McDonald v. Patterson

Department No. 2, Thornton, P. J.: This is an application for a writ of mandate, commanding the defendant, who is Superintendent of Streets, Highways and [246]Squares for the City and County of San Francisco, to execute, • in his official character, a contract for the construction of a brick sewer in the northerly and southerly half of the crossing of Yan Ness Avenue and Pine Street, to connect in the center of said crossing with the sewer at present therein, so as to form a full crossing.

It appears from the facts stated in the petition of McDonald, (which are not denied) that on the 29th of December, 1879, the Board of Supervisors of the City and County of San Francisco adopted a resolution of intention to order the street work above designated; and that thereafter such proceedings were had, that a contract for doing the work referred to was on the 2nd of February, 1880, regularly awarded to the petitioner; that he (the petitioner) entered into and signed such contract containing the terms required by law, and did all other things which he was bound to do in the premises, and on the 9th day of February, 1880, he presented the contract so signed by him, with the proper bonds executed by himself and sureties, and requested the Superintendent, Patterson, to execute the contract on his part; which that officer refused to do, on the ground that he was forbidden by § 19 of art. 11 of the new Constitution from executing such contract.

The portion of the section of the Constitution referred to, which relates to this matter, is in these words:

■ “ No public work or improvement of any description whatsoever shall be done or made, in any city, in, upon, or about the streets thereof, or otherwise, the cost and expense of which is made chargeable or may be assessed upon private property by special assessment, unless an estimate of such cost and expense shall be made, and an assessment in proportion to benefits on the property to be affected or benefited shall be levied, collected, and paid into the city treasury before such work or improvement shall be commenced, or any contract for letting or doing the same authorized or performed.”

It is conceded that the cost and expense of the sewer to be constructed under the alleged contract is, by the terms of the statute under which this contract was awarded, chargeable and must be assessed upon private property by special assessment. Of this meaning of the statute we entertain no doubt.