McGarry v. Ellis

RICHARDS, J.

This is an action by the plaintiff herein, alleging himself to be a property owner of the city of Clovis, to restrain the defendant R. W. Ellis, as superintendent of streets of said city, and the defendant Clark & Henery Construction Company, as contractors, from proceeding with the performance of certain street work within said city under proceedings theretofore inaugurated by the officials thereof under the provisions of the Improvement Act of 1911 (Stats. 1911, p. 730), and which proceedings had progressed through the various legal stages provided for in said act up to the award of the contract to do such street work as was provided for therein to the defendant contractor and to the actual commencing of the work under such contract.

The resolution of intention to do the work in question contained the following provision:

“And whereas, said contemplated work and improvement is in the opinion of said board of trustees of more than local or ordinary public benefit, said board hereby makes the costs and expenses of said work or improvement chargeable upon a district, which district said board of trustees hereby declares to be the district benefited by said work and improvement, and to be assessed to pay the costs

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and expenses thereof, which said district is and shall be .the entire city of Clovis and all property lying within the exterior boundaries of said city of Clovis, and the exterior boundaries of said city of Clovis shall constitute the exterior boundaries of said district.”

Following the foregoing provision in said resolution there was another clause therein reading as follows:

“And whereas, those certain lots, pieces or parcels of land particularly described as follows: All of block 26 of East Clovis and lots 1 to 16 of block 27 of East Clovis and lots 1 to 25 inclusive of block 25 of East Clovis and used in the performance of a public function, to wit, for public school purposes, and belonging to Clovis Union High School district of Fresno county, California, are included within the district aforesaid, the board of trustees hereby declares that said lots, pieces or parcels of land shall be omitted from the assessment hereafter to be made, to cover the costs and expenses of said work and improvement.” Upon the adoption of said resolution of intention, the" notice of passage thereof and of the proposed making of said improvement required by the Improvement Act was duly posted on all the streets, alleys, and highways of the city of Clovis, and by its terms all persons having any objection to the making of said improvement were required to appear before the board of trustees of said city upon a designated day and show cause, if any existed, why said proposed improvement should not be made in accordance with the resolution of intention on file in the office of the city clerk, to which reference was expressly made for further particulars.