Frick v. Morford

Harrison, J. The plaintiffs applied to the superior court of Los Angeles County for a writ of mandate to the superintendent of streets of the city of Los Angeles, directing him to make an assessment for certain work done by them in laying a sewer in Seventh Street, under a contract "with the city authorities. In their application they aver that they entered into a contract with the superintendent of streets, by which they agreed to lay [578] the sewer “in accordance with plans and specifications therefor on file in the office of the city surveyor, . . . . but said plans and specifications were'faulty and erroneous in this: that about eight feet of sewer more were required by said plans and specifications to be laid, and were laid by affiants, than was authorized by the resolution of intention”; that they had performed their work to the satisfaction of the superintendent of streets, and that he accepted the same and made an assessment therefor, “and in said assessment included the cost and incidental expenses of said unauthorized eight feet”; that they brought an action to recover the amount of a portion of the assessment against one H. L. Williams, who had refused to pay the same, “because of said.excess of work,” and that they had dismissed the said action. The defendant demurred to the application, and his demurrer having been sustained, the plaintiff declined to amend, and appealed to this court from the order denying the writ. The plaintiffs do not in their application aver in terms that the assessment that had been issued was void, nor can we say from the facts averred by them that it was void. Neither do they aver that the court in which they brought an action upon it decided that it was void; but they say that they dismissed their action against Williams, upon “ becoming convinced from the rulings of the honorable court that judgment could not be recovered by them.” If the assessment was a valid one, the superintendent of streets cannot be required to make another, and unless facts showing that it was not valid were clearly set forth in their application, the court was justified in refusing to grant the writ. 1. The plaintiffs do not show very clearly in their application wherein the plans and specifications which were on file in the office of the city surveyor “required about eight feet of sewer more to be laid” than was authorized by the resolution of intention, but we under [579] stand therefrom that they required the sewer to be laid to a point 988 feet west of the east line of Pearl Street, instead of 980 feet westerly therefrom, as specified in the resolution. If this be the fact, it would result that the plaintiffs laid the westerly eight feet of the sewer without authority, and that they are not entitled to an assessment for that portion of the work done by them. It does not result, however, that the assessment for the work done by them that had been authorized by the resolution of intention was void. Neither does it clearly appear from the application where the lot of Williams was situated with reference to this excess of eight feet. If it was wholly or in part within the eight feet, the plaintiffs are not entitled to an assessment against that part of the lot not fronting upon the work authorized by the city council. If his lot was east of the 980-feet limit, the assessment against it would not be rendered void by the fact that the entire assessment purported also to make a charge upon lots that were not within the resolution of intention. Inasmuch as the price at which the plaintiffs were to do the work was estimated by the linear foot, the cost of that which was done by them outside of the 980-feet limit could be easily segregated from the remainder. (Himmelmann v. Hoadley, 44 Cal. 276.) 2. If the assessment embraced only the frontage upon the 980 feet covered by the resolution of intention, but included the expense of laying the sewer in the eight feet outside of that limit, it was an error which could have been corrected by the city council upon appeal, and the failure to take such appeal was conclusive upon the owner as well as upon the contractor. (Himmelmann v. Hoadley, 44 Cal. 276; Boyle v. Hitchcock, 66 Cal. 129.) If the lot of Williams as assessed was partly within the 980 feet authorized by the resolution of intention to he “improved” by the sewer, and partly outside thereof, it was the duty of plaintiffs to appeal to the city council [580] within thirty days after the date of the warrant for the purpose of having the assessment corrected. Upon such appeal the city council would have limited the assessment to the 980 feet authorized by their resolution of intention. Section 11 of the act of March 8, 1885 (Stats. 1885, p. 156), provides that “the contractor .... having or making any objection to the correctness or legality of the assessment .... shall, within thirty days after the date of the warrant, appeal to the city council. .... Upon such appeal, the city council may .... set aside, alter, modify, or correct the assessment in such manner as to them shall seem just; .... and may instruct and direct the superintendent of streets to correct the assessment in any particular, or to make and issue a new assessment to conform to the decisions of the city council in relation thereto. All the decisions and determinations of said city council .... shall be final and conclusive upon all persons entitled to appeal under the provisions of this section, as to all errors, informalities, and irregularities which said city council might have remedied and avoided.” It was the duty of the plaintiffs, and not of Williams, to take this appeal. They were interested in having a legal and correct assessment. If the assessment was illegal, and created no lien upon his land, Williams was not a person who would feel “ aggrieved,” and was not required to appeal for the purpose of giving to the plaintiff a valid assessment. (Smith v. Cofran, 34 Cal. 310.) It follows that, inasmuch as the plaintiffs did not appeal from the act of the superintendent of streets in making the original assessment, they are concluded thereby, and are not entitled to have it corrected in any other mode. It is unnecessary to decide whether any part of the work to be done under the resolution of intention is “the improvement of an entire crossing,” or whether it. [581] was necessary to post notices of the passage of the resolution “in front of each quarter-block liable to be assessed.” The order appealed from is affirmed. Paterson, J., and Garoutte, J„, concurred.