Ede v. Cuneo

HARRISON, J. —Action upon a street assessment. The complaint is in the ordinary form for the foreclosure of the lien of ■a street assessment, and alleges that the contract for doing the work was entered into August 13, 1890, and completed within the time fixed therefor, and that an assessment for the work was Issued July 6, 1896. It also alleges that on December 6, 1894, the superintendent of streets made and issued an assessment for the same work, upon which an action was brought in the superior court May 29, 1896, and that on the 15th of June, 1896, that court rendered a final judgment therein that the plaintiff was not entitled to recover on said assessment; and that it appears by said final judgment that the plaintiff was defeated by reason of the fact that the city engineer of said city and county had never made any engineer’s certificate of said work, and that the assessment, diagram, warrant, and purported engineer’s certificate were never “duly or properly or legally” recorded in the office of the superintendent of streets; and that by reason thereof no lien was created by said assessment. A demurrer to this complaint was sustained by the court, and judgment entered in favor of the defendants, from which the plaintiff has appealed. *169 Section 9 of the street improvement act, as amended in 1889 (Stats. 1889, p. 167), provides: “Whenever it shall appear by any final judgment of any court in this state that any suit brought to foreclose the lien of any sum of money assessed to cover the expense of any street work done under the provisions of this act has been defeated by reason of any defect, error, informality, omission, irregularity, or illegality in any assessment hereafter to be made and issued, or in the recording thereof, or in the return thereof, made to or recorded by said superintendent of streets, any person interested therein may at any time within three months after the entry of said final judgment” apply to the superintendent of streets and have issued to him another assessment in conformity to law. Proceedings for the improvement of streets are purely statutory, and the rights and obligations of the parties to be affected thereby are to be determined by the terms of the statute. The right to an assessment, as well as the lien created thereby, exist only by virtue of the statute, and can be brought into existence only in accordance with its terms. Prior to the amendment of 1889 it had been held that, when a contractor failed in his suit to foreclose the lien hy reason of certain defects in the assessment, he was entitled to another assessment freed from these defects, and that there was no statutory limitation of time for its issuance. (Himmelmann v. Cofran, 36 Cal. 411; Dyer v. Scalmanini, 69 Cal. 637; Wood v. Strother, 76 Cal. 545; 9 Am. St. Rep. 249.) If, however, the original assessment was in conformity with law, the superintendent had exhausted his power therein, and until that assessment was legally vacated or set aside he had no authority to issue another. By the above amendment, however, the legislature fixed tire conditions upon which a second assessment might be issued, and the time within which an application therefor should be made. . It must be assumed that the legislature intended thereby some change in the law as it previously existed, for if, notwithstanding the amendment, the superintendent can still issue a second assessment at any time and under any conditions, the amendment would cease to have any operative effect. But it is evident from the terms of the amendment that the. object of the legislature was to limit *170 the time within which a second assessment might he made, as well as to prescribe the conditions under which the superintendent would he authorized to issue it. The contractor is not required after the completion of his contract to accept from the superintendent an incomplete or imperfect document, hut may still demand of that officer that he issue to him an assessment in conformity with law, and, in case of his refusal, may even compel him to issue one that shall meet all the requirements of the statute. If, however, instead of insisting upon such an assessment, he without objection accepts such documents as that officer elects to deliver to him, and thereafter brings an action thereon and is defeated, he is not entitled to another assessment, unless he brings himself within the terms of the amendment of 1889. The jurisdiction of the superintendent of streets is limited, and can he exercised only within the period of time therein named, and under the conditions therein expressed, and the final judgment of a court is made the sole evidence upon which the superintendent may determine whether these conditions exist. In Gray v. Lucas, 115 Cal. 430, it was said: “Under this provision of the statute, the right to a second assessment does not exist, unless it 'appear’ by the final judgment in a suit upon the prior assessment that the suit was defeated by reason of some infirmity in the 'assessment,’ or in the recording thereof, or in some matter connected with the return of the warrant.” Tim complaint herein does not allege.that the former “assessment” was in any respect invalid, or that the failure to recover thereon was by reason of any infirmity in the “assessment,” hut alleges that the plaintiff was defeated by reason of the absence of a certificate of the city engineer, and of a record of such certificate. It thus appears that the conditions under whiclrthe superintendent could issue a second assessment are not shown to have existed. The statute does not authorize its issuance in a case where the plaintiff was