Opinion
Department One
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.
COUNSEL
J. C. Bates, for Appellant.
E. F. Preston, and Philip G. Galpin, for Respondent.
JUDGES: Paterson, J. Harrison, J., and Garoutte, J., concurred.
OPINION
PATERSON, Judge
This is an action to foreclose a street assessment lien.
The court found that the work was not completed within the time specified in the contract; that the time within which the work was to be completed was not extended; that no assessment was made to cover the sum due for the work named in the complaint, nor was any diagram ever made showing the particular lot, or portion of lot, with the number of feet frontage assessed for the work; that the lot described in the complaint was never assessed for the work; and that no public demand was made as required by law, nor was any return made upon the warrant by the contractor stating the nature of his demand.
None of these findings is supported by the evidence.
The contract was entered into on November 28, 1879. The act under which the contract was made (Stats. 1871-72, p. 809) provided for extensions of time. These provisions entered into and became a part of the contract, and were not affected by the provisions of the new constitution. Section 19 of article XI. of the constitution applies only to contracts made after the constitution took effect. (Ede v. Cogswell , 79 Cal. 278.) A valid contract cannot be abrogated by the adoption of a new constitution, any more than it can be by the enactment of a law by the legislature. (McCracken v. Hayward, 2 How. 613; Jefferson etc. Bank v. Skelley, 1 Black, 436; 3 Parsons on Contracts, sec. 555.) McDonald v. Patterson , 54 Cal. 247, is not in point. That case holds simply that the superintendent of streets cannot be required to enter into a contract, under the act of April 1, 1872, which was awarded after January 1, 1880.
It is claimed by respondent that the attempt to extend the time was ineffectual because the resolution was not recorded, and because the certificate of extension did not state the number of the resolution. Section 7 of the act provides that it shall be the duty of the superintendent of streets, on the passage of such a resolution, "to cause the same to be recorded in the office of the city recorder;. .. . [28 P. 861] and in issuing a certificate of an extension of time to be recorded, to specify in the same the number of the resolution of the board of supervisors." On February 24, 1880, the board, by resolution No. 14519, granted the contractor sixty days additional time; but in his certificate of extension the superintendent of streets states that the extension is granted in accordance with resolution No. 14518, passed February 24, 1880. This variance as to the number of the resolution has been held to be immaterial. (McVerry v. Hitchcock, No. 7981, filed Nov. 24, 1884.)
The objection that one of the resolutions extending the time was not recorded during the life of the contract was considered in McVerry v. Boyd , 89 Cal. 304, where we held that the important and material thing was the fact that an extension of time had been granted by the board, and that the granting of the certificate and recordation of the resolution by the superintendent were mere ministerial acts, a failure to perform which could not operate to the prejudice of the contractor. This construction of section 7 is supported by Himmelmann v. Reay , 38 Cal. 165, and by other provisions of the act itself. Section 12 provides that "after jurisdiction to order any work has been obtained, no irregularity in any of the subsequent proceedings shall render any assessment illegal"; and section 28 provides that "this act shall be liberally construed, to carry out the intentions and purposes of this act." The failure of the superintendent to record the resolution, or to state the true number thereof in his certificate, was not jurisdictional. The equality and uniformity of the assessment was in no way affected by it, nor did it operate in any way to the prejudice of the lot-owner. Provisions of a statute like those under consideration are designed for the information of the various officers of the county, and are intended to promote system and dispatch in the prosecution of the proceedings. They are not of the essence of the thing required to be done, and are therefore merely directory. They are matters over which the parties affected by the proceedings have no control, and a failure to perform them should not operate to the prejudice of any one except the officer himself. This is true especially where the statute fixes no time in which the acts are required to be done. (People v. Eureka etc. Co ., 48 Cal. 146; Brady v. Bartlett , 56 Cal. 357; People v. Cole , 70 Cal. 60; In re Broadway, 63 Barb. 679; In re Upson , 89 N.Y. 73; Torrey v. Millbury, 21 Pick. 67.) Beveridge v. Livingstone , 54 Cal. 56, and other cases cited by respondent, are not in point. There is no doubt that no extension of time can be granted after the time given the contractor has expired, or that an assessment is void unless the work has been performed within the time required, or that where the statute expressly says certain things must be done before any lien attaches to the property, it is necessary to show performance of the acts required. These propositions are supported by the cases referred to, but they have little or no bearing upon the question just considered.
The certificate of the city and county surveyor and deputy superintendent of streets, and the assessment, diagram, and warrant signed by the street superintendent and countersigned by the auditor, are prima facie evidence of the fact that the contract has been duly and fully performed. (Chambers v. Satterlee , 40 Cal. 519; Brady v. Bartlett , 56 Cal. 357; Jennings v. Le Breton , 80 Cal. 12.)
