King v. Lamb

Haynes, C. This is an action brought by the plaintiff to foreclose a lien for street work upon the north fifty-six feet of lot No. 4, in the block bounded by T and U and Second and Third streets, in the city of Sacramento, the property of the defendant. The plaintiff had findings and judgment for the sum of seventy dollars and seventy-four cents, with interest, and an attorney’s fee of fifteen dollars. The defendant appeals from the judgment and from an order denying his motion for a new trial.

The main ground upon which defendant relies for a reversal of the judgment and order is that the board of trustees never acquired jurisdiction to order the improvement.

Three points are made in support of this contention:

1. “That the board of trustees did not designate the newspaper in which the resolution of intention should be published.” That part of the resolution material to be noticed is as follows: “The daily Bee is hereby designated as the newspaper published and circulated in the city of Sacramento in which notice of the adoption of this resolution of intention shall be published for a period of two days, and the notice thereof for six days, as often as said newspaper shall be issued therein. Adopted March 19, 1894, by the following vote: Ayes— Wachhorst, Kent, Davis, Brag, Towser, Devine, Leonard, Lawton, Hennish. Noes—None. W. B. Lawton, President of the Board of Trustees; O. S. Flint, Clerk of the Board of Trustees of Sacramento City.”

No order or resolution was passed by the board of trustees relative to the publication to be made of the resolution of intention other than appears in the resolution itself, and it is contended that an order to publish a “notice” of the adoption of a resolution cannot be construed as providing for the publication of the reso[403]lution, and that the requirement of the statute in this particular is jurisdictional.

No question is made but that the resolution, as adopted, was published in accordance with the requirements of the statute, and we think it'was not at all material that a separate order was not made designating the paper in which the publication should be made.

It is contended, however, that the order here was not for the publication of the resolution of intention, but for the publication “of a notice of the adoption” of such resolution. If the words “notice of the adoption of” had been omitted, the direction would have been perfectly clear that the resolution should be published for a period of two days, and the notice thereof for six days; but the words above quoted may be regarded as mere surplusage which cannot mislead, and certainly did not mislead, since the resolution itself was published as required by the order.