Union Paving Co. v. City Council

DRAPER, J. This mandamus proceeding seeks to compel a city council to assess or reassess charges against city lots for payment of street paving costs. The trial court denied peremptory writ. Petitioner appeals.

By resolution of May 1, 1946, respondent city council au[441]thorized the city engineer to enter into a contract with petitioner to perform street work in a designated area. The work was to be performed under the Improvement Act of 1911 and was to be charged against the lots benefited thereby (Sts. & Hys. Code, §§ 5000-6794). The contract was executed and petitioner substantially completed the work by February 25, 1948. On that day, the city engineer made and filed his assessment covering the sum total due for the work and distribution of such cost among the lots benefited (Sts. & Hys. Code, §§ 5360-5362). The city objected to the assessment (Sts. & Hys. Code, § 5366), asserting deficiencies in petitioner’s performance. Hearing upon the protests was noticed for March 24, 1948. Petitioner did some corrective work, but refused to comply with other demands, and the city made these repairs. Also, petitioner paid only a portion of the incidental expenses (Sts. & Hys. Code, §§ 5024, 5374). Meanwhile, hearing upon confirmation of the assessment was continued from time to time by the council until it was dropped from the agenda about 1950.

Nothing more occurred until April 14, 1954, when petitioner’s president appeared at a “caucus meeting” of the city council. He asked that the assessment be confirmed and bonds issued. The city attorney advised the council and petitioner that the statute of limitations barred the requested action, the council failed to act, and the city attorney advised petitioner’s president that “his only recourse would be to have the matter adjudicated in the courts.”

Once again inaction set in. Petitioner did nothing whatever to assert or press its claim until May 19, 1958, when petitioner demanded that the city council either approve and confirm the assessment (Sts. & Hys. Code, §§ 5367, 5369), or, in the alternative, issue a reassessment (Sts. & Hys. Code, §§ 5500-5503). On May 28 the council unanimously rejected the demand in its entirety. Petition for this writ of mandate was filed March 6, 1959.

Appellant impliedly concedes that its right to approval and confirmation of the 1948 assessment is barred. The argument is that the reassessment provisions, which clearly are designed to have an extensive curative effect, are broad enough to cover the inaction of the contractor himself. Thus, appellant says, reassessment may be had to relieve a contractor from the bar of the statute of limitations.