especially this appellant, was or would be injured by the delay in ordering and proceeding with the making of these improvements we hold that the action of the board of supervisors, in first adopting and then repealing this ordinance ordering said improvements to be proceeded with, operated as a mere postponement of

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Synopsis

RICHARDS, J.

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