Emery v. Bradford

By the Court, Sawyer, J. This appeal is from the judgment and the order denying motion for a new trial in an action to recover a street assessment in San Francisco. The point upon the constitutionality of the law under which the assessment was made, and the first point upon the regularity of the proceedings relied on by appellant, have been recently decided adversely to him in the case of Emery v. San Francisco Gas Company, 28 Cal. 345. The principles settled in that case must control this. Evidence that a street contract was not performed according to the contract. ' The second point, in respect to the regularity of the proceedings, is, that the Court erred in excluding the evidence offered by defendant to prove “ facts showing that the work was not done in accordance with the contract, nor in accord-ance with said ordinance.” The plaintiff, by the express terms of his contract, was to do and perform “ the work under the direction, and to the satisfaction of the Superintendent.” The complaint avers that the plaintiff “ commenced said work and prosecuted the same, under the direction, and to the satisfaction of said Superintendent,” until said work was completed, etc., and that he “ fulfilled said contract to the satisfaction of the said Superintendent.” Annexed to the agreement are “ specifications,” stating the particulars of the work, which are referred to and made a part of the contract. — 83 — The answer contains a general affirmative “.averment, on information and belief, that the work performed by the plaintiff, and for which said assessment is alleged to have been made, was not completed in accordance with the specifications of the contract, nor in accordance with section third of chapter fourth of the order of the Board of Supervisors in relation to streets and sidewalks.” There is no complaint that the contract itself did not require the work to be done in conformity with the requirements of said section three, chapter four, of said order. The pleadings are verified, and the allegations of the complaint not specifically denied must, under the provisions of the Practice Act, be taken as admitted. There being no specific denial of the allegation on the point, it is admitted that the contract was performed “ to the satisfaction of the Superintendent;” and this is according to the terms of the contract, and the law under which it was made. (Laws 1862, p. 394, Sec. 7.) The question is, whether the plaintiff is entitled to introduce evidence to prove that the work was not done according to “ the specifications of the contract,” notwithstanding the contract was fulfilled “to the satisfaction of the Superintendent.” The law makes the Superintendent of Public Streets, acting under the direction of, and in subordination to, the Board of Supervisors, the official agent of the city for the purpose of contracting for street improvements, and for directing the performance of the work, and determining whether or not it has been performed according to the terms of the contract. He is the agent of the city for approving and accepting the work, when performed, as well as for making the contract, and he acts under the sanction of his official responsibility. His acceptance of the work is, in contemplation of law, the acceptance, of the city. The officers alone must determine whether the contract has been properly performed. The work—as we held in Emery v. The San Francisco Gas Company, 28 Cal. 345—is a public work, undertaken by and — 84 — on behalf of the public, and the public and not the adjoining property holder is, through the Superintendent, the contracting party. The public controls the street as well as the work. It is the public interest that is especially consulted. The municipal government through its officers determines what improvements shall be made, when and how, and with what materials they shall be constructed; and it is for the officers having these matters in charge to determine whether the work has been executed according to the plans adopted, and the contracts entered into, in pursuance of the orders of the local government. The lot holder, except as one of the public, is in no sense a party to the transaction. When the work is accomplished, for the purpose of defraying the expense, the municipal authorities levy an assessment upon the adjoining lands, by virtue of the sovereign right of taxation delegated by the Legislature of the State to the local government for that purpose,. and collect it through the contractor himself. The owner of the adjoining lot has nothing to say about it, provided there is no fatal informality in the proceedings, except so far as his wishes are consulted in the first instance, as to whether, or not the municipal authorities shall undertake the work, and so far as he is heard through his representative in the Board of Supervisors. The city makes no contract for him individually. The liability arises