Ede v. Cuneo (1899) · DecisionDepot

Ede v. Cuneo

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Sep 20, 1899 No. S.F. No. 905.Published

Before: Beatty, Harrison, Dyke

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Holding. The court held that a contractor is not entitled to a second street assessment under the 1889 amendment to the street improvement act unless the prior assessment was defeated due to an infirmity in the assessment itself or its recording, rather than a defect in the engineer's certificate.

Issues

Whether the 1889 amendment to the street improvement act authorizes a second assessment when a prior action was defeated due to the absence or defect of an engineer's certificate.
Whether the term 'assessment' in the 1889 amendment encompasses the engineer's certificate required for a lien.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The statute does not authorize its issuance in a case where the plaintiff was defeated in an action upon the former one by reason of a defect or absence of the engineer’s certificate”

“The entire scope of the provision is limited to some document made by the superintendent, and cannot be extended to matters independent thereof”

Synopsis

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge.

The facts are stated in the opinion of the court.

Opinion — Harrison

HARRISON, J.

—Action upon a street assessment. The complaint is in the ordinary form for the foreclosure of the lien of ■a street assessment, and alleges that the contract for doing the work was entered into August 13, 1890, and completed within the time fixed therefor, and that an assessment for the work was Issued July 6, 1896. It also alleges that on December 6, 1894, the superintendent of streets made and issued an assessment for the same work, upon which an action was brought in the superior court May 29, 1896, and that on the 15th of June, 1896, that court rendered a final judgment therein that the plaintiff was not entitled to recover on said assessment; and that it appears by said final judgment that the plaintiff was defeated by reason of the fact that the city engineer of said city and county had never made any engineer’s certificate of said work, and that the assessment, diagram, warrant, and purported engineer’s certificate were never “duly or properly or legally” recorded in the office of the superintendent of streets; and that by reason thereof no lien was created by said assessment. A demurrer to this complaint was sustained by the court, and judgment entered in favor of the defendants, from which the plaintiff has appealed.

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Section 9 of the street improvement act, as amended in 1889 (Stats. 1889, p. 167), provides: “Whenever it shall appear by any final judgment of any court in this state that any suit brought to foreclose the lien of any sum of money assessed to cover the expense of any street work done under the provisions of this act has been defeated by reason of any defect, error, informality, omission, irregularity, or illegality in any assessment hereafter to be made and issued, or in the recording thereof, or in the return thereof, made to or recorded by said superintendent of streets, any person interested therein may at any time within three months after the entry of said final judgment” apply to the superintendent of streets and have issued to him another assessment in conformity to law.

Proceedings for the improvement of streets are purely statutory, and the rights and obligations of the parties to be affected thereby are to be determined by the terms of the statute. The right to an assessment, as well as the lien created thereby, exist only by virtue of the statute, and can be brought into existence only in accordance with its terms.

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ble to suppose that the legislature had in view this interpretation of the statute when it provided that the superintendent might make a second assessment if there was any defect in the record of the original one; and it is also reasonable to assume that, inasmuch as the provision for recording the engineer’s' certificate was made a part of the statute at the same time with the foregoing provision for a second assessment, if the legislature had intended that a second assessment might be made, in case there has been a defect in the record of the certificate when the former one was issued, it would have expressed such purpose in definite terms. It is a familiar rule of interpretation that a word which is used several times in the same section of a statute shall receive the same construction, unless there is something in the context indicating a different meaning; but there is nothing in the section under consideration which demands different constructions to be given to the word “assessment” in the different places in which it is used. The phrase “any assessment hereafter to be made and issued” must refer to the assessment as distinguished from the other documents, and the term “issued” is not predicable of any action by the superintendent of streets in reference to the certificate of the engineer. The antecedent to the clause “or in the recording thereof” is the noun “assessment” in the previous clause of the same sentence, and the “assessment” which the contractor is authorized to apply for, as well as the “new assessment, diagram, and warrant” which is to be made and delivered to him, can have reference ¿o no other documents than those to be made and issued by the superintendent. The entire scope of the provision is limited to some document made by the superintendent, and cannot be extended to matters independent thereof, or incidental thereto, and which are not named in the statute, although they may be essential to the creation of a lien.

Dissent — Dyke

YAH DYKE, J., dissenting.

