Dowling v. Altschul

VANCLIEF, C. Action to enforce a street assessment in the city of San Francisco, in which the judgment was in favor of the defendant. The plaintiff brings this appeal from the judgment on the judgment-roll, in which there is no bill of exceptions, and contends that upon the findings of fact the judgment should have been in favor of the plaintiff. There is no question that the plaintiff entered into a valid contract with the superintendent of streets to construct sidewalks and curbing, and to pave the roadway throughout the entire length of Clarence place, which is a cul-de-sac thirty-five feet in' width, extending northwesterly from Townsend [59]street a distance of four hundred twelve and one-half feet, as shown by the following diagram:

The black figures on the diagram represent feet, and the red (which are large) designate the numbers of lots assessed. The land adjoining the northwesterly end of Clarence place was not assessed; and for this reason alone the defendant, who owns lot No. 3, contends that the assessment is not equal or uniform, and is therefore void, and so the trial court expressly found, as a conclusion of law. It is found as a fact that the defendant duly appealed from the assessment to the board of supervisors, and that the board affirmed the assessment; and counsel for appellant contends that under section 11 of the act of March 18, 1885 (page 147), such appeal was respondent’s only remedy, and that the affirmance of the assessment by the board of supervisors is conclusive. And, as I think this point should be sustained, it will be unnecessary to consider whether the decision of the supervisors was erroneous or not. Section 11 of the act above cited provides for an appeal to the city council from any act or determination of the superintendent of streets as to the correctness or legality of any assessment, and that “upon such appeal the city council .... may confirm, amend, set aside, alter, modify or correct the assessment in such manner as to them [60]shall seem just, .... and may instruct and direct the superintendent of streets to correct the warrant, assessment, or diagram in any particular, or to make and issue a new warrant, assessment, and diagram.....All the decisions and determinations of the city council .... shall be final and conclusive upon all persons entitled to appeal under the provisions of this section, as to all errors, informalities, and irregularities which said city council might have remedied or avoided; and no assessment shall be held invalid, except upon appeal to the city council as provided in this section, for any error, informality, or other defect.... in the assessment, when notice of the intention of the city council to order the work to be done has been actually published in any designated newspaper in said city for the length of time prescribed by law before the passage of the resolution ordering the work to be done.” In this case it is found that the notice mentioned in the last clause, of the above quotation was duly published, and that all the proceedings up to the time the assessment was levied were regular, and it is also clear that the error in the assessment, if error it was, might have been remedied or avoided by the city council on the appeal. The assessment upon defendant’s lot was not so totally void that it could not have been amended by order of the city council. It was founded upon a valid contract for work that had been completed according to the contract, and for which defendant’s whole lot was assessable, and was made by an officer (superintendent of streets) having plenary power to make it. In consequence of the alleged error, defendant’s lot was assessed for 6490.30, when it should have been assessed at only about $470. If such an error cannot be corrected on appeal to the city council, I think no substantial error in an assessment can be so corrected, and that it must follow that section 11 of the act of March 18, 1885, so far as it purports to authorize the city council on appeal to amend, alter, modify, or correct an assessment, is wholly ineffectual.