The property described in the complaint was properly assessed for the amount due for work done on Seventh Street. The assessment may give the number of the lot, and refer to the diagram for a further description. If the two documents, taken together, show a clear description of the property, the assessment will be held sufficient, so far as the designation of the property is concerned. (Hewes v. Reis , 40 Cal. 261.) The assessment for grading Seventh Street gives the number of the lot, the number of front feet, the amount assessed, and it refers to the diagram attached for a further description of the lot. The diagram shows the exterior lines of the property as described in the complaint, and the number of the lot given in the assessment. Nothing more could reasonably be required. It is claimed by respondent that there should have been but one assessment for the entire work called for in the contract, each lot being assessed for its proportionate share of the expense of the whole work. This is what was attempted, but to distribute the burdens it was necessary to have two diagrams, the lot charged with the expense of work on the crossing being a part of the lot charged with the work on Seventh Street. Only one diagram, however, was made, -- a diagram of the lot described in the complaint, and charged with the expense of the work done on Seventh Street. No diagram showing the lot assessed for the amount due for work on the crossing was made, but we are unable to see how defendant is injured or prejudiced by the failure to make such a diagram. The contractor is the only person aggrieved thereby. He could have appealed, and had the assessment corrected or a new one made. By his failure to do so, a part of the defendant's land had been relieved of the burden which otherwise would have been put upon it in consequence of the improvements of the crossing. Defendant ought not to be heard to say that this has operated to his prejudice, when it appears that all the work called for in the contract has been duly and fully performed.
The evidence shows that a proper demand was made. The verified return of the contractor states that he went upon each of the lots exhibited on the diagram, and publicly demanded on each lot payment of the sum assessed to each; "that is to say, he so demanded at said time, on each of said lots of land above enumerated, separately, the payment of the sum or sums of money as assessed thereon respectively by said assessment, and where more than one sum was assessed by said [28 P. 862] assessment on any one of said lots, he demanded payment of such several sums separately, so that each separate item assessed in such assessment was separately demanded by deponent upon the identical lot on which it was by said assessment imposed." This return is prima facie evidence of the facts stated (Deady v. Townsend , 57 Cal. 299), and was not disputed. It is true there is but one lot designated on the diagram, i. e., lot 1; and it is clear, therefore, that only one legal demand could be made. Lot 1 was assessed for the work on Seventh Street, between King and Berry streets, and is liable for the amount assessed upon it. If the contractor demanded the sum of $ 3,486.96 on lot 1, as the return shows he did, the fact that he afterwards, on the same lot, demanded without authority the sum of $ 89.78 -- the cost of grading the crossing -- would not affect the validity of the demand for the $ 3,486.96, for which lot 1 was properly assessed. Respondent says, in his brief, that "the diagram attached fails to show upon which lot 1 Buckman went when he made either demand. (Dyer v. Harrison , 63 Cal. 449.) He may have demanded the $ 3,486.96 on that part of lot 1 upon which it was not a lien, to wit, upon a lot 1 outside of the 240 feet frontage upon which the $ 3,486.96 was a lien." The fault or weakness of this argument rests in the assumption that there are two lots described in the diagram, one of which is smaller and lying within the boundary of the other. This is not the fact; there is but one; but if it were, the whole of the land designated in the diagram as lot 1 is liable for the amount assessed for work on Seventh Street, exclusive of the work done on the crossing, and therefore if the contractor, at the time he made the demand, stood upon any part of the premises lying within the exterior boundaries of the lot designated in the diagram, the demand was good. Dyer v. Harrison , 63 Cal. 449, cited by respondent, has no bearing upon this point. In Parker v. Reay , 76 Cal. 105, we held that where the assessments -- one valid, the other void -- were severed, and separate demands were made, the contractor was entitled to recover the amount of the valid assessment. (See also Boyle v. Tibbey , 82 Cal. 11.)
It is claimed by respondent that the contract and assessment are invalid because no petition for grading was filed, as required by section 4 of the act, and because no notice of the award was given. This objection seems to have been raised here for the first time. No issue was made in the court below as to the validity of the contract. On the contrary, it was treated by the defendant, in his answer, as valid, and was introduced in evidence by him in connection with the extensions of time. Under these circumstances, the objection comes too late.
The appellant's contention with respect to the constitutionality and effect of the acts of 1876 and 1878 were considered and determined in Ede v. Cogswell , 79 Cal. 278, and Jennings v. Le Roy , 63 Cal. 398.
We are asked to reverse the judgment, with directions to enter judgment in favor of plaintiff. This cannot be done on the findings in this record. (Dyer v. Brogan , 57 Cal. 235.)
The judgment and order appealed from are reversed, and the cause is remanded for a new trial.