Lambert v. Bates

HARRISON, J.

Action to foreclose a street assessment upon certain property in the town of Berkeley. Judgment-was rendered in favor of the defendant, and the plaintiff has appealed.

The contract for the work upon which the assessment was made provided that a portion of Alcatraz Avenue should be macadamized and guttered to the official line and grade. After the assessment was made the defendant appealed therefrom to the town council, and also from the act of the superintendent of streets in approving the work, and determining that the plaintiff had macadamized and guttered the street to the official grade, and had fully performed his contract. This appeal was afterwards overruled and disallowed by the council. Upon the trial herein the court found that the official grade for this portion of Alcatraz Avenue was established by the town council, June 23, 1892, by an ordinance passed on that day; that an attempt was made to change this grade by ordinance No. 595, which was passed February 11, 1895, but that this ordinance was not legally adopted, and, therefore, that the grade fixed by ordinance No. 405 had not been changed. The court also found that the work done by the plaintiff was not done to the official grade as established by ordinance No. 405, but was done to the grade given in ordinance No. 595.

The rule is firmly established that, if the owner would contest an assessment upon the ground that the work contracted for has not been fully performed, he must present that question upon an appeal to the city council for its determination. In the present case the defendant did make such appeal, but

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his appeal was overruled. It is, however, contended by him that, notwithstanding this fact, he is not precluded from again making the same objection to the validity of the assessment in an action for its enforcement. We are, however, unable to assent to this proposition.

Section 11 of the Street Improvement Act, after providing for an appeal from any act or determination of the superintendent of streets, declares: “Upon such appeal the said city council may revise and correct any of the acts or determinations of the superintendent of streets relative to said work . . . and require the work to be completed according to the directions of the city council. ., . . All the decisions and determinations of the said city council shall be final and conclusive upon all persons entitled to appeal under the provisions of this section as to all errors, informalities, and irregularities which said city council might have remedied and avoided.” The legislature has thus not only provided a tribunal for the purpose of determining whether the contractor has completed his contract according to its terms, but it has also declared that the decisions and determinations of that tribunal upon this question shall be “final and conclusive” as to all errors which it