Ede v. Cogswell

California Supreme Court May 27, 1889 No. No. 11486Published

Before: Foote

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Holding. The court held that a street improvement contract entered into before the 1879 Constitution took effect was not invalidated by that Constitution, and that extensions of time for performance did not constitute new, prohibited contracts. Furthermore, the 1878 Act was supplementary to the 1872 Act, and the board of supervisors retained discretionary power to order improvements in parts.

Issues

Whether a street improvement contract entered into before the 1879 Constitution was rendered void by that Constitution.
Whether extensions of time for performance of a street improvement contract constitute new, prohibited contracts.
Whether the 1878 Act repealed the 1872 Act regarding the authority to contract for street improvements.
Whether the 1878 Act required street improvements to be performed as a whole rather than in parts.

Disposition. reversed

Quotations verified verbatim against the opinion

“An examination of both acts shows that the act of 1878 was supplementary merely to the act of 1872”

“It seems to give the board of supervisors full discretionary power to order what part should be graded in one or more contracts at a time.”

Synopsis

Constitutional Law—Obligation of Contract—Contract for .Street Improvement — Extension of Time.—A valid contract for a street improvement made before January, 1880, was not impaired or affected-by the constitution of 1879; and the granting of an extension of time-for the performance of such contract does not constitute a new contract for a street improvement, within the constitutional prohibition contained in section 19 of article 11 of that constitution.

San Francisco Street Law—Authority of Street Superintendent and Supervisors. — The San Francisco street act of 1878 was merely supplementary to the act of 1872, which was left intact as regards the authority of the street superintendant to make a contract for the grading of one block, and the jurisdiction of the hoard of supervisors to have the work performed. Nor is such a contract void because authorizing only part of the improvement authorized by the act of 1878 of eight blocks in one contract. That act does not require that such work should he let as an entirety, but gives the board of supervisors discretionary power to-order what part thereof should he graded in one or more contracts.

Foote, C. This is an action to recover on an assessment upon certain property of the defendant, to pay for work done in grading Seventh Street, from King to Berry Street, in the city and county of San Francisco. The plaintiff sues as the assignee of one Buckman, the contractor who is alleged to have performed the work.

The improvement was made by virtue of a statute contained on page 231 of the legislative acts of 1877 and 1878, which gave certain powers to the board of supervisors of said city and county in addition to those which already existed under the general street improvement act of April 1, 1872. (Acts of the Legislature, 1871-72, pp. 804 et seq.)

The cause was heard before the court without a jury, and upon the evidence adduced a nonsuit was entered; from the judgment therein, and an order denying a new trial, this appeal is taken.

There seems to be no dispute but that the assessment, warrant, diagram, and return show prima Jade the regularity of all the proceedings prior thereto.

The contract to which the complaint has reference, as well as the assessment, were in due form; so that if the contract was performed under constitutional authority, and was authorized and made in accordance with the acts of 1872 and 1878, supra, it seems to be conceded on all sides that the nonsuit should not have been granted on the grounds alleged, that the evidence was insufficient [281]to sustain the action, or that the claim set up in the complaint was invalid.

The main defense upon which the respondent relied in the court below, and relies here, is, that the claim set forth in the complaint is void, because in contravention of section 19 of article 11 of the state constitution of 1879.

He claims that, although the contract on the performance of which the assessment was issued may have been authorized by the act of April 1, 1872, and March 12, 1878, supra, if performed before the date of the going into effect of the constitution of 1879, yet that being unperformed at that time, to wit, January, 1880, it became null and void, and no valid assessment based upon it could be made.

The contract was entered into November 28, 1879, and was by its terms to be completed in one hundred days; before the expiration of the one hundred days, an additional time of sixty days was given by the board of supervisors of the city and county above mentioned, and before the last-mentioned extension expired, an additional extension of one hundred days was granted, within which latter time the work was completed.

Ede v. Cogswell

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