Himmelmann v. Hoadley

By the Court, Rhodes, J.: The statute of 1862, amendatory of the “ Consolidation Act ” (Stats. 1862, p. 391), empowers the Board of Supervisors to lay out and open new streets within the corporate limits of the city and county, and west of Larkin and southwest of Johnson streets; and to order such streets to be graded or regraded to the official grade. The power to lay out, open, and grade streets carries with it, by necessary implication, the power to establish the grade of such streets, unless the power be expressly reserved, or granted to another body or officer. Order Ho. 681, passed by the Supervisors January 30th, 1866, purported to establish the location, width, and grade of streets over that part of the city which includes the premises in controversy. This order was confirmed by the Act of March 8th, 1866 (Stats. 1866, p. 166), and thus the action of the Board, if not authorized by the general power to lay out, open, and grade streets, was rendered valid. The record of the assessment, diagram, and warrant which [225] was introduced in evidence, covered six pages of the volume in the Street Superintendent’s office; and to the record was appended the certificate of the Superintendent that “the foregoing, on pages No. 79, is a true and correct record of the assessment, diagram, and warrant issued this the 20th day of October, A. D. 1870.” Following this is the return of the plaintiff's agent, showing the nature and character of the demand for the payment of the assessments; and to this is appended the following certificate: “Recorded this 28th day of October, A. D. 1870. M. C. Smith, Superintendent of Public Streets, Highways, and Squares, per J. Donnelly.” It is claimed by the defendant that the record is defective in two particulars.' In Himmelmann v. Danos, 35 Cal. p. 441, the question whether the record of the assessment should be separately signed was reserved. The usual and, in our opinion, proper mode for the authentication of such a record, is by appending the official certificate of the officer whose duty it is to make the record. He need not specify in his certificate the pages of the record upon which the assessment, etc., are copied; but when he does certify in that form, the certificate will be limited to the pages specified, unless the record itself shows that the reference to the pages is a clerical error. It is apparent, we think, that the omission of the numbers of the five preceding pages was a mere clerical error, and that such error was not calculated to mislead a person owning or dealing with a lot mentioned in the assessment. The second objection is that the certificate appended to the record of the return is not signed by the Superintendent. It is provided in section twenty-two of the Act concerning streets in San Francisco, that the Superintendent “ shall be allowed, at the discretion of the Supervisors, not less than three, and not more than six deputies, to be by him ap [226] pointed from time to time. * * * It shall be lawful for the said deputies to perform all or any of the duties conferred by this Act upon the Superintendent of Streets and Highways, under the direction of the said Superintendent, except the acceptance or approval of work done.” The objection is not that the certificate might not well be made by a deputy, but it is, that it does not purport to have been made by a deputy, that Donnelly is not described as a deputy in the certificate. The Courts will take judicial notice of the officers of a county and the genuineness of their signatures; and when the law provides for the appointment of a deputy by one of those officers, Courts will also judicially recognize such deputy and the genuineness of his signature. The deputies of Clerks, Sheriffs, Recorders, and other ministerial officers are constantly discharging official duties in the names of their respective principals, and the Courts are every day taking judicial cognizance of the capacity of the persons by whom those acts are performed. The certificate in this case purports to be the official certificate of the Superintendent; and the question is therefore reduced to the inquiry .whether the Court will take judicial notice of the signature of a deputy when he omits to add to his signature the words “ Deputy Superintendent,” or words of equivalent import. The word “Superintendent” forms no part of the signature of that officer, and is only necessary when the body of the certificate fails to show that it was intended to be official; and we are of the opinion that it is unnecessary for the Deputy Superintendent to append to his signature to an official certificate, made in the name of "his principal, the word “Deputy,” or words of equivalent signification. The word “Deputy ” is no part of his signature; and as the certificate bears an official stamp, and as the Court will take notice that Donnelly was a Deputy Superintendent, and that his signature is genuine, the certificate will be regarded as sufficient. [227] The return of the plaintiff’s agent, indorsed on the warrant, is evidence of the demand of payment of the assessment. The testimony of the plaintiff’s agent, in some slight degree, sustains the return; and, although in some respects it appears scarcely credible, yet that matter is for the Court below. According to the repeated construction of the provisions of the statute, the Superintendent, unless he is satisfied beyond all doubt as to the ownership of a lot, may assess it to “unknown” owner; and it is almost, if not quite, impossible to show that he did know the owner. When the assessment is made to an unknown owner—and all have been made in that form, so far as we are aware, since the decision in Smith v. Davis, 30 Cal. 536—the contractor is only required to “publicly demand payment on the premises assessed.” The owner of a lot may insist that every provision of the statute having the semblance of benefit to him shall be strictly observed; but how it can be of the least shadow of benefit to him, to have the contractor walk over a tier of unoccupied lots, and demand on each the payment of the assessment, it is impossible to imagine. But, however useless or absurd such a demand may be, there was evidence tending to show a compliance with the statute. The point, that the fraudulent side agreement entered into between the contractor and a part of the lot owners, rendered the contract "between contractor and the city illegal and void, cannot be entertained, because it is not comprehended within any of the specifications in the statement on tire motion for a new trial. And, it may be added, that Nolan v. Reese, 32 Cal. 484, is decisive of the point adversely to the defendants. If the fact, that the defendants had no knowledge of the fraudulent agreement, until the time for an appeal to the Board had elapsed, entitles them to any relief, as the statute now stands, they could avail themselves of it only in a direct attack on the contract. [228] It is apparent that the statute might readily be framed so as to afford adequate remedies, which would reach both parties to those fraudulent contracts, and thus secure a greater degree of fairness and honesty in the administration of the street laws. Judgment affirmed.