Powers v. Holmes

FINCH, P. J.

The plaintiffs sued to' enjoin the sale of certain lots to satisfy an assessment for street work under the Improvement Act of 1911 [Stats. 1911, p. 730] and for the cancellation of bonds based thereon issued under the Improvement Bond Act of 1915 [Stats. 1915, p. 1464]. The defendants’ demurrer to the complaint was sustained and judgment was thereupon rendered in favor of defendants.

The only point involved is whether" the resolution of intention to make the street improvement was sufficient to confer jurisdiction to order the work done. The attack is upon that part of the resolution which, after describing the proposed work, continues as follows: “excepting from said work and improvement any part thereof already done to official line and grade

and satisfactory to the Superintendent of Streets of said City of Vallejo.”

It is argued that, by reason of the italicized part of the exception quoted, the resolution “does not describe with certainty the work to be done thereunder” and delegates to the street superintendent the determination of “the extent of the work to be done.” The statute provides, in section 3, that “the city council may include in one proceeding, under one resolution of intention and in one contract, any of the different kinds of work mentioned in this act and any number of streets and rights of way or portions thereof contiguous or otherwise, and it may except therefrom any of said work already done upon a street to the official grade.” Subdivision 9 of section 20 provides: “Whenever any owner or owners of any lots and lands fronting on any street shall have heretofore done, or shall hereafter do any work (except grading) on such street, in front of any block, at his or their own expense, and the city council shall subsequently order any work to be done of the same class in front of the same block, said work so done at the expense of such owner or owners shall be excepted from the order ordering work to be done, provided, that the work so done at the expense of such owner or owners, shall be upon the official grade,

and in condition satisfactory to the street superintendent at the time said order is passed.”

The statute

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