Bernard v. Weaber

SHAW, J.

Action to enjoin the issuance of street improvement bonds. As shown by the complaint, filed June 7, 1912, the board of trustees of the city of Bakersfield did, on July 10, 1911, adopt a resolution of intention to order the improvement of certain streets in said city according to plans and specifications prepared therefor, and wherein it declared the expense of the improvements should be chargeable upon the lots and lands within a district designated as “Street District No. 1,” the exterior boundaries of which were described therein. It was also declared in said resolution that the board of trustees found upon estimates furnished by the city engineer that the cost of the proposed work would exceed fifty cents per front foot along each line of the streets to be improved, and pursuant to the provisions of the Street Improvement Act determined and declared that serial bonds should be issued to represent all assessments made for the cost of said work where the same amounted to the sum of twenty-five dollars or more, which said serial bonds it was declared “shall extend over a period not to exceed five years from their date.” The work of improving the streets was

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fully performed by the contractor to whom award of contract therefor was made, and the work duly accepted by the superintendent of streets, who thereafter duly made and recorded the assessment and diagram, as required by law; and on the eighth day of May the superintendent of streets issued and delivered to the contractor a warrant whereby he was authorized to demand and receive the several assessments so made for the cost of the work, and wherein it vas stated that “serial bonds bearing interest at the rate of eight per cent per annum, and extending over a period of four years from and after the 2d of January, next succeeding the date of said bonds, are to be issued to represent the cost and expense of the work described in the assessment, and in the manner and form prescribed by law, and notice is hereby given that a bond in. such series will issue to represent each assessment of twenty-five dollars or more remaining unpaid for thirty days after the date of this warrant, or five days after the decision of the board of trustees of this city upon appeal.” Plaintiffs are the owners of the lots and parcels of land described in the complaint, all of which are situated within the exterior boundaries of the improvement district so established, and the assessment against each of said lots and parcels of land amounts to over twenty-five dollars, none of which, it was alleged, had been or would be paid. It was further alleged in the complaint that the superintendent of streets was about to certify to the city treasurer of said city the failure of plaintiffs to pay said assessments within thirty days from the date of said warrant, to wit: May 8, 1912; and that the defendant as “city treasurer threatens and is about to and will, unless restrained by the order of this court, immediately issue to the said contractor, his agents or assigns, a separate bond upon each parcel or lot of land contained in said list, for the amount of said assessment upon each of said lots or parcels of land”; and that said bonds, if issued, will constitute a cloud upon plaintiffs’ title. The prayer is for an injunction restraining the issuance of the bonds.