Owens v. Dudley

LORIGAN, J.

This is an appeal from an order of the superior court denying a motion of the defendants Pettis and Kneen to dissolve a temporary injunction which had been granted plaintiffs

ex parte

upon the verified complaint in the action.

The plaintiffs, nineteen in number, property-owners in an assessment district established by the city council, to be charged with the expense of a proposed street improvement in the city of Santa Monica, brought this action against the mayor and common council of the city, the city engineeer, and street superintendent respectively named, and J. D. Kneen,

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to have the proceedings toward such improvement, which had culminated in the awarding of a contract therefor to the defendant Kneen, declared null and void, and for a preliminary-injunction, to be made perpetual by judgment, restraining the collecting or assessing the expense thereof against the property of the plaintiffs, or creating any lien thereon.

The complaint averred, with reference to the preliminary steps necessary to be taken by the municipality in order, to give it jurisdiction to make the proposed improvement, which was to consist of paving with concrete “Ocean Front Promenade,” or to enter into a valid contract therefor and support a valid assessment under the so-called Vrooman Act of 1885 [Stats. 1885, p. 147] as amended (Deering’s General Laws, 1909, p. 1283 et seq.), that neither the ordinance of intention to do said paving nor the “notice of street work” provided for in said act were published as by law required in a paper of general circulation, published for one year, immediately prior to said’ publication in the city of Santa Monica; nor was said ordinance of intention ever posted as the act requires on or near the council chamber door of the city council of said city; that for the same reason as is alleged concerning the publication of the ordinance of intention and “notice of street work,” the “notice inviting sealed proposals” and the “notice of award of contract” were not published, nor was either of these last notices referred to ever posted at the council chamber door. Other averments are made in the complaint under which it is claimed that the proceedings eventuating in the award of a contract to the defendant Kneen and the contract itself are invalid. It is then averred that a contract to do the work was entered into betweeti the city and Kneen and that the latter was proceeding to perform the work under it.