Burke v. Turney

Department No. 1, McKinstry, J.: The sixth section of the Act of April 1st, 1872, (Statutes 1871-2, p. 804) provides: “Hotic'e of such award (of a contract) shall be published for three days.; and within five days after the first publication of the award, the owners of a majority of the frontage of lots and lands liable to be assessed for said work * * * may elect to do said work, and enter into a written contract to do the whole work at the price for which the same is awarded,” etc.

In the case before us the first publication of the award was made July 6th, 1876. On the 10th day of July, (less than five days after the first publication) the plaintiff and the Superintendent of Streets entered into the contract which is the basis of the present proceeding.

The Superintendent had no power to enter into the contract until after the expiration of the five days. (Hewes v. Reis, 40 Cal. 255; 45 Id. 279; 36 Id. 512; 30 Id. 536; 31 Id. 481; 34 Id. 281; 40 Id. 497; 50 Id. 210.)

The premature action of the Superintendent was one which affected his power or jurisdiction. His action was void; and that which was void does not become valid by reason of a failure to appeal. The property owners were not aggrieved; and the failure of the contractor to appeal did not operate, 1st, to create a grievance on the part of the defendants; and 2nd, to estop them from complaining of it.

Hor was the evidence showing that the five days after the first publication of the award had not expired when the contract between the Superintendent of Streets and the plaintiff was entered into, an affirmative defense. It is not necessary, therefore, to decide whether the Legislature can deprive a defendant of any other defenses than those specifically mentioned in the statute.

[488]By another statute the assessment, warrant, etc., are made prima facie evidence of the right of the plaintiff to recover; that is, of the regularity of all the proceedings of the several officers whose action preceded and resulted in the assessment. But this is a rule of eoidence, not of pleading. Assuming that the statutory form of complaint is sufficient, still the essential facts (which such form is supposed to allege, although they are not in fact alleged) must be proven before the plaintiff is entitled to a decree. Among these is the fact that the five days above mentioned and referred to had passed when the contract was made by the Superintendent. The introduction of the assessment and diagram by plaintiff proved prima facie that five days had elapsed after the publication of the award, before the contract was let by the Superintendent of Streets, but proved it only prima facie; and there can be no doubt that it was competent for defendants to disprove or overcome the evidence of that which it was incumbent on plaintiff in the first instance to establish. The plaintiff was not entitled to a decree, unless the five days had expired when his contract was made. The evidence of the defendants proved that the five days had not expired. If the defendants were not authorized to show that the five days had not expired, then was the assessment, etc., not merely prima facie, but conclusive evidence that the plaintiff was entitled to recover.