Raisch Improvement Co. v. Bonslett

RICHARDS, J.

This is an appeal from a judgment in favor of the defendant in a proceeding instituted by the petitioner to obtain a writ of mandate. The facts are undisputed.

The town of Antioch is a municipal corporation of the sixth class in the county of Contra Costa. On February 14, 1910, the board of trustees of said town passed an ordinance, accepting certain streets therein after their improvement under the provisions of the Vrooman Act, the said ordinance being enacted under section 20 of said act (Stats. 1885, p. 147). This ordinance of acceptance recited that the streets therein mentioned had been improved by petrolithie process of paving, and curbs had been laid therein, and that said streets were in good condition throughout, and had sewers and gas-mains laid therein. Section 20 of the Vrooman Act as it then read provided that “Whenever any streets or portion of a street has been or shall hereafter be fully constructed to the satisfaction of the superintendent of streets and of the city council, and is in good condition throughout, and a sewer, gas-pipes and water-pipes are laid therein, under such regulations as the city council shall adopt, the same shall be accepted by the city council by ordinance, and thereafter shall be kept in repair and improved by said municipality • • • provided, further, that said city council may partially or conditionally accept any street or portion of a street without a sewer or gas-pipes or water-

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pipes therein, if the ordinance expressly states that the city council deems such sewer or gas-pipes or water-pipes to be then unnecessary.” It is an admitted fact in the case that at the time of the adoption of the ordinance above referred to no gas-mains or pipes had been laid in the streets therein described; that the recital in said ordinance that gas-mains had been laid therein was false, and that said ordinance contained no statement, express or implied, that the board of trustees deemed such gas-mains or pipes to be then unnecessary.

In the year 1914 the board of trustees of the town of Antioch passed another ordinance, reciting the fact that a former ordinance had contained the statement that gas-mains had been laid in said streets when in fact such gas-mains had not been so laid, and that for that reason the board of trustees passing said former ordinance was without jurisdiction to adopt said ordinance accepting said streets, and that therefore such former ordinance was by the terms of the latter one repealed. Thereafter the board of trustees initiated certain proceedings for the improvement of some of the same streets which had been included in said first ordinance of acceptance. Bids were regularly called for, and awards of contracts made for such improvements to the Raisch improve7 ment Company, petitioner and appellant herein; and said company presently presented its contracts and bonds in due form to the respondent herein, as superintendent of streets of said town, for his execution, signature, and approval as the law requires. This, however, the respondent refused, basing his refusal upon the ground that having accepted the streets in question under the terms of its ordinance of February 14, 1910, the board of trustees was without jurisdiction to order another improvement of said streets at the expense of the property owners abutting thereon. A writ of mandate was thereupon applied for to compel the superintendent of streets to sign, execute, and approve said contracts and bonds. The trial court declined to issue said writ, basing its refusal, as the record here shows, upon the sole ground that the original ordinance of February 14, 1910, accepting said streets, was valid and is in full force and effect notwithstanding its attempted repeal.