Brock v. Luning
Synopsis
Street Improvement — Extension of Time.—Under the act o£ 1872, neither the hoard of supervisors of the city and county of San Francisco nor the superintendent of streets possesses the power to grant extensions of time for the performance of work under a street contract after the expiration of the time limited in the contract, and an order granting such extension is void.
Id. — Void Assessment—Proceedings in Invitum. — Proceedings upon which a street assessment are based, being in invitum, must he strictly pursued in strict compliance with the law under which they are taken, else the assessment will he void.
Id.—Contract for Street-work — Time for Completion — Power of Superintendent of Streets — Excessive Allowance of Time.— The award by the board of supervisors of a contract for a street improvement is the measure of the power of the superintendent of streets as to the time for the completion of the work, which is of the essence of the contract; and if the contract entered into by the street superintendent does not follow the award, hut grants more time for the completion of the work than is specified in the award, it is not the contract he was authorized to make, and is therefore invalid; and an assessment based npon such void contract is also void, and cannot he enforced.
Id.—Failure to Appeal — Void Contract—Grievance of Property Owner — Estoppel. — Where the action of the superintendent of streets in awarding a contract is void, the failure of the property owner to appeal, under section 12 of the law of 1872, to the board of supervisors, would not render the void contract valid; nor would the failure of
?! the contractor to appeal create a grievance on the part of the property owner, or estop him from complaining of a void assessment based upon the contract.
Id. — Eight of Appeal — Party “Aggrieved. ”—A property owner whose property has been assessed under a void contract for street-work is not a party “aggrieved,” and is not entitled to appeal from the action of the street superintendent in letting the contract.
The Court. —This appeal is from a judgment in favor of the defendant, and is brought up on the judgment roll alone.
The action was instituted to foreclose a street assess-# ment made by the superintendent of streets of the city and county of San Francisco. The court below found that the contract entered into by that officer and the person to whom the street-work was awarded by the board of supervisors of that city and county was void, because the time within which it specified the work was to be done was a different time than that authorized by the board in the notice inviting sealed proposals by bidders to do the work, and in the award of the contract; and that the assessment based upon such void contract was also void, and not to be enforced.
It seems from the findings that the time specified in the published proposal to bidders and in the award of the contract was twenty-five days from the signing of the contract, but the contract actually made and entered into by the superintendent of streets and the contractor [319]to whom the assessment was issued -was, that the work should be completed in thirty days from the signing of the contract.
The appellant contends that the difference in time between the contract authorized to he entered into, and that actually entered into was a mere irregularit3, and did not affect the validity of the assessment, the board of supervisors having once acquired jurisdiction to do the work; and that the defendant could have appealed to the board of supervisors under section 12 of the street act of 1872, and that not having done so, the assessment was valid, and should have been enforced.
He further claims that even if the contract was void as to five days of the time specified therein in which it was agreed to be done, yet it was good as to twenty-five days, and if the work was done in that tim^, the assessment was properly made.
It has been held in many cases that neither the board of supervisors nor the superintendent of streets possesses the power to grant extensions of time for the perform- - atice of work under a street contract after the expiration of the time limited in the contract, and that an order granting such extension is void. (Raisch v. City and County of San Francisco, 80 Cal. 4; Beveridge v. Livingstone, 54 Cal. 54; Fanning v. Schammel, 68 Cal. 428; Dougherty v. Coffin, 69 Cal. 454.)
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