Flinn v. Shafter Realty Co.

LAWLOR, J.

Plaintiffs commenced this action to recover the amount of an assessment levied for street work done under a public contract in the city and county of San Francisco. The trial court found, and it is not questioned here,

[317]

that the proceedings preliminary to the awarding of the contract were regular. The contract was awarded to plaintiffs by the said city and county on June 4, 1914, and required that the work be commenced within fifteen days and completed within ninety days thereafter. On August 31, 1914, the board of public works passed a resolution recommending that the board of supervisors grant plaintiffs -an extension of time of sixty days from September 2, 1914, for the completion of the work. Acting upon such recommendation, the board of supervisors passed a resolution extending the time for sixty days from September 2, 1914, but did not pass it until September 10, 1914, eight days after the original ninety-day period had expired. Various extensions of time were subsequently granted, and the work was completed on June 19, 1915, within the period of the last extension. On September 14, 1915, the work having been done in accordance with the specifications of the contract, an assessment was levied by the board of public works, among the lots assessed being one owned by defendant. No appeal was taken to the board of supervisors to have the assessment set aside, and it has never been set aside or altered.

Upon the trial it was found the assessment for street improvement was void because the work was not completed within the time specified in the contract or any legal extension thereof, and because the assessment was for more than one-half the assessed value of the property and did not provide for its payment in annual installments as provided by the charter of the city and county of San Francisco. Judgment was entered for defendant, from which plaintiffs appeal.

It is now conceded by respondent that, under the decision of this court in

Federal Construction, Co.

v.

Wolfson,

186 Cal. 267 [199 Pac. 512], the assessment was not void because in excess of one-half the assessed valuation of the property, inasmuch as the board of public works in its notice of intention to make the improvements provided that the amount of the assessment might be paid in six annual installments, the deferred payments to bear interest at the rate of seven per centum per annum. Respondent claims, however, that the assessment was void because the resolution of September