Gill v. Dunham

California Supreme Court Sep 14, 1893 No. No. 18,145Published

Before: Searls

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Holding. The court held that the street assessment lien was valid, finding that the resolution of intention did not require posting when published in a newspaper, the assignment of the claim was sufficient, and the city's procedural actions were in substantial compliance with the law.

Issues

Whether the resolution of intention required both publication and posting under the applicable statute.
Whether the assignment and reassignment of the contract and assessment were sufficient to vest the plaintiff with the right to enforce the lien.
Whether the work performed substantially complied with the resolution of intention and the contract.
Whether the city council's extension of the contract time was valid despite the absence of one member and the lack of record evidence of meeting notice.

Disposition. affirmed

Quotations verified verbatim against the opinion

“it is a substantial compliance with the provisions of the law which is required; and, so that such substantial compliance is had, a mere want of technicality of expression or precision of statement which does not affect the essential object in view will not vitiate the proceedings.”

“The lien was but an incident of the demand, and passed with its assignment.”

Synopsis

Street Improvement—Publication of Resolution.—Act of March 14, 1889, amending act of March 18, 1885, in relation to improvement of streets, provides (section 3) that before ordering improvement's the council shall pass a resolution of intention, which shall be “published and posted for two days in the manner prescribed by section 34.” The latter section provides that resolutions required to be published shall be published in a newspaper, etc.; provided, however, that in case there is no newspaper, they shall be posted and kept posted for the same time as required for publication. Held, that a resolution which is published need not also be posted.

Street Assessment—Compliance With Statute.—Though acts which the statute requires to be performed before making a public improvement are conditions precedent to the power to levy a tax on the property owners, only a substantial compliance with the statute is required; and the assessment is not vitiated by want of technicality of expression, or precision of statement as to the work, which does not affect the essential object in view.

Street Improvements—Plans and Specifications.—Under acts of 1889, page 159, relating to public improvements, and providing that plans and specifications shall be furnished to the city council, if required by it, by the city engineer, but not specifying the mode of requiring them, the fact that they were prepared by the engineer, and were on file, and approved by the council, is sufficient evidence of their authenticity.

City Council—Notice of Special Meeting.—Where all the members of the council were present at a special meeting, except one, and a resolution was adopted unanimously, there is no error in admitting testimony of the clerk of the council that he served a proper notice of the meeting on all the members, the notice not having been entered of record.

Street Assessment.—In an Action by an Assignee to Enforce an assessment for a public improvement, which was against a certain lot, but to an unknown owner, the fact that the assignment, which describes the lot, also states that the assessment was to a certain person as owner, does not render it inadmissible, as the name of the alleged owner may be rejected as surplusage.

Street Assessment.—The Lien of an Assessment for a Public improvement is merely an incident of the demand, and passes with an assignment thereof.

Trial—Issues.—The Fact That Evidence is Introduced to contradict a fact alleged in the complaint is immaterial, where the fact is not denied in the answer, as there is no issue, on the question.

SEARLS, C. This is an action to foreclose a lien for street assessment in the city of Stockton. The plaintiff had judgment as prayed for in his complaint, from which judgment ,and from an order denying a new trial defendants prosecute this appeal.

A demurrer was interposed hy defendants to the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action, and upon the further ground that the complaint is uncertain, in that it fails to show that R. R. Ramsbottom ever reassigned to plaintiff his interest in the amount assessed against the land in the complaint described. The complaint avers that the resolution of intention to perform the work in question was duly published in the “Stockton Daily Independent,’’ a newspaper printed, published, and circulated at said city of Stockton, etc., and further avers that it was posted conspicuously on or near the council chamber door of the said council of said city of Stockton, and remained so posted for two days consecutively, etc. The resolution of intention was passed by the said council of the city of Stockton on the 14th of October, 1889, and subsequent to the passage of the act of March 14, 1889, amendatory of the act of March 18, 1885,. entitled “An act to provide for work upon streets, lanes, alleys,” etc. The question presented by the demurrer relates to the necessity of [231]posting the resolution of intention or notice thereof in three public places in the city. Section 2 of the amendatory act amends section 3 of the act of 1885, and reads, so far as applicable to the question in hand, as follows: “Sec. 3. Before ordering any work done or improvements made, which is authorized by section 2 of this act, the city council shall pass a resolution of intention which shall be published and posted for two days in the manner prescribed by section 3'4 of this act.” Section 34 reads as follows: “Fourth: The notices, resolutions, orders or other matter required to be published by the provisions of this act and of the act of which this is amendatory shall be published in a daily newspaper in cities where such there is, and, where there is no daily newspaper, in a semi-weekly or weekly newspaper, to be designated by the council of such city, as often as the same is issued, and no other statute shall govern or be applicable to the publications herein provided for,- provided, however, that in case there is no daily, semi-weekly or weekly newspaper printed or circulated in any such city, then such notices, resolutions, orders or other matters as are herein required to be published in a newspaper, shall be posted and kept posted for the same length of time as required herein for the publication of the same in a daily, semi-weekly or weekly newspaper, in three of the most public places in such city,” etc. This section would seem to imply that noticesi and resolutions are to be published where there is a newspaper in which to publish them, and, when so published, posting becomes unnecessary, and that the posting referred to in the section is only required where no newspaper is published. If the contention of appellants is correct, and the resolution of intention is required to be posted in all cases, then, under section 34, it would be necessary to post it twice in those instances where there is no newspaper published or circulated in the city. We can scarcely conceive that this result was intended by the legislature, and are of opinion that under section 34 the notice or resolution in question, when duly published in the newspaper, was not required to be posted.

Gill v. Dunham

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