Nolan v. Reese

By the Court, Shafter, J.: This is an action to recover a street assessment levied in the City and County of San Francisco. The plaintiff sues as assignee of the original contractor.

First—The defendant offered to prove at the trial that the plaintiff’s assignor “ made a private contract with a part of the owners, but less than a majority of the frontage of the lots liable to be assessed, to do their work at a price less than that allowed by the contract made with the Street Superintendent ; which prevented defendant from securing a protest by the majority of the owners against the work, and from procuring a majority to elect to take the contract.” These facts were set forth as a special defence in the answer. The evidence was objected to and was excluded by the Court.

We held, in Emory v. The San Francisco Gas Company, 28 Cal. 345, and in Emory v. Bradford, 29 Cal. 75, that the adjoining property holders were not parties to the street contracts, under the Act of 1862. We said that the “ lot holder is in no sense a party to the transaction. When the work is accomplished, for the purpose of defraying the expenses, the municipal authorities levy an assessment upon the adjoining lands by virtue of the sovereign right of taxation delegated [486]by the Legislature of the State to the local government for that purpose, and collect it through the contractor himself. The owner of the adjoining lot has nothing to say about it, provided there is no fatal informality in the proceedings, except so far as his wishes are consulted in the first instance as to whether or not the municipal authorities shall undertake the work; and so far as he is heard through his representative in the Board of Supervisors. The city makes no contract for him individually. His liability arises out of no agreement between him, in his individual character, and the street contractor. He simply pays because the burden has been imposed ujaon him in common with other citizens.”

In view of these principles, the facts which the defendant offered to prove cannot be regarded as a fraud upon him as a party to the street contract in question, for he stood in no such relation. But it does not follow that the special defense could not avail him if the matter was left to the control of general principles. Under the Act of 1862, a street contract does not go necessarily to the lowest bidder; for the owners of a major part of the frontage of lots and lands liable to be assessed are allowed to elect within a limited period, to take the work at the price at which it may have been provisionally awarded to the lowest bidder. And it is further provided that all proceedings under the notice shall be stayed for the period of six months, on the filing of written objections', signed by the owners of more than one half of the frontage. It is unnecessary to inquire whether these provisions were inserted in the Act for the benefit of the lot holders individually or for the benefit of that portion of them in which the power of interposition is vested. It is enough that these provisions were in the legislative judgment needful to the just balance or equipoise of a statute relating to the public good. These provisions constitute a prominent feature in the machinery of the Act, and go directly to its policy. Though the street contract in question was free from illegality in itself considered, still assuming the facts which the defendant offered to prove, the side arrangements made by the contractor with a