defeated in an action upon the former one by reason of a defect or absence of the engineer’s certificate, or upon the ground that no lien had been created upon the property. The contractor could have refused to accept the assessment from the superintendent, without the certificate, hut, if he did accept it, and brought his action thereon and as defeated upon this ground, the statute does not authorize the issuance of an *171 other assessment. The legislature might have authorized the issuance of a second assessment in case of the failure to recover upon the ground of any defective document, but it has riot done so, and wé are not at liberty to add to the statute terms or conditions which the legislature has not seen fit to include therein. The contention of the appellant that it was the intention of the legislature to authorize a second assessment whenever the contractor failed to establish a lien upon the property by reason of a defect in any of .the documents upon which such lien depended, is untenable. Aside from the fact that such construction of the statute is at variance with its language, a consideration of the terms used indicates very clearly that it was only for some infirmity in the assessment or in its record that the legislature intended thereby to authorize a second assessment. The documents essential to the creation of the lien are distinct in themselves, and are so regarded in the various provisions of the statute. Section 7 gives specific directions for the form of the assessment, varying according to the nature of the work done; and section 8 provides that the superintendent shall “make” an assessment in conformity with the provisions of section 7, and that the assessment shall have “attached thereto” a “diagram” exhibiting the street on which the work was done, and the lots assessed therefor; and section 9 provides that a “warrant,” whose form is prescribed, shall also be “attached” to said assessment, and that these three documents, together with the certificate of the city engineer, shall be recorded in the office of the superintendent, and after being recorded shall be delivered to the contractor. Each of these documents essential to the creation of a lien is separate and distinct, and is to be complete in itself, and the foregoing amendment to section 9 authorizes the superintendent, under the conditions there named, to make and deliver a new “assessment, diagram, and warrant.” By the street improvement act, as originally enacted in 1885, as well as by the various statutes for street improvements previously in force in this state, the superintendent of streets was required to record the assessment before delivering it to the contractor, and it was held at an early day (Himmelmann v. Danos, 35 Cal. 441) that, unless recorded and the record thereof properly authenticated, the assessment created no lien. It is reasona *172 ble to suppose that the legislature had in view this interpretation of the statute when it provided that the superintendent might make a second assessment if there was any defect in the record of the original one; and it is also reasonable to assume that, inasmuch as the provision for recording the engineer’s' certificate was made a part of the statute at the same time with the foregoing provision for a second assessment, if the legislature had intended that a second assessment might be made, in case there has been a defect in the record of the certificate when the former one was issued, it would have expressed such purpose in definite terms. It is a familiar rule of interpretation that a word which is used several times in the same section of a statute shall receive the same construction, unless there is something in the context indicating a different meaning; but there is nothing in the section under consideration which demands different constructions to be given to the word “assessment” in the different places in which it is used. The phrase “any assessment hereafter to be made and issued” must refer to the assessment as distinguished from the other documents, and the term “issued” is not predicable of any action by the superintendent of streets in reference to the certificate of the engineer. The antecedent to the clause “or in the recording thereof” is the noun “assessment” in the previous clause of the same sentence, and the “assessment” which the contractor is authorized to apply for, as well as the “new assessment, diagram, and warrant” which is to be made and delivered to him, can have reference ¿o no other documents than those to be made and issued by the superintendent. The entire scope of the provision is limited to some document made by the superintendent, and cannot be extended to matters independent thereof, or incidental thereto, and which are not named in the statute, although they may be essential to the creation of a lien. The allegation in the complaint that the prior assessment, diagram, warrant, and purported engineer’s certificate were “never duly or properly or legally recorded” in the office of the superintendent of streets is the averment of a legal conclusion, and not of a fact. This allegation imports that these documents were recorded, but whether they were “properly” or “legally” recorded was to be determined by the court upon facts shown in reference thereto, and the opinion of the plaintiff as to the effect *173 of these facts could not be substituted for the judgment of the court. He should have pointed out the defect in the record upon which he relies, in order that the court might determine whether it impaired its sufficiency. The judgment is affirmed. Henshaw, J., Temple, J., and McFarland, J., concurred.