—I dissent. I am unable to agree with the prevailing opinion in the construction it places upon the amendment of the street law of 1889. To limit the operation of the amendment to such errors, irregularities, and illegalities. as affect only the assessment as such, as contradistinguished from either of the other instruments, to wit, the diagram, war-s rant, and certificate of the city engineer which are required to be recorded by the superintendent of streets with the assessment proper in order to constitute the lien, is, in my opinion, too strict and technical. It is true that a proceeding to enforce a lien under the street law is

in invitum,

and that the rule in such eases requires a strict compliance with all the provisions of the law in relation thereto. But in the construction or interpretation of the statute itself no such rule applies. The street law itself declares: “This act shall be liberally construed to effect the ends of jqstice.” (Street Improvement Act, sec. 12.) Further, the amendment in question is remedial in its character. The purpose of the amendment evidently is to afford a remedy where a party who has fulfilled his contract is defeated in a suit to enforce a lien on property benefited by his labor, in consequence df errors, irregularities, or illegalities in any of the proceedings necessary to constitute a valid assessment. Such a statute “must ” therefore be construed liberally, and when the meaning is doubtful it must be construed to extend the remedy.”

(White v. The Mary Ann,

6 Cal. 462; 65 Am. Dec. 523;

Cullerton v. Mead,

22 Cal. 96; Sedgwick on Statutory and Constitutional Law, 559-61.) As said by Sawyer, C. J., in

Himmelmann v. Cofran,

36 Cal. 412: “The case does not fall within the principle of a certain class of cases which hold that, when a power is conferred which in the nature of things cannot be but once exercised, a defective execution exhausts the power. In this case, the statute makes it the duty of the superintendent, after the fulfill

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nxent of the contract to his satisfaction, to make an assessment to cover the sum due for the work performed, in accordance with the provisions of the act, and afterward to issue a warrant thereon. No time is limited within which the assessment must be made. Time is, therefore, not of the essence of the power.” In

Shepard v. McNeil,

38 Cal. 75, the court say: “It is not material in what form he originally signed the assessment, provided that, it was afterward properly signed in due time to constitute a lien, which is the material thing to be done.....If the superintendent ‘originally fails to authenticate his record by his official signature, it is his duty afterward to make a valid assessment.”

Dyer v. Scalmanini,

69 Cal. 637, was an appeal from the judgment rendered on a second assessment, and the court say: “If it were true, as matter of law, that such first assessment was void, then the superintendent aforesaid could have made another assessment for the work actually authorized, and if, in doing so, he complied with the statute, as was the case in the assessment in controversy here, that would have been valid, since the law under which he made it does not prescribe the time within which it must be done after the work was performed.’/

Wood v. Strother,

76 Cal. 545, 9 Am. St. Rep. 249, was an appeal from a judgment awarding a writ of

mandamus

to compel the countersigning of a street assessment warrant. The court below found that no valid assessment had previously been issued, and, in affirming the judgment, it is said: “If there was a previous assessment which was invalid, that would not, of itself, be a reason why a valid assessment should not be made, if the prior proceedings were sufficient to support it.”

As stated in

Rauer v. Lowe,

107 Cal. 234: “The statute requires four things to be recorded in order to constitute the one thing called a lien, viz., the assessment, warrant, diagram, and engineer’s certificate; and these are intended to constitute one record, and should be found together. Before the amendment of the statute in 1889 these certificates formed no part of the assessment record, and as they were intended only for the information of the superintendent of streets, the custom of placing tjiem in a separate record was proper, though not required

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by the statute. That fact, however, emphasizes the intention of the statute that they should be recorded in the assessment record of which they are an essential part.” And in

Gray v. Lucas,

115 Cal. 430, it was held that the assessment, warrant, and diagram should be attached together, but the law did not require that a certificate should be attached, but only that it “should be recorded in connection with the record of the assessment.”

When, therefore, there is a defective certificate, or no certificate at all, recorded, thére is a defect, informality, omission, irregularity, and illegality in the assessment, because the law requires the certificate to be recorded, together with the assessment, diagram, and warrant; in other words, they are parts of one assessment record.

It is a harsh rule of law that defeats the party, without fault' on his part, but through the blunders or negligence of a public official, from recovering the fruits of his labor; and unless the language of the statute be so plain and mandatory as to leave no doubt as to its meaning, it ought not to be so construed as to work that result.

Ede v. Cuneo

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Synopsis

Opinion — Harrison

HARRISON, J.

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Dissent — Dyke

Dissent — Beatty

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