Opinion
APPEAL from an order of the late District Court of the Third Judicial District in and for the city and county of San Francisco refusing a new trial.
Action on a street assessment. No work was done on the sidewalks in front of the lots omitted from the assessment.
COUNSEL:
J. C. Bates and J. M. Wood, for Appellant.
Cope & Boyd, for Respondents.
OPINION In Bank
The additional facts sufficiently appear in the head notes and opinion of the court.
PER CURIAM.
Three of the lots on Greenwich Street, liable to assessment for the construction of sidewalks on Greenwich, between Laguna and Fillmore Streets, are omitted from the assessment. The property liable to assessment for sidewalks also constituted the district subject to assessment for the curbing and macadamizing the roadway. If the property fronting on Greenwich constituted two separate and conterminous assessment districts, one to be assessed for sidewalks and the other to be assessed for the roadway and curbing, then the whole assessment for sidewalks is void, because certain lots included within the assessment district for sidewalks were omitted. ( People v. Lynch, 51 Cal. 15.)
It is urged, by respondent, that the assessment applicable to the defined district is an entirety, and that the whole assessment is void because of the omission of the three lots; that the only assessment which the superintendent was authorized to make was a distribution, proportionate to frontage (upon all the lots opposite to the work done), of the gross sum to be paid the contractor, with incidental expenses. It is admitted that for the " work done on main street crossings" separate assessment districts are provided. The statute declares, " The expenses of such work shall be assessed upon the four quarter blocks adjoining and cornering on the crossings." (Stats. 1871-72, p. 810, sub. 3.) But as to work done on the street improved, except at the crossings, it is provided (Stats. 1871-72, p. 809, sub. 1), the expenses " incurred for any work authorized by section 3 (of the act) shall be assessed upon the lots and lands fronting on the work,. .. each lot or portion of lot being separately assessed, in proportion to its frontage, at a rate per front foot sufficient to cover the total expense of the work."
If it be admitted that the resolutions of intention and ordering the work, and the award, authorized the superintendent to agree in one contract for macadamizing the roadway, constructing sidewalks and curbs, it would seem the more reasonable construction of the statute that the assessment should be distributed with reference to the gross sum to be paid under the contract. Section 8 of the act means this, or it means that there shall be a separate assessment for each kind of work mentioned in section 3. If it means a separate assessment for each kind of work done under a single contract, the assessment herein is invalid, because it adds the price of the curbing to the expenses of macadamizing the roadway, and distributes the aggregate amount upon the lots fronting on the street.
If the statute requires the " total expense" incurred for macadamizing the street, macadamizing the sidewalks and erecting curbs to be apportioned in a single assessment (and this we think the true interpretation), the assessment which attempts to divide these charges is invalid.
The ninth section of the Act of 1872 (Stats. 1871-72, p. 813) requires the superintendent to make " an assessment to cover the sum due for the work done and performed under the contract. .. in conformity to the provisions of this act, and according to the character of the work done," etc. When the work done, of one or more kinds, is a charge upon the same property -- or same assessment district -- the act can be complied with only by distributing the total expense. Each and every portion of the work is ratably a charge upon the lots included within the district. All the work done under the contract -- the work done as a whole -- is the benefit conferred upon the property within the district, in return for which the property within the district is assessed.
The assessment on lot 15 for the crossing is void, because it does not conform to section 9 of the act. The section requires an assessment to designate " the number of each lot or portion of lot assessed," and that the accompanying diagram shall exhibit the relative location of such lot, or portion of lot, to the work done, " numbered to correspond with the numbers in the assessment, and showing the number of feet frontage assessed for said work," etc.
Judgment and order affirmed.
Petition for a rehearing denied.