out of no agreement, express or implied, between him, in his individual character, and the street contractor. He simply pays because the burden has been imposed upon him in common with other citizens, and he cannot help himself, as he pays any other common public burden imposed under the sovereign power of taxation. He can only question the regularity of the proceeding resulting in the assessment, in the same manner, and upon the same principles, as the validity of a tax may be questioned. His liability is not a debt in any other sense than any other public burden imposed upon him under the same sovereign power is a debt. The only thing for the contractor to look to, is, to see that the proceedings are all regular. The prior proceedings being regular, and a valid contract having been made, — 85 — the law devolves upon the Superintendent the duty of supervising the work, and determining on behalf of the public whether the contract has been fulfilled, subject to review by the Supervisors on appeal; and when those officers have determined that question, and no fraud has intervened, that is the end of the matter. The act of examining, approving and accepting the work requires the exercise of judgment and is, in that respect, of a judicial nature. (Parks v. Boston, 8 Pick. 225; Miller v. Board Sup. Sacramento Co., 25 Cal. 97.) Yet these particular duties are not such as are usually devolved upon Courts of justice. Although they partake of a judicial nature, they are a part of those duties, in the aggregate of a mixed character, which are always imposed upon the executive and legislative officers of local governments. (People v. El Dorado Co., 8 Cal. 61, 62; Stone v. Elkins, 24 Cal. 127.) If the proceedings are regular, so that the proper officers have jurisdiction to act, and they exercise their judgment upon the matters committed to their care in the several steps of the proceedings, their determinations are valid, and can only be reviewed in the mode appointed by law. In this class of cases the law requires the contract to provide that the work shall be done to the satisfaction of the Superintendent of Streets. It devolves upon that oificer, in the first instance, the duty of determining whether the work has been performed in accordance with the contract. Although the public in its corporate capacity is the party to the contract, yet, the law is not unmindful of the subordinate interest of the lot holders upon whom the cost of the work is to be in part assessed ; and lest he should suffer from the errors of the Street Superintendent, sections four, nine and twelve authorize him to appeal to the Board of Supervisors, where he can specify his grievances in a petition, and “ said petition or remonstrance shall be passed upon by the said Board of Supervisors, and their decision thereon shall be final and conclusive.” (Laws 1862, p. 392.) An error of the Superintendent in the respect complained of can be corrected on appeal under sections four and nine, if not under section twelve. This oonclu — 86 — sive determination on appeal doubtless refers to those matters upon which the Superintendent is required in the discharge of his duties to exercise his judgment—those matters in which his errors are to be revised and corrected. There are acts to be performed of a jurisdictional character essential to the validity of any assessment. It is not to be supposed that the conclusiveness of the decision of the Board of Supervisors is to extend to that class of acts. The provisions in section twelve indicate the kind of errors upon which the decisions of the Board are to be final. It is that “ all the decisions and determinations of said Board, upon notice and hearing aforesaid, shall be final and conclusive upon all persons entitled to an ap]Deal under the provisions of this section, as to all errors and irregularities which said Board could have avoided.” Now this would not include jurisdictional acts, which it would be too late to remedy after the time ftir appeal had arrived. But an error in determining whether the contract has been in all respects performed is not one of the jurisdictional defects that could not be remedied. The power to direct the improvement of streets, and to'make or authorize the making of contracts therefor, is properly vested in the Board of Supervisors, and it would seem to follow necessarily, that the authority to ultimately determine whether or not the contract has been fulfilled should be vested in the same body that has the power to order and make the contracts. We can see no valid objection to lodging this authority in that body, and, in the absence of fraud, making its determination final. In this case, the contract is admitted by the pleadings to have been performed to the satisfaction of the Superintendent. It was a duty devolved upon that officer to determine that question of fact, and he did determine it. There is no fraud charged—nothing but