Bay Rock Company v. Bell

[151]

CHIPMAN, C.

—Action to foreclose lien for street-work in the town of Berkeley. Plaintiff had judgment, from which and from the order denying their motion for a new trial defendants appeal.

The resolution of intention described the work to be done as follows: “That San Pablo Avenue, in said town, . . . degraded for its full width to the official lines and grade, curbed, guttered, and macadamized, and that cross-walks be constructed across said San Pablo Avenue,” at certain named street crossings, “and that a culvert be constructed on the east side of said San Pablo Avenue, across Hopkins Street.” The resolution was adopted on September 14, 1891, and contained the following paragraph: “(e) That said macadamizing shall be done and said culvert and cross-walks shall be constructed under and in accordance with the special specifications adopted for said work by said board on the fourteenth day of September, 1891.”

Respondent’s counsel states with admirable conciseness certain principles of settled law in this class of cases, which, to shorten the discussion, he concedes without cavil: 1. The resolution of intention is the jurisdictional foundation of the proceedings, and failure to comply with the requirements of the statute with respect to the contents of the resolution is fatal to a contract founded upon it, and to any assessment to pay the contractor for the work; 2. The statute requires that the resolution of intention shall contain an intelligible description of the proposed work, and without such description a contract founded upon the resolution is void; 3. Failure of the resolution of intention to describe the work cannot be obviated by putting a sufficient description into any subsequent part of the proceedings; 4. Unless the resolution of intention is published as prescribed by the statute, no valid contract can be made under it.

In declaring that the street should be “ graded for its full width to the official lines and grade, . . . and macadamized,” the resolution sufficiently described that part of the work.

(Schwiesau

v.

Mahon,

128 Cal. 114.) But the resolution also required that the street be “ curbed, guttered, . . . and that cross-walks be constructed across” certain streets named, “and that a culvert be constructed on the east side of San Pablo Avenue, across Hopkins Street.”