Himmelmann v. Cahn

By the Court, McKinstry, J.: We think the judgment should be affirmed. The statute requires that the notice inviting sealed proposals should be conspicuously posted in the office of the Superintendent of Public Streets and Highways for five days. We think this requires that the notice should remain posted in that office for five official days. In other words, it must be posted [288]before the commencement of the first day; that is, before 9 o’clock A. m., when, by statute, the office is to be opened, and remain posted during the whole of the first, second, third, fourth, and until 4 o’clock p. m. of the fifth day, at which hour the statute authorizes the office to be closed.

The assessment mentioned in the second count contains no description of the property.

Rhodes, J., dissenting in part: The notice inviting sealed proposals for doing the work was published between 3 and 4 o’clock P. M. of the 25th of August, and immediately thereafter a slip was cut from the newspaper and posted, and both the publication and the posting ended on the 29th of August. The statute (Sec. 6) provides that “the Board of Supervisors shall cause notice to be conspicuously posted in the office of the Superintendent of Public Streets and Highways, and published for five days, inviting sealed proposals for the work contemplated.” The prevailing opinion does not question the sufficiency of the publication; and, as I construe the statute, no greater period is required for the posting than for the publication of the notice. The statute has assigned one and the same period for each, and I see nothing in the nature of those acts which requires or authorizes the Court to regard fractions of a day in one case, and not in the other, and thus require a longer period for the posting than for the publication of the notice.

I concur, however, with my associates, in holding that the nonsuit was properly granted as to the second count of the complaint, on the ground that the assessment contains no description of the property sought to be charged.