Smith v. Cofran

By the Court, Sawyer, J.: In Smith v. Davis, 30 Cal. 537, we held that the street assessment then and noxy in question created no charge against Davis, the owner of the land, or the land, because made against another party not then living, and not against the owner, or unknown owners, as required by the statute. The facts sufficiently appear in the opinion in that case. Smith, the plaintiff in the former action, now sues to recover the amount of the assessment from the defendant, Cofran, the Superintendent of Streets for the City of San Francisco, who made the assessment, on the ground that it was his duty, under the statute, to state in the assessment the name of the true owner, if known, and if not known, to designate him as “ unknown,” and that in consequence of his neglect to name the true owner, or designate him as unknown, the assessment was void, and the plaintiff lost that portion of the sum due him apportioned to the lot sought to be charged. Under the view we take, it will be unnecessary to determine whether the making of the assessment as a whole, or the particular act of stating in the assessment the name of the ■ owner taken by itself, is purely a ministerial act, or wholly or partly judicial in its character. If the Superintendent erred in this particular, the Act itself, under which the proceeding was had, provides a remedy' for correcting the error. The assessment is made by the Superintendent and delivered to the contractor, with a warrant attached, authorizing him to collect the money. (Laws 1862, p. 397, Secs. 9, 10.) “ The * * * contractor or his assigns,” aggrieved “ by any acts or determination of the Superintendent in relation thereto, or having, or making any objection to the correctness or legality of the assessment, shall within fifteen days after the date of the warrant appeal to the Board of Supervisors,” etc., and “ the said Board may correct, alter, or modify said [315] assessment in such manner as to them shall seem just, and may instruct and direct the Superintendent to correct said warrant, assessment or diagram in any particular, and to make and issue a new warrant, assessment and diagram to conform to the decisions of said Board in relation thereto, at their option.” (Laws 1863, p. 530, Sec. 12.) Under these provisions of the statute, the assessment and warrant, after having been completed by the Superintendent, are put into the hands of the contractor, and he has fifteen days from the date of the warrant within which to examine it, and if found in any respect to be incorrect or illegal, to apply to the Board of Supervisors by appeal to have it corrected and made legal. The authority to correct, we think, clearly extends to defects of the kind in question. All the means open to the Superintendent for determining the correctness and legality of the assessment and warrant are equally open to the contractor, and an opportunity is afforded to examine the proceedings, and apply for correction if found to be incorrect or illegal. Moreover, as we have said, it is provided that the “ contractor * * * having or making any objection to the correctness or legality of the assessment * * * shall * * * appeal to the Board of Supervisors,” etc. Thus if he has objections of the kind in question, he not only has an opportunity, but it is made his duty, to have them obviated in the mode prescribed. If he fails to avail himself of the means of protection afforded by the law, the loss in consequence of defects of the kind under consideration results as much from his own negligence, as from that of the Superintendent. We are of opinion „ that the remedy for such defects is the one prescribed by the statute, and that the contractor cannot neglect to avail himself of the remedy provided, and then hold the officer liable for the result. The cases cited by appellant are of an entirely different complexion. Judgment affirmed.