Dougherty v. Hitchcock

Street Assessment in San Francisco — Mode of its Authentication. — An assessment made by the Superintendent of Streets of San Francisco, to cover the sum due for the improvement of a street, is an official act, and must be attested by his official signature.

Idem, as Evidence.—An assessment not thus officially attested, though attached to the diagram and the Superintendent’s warrant, which were in due form and properly attested, does not constitute a valid assessment, and is not admissible in evidence, either by itself or in connection with the warrant and diagram.

Contracts and Assessments for Street Improvements. — Under the statute regulating street improvements in San Francisco the Board of Supervisors adopted a resolution of intention to grade Clay street from Taylor to Jones and from Jones to Leavenworth streets, and the crossing of Clay and Jones streets, and subsequently ordered said work to be done, and the clerk advertised for proposals for its performance, notifying bidders to put in separate bids for each block and said crossing. The Board awarded a contract for the whole work. The only contract entered into by the Superintendent of Streets, etc., with the successful bidder, was for the grading of one block only—that from Jones and Leavenworth streets. Held, first, that the resolution of intention and its publication constituted the sole authority of the Board to proceed, in the statute mode, to order said work to be done, and that thereby no authority was conferred to act upon any other or different work; second, that the work designated in the resolution of intention constituted one distinct and entire subject matter ; third, that the resolution of award constituted the sole authority to the Super ntendent, who acted ministerially only in making a contract under it, and that the contract, by reason of variance between its terms and the resolution of award, was unauthorized and void; and fourth, that a contract duly authorized under said Act, and executed according to its requirements, is indispensable to the validity of any assessment upon property to pay for street improvements.

Idem—Appeal in, to the Board.—In such case the defect in the contract is not cured by the failure of the lot owners to appeal for its correction to the Board of Supervisors, because, had an appeal been taken the defect could not have been remedied by the Board.

Authority of Board of Supervisors to make Street Improvements. — Under the provisions of sections three and eight of the Act of 1862, (Stats. 1862, p. 391,) the jurisdiction is vested in the Board of Supervisors to determine whether the whole or a portion, and if a portion what portion of a street improvement shall be done as a single improvement. It is necessary to a proper execution of this important power, and to protect the interests of property owners, that such determination should be distinctly and clearly expressed, so as to enable those interested to act intelligently. When so expressed the subsequent proceedings of the Board must be in strict pursuance thereof as their sole authority, and if not so pursued, such subsequent proceedings will be void—Per Mr. Chief Justice Sawyer.