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complete and efficient ... administra of the property, and therefore void.-Spring tion of the municipal government, although Street Co. v. Los Angeles, 170 Cal. 24, 148 such powers may not be herein expressly Pac. 217. enumerated,” the right to expend money for 59. The action of the city council upon street lighting purposes.-Osburn V. Stone, an appeal taken in the matter of such an 170 Cal. 480, 150 Pac. 367.
assessment is not conclusive.- Spring Street 53. Where the charter of the municipality Co. v. Los Angeles, 170 Cal. 24, 148 Pac. 217. makes the general street lighting law a part 60. An assessment made wholly against of the organic law of the city, it is neces the lots on one side of an improved street sary that in the exercise of the power of is void upon its face, and belongs to that lighting the municipality that the municipal class where the property owner may, withauthorities follow the mode prescribed by out first appealing to the city council, resist the general lighting law, which requires, its enforcement.-Schaffer v. Smith, 169 Cal. among other things, a resolution of inten 764, 147 Pac. 976. tion and the imposition of the cost of the 61. -Exemption of railroads from assesswork upon private property precisely as ment.--Land covered by a railroad right of does the street law.-Osburn v. Stone, 170 way can not be assessed, but the land itsell Cal. 480, 150 Pac. 367.
covered by such right of way fronting upon 54. Street assessments for local Improve an improved street is subject to assessment. ments. The return to the property owner -Schaffer v. Smith, 169 Cal. 764, 147 Pac. 976. by way of benefit is, under our system of 62. Street improvement proceedings — In government, the basic foundation upon general. — Street improvement proceedings which rests the right to impose special as are acts legislative in their character, as sessments.-Spring Street Co. v. Los Angeles, distinguished from ministerial or adminis170 Cal. 24, 148 Pac. 217.
trative acts: and since all of such acts are 55. A special assessment is not, in the authorized by the general street law to be constitutional sense, a tax at all. It is "a evidenced in the form of a resolution, it is compulsory charge placed by the state upon not necessary, nor required to put them real property within a predetermined dis in the form of an ordinance, and they are trict, made under express legislative au none the less acts of a legislative character thority for defraying in whole or in part because expressed or evidenced in the form the expense of a permanent public improve of a resolution.-Chase v. Kalber, 28 Cal. ment therein, enhancing the present value App. 561, 153 Pac. 397. of such real estate, and laid by some rea 63. The provisions of section 13 et seq. sonable rule of uniformity based upon, in of the act entitled, "An Act to Reincorporate the ratio of, and limited by, such enhanced the town of Santa Clara" (Stats. 1872, p. 251), value."-Spring Street Co. v. Los Angeles, relating to street improvements therein, 170 Cal. 24, 148 Pac. 217.
which authorized contracts to be entered 56. The compensating benefit to the prop- · into in advance of the levy and collection erty owner is the warrant, and the sole war of the assessment, were repealed upon the rant, for the legislature itself to impose adoption of section 19 of article XI of the the burdens of these special assessments. It constitution, notwithstanding such section has been a matter of profound regret to in terms only specifies cities as coming this court and indeed to every court which within its provisions, and not towns.-Ranhas been called upon to consider the ques some-Crummey Co. v. Woodhams, 29 Cal. tion, that in the application of this principle, App. 356, 156 Pac. 62. theoretically equitable, practical operations 64. Proceedings for street improvements have shown grave wrong and injustice to be are not subject to the initiative and referdone. With ceaseless reiteration the courts endum provisions of the constitution, for have deplored these unjust exactions and the reason that such provisions and the extortions. With tiresome repetition have system established by the legislature for the they advised the lawmakers of methods for improvement of public streets can not cothe exercise of the power more in con exist, if such provisions are applicable to sonance with equity and fair dealing. such system.-Chase v. Kalber, 28 Cal. App. Spring Street Co. v. Los Angeles, 170 Cal. 24, 561, 153 Pac, 397. 148 Pac. 217.
65. Proceedings for letting contracts for 57. A local assessment may so transcend street improvements are in invitum, and the limits of equality and reason that its must be strictly pursued in strict compliance exaction would cease to be a tax or con with the law under which they are taken. tribution to a common burden, and become They are purely statutory, and can be conextortion and confiscation. In that case ducted only in the cases and after the manit would be the duty of the court to protect ner provided by the statutes.—Barber Asthe citizen from robbery under color of a phalt Pav. Co. v. Costa, 171 Cal. 138, 152 Pac. better name.--Spring Street Co. v. Los An 296. geles, 170 Cal. 24, 148 Pac. 217.
