Kelso v. Cole

SEARLS, C. Action upon a street assessment. Defendants had judgment for costs. ■ Plaintiff appeals from the judgment and supports his appeal by a bill of exceptions. Several points' are involved in the appeal, only one of which, in our view of the case, calls for consideration.

On April 25, 1894, after the preliminary steps had been taken therefor, the superintendent of streets in and for the city and county of San Francisco entered into a written contract with J. W. Smith, the assignor of plaintiff (the appellant here), to grade to the official line and grade, to macadamize, to construct redwood curbs and rock gutterways on Sunnyside avenue, between Circular avenue and Hamburg street, city and county of San Francisco. The prices to be paid were, for grading, per cubic yard, fourteen and one-half cents; redwood curbs, per lineal foot, thirteen cents; for macadamizing roadway, including rock gutterways, per square foot, two and one-half cents. The contract was in the usual form, and provided that the work should be completed within ninety days. The time for the performance of the contract was extended from time to time until it finally expired December 16, 1895.

On that day and ever since no part of the work had been performed between Genesee and Foerster streets, being one block of Sunnyside avenue, included in the contract. The residue of the work was certified by the superintendent of streets to have been completed.

[123]On January 13, 1896, the hoard of supervisors ordered a proportional assessment to be made under section 12£ of the general street law as amended in 1889. (Stats. 1889, p. 169.) The question, then, is this: Had the board of supervisors jurisdiction to order a proportional assessment under section 12£ of the street act, when a portion of the work had been abandoned by the contractor and the time for the completion of the whole contract had expired? Section 12-¡- is as follows: “The city council, instead of waiting until the completion of the improvement, may, in its discretion, and not otherwise, upon the completion of two blocks or more of any improvement, order the street superintendent to make an assessment for the proportionate amount of the contract completed, and thereupon proceedings and rights of collection of such proportionate amount shall be had as in sections 8, 9, 10, 11, and 12 of the act, of which this is amendatory, is provided.”

All proceedings for work upon streets, etc.,in the municipalities of this state, under the act of March 18, 1885, and the amendments thereto, are purely statutory, and can only be conducted in the cases and after the manner provided by the statutes. The authority conferred by these statutes must be strictly pursued. (Haskell v. Bartlett, 34 Cal. 281; Smith v. Cofran, 34 Cal. 310; Smith v. Davis, 30 Cal. 536; Brock v. Luning, 89 Cal. 316.)