From Casetext: Smarter Legal Research

Fanning v. Schammel

Supreme Court of California
Jan 28, 1886
68 Cal. 428 (Cal. 1886)


         Department One

         Appeal from a judgment of the Superior Court of the city and county of San Francisco.


         The legislature had power to pass the curative act of March 19, 1878. (San Francisco v. Certain Real Estate , 42 Cal. 519; 1 Kent's Com. 455, 456; Cooley's Const. Lim., 369-378; Himmelmann v. Jansen, Oct. Term, 1867, No. 1404.)

         J. M. Wood, for Appellant.

          Fisher Ames, for Respondents.

         The legislature had no power to legalize a contract that had become extinct and void. (Brady v. King , 53 Cal. 44; People v. McCune , 57 Cal. 153; People v. Goldtree , 44 Cal. 323; People v. Lynch , 51 Cal. 15.) The attempted extension of time was not merely an irregularity occurring in the rightful exercise of power. (Reis v. Graff , 51 Cal. 86; People v. O'Neil , 51 Cal. 91; People v. McCain , 51 Cal. 360; People v. Houston , 54 Cal. 539; Mahoney v. Braveman , 54 Cal. 565).

         JUDGES: McKee, J. Ross, J., and McKinstry, J., concurred.


          McKEE, Judge

         Action to foreclose a street assessment lien for street work alleged to have been done under a contract for grading Montgomery Avenue in the city and county of San Francisco.

         The contract required that the work should be completed within sixty days. The work was not completed within the time; and under the law the contract expired. Subsequently, however, the board of supervisors of said city and county extended the time; but it had no jurisdiction to revive and validate a dead contract. The order of extension was, therefore, unauthorized and void. (Beveridge v. Livingstone , 54 Cal. 54; Owens v. Heydenfeldt, 6 W. C. R. 149; Torrens v. Townsend, 6 W. C. R. 149.)          But nearly a year after the order of extension by the board of supervisors, the legislature, on the 19th of March, 1878, by an act entitled "An act to ratify and confirm certain orders and resolutions of the board of supervisors of the city and county of San Francisco, relative to street work on Montgomery Avenue," etc., made valid, ratified, and confirmed "all orders and resolutions heretofore from time to time passed by said board of supervisors,. .. . in relation to street work done, in whole or in part, on Montgomery Avenue, in said city and county, and all contracts and assessments for such street work,. .. . and all other proceedings under and in accordance with the provisions of such orders and resolutions" (Stats. 1877-78, p. 341); and it is contended that all the proceedings in connection with the assessment for said street work were thereby validated.

         But so far as the statute attempts to vitalize a dead contract and validate a void assessment for street work, it is unconstitutional and void. (People v. Lynch , 51 Cal. 15; People v. McCune , 57 Cal. 153; Brady v. King , 53 Cal. 44.)

         Judgment affirmed.

Summaries of

Fanning v. Schammel

Supreme Court of California
Jan 28, 1886
68 Cal. 428 (Cal. 1886)
Case details for

Fanning v. Schammel

Case Details

Full title:E. FANNING, Appellant, v. H. SCHAMMEL et al., Respondents

Court:Supreme Court of California

Date published: Jan 28, 1886


68 Cal. 428 (Cal. 1886)
9 P. 427

Citing Cases

Chase v. Trout

The legislature cannot validate a void assessment for street improvements. (People v. Lynch, 51 Cal. 19…

Oakland Paving Company v. Whittell Realty Company

The respondent petitioned this court for a transfer after the decision in the district court of appeal upon…