Fitzhugh v. Ashworth

California Supreme Court Dec 20, 1897 No. S. F. Nos. 634, 635Published

Before: McFarland

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Holding. The court held that engineering services performed under a prior, abandoned resolution of intention cannot be included as 'incidental expenses' in an assessment for work performed under a subsequent, distinct resolution of intention. Consequently, the superintendent of streets must pay the collected incidental expenses to the engineer who performed the work under the active resolution.

Issues

Whether engineering services performed under an abandoned resolution of intention constitute 'incidental expenses' for work performed under a subsequent resolution.
Whether mandamus is an appropriate remedy to compel a superintendent of streets to pay collected incidental expenses to the engineer entitled to them.

Disposition. affirmed

Quotations verified verbatim against the opinion

“compensation could not be legally included as “incidental expenses” of the work done under the subsequent and entirely new resolution of intention, No. 8629”

“it is his duty, enjoined upon him by law, to pay the sum to the party entitled thereto; and under these circumstances we think that mandamus was a proper proceeding”

Synopsis

Street Improvement—Construction of Sewer—Resolution of Intention —Compensation of City Engineer—Payment to Superintendent of Streets—Work of Former Engineer under Abandoned Resolution— Mandamus.—Under the act ot 1889, p. 162, which provides for work upon streets, etc., and for the construction of sewers within municipalities, the resolution of intention under which the work of the construction of a sewer is done, is the only foundation for the jurisdiction of the board to proceed with the work, and all “incidental expenses,” including the compensation of the city engineer, which are required to be advanced by the contractor to the superintendent, for payment by Mm, are necessarily connected with the work done in the proceedings had under and in connection with such resolution, and property holders cannot be burdened with expenses incurred under any former abandoned resolution, nor can the compensation of a former city engineer for work done and plans and specifications and diagram prepared by him for the proposed construction of the same sewer under a former abandoned resolution be considered or taken as any part of the “incidental expenses” advanced by the contractor to the superintendent of streets, under a subsequent resolution of intention which was carried out, and the superintendent of streets may be compelled by mandamus to pay the compensation advanced for the city engineer to the one who acted under the latter resolution.

Id.—Reference in Resolution to Former Plans—Aid to Hew CityEnginber.—Plans and specifications do not constitute a necessary part of a resolution of intention, and, when specified therein, are superfluous, and need not be followed; and the fact that a subsequent resolution of intention to construct a sewer refers to the former plans and specifications prepared by a former city engineer under an abandoned resolution does not make the compensation of such former engineer any part of the incidental expenses to be advanced to the superintendent of streets under the subsequent resolution; and when the board ordered the new city engineer to make plans, specifications, diagram, etc., under such resolution, and the work was completed thereunder, the fact that the new city engineer was aided to some extent by the plans, maps, drawings, etc., made by the former engineer, does not entitle the compensation of the former engineer to be included in the incidental expenses so advanced, whatever other legal remedy, if any, he may have therefor.

ID-_Mandamus—Duty Enjoined by Law upon Superintendent of Streets _Payment of Money Advanced.—Money advanced to the superintendent of streets by the contractor to cover the compensation of the city engineer as part of the “incidental expenses” required by law to be so advanced to the superintendent of streets, is held by the superintendent of streets in his official capacity, and it is a duty enjoined upon him by law to pay the sum to the party entitled thereto; and mandamus is a proper proceeding to enforce the rights of such party. ■ . .

McFARLAND, J. This is an appeal by the defendant Ash-worth and the intervenor Tilton, from a judgment of the superior court in mandamus, whereby it was decreed that the defendant Ashworth, as superintendent of streets, etc., of the city, and county of San Francisco, do pay to the plaintiff the sum of $5,713, with interest. Appellants also appeal from an order denying a new trial.

The real contest is between the intervenor, Tilton, who was city and county surveyor and engineer from the first Monday in January, 1891, to the first Monday in January, 1893, and the respondent, who was such surveyor and engineer from the first Monday in January, 1893, to the first Monday in January, 1895. The law which provides for work upon streets, lanes, etc., and for the construction of sewers within municipalities, requires that a contractor for such work “must advance to the superintendent of streets, for payment by him,” certain enumerated costs, and “other incidental expenses” (Stats. 1889, p. 162); and it is further provided that “the term ‘incidental expenses,’ as used in the act, shall include the compensation of the city engineer for work done by him.” On December 13, 1893, while respondent was city surveyor and engineer, the supérintendent of streets, who was then W. W. Ackerman, in pursuancé of preliminary steps and orders regularly taken and made, en[395]tered into a written contract in due form with one W. L. Prather, Jr., for the construction by the latter of what is called the “Richmond outlet sewer.” Ackerman was superintendent until the first Monday of January, 1895, when the present appellant became superintendent. This contract was subsequently assigned by Prather to Henry Matthews, who duly performed the work provided for in the contract, and completed the sewer prior to January 5, 1895.

The resolution of intention, Ho. 8629, under which the work above mentioned was done, was passed May 1, 1893, and approved by the mayor May 4, 1893. By resolutions Ho. 8550, passed April 10th, Ho. 8718, passed May 22d, and Ho. 8882, passed June 19th—all in 1893, while respondent was city engineer— the board of supervisors directed the respondent to examine certain plans, etc., which had formerly been prepared, and report concerning the same; to “make a diagram of the property affected or benefited by the proposed work of constructing'” said outlet sewer, “as expressed in resolution of intention Ho. .8629”; and to “prepare plans and specifications for the sewer and work provided for in said resolution of intention Ho. 8629.” The court below found that the respondent complied with these several requirements, and there is sufficient evidence to support the finding. On June 19, 1893, the board passed resolution Ho. 8868, by which said work was ordered to be done. On Hovember 6, 1803, the board passed resolution Ho. 9489, by which it fixed the compensation of respondent for his services as surveyor and engineer for surveying, making plans and specifications and diagrams in relation to said work, at the sum of $7,515; and the court found, upon sufficient evidence to uphold the finding, that said resolution was not passed under misapprehension or mistake, or through any false representations made to the board by or on behalf of respondent, as charged by appellants. The court also found that afterward, during the progress of the work, respondent did other engineering work in connection with said sewer of the reasonable value of $1,008, and that his compensation therefor, under fees theretofore fixed by the board, was the said sum of $1,008—making his whole demand $8,523. For this latter sum he presented to the superintendent of streets a demand itemized and verified, with a credit thereon of $2,810,

Fitzhugh v. Ashworth

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