McBean v. City of San Bernardino

De Haven, J. — This action was brought for the purpose of recovering from the defendant city the sum of $4,221.19, claimed to be due from it on account of the construction of a sewer, and its promise to pay for the same. A demurrer to the complaint was sustained, and judgment thereupon given for defendant. The question is thus presented by this appeal, whether, upon the facts alleged in the complaint, the plaintiff is entitled to the relief which he demands.

It appears from the complaint that the sewer referred to was constructed along the center line of First Street, in the city of San Bernardino, between C and I streets, and between these terminal points the southern boundary of the city is the center line of First Street, so that one half of the sewer, as constructed, is outside of the city. It was constructed by the assignor of plaintiff, under a contract awarded to him by the board of tras[185]tees of defendant, and executed by its superintendent of streets, under the provisions of the “Act to provide for work upon streets, lanes, alleys, courts, places, and sidewalks, and for the construction of sewers within municipalities,” approved March 18,1885. (Stats. 1885, p. 147.) The contract contained the clause which is required to be inserted in such contracts by section 6 of that act, to the effect “ that in no case, except where it is otherwise provided in this act, will the city, or any officer thereof, be liable for any portion of the expense, nor for any delinquency of persons or property assessed.”

The complaint further alleges that the work called for in the contract was fully performed, and was approved and accepted .by the superintendent of streets, “ who thereupon, on the twelfth day of April, 1889, assessed and apportioned the total amount of expense of said work necessary to be assessed to cover the sum due for said work, including the incidental expenses thereof, as hereinafter set forth, to wit, the sum of $7,057.32 upon all the lots of land fronting on said north side of First Street, from the center line of C to the center line of I Street, each lot or part of each lot being separately assessed in proportion to its frontage on said First Street.”

It is then alleged, in apparent contradiction to this, that said lots upon the north side of Front Street were, by the assessment mentioned, assessed to pay the sum of $2,836.19, and that the balance of the cost of constructing said sewer, to wit, $4,221.19, was “ chargeable to said city, to be paid out of the municipal treasury of said city.” In the view we take of the case, it is not necesary to determine whether such lots were assessed for the whole or only a part of the contract price for the construction of the sewer.