Cohn v. Federal Construction Co.

SHAW, J.

In this case the plaintiff sued to enjoin the city treasurer and street superintendent of Bakersfield from issuing bonds for the amount due on a street work assessment against property of the plaintiff. The Federal Construction Company was the contractor who constructed the improvement and it is made a party defendant. The court concluded that the bonds were duly authorized and refused the injunction prayed for. From this judgment plaintiff appeals.

The only defect attributed to the proceedings leading up to the issuance of the proposed bonds is the fact that the resolution of intention, upon which the proceedings were based, does not specify the period for which the bonds were to run. Its language on that point is: “Said serial bonds shall extend over a period not exceeding five years from their date.” No protest or other objection was made by the plaintiff or any other property owner to the proceedings. The contract was regularly awarded, the work was completed, and the assessment and warrant were regularly made and recorded. At the time the suit was begun the superintendent of streets had certified the list of assessments to the city treasurer and the treasurer was about to issue the bonds.

The resolution of intention was passed on July 10, 1911. At that time the amendments of 1911 of sections 2 and 4 of the street bond act (Stats. 1911, p. 1201), the amendment of 1899 of section 3 of said act (Stats. 1899, p. 40), the amendments of 1905 to section 3 of the Vrooman Act (Stats. 1905, p. 63), and the amendment of 1909, adding section 5½ to the Vrooman Act (Stats. 1909, p. 31), were in force, and they constitute the law governing the proceeding.

The passage of the resolution of intention, as provided in section 3 of the Vrooman Act, is the first step in the proceeding. Section 2 of the bond act provides that the city council “shall have the power, in its discretion, to determine that serial bonds shall be issued ... to represent assessments of twenty-five dollars or over for the cost of any work or improvement authorized by the said street work act. Said

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serial bonds shall extend over a period not to exceed ten years from their date, and an even annual proportion of the principal sum thereof shall be payable, by coupon, on the second day of January every year after their date, until the whole is paid,” and that the interest shall not exceed ten •per cent per annum. Section 3 of the bond act provides that when the city council determines that serial bonds may issue for the expenses of any work under the street work act “it shall so declare in the resolution of intention to do said work and shall specify the rate of interest which they shall bear. The like description of said bonds shall be inserted in the resolution ordering the work, in the resolution of award, and in all notices of said proceedings required by said street work act to be posted or published; and also a notice that a bond will issue to represent each assessment of twenty-five dollars or more remaining unpaid for thirty days after the date of the warrant, or five days after the decision of said council upon an appeal, and describing the bonds, shall be included in the warrant provided for in section 9 of said street work act.” Section 4 of the bond act sets out the form of the bond in full. Among the provisions prescribed is the statement that “The term of this bond is-years from its date, and at the expiration of said time the whole sum then unpaid shall be due and payable; but on the second day of January of each year after its date, an even annual proportion of its whole amount is due and payable, upon presentation of the coupon therefor, until the whole is paid.” Said section also provides that annual coupons shall be attached to each bond for an even annual proportion of the principal thereof.