Cohn v. Thompson

BURNETT, J.

The appeal is on the judgment-roll, and the contention of appellants is that, upon the findings, the judgment should have been in their favor. It appears that proceedings for certain street work in the city of Bakersfield were instituted and carried through under the provisions of the Vrooman Act, [Stats. 1885, p. 147], and the Bond Act of 1893, [Stats. 1893, p. 33], All the proceedings were entirely regular, except that the city council did not definitely designate the period of time over which the bonds should extend, the declaration of intention simply stating as to this that “said serial bonds shall extend over a period not to exceed five years from their date.” After the completion of the work the superintendent of streets made out

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an assessment, diagram, and warrant covering the expenses of the work and recorded them in his office. The warrant contained the following: “Serial bonds bearing interest at the rate of eight per cent per annum and extending over a period of time ending four years from and after the second day of January next succeeding their date are to be issued to represent the cost and expense of the work described in the assessment,” etc.

No person filed with the city clerk any objection in writing or appealed to the said board from or concerning said assessment or any act or determination of the superintendent of streets concerning said assessment or otherwise. After the expiration of thirty days from the recording of the assessment, diagram, warrant, and return of the superintendent of streets, he made out and certified to the city treasurer a complete list of the unpaid assessments, and thereupon the treasurer made out, signed, and issued to Thompson Bros., the contractors named in said warrant, bonds in proper form for said assessment on each lot of land designated. These bonds were issued August 23, 1912. The complaint herein was filed a few days later. A general demurrer to the complaint was sustained January 18, 1913, and an amended and supplemental complaint, bringing in new parties plaintiff and defendant, on account of the conveyance and transfer of the land and of the bonds, was filed March 13, 1916, more than three years after' said demurrer was sustained. A general demurrer to the amended complaint was overruled. The defendants answered and, upon a stipulation of the facts, the trial court concluded that the assessment was legal and valid, but that the warrant and the bonds were illegal and void for the reason that the city council never at any time fixed the term of the bonds. This view of the court that the bonds were invalid involves the only question on this appeal.