Hendrick v. Crowley

By the Court, Sanderson, J.: Action for a street assessment. Plaintiff obtained judgment. Defendant obtained a new trial, and plaintiff appealed.

I. The ground for a new trial, first specified in the statement, is that the whole proceedings are void because the resolutions of the Board of Supervisors were not signed by the Mayor.

The proceedings were had under the Act of 1862, and we have repeatedly held that under that Act the resolutions of the Board of Supervisors in relation to street improvements need not be approved by the Mayor. They are valid without „ his approval. (Cochran v. Collins, 29 Cal. 131; Taylor v. Palmer, ante, 240.)

II. It appears from the complaint that the contract was let to the defendant and assigned by him to the plaintiff before the work was commenced; and the second ground upon which a new trial was asked was that the contract created no right of action in favor of the defendant against himself, and therefore the assignment transferred no such right to the plaintiff, or, in other words, the defendant could not have sued himself for the tax in question, and therefore his assignee, being in no better position and having no greater rights, cannot.

Regarding this action as upon the contract only, there is much seeming plausibility and force in the view suggested, but it cannot be so regarded. These street contracts are sui generis. They are but a part of the method devised by the Legislature for the purpose of accomplishing to a certain extent a double object—the improvement of streets in San' Francisco and the levy and collection of a tax to pay for it. The whole proceeding is aside from the common law, and is of purely statutory origin. The contract for the work is but one feature or step in the system devised by the Legislature for the purpose of enforcing the power of taxation in certain cases. We had occasion to consider at length the nature of [474]these proceedings in Emery v. The San Francisco Gas Co., 28 Cal. 345, and Emery v. Bradford, 29 Cal. 83, and it is not necessary to repeat what we said in those cases. The statute vests the City Government with power to improve its streets, and to raise a fund for that purpose by taxing the adjoining property. All else is mere mode and manner. For the purpose of relieving the City Government, so far as possible, from all risk and i-esponsibility in the premises, a peculiar system or mode of procedure is devised. Ordinarily, in view of the triple relations existing between the contractor, the City Government and the taxpayer, following the analogies of the common law, the City Government and the contractor would be the only parties to the proceedings so far as they relate to the making of the improvements, and the City Government and the taxpayer the only parties to the proceedings so far as they relate to the collection of the tax. But, for the purpose already suggested, a different plan has been adopted. The City Government and the contractor are the only parties to the proceeding so far as making the improvement is concerned ; that being done, the City Government acts alone in its political capacity in apportioning and levying the tax ; but when provision is made for the collection of the tax the City Government steps out of the triangle, and the contractor is thrust into her place and made her agent for that purpose. Independent of the statute, the tax would be due from the taxpayer tq the city, and the city would have to demand and sue for it if necessary; but the statute provides that the city shall not be responsible for the collection of the tax or subjected to the-risk, trouble and annoyance, but shall virtually assign her right of action for the tax to the contractor in full payment for his work and labor under her contract with him, and authorize him to sue in his own name to recover it, if necessary. -This being done, his relation of contractor is at an end. He has performed his contract to the satisfaction of the city,'which is the other contracting party, and has got. what he agreed to take for his work. If he sues he does not sue upon his contract with the city, but upon the draft, in