Lambert v. Cummings

COOPER, J.

Action to foreclose the lien of a street assessment alleged to exist by virtue of proceedings instituted by the council of the town of Berkeley. Defendants had judgment, from which the plaintiff prosecutes this appeal. The question is as to whether the resolution of intention was sufficient to give the board jurisdiction to let the contract, order

[643]

the work done, and assess the property for such work. Section 3 of the street assessment act (Stats. 1891, p. 196, c. 147) provides: “Before ordering any work done or improvement made, which is authorized by section two of this act, the city council shall pass a resolution of intention so to do, and describing the work.”

The resolution of' intention is the initial step, and by it alone the council acquires jurisdiction to subsequently make the assessment and order the work done.

(Schwiesau

v.

Mahon,

128 Cal. 116, [60 Pac. 683];

McDonnell

v.

Gillon,

134 Cal. 330, [66 Pac. 314].) The resolution of intention, so far as material here, was as follows: ‘ ‘ That Prince street in said town from the westerly line of Grove street to the easterly line of Sacramento street be macadamized and guttered to the official lines and grades. . . . The macadam shall be class ‘C’ as classified in Ordinance No. 62A.”

Ordinance No. 62A, adopting specifications for macadamizing and guttering the public streets in said town, provides:

“Section 1. Classifications of macadamizing rock used in macadamizing and constructing gutters in the streets of the town of Berkeley shall be classified into three classes, and shall be designated as ‘ Class A, ’ ‘ Class B, ’ and ‘ Class C. ’

“Class A. Class A shall be such rock as shall lose by abrasion and fracture not more than 15 per cent, of its original weight when subjected to the test known as the rattler test.