Miller v. Mayo

The Court. This action was brought to foreclose a lien for a street assessment upon real property of the defendant. A demurrer was filed to the complaint, which was overruled and answer filed. Trial was had, resulting in a judgment for the plaintiff, as prayed for. From that, and an order denying a new trial, the appeal is taken. 1. The demurrer to the complaint should have been sustained. Section 7 of the act of March 18,1885, under which the work was authorized, provides that “ the expenses incurred for any work authorized by section 2 of this act .... shall be assessed upon the lots and lands fronting thereon, each lot or portion of a lot being separately assessed in proportion to the frontage.” The complaint herein alleges “ that immediately after the completion of said street work, said street commissioner proceeded to and did make an assessment upon the property benefited by said street improvement.” This was not a compliance with the statute, and although it may be a fact that the lots and lands fronting upon the improvement was the only property which was benefited thereby, yet for the purpose of alleging a cause of action, the complaint should have alleged that the assessment was made in the terms prescribed by the statute. 2. The board of trustees declared their intention to order Twelfth Street, from J Street to L Street, to be improved by grading and graveling. This included the crossing of K and Twelfth streets. It is alleged in the complaint that after the resolution of intention had been passed by the board of trustees, the street commissioner “caused to be conspicuously posted along said contemplated work more than three notices of said resolution at less than three hundred feet in distance apart.” The defendant in his demurrer objects to the sufficiency of [571] the complaint in this respect. We think, however, that the complaint alleges a sufficient compliance with the statute. Section 3 of the act aforesaid provides that after the resolution of intention has been passed, “the street superintendent shall thereupon cause to be conspicuously posted along the line of said contemplated work or improvement, at not more than three hundred feet in distance apart, but not less than three in all, or when the work to be done is the improvement of an entire crossing, in front of each quarter-block liable to be assessed, notices of the passage of said resolution.” The appellant contends that, inasmuch as the work provided for included the crossing, it was necessary for the street ■superintendent to post the notices of the resolution not only at intervals of less than three hundred feet along the line of the work, but also in front of each quarter-block liable to be assessed. The statute, however, does not require such posting. The proviso in section 3, above quoted, “or when the work to be done is the improvement of an entire crossing in front of each quarter-block liable to be assessed,” is in the disjunctive, and is to be construed as being a separate direction from that with which it is connected. If the work ordered to be done “is the improvement of an entire crossing,” then the notices of the resolution must be posted “in front of each quarter-block liable to be assessed,” but for any other work the direction is, that the notices shall be posted “along the line of said contemplated work or improvement.” In the present case, “ the line of the contemplated work or improvement ” was Twelfth Street, from J to L, and the allegation in the complaint, that the notices were posted along that line, is a sufficient compliance with the requirements of the statute. 3. The testimony offered at the trial sufficiently proved that the official grade of Twelfth between J and L had been established by proper authority. [572] 4. The allegation in the complaint, that the bond given by the plaintiff at the time of executing the contract had been approved by the board of trustees instead of by the superintendent of streets, is immaterial in this action. A failure to execute a bond that should be satisfactory to the superintendent of streets might be a sufficient reason for the superintendent to refuse to enter into the contract with the contractor, but after the work has been completed to the satisfaction of the superintendent of streets, the property owner cannot object to the correctness of the assessment by reason of the omission on the part of the superintendent to approve the bond of the contractor. The judgment and order denying a new trial are reversed, and the court below is directed to sustain the demurrer to the complaint, with leave to the plaintiff to amend, if he shall be so advised.