Opinion
Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.
Action to enforce a lien on a lot for an assessment for the improvement of a street in San Francisco, made under the statute of 1869-70, p. 890. The action was commenced on the 8th day of June, 1872. The contract for the improvement of the street was made on the 14th day of September, 1870; and the assessment was made and issued on the 19th day of February, 1872, and recorded on the 2d day of March, 1872, and became delinquent on the 1st day of April, 1872. The work for which the assessment was levied was the grading of Scott street from California street to Sacramento street. The court rendered judgment for the defendants. The plaintiff appealed.
COUNSEL:
W. C. Burnett and E. F. Preston, for the Appellants.
D. H. Whittemore, for the Respondent.
JUDGES: Rhodes, J. Mr. Chief Justice Wallace did not express an opinion.
OPINION
RHODES, Judge
The resolution of intention to order the street work in question to be done was published in the Daily San Francisco Chronicle only five days, the last day being Sunday. In this respect the case is the same as San Francisco v. McCain (50 Cal. 210); and upon the authority of that case the publication in this case must be held to be insufficient to give the Board jurisdiction to order the work to be done.
It is contended by the plaintiff that this defect in the proceedings was cured by the act of March 19, 1874 (Stats. 1873-4, p. 487). This cause was pending at the time of the passage of that act. It was held in Reis v. Graff, ante, page 86, which was also pending when the act was passed, that the act did not have the effect to make the assessment valid, as of the date on which it was made; that if it was made valid by the act, the time when it became valid was the time when the act took effect; that the lien of the assessment, if it attached to the lot, did not attach until after the commencement of the action, and that for that reason the action could not be maintained. That case is decisive of the point here presented.
Judgment and order affirmed.