Partridge v. Lucas

De Haven, J. This is an action to recover upon a street assessment. In the superior court a demurrer to the complaint was sustained, and judgment thereupon rendered for defendant. Plaintiffs appeal.

1. It is well settled that “the passage and publication of the resolution of intention are acts by which the board acquires [520]jurisdiction; and by those acts they acquire jurisdiction to make only such improvements as they described in the resolution, and they cannot, therefore, lawfully cause work other than that which is described to be performed.” (Beaudry v. Valdez, 32 Cal. 276; Himmelman v. Satterlee, 50 Cal. 68.) The complaint alleges that the board of trustees of the town of San Rafael passed a resolution declaring it to be the intention of such board to order “that B Street .... be macadamized”; and thereafter, assuming to act under such resolution of intention, awarded to plaintiffs a contract to macadamize the street mentioned, and also to construct therein rock gutterways, “formed by laying flat stones even on their upper surfaces .... and not more than nine inches square .... the stone to be hand laid . ; . . and securely spawled where openings between the joists occur,” the interstices to be filled “ with clean, hard rock, finely broken and screened.”

It is plain that the work described in the resolution of intention did not include the construction of rock gutterways in the street to be macadamized, and therefore the board of trustees did not, under the rule above stated, acquire jurisdiction to contract for such gutterways, and the contract as to these is void. The word “macadamize” has a fixed and definite meaning and refers, not only to the bind of material to be used in covering a street or road, but also to the manner in which it is to be laid. .It means to cover a street or road “by the process introduced by Macadam, which consists of the use of small stones of a uniform size, consolidated and leveled by heavy rollers.” (13 Am. & Eng. Encycl. of Law, p. 1194.) The construction of rock gutterways in the manner described in the contract awarded to plaintiffs is something entirely different from the ordinary work of macadamizing the surface of a street as thus defined; and, unless expressly named and called for in a contract, the contractor undertaking simply to macadamize a street would not be required to construct such gutterways in order to complete his contract; and, although it may be true that in many instances such gutterways would be of great benefit to streets paved with macadam, still this fact would not render their construction in such streets any the less a distinct improvement, and one not to be deemed as included in a resolution of intention or