Smith v. Cofran
Before: Sawyer
Synopsis
San Francisco Street Improvements—Assessment for—by Whom Made.—By the legislative Acts of 1862 and 1863, concerning street improvements in San Francisco, it is made the duty of the Superintendent of Streets, in the first instance, to make the assessment for street improvements, and deliver the same, with a warrant attached, to the contractor, authorizing him to collect the money from the owners of the lots liable therefor.
Idem—Remedy for Incorrect or Illegal Assessment.—By the provisions of said Acts, the assessment for street improvements and the warrant for the collection of the money from the owners of the lots, chargeable therefor, are required to be put in the hands of the contractor, who then has fifteen days from the date of the warrant within which to examine it, and if found -in any respeet to be incorrect or illegal, it is made his duty to apply to the Board of Supervisors, by appeal, to have it corrected and made legal. Idem. — This power of correction conferred on the Board of Supervisors extends to a ease where an assessment had been made by the Superintendent against a person not then living, and not to the owner of the lot, or unknown ownejIdem.—Said statutes make it the duty of the contractor, if he have an% ob^ptS6ns to the assessment, made by the Superintendent of Streets, for incoitectness or illegality therein, to appeal to the Board of Supervisors for their corr/cjioil if he fails to avail himself of this means of protection afforded him by*faw, in' case the assessment be incorrect or void, it is as much his own negmet as qf_Jhe^ Superintendent of Streets, and he cannot hold the latter responsible^ for the result.
On Petition for Rehearing :
Legality op Street Assessments.—To render an assessment for street improvements valid, the various acts prescribed by the statutes must, in all essential particulars, bo strictly performed. Among other essential things, the statute requires the assessment to show the name of the owner of each lot or portion of a lot, if known to the Superintendent making such assessment; and if unknown to him, the word eIdem.—With respect to such owner, not made a party to the assessment, it is no assessment; and this, whether as, in case no appeal be taken, the failure to make the proper entry of his name, or of the word “ unknown ” on the assessment was the neglect alone of the Superintendent of Streets ; or in case of such appeal, of the Board of Supervisors. In either case, such owner and his property are absolutely unaffected by the assessment, and he is under no obligation to take any steps, by appeal or otherwise, to avoid incurring personal liability or the incumbrance of his property by way of lien for such assessment.
Opinion — Sawyer
By the Court, Sawyer, J.: In Smith v. Davis, 30 Cal. 537, we held that the street assessment then and noxy in question created no charge against Davis, the owner of the land, or the land, because made against another party not then living, and not against the owner, or unknown owners, as required by the statute. The facts sufficiently appear in the opinion in that case.
Smith, the plaintiff in the former action, now sues to recover the amount of the assessment from the defendant, Cofran, the Superintendent of Streets for the City of San Francisco, who made the assessment, on the ground that it was his duty, under the statute, to state in the assessment the name of the true owner, if known, and if not known, to designate him as “ unknown,” and that in consequence of his neglect to name the true owner, or designate him as unknown, the assessment was void, and the plaintiff lost that portion of the sum due him apportioned to the lot sought to be charged.
Under the view we take, it will be unnecessary to determine whether the making of the assessment as a whole, or the particular act of stating in the assessment the name of the ■ owner taken by itself, is purely a ministerial act, or wholly or partly judicial in its character. If the Superintendent erred in this particular, the Act itself, under which the proceeding was had, provides a remedy' for correcting the error.
The assessment is made by the Superintendent and delivered to the contractor, with a warrant attached, authorizing him to collect the money. (Laws 1862, p. 397, Secs. 9, 10.) “ The * * * contractor or his assigns,” aggrieved “ by any acts or determination of the Superintendent in relation thereto, or having, or making any objection to the correctness or legality of the assessment, shall within fifteen days after the date of the warrant appeal to the Board of Supervisors,” etc., and “ the said Board may correct, alter, or modify said [315]assessment in such manner as to them shall seem just, and may instruct and direct the Superintendent to correct said warrant, assessment or diagram in any particular, and to make and issue a new warrant, assessment and diagram to conform to the decisions of said Board in relation thereto, at their option.” (Laws 1863, p. 530, Sec. 12.) Under these provisions of the statute, the assessment and warrant, after having been completed by the Superintendent, are put into the hands of the contractor, and he has fifteen days from the date of the warrant within which to examine it, and if found in any respect to be incorrect or illegal, to apply to the Board of Supervisors by appeal to have it corrected and made legal. The authority to correct, we think, clearly extends to defects of the kind in question.
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