Beaudry v. Valdez

By the Court, Sanderson, J.: Action to recover an assessment levied for the improvement of Broadway street, in the City of Oakland.

I. The first point, to the effect that the City Council had not acquired jurisdiction of the subject matter at the time they ordered Broadway street to be improved, because the resolution of intention had not been presented to or approved by the Mayor of the city, is answered by the case of Taylor v. Palmer, 31 Cal. 240. Upon this point the statute under which the City of Oakland works when improving her streets is identical with that under which the City of San Francisco works, and which was before us in Taylor v. Palmer. (Statutes of 1863-4, p. 333, Sec. 3; 1862, p. 392, Sec. 4.) In that case we held that resolutions of intention to improve streets, passed by the Board of Supervisors of the City and County of San Francisco, need not be approved by the Mayor in order to become valid and vest the Board of Supervisors with jurisdiction to order the improvements.

II. The resolution of intention, and the resolution directing the improvement to be made, in terms, only provided for macadamizing the street. The contract for the improvement, and the assessment, both call for macadamizing the street and curbing the sidewalks. The contract price for macadamizing was twenty-two cents per square foot in legal tender notes, or eight and and a half cents in gold coin of the United States; and for curbing, fifty cents per lineal foot in legal tender notes, or twenty cents in gold coin of the United States. In view of these conditions it is claimed that the entire proceedings thereby became vitiated, and that no recovery can be had against the defendants.

[276]To meet the point testimony was admitted by the Court, on the part of the plaintiff, to show that the word “ macadamizing ” represented a certain process of street improvement which, ex vi termini, included curbing of the sidewalks.

This was error. The question whether the term “ macadamizing ” also includes “ curbing” is settled by the statute under which the parties having the matter in charge were working. The second section prescribes what street improvements the City Council shall have power to cause to be made. Each kind is separately named and described. “ Macadamizing ” is named as one, and “ curbing ” as another. Hence, whether the former might or might not, under other circumstances, include the latter, is not the question. Does it, within the meaning of the statute under which the parties were working is the question, and it is clear that it does not, for they are there mentioned as different and distinct kinds of street work, which circumstance shows that in the sense in which the former term is used in the statute it does not include the latter.