Richardson v. Tobin

By the Court: The plaintiff sues for the recovery of an assessment for street work, performed under proceedings commenced under the Act of April 1st, 1872 (Stats. 1871-2, p. 804), the fourth section of which provides that the resolution expressing the intention of the Board of Supervisors to cause the work to be done shall be published “ for the period of ten days in the paper doing the printing under this law, and also in two daily newspapers, one of which newspapers shall be ¡published as a morning edition, and one as an evening edition, printed and published in said city and county, for ten days, Sundays and non-judicial days excepted.” The same section further provides that “ at the expiration of any notice of intention the Board of Supervisors shall be deemed to have acquired jurisdiction” to order the work to be done. By section thirteen it is provided that in bringing an action to, recover an assessment the complaint need not show any of the proceedings prior to the issuing of the assessment, diagram, and certificate; but it shall be deeme'd sufficient if it shows the title of the Court, the date of the issuing of [32]the assessment, and of the recording thereof, the book and page where recorded, a general statement of the work done, a description of the property sought to be charged, the amount assessed thereon, that the same remains unpaid, and with a proper prayer for relief. The complaint in this case pursues the form here indicate,d, and contains all the averments which the statute requires, but does not set forth any of the proceedings prior to the issuing of the assessment, diagram, and certificate. One of the defenses especially authorized by the statute is a “want of jurisdiction to order the work.”

It is quite clear that, in order to acquire jurisdiction to order and proceed with the work, it is essential that the resolution that the Board of Supervisors intend to cause the work to be done shall be published as required by the statute. The only defense set up in the answer is “that the publication of the notice of intention was made in the following daily newspapers only, to wit: The Daily Examiner, the San Francisco Chronicle and the Abend Post; that the publication in the Chronicle commenced on a Tuesday and was continued through the week and the subsequent week, with the exception that the same was not published on the intervening Monday; that the Abend Post is a German paper piinted in the German language; that the resolution was printed for ten successive days, Sundays and non-judicial days excepted, therein, in the English language, and not in the German language.” A demurrer was sustained to the answer, and the defendant declining to amend, a final judgment was entered for the plaintiff, from which the defendant appeals.