Shipman v. Forbes
Before: Harrison
Synopsis
Proceedings in Invitum — Mandatory Requirements oe Statute — Validity op Proceedings. •—In proceedings where the property of a citizen is to be taken, every requirement of the statute having the least semblance of benefit to the owner must be complied with; and when the form of the statutory proceeding is prescribed, its observance becomes essential to the validity of the proceedings.
Id.—Street Assessment — Date of Warrant — Insufficient Compliance with Statute. —Under section 10 of the act of 1872 (Stats. 1872, p. 813), relating to street assessments in San Francisco, which directs the superintendent of streets to attach to the assessment a warrant, and prescribe the form of the warrant and its date and authentication, the date is an essential part of the assessment, and includes the month and day of the month, as well as the year; and a warrant reciting the year merely, without the month or day of the month, is invalid.
Id. —Date of Signature of Auditor—Neglect oe Superintendent of Streets. —The fact that the county auditor, when he countersigned the warrant, wrote the date of his signing under his signature does not give the warrant itself that date, or cure the defect arising from the failure of the superintendent of streets to date it.
Harrison, J. Action to foreclose a street assessment in San Francisco.
The plaintiff offered in evidence the original assessment, diagram, warrant, and affidavit of demand and non-payment, to which defendants objected upon the ground that the warrant was not dated. The warrant is in the following form: —
“ By virtue hereof, I, C. S. Ruggles, superintendent of public streets, highways, and squares of the city and county of San Francisco and state of California, by virtue of the authority vested in me as said superintendent of public streets, highways, and squares, do authorize and empower James S. Dyer, his agents or assigns, to demand and receive the several assessments upon the assessment and diagram hereto attached, and this shall be his warrant for the same.
“ San Francisco, 1885. C. S. Ruggles,
“ Superintendent of Public Streets, Highways, and
Squares.
“ Countersigned by Fleet F. Strother,
“ Auditor of the City and County of San Francisco.
“ September 7, 1888.”
The court excluded the evidence, and rendered judgment for the defendants, and this ruling is now assigned as error. •
Section 10 of the act of 1872 (Stats. 1872, p. 813), under which the proceedings were had, directs the superintendent of public streets, highways, and squares to attach to the assessment a warrant, which shall be signed [574]by him. and countersigned by the auditor, and prescribes the form of the warrant. In this form, after giving the body of the warrant, its date and authentication are prescribed as follows:—•
“ San Francisco (date), eighteen hundred and -.
“-(Name of Superintendent),
“ Superintendent of Public Streets, Highways, and
Squares.
“ Countersigned by -(Name of Auditor),
“Auditor of the City and County of San Francisco.”
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