an error in judgment. The law afforded the defendant a remedy in the regulan course of the proceeding itself, by which he might have had the error reviewed, and the defect, if any, remedied. He did not avail himself of the remedy, but declined to appeal, and now seeks to review the determination of the Superintendent collaterally. We think, — 87 — by this neglect to appeal, he has acquiesced in the approval of the work by the Superintendent, and that his determination is conclusive. The principles applicable to the review of assessments of other taxes would apply here, and such would be the result in respect to ordinary taxes for State, county and municipal purposes, (Conlin v. Seamen, 22 Cal. 549; City of Peoria v. Kidder, 26 Ill. 358 ; Aldrich v. Cheshire R. R. Co. 1 Foster, 361; Hughes v. Kline, 30 Pa. St. R. 230, 231 ; Somaford v. Mayor of New York, 33 Barb. 150 ; City of Lowell v. Hadley, 8 Met. 194; Williams v. Holden, 4 Wend. 227, 228; Banton v. Neilson, 3 John. 475, 476; Windsor v. Field, 1 Conn. 284.) Appeal to the Board of Supervisors from the decision of Superintendent. It is said, however, that by section twelve the “ warrant, assessment and diagram ” are only made “prima facie evidence of the regularity and correctness of the assessment,” etc., and by these very terms it is implied that the prima facie case may be controverted by other evidence. But this is not inconsistent with the idea that the decision of the proper officers is conclusive upon those matters which they are authorized to finally determine. The warrant, etc., are prima facie evidence that everything necessary to a valid assessment has been done. But certain jurisdictional acts may nevertheless be wanting—as for instance, no order for the improvement may have been made by the Board, and the contract might be wholly unauthorized. Such defects could doubtless be shown, for they lay at the very foundation of a valid assessment, as there vrould be no jurisdiction without them. But it is not sought to show the absence of any jurisdictional fact. “ After the contractor, of any street work has fulfilled his contract to the satisfaction of the Superintendent, or Board of Supervisors on appeal, the Superintendent shall make an assessment to cover the sum due,” etc. (Sec 9.) Now here the fact of the fulfilment of the contract to the satisfaction of the Superintendent, upon which his authority to make the assessment — 88 — depended, is admitted. It is not-proposed by the evidence offered to controvert this fact, but only to show that this officer was too easily satisfied. But the law says, that the tribunal before which that showing must be made is the Board of Supervisors. Eo fraud is charged, and the proceedings all appear to be regular. By this construction, and by no other, the several provisions of the Act relating to the conclusiveness of the action of the Board, and the prima facie character of the “ warrant, assessment and diagram ” as evidence, can be harmonized, and all have effect. And it is a rule of construction that effect must, if possible, be given to every provision of a statute. We think-the evidence was properly rejected. The next point is substantially a re-statement in another form of the first, and requires no further notice. Personal judgment against a defendant on a street contract. The last point made, is, that the Court was not authorized by the statute to enter a personal judgment against the defendant. The contract was made under the Act of 1862. Sections ten and thirteen are cited,- and an argument is based upon the language of those sections to show that the remedy of the contractor is limited to the enforcement'of alien upon the land charged with the assessment. But appellant entirely overlooks section seventeen, which in express terms provides that the owner shall also be personally liable. After stating who shall be deemed an owner within the meaning Af the Act, it proceeds as follows : “And the person so defined to be the owner shall be personally liable for the payment of any charge or assessment lawfully made or assessed upon said lands, lots, or portion of lots, by said Superintendent, or contracted to be paid to the contractor for improvements, to cover the expenses of any work done under and authorized by the provisions of this Act.” (Id. p. 400.) And section thirteen provides that, after a specified time, “the contractor or his assigns may sue, in his own name, the owner of the land, lots, or portion of lots assessed, on the day of the date of the recording of the warrant, assessment and diagrams, or — 89 — any day thereafter during the continuance of the lien of said assessment, and recover the amount of any assessment remaining due and unpaid,” etc. (Id. 399.) There can be no doubt that the Legislature intended to authorize the entry of a personal judgment as well as to adjudge a lien upon the premises assessed and to order a sale. Judgment affirmed.