Warren v. Chandos
Before: Harrison
Synopsis
Street Assessment — Improvement not Specified in Resolution or Contract — Change of Grade by Supervisors — Cost of Filling Lessened—Power of Supervisors.—The supervisors have no power to authorize a change in the amount of assessment constituting a lien, by increasing or diminishing the work to be. done by a contractor for a street improvement, and where they lowered the grade of a street after the letting of a contract under a resolution of intention to fill it to a higher grade, the improvement to fill it to the lower grade not being specified in the resolution of intention, nor in the contract, the supervisors had no jurisdiction to order such improvement, and there was no contract therefor, and no basis for a valid assessment for such improvement.
Id.—Proceedings in Invitum — Equity—Statutory Power—Validity of Assessment.—Proceedings for the improvement of streets are in invitum, and purely statutory, and afford no opportunity for invoking any of the principles of equity, and the validity of the assessment therefor depends upon the exercise of a statutory power, and the party seeking the right to enforce it must show that the statutory power has been strictly pursued.
Id.—Appeal to Supervisors Unnecessary.—Where an assessment is rendered invalid by a change in the official grade of a street after the letting of a contract to the official line, the lotowners need not appeal to the board of supervisors for a correction of the assessment, and there is no error in such case which could be corrected on appeal.
Id.—General Power of Supervisors—Effect of Change of Grade —. Annulment of Contract.— The supervisors, having general ^ower over all improvements of streets, and to fix and change the official grade or width thereof, and to rescind a previous order for the improvement of a street, the effect of an order changing the line of the official grade of a street, after a contract has been let for the grading thereof, under a prior resolution of intention, is to take away jurisdiction to make the improvement previously authorized, and the contract for doing the work thereby ceases to be operative, and the contractor, whatever remedy he may have for being prevented from carrying out his contract, cannot proceed with its performance, and make the expense a charge on adjacent lands.
Harrison, J. Action upon a street assessment. A contract for grading Kansas street, in San Francisco, for several blocks to the official line and grade, was awarded to plaintiff’s assignor, at the rate of thirty-one cents per cubic yard, and was entered into between him and the superintendent of streets September 22, 1891. After he had commenced work under the contract, viz., June 15, 1892, an order was passed by the board of supervisors changing the grade of that portion of Kansas street embraced in the contract, by which the [384]same was lowered several feet. The grading to be done under this contract was a fill, so that, by the change of grade, the cost of doing the work and the assessment therefor were lessened. No further order or proceeding was had by the board of supervisors in reference to said grading, and the work therefor was completed by the contractor and his assignee to the official grade, as established by the order of June 15, 1892; and thereafter, June 16, 1893, the superintendent of streets made an assessment therefor, upon which the present action was brought. The plaintiff had judgment, and the defendants have appealed.
An underlying principle of the street improvement act is that the owners of the lands which are to be assessed for the expense of the improvement shall be informed in reference thereto before any order for the improvement can be made, and that they may themselves do the work that may be ordered. By section 3 of the act, they have an absolute veto for six months upon the work proposed by the city council, and section 5 provides that, after the contract has been awarded to the lowest bidder, the owners of three-fourths of the frontage may elect to take the work, and enter into a contract to do it, at the price at which it has been awarded, and thus incur only the actual expense of the work. This necessarily presumes that they can know after the award, and before the contract is entered into with the successful bidder, the amount of work which is to be done, and have an opportunity to estimate its cost, in order. to determine whether they will elect to do the work at the price at which it is awarded.
In Bolton v. Gilleran, 105 Cal. 244, 45 Am. St. Rep. 33, it was said: “The statute gives to the owners of the land to be assessed the right to take the contract at the price at -which it was awarded to the successful bidder. This implies that the owners shall be definitely informed of the work which is to be done, and of the amount for which the assessment is to be made, in order that they may intelligently consider whether it will be to their
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