Porphyry Paving Co. v. Ancker

Vanclief, C. Action to enforce a street assessment against defendant’s land situate in the city of San Ber-nardino. The judgment of the lower court was in favor of the plaintiff, and the defendant has appealed therefrom, and from an order denying a new trial.

1. Appellant contends that the court erred in overruling his demurrer to the complaint on the grounds that it does not state a cause of action, and that it is ambiguous and contradictory.

The complaint appears to be neither ambiguous nor contradictory; and I think it states a cause of action. But it is contended by counsel for appellant that it is deficient in several respects, only one of which, however, is sufficiently plausible to merit special consideration.

The third section of the act of March 18, 1885, “ to provide for work upon streets, lanes, alleys,” etc., as amended March 31, 1891 (Stats. 1891, p. 196), provides: “Before ordering any work to be done .... the city council shall pass a resolution of intention so to do, and describing the work, which shall be posted conspicuously for two days on or near the chamber door of said council, and published by two insertions in one of more daily, semi-weekly, or weekly newspapers published and circulated in said city, and designated by said council for that purpose. The street superintendent shall there[342]upon cause to be conspicuously posted along the line of said contemplated work or improvement . . . ; notices .of the passage of said resolution.He shall also cause a notice, similar in substance, to be published for six days,” in designated newspapers.

It is properly alleged in the complaint that the resolution of intention was posted and published for two days in the manner required, “said posting being continuous from January 6,1892, to January 16,1892 .... said publication being on the sixth, seventh, and eighth days of January, 1892.And that upon the twenty? sixth day of March, 189®, the street superintendent of said city caused to be posted along the line of said contemplated work” the notice required to be posted by him, and caused a similar notice to be published in a newspaper, etc.

The point made by appellant is that it should have been alleged that the street superintendent posted and published the notice required to be posted by him, immediately after the expiration of the two days’ publication of the notice posted on the chamber door of the council; whereas it is alleged that the notices required to be posted and published by him were posted and published March 26, 1892, more than two months after the two days’ publication. It is contended that the word “ thereupon,” in the sentence, “The street■ superintendent shall thereupon cause to be conspicuously posted,” etc., means immediately; that is, immediately after the two days’ publication.