66. The making of a valid bid is as essen58. An assessment for street widening tial as any other act leading up to the award purposes which assesses lots fronting on of a contract for the improvement of streets. the street, in the same amount as allowed Every requirement of the law relating to for the land taken plus the property owner's the bid and "calculated to prevent bogus proportionate share of the expense of the and dishonest bids" must be observed or city in the condemnation proceeding is so the contract will be invalid.-Barber Asphalt grossly unjust as to work a confiscation Pav. Co. v. Costa, 171 Cal. 138, 152 Pac. 296. 67. The provision of the Vrooman Act, owners of any single street to bar the work, requiring each bidder to place in his bid by protest, for six months, since the Vroohis affidavit that it is not sham and that he man Act does not give this right to the intends no fraud or collusion, must be com owners of the majority of the frontage on plied with as a condition precedent to the a street, but to "the owners of a majority power to enter into a contract for street of the frontage of the property fronting on improvements. The provision is not merely said proposed work or improvement" and directory. Its object is to prevent fraud if the "work or improvement" may cover upon the property owner and to avoid the more than one street, a majority of the necessity of proving frauds by eliminating, frontage on all the streets covered by the at the outset and before the work is begun, proposed work must join to make the proall dishonest and fraudulent bidders and test effectual.-Remillard v. Blake & Bilger collusive agreements between bidders.-Bar Co., 169 Cal. 277, Ann. Cas. 1916D 451, 146 ber Asphalt Pav. Co. v. Costa, 171 Cal. 138, Pac. 634. 152 Pac, 296.
74. A resolution of intention providing 68. The failure of the clerk of the city that “wooden bridges" be constructed at council, in giving the notice inviting each end of cross-walks at certain points is bids for the doing of street work under not deficient for failure to describe the kind the Improvement Act of 1911, to state that of wood to be used in such bridges.-Remilproposals may be accompanied by a bond as lard v. Blake & Bilger Co., 169 Cal. 277, well as by a certified check for an amount Ann. Cas. 1916D 451, 146 Pac. 634. which shall not be less than ten per cent 75. -Resolution of intention.-A defense of the aggregate of the proposal, is not to an action to enforce a lien for street fatal to the proceedings leading up to the work, based upon any illegality in the proaward of the contract.-Federal Construc ceedings under the resolution of intention, tion Co. v. Wold, 23 Cal. App. 751, 158 Pac. may be waived.--Remillard v. Blake & Bil340.
ger Co., 169 Cal. 277, Ann. Cas. 1916D 451, 69. A property owner is not entitled to 146 Pac. 634. a perpetual injunction restraining the issu 76. The posting and publishing of the ance of bonds for the amount due on a resolution of intention in a street work street-work assessment against his property, proceeding, without having thereon the city because of the omission of the resolution clerk's certificate to its passage, is not the of intention, upon which the proceedings omission of a legal requirement.-Schaffer were based, to state definitely the time for v. Smith, 169 Cal. 764, 147 Pac. 976. which the bonds are to run, for there is no 77. A resolution of intention in the matter provision in the bond act which requires of street work is jurisdictional and absosuch a specification; but he is entitled to an lutely necessary whenever it is proposed injunction restraining the issuance of such to bind, in whole or in part, private property bonds, until the city council shall have for the payment of the work to be done; issued a warrant which states the term of otherwise, if it is work of a character which the bonds, since the provision of the act the city proposes to do itself at its own which requires the warrant to include a proper charge and expense, no resolution notice "describing the bonds" contemplates of intention is necessary.-Osburn v. Stone, a statement of the term that the bonds are 170 Cal. 480, 150 Pac. 367. to run.—Cohn v. Federal Construction Co., 78. It is only where private property is 171 Cal. 547, 153 Pac. 916.
to be bound for the payment of a street 70. Under section 2 of the "Vrooman la w" improvement that a resolution of intention it is within the power of the municipal is a necessary prerequisite.-Osburn v. Stone, authorities to order several different streets 170 Cal. 480, 150 Pac. 367. improved in one proceeding and as one im- 79. In the doing of street work, the law provement, to be performed under one con does not require that the resolution of intentract.-Remillard v. Blake & Bilger Co., 169 tion shall in terms describe in detail the Cal. 277, Ann. Cas. 1916D 451, 146 Pac. 634. work to be done thereunder but provides
71. Under the provisions of the charter that the resolution may give that descripof the city of Santa Cruz the general street tion by reference to plans and specifications law is controlling in the matters of street contemporaneously created and adopted. work therein.-Osburn v. Stone, 170 Cal. 480, Richmond Construction Co. v. Doe, 29 Cal. 150 Pac. 367.
App. 427, 155 Pac. 1008. 72. -Under one scheme of improvement. . 80. The resolution of intention to do the -The right of municipal authorities to in proposed work is an essential prerequisite clude work upon more than one street in a to the jurisdiction of the governing body single scheme of improvement is not af- of the municipality to inaugurate such fected by the fact that some of the streets work, and if deficient in its description of are wider than others, for the assessment a material part of the work to be done is to be supported upon the ground that each thereunder, it will not support a cause of owner is charged with an amount equal or action for the foreclosure of the assessment proportionate to the benefit conferred upon lien.-Richmond Construction Co. v. Doe, 29 his property by the entire improvement. Cal. App. 427, 155 Pac. 1008. Remillard v. Blake & Bilger Co., 169 Cal. 81. Under the amendments of 1911 of 277, Ann, Cas. 1916D 451, 146 Pac. 634.
sections 2 and 4 of the street bond act 73. Such a construction of the statute (Stats. 1911, p. 1201), the amendment of does not impair the right of the majority of 1899 of section 3 of said act (Stats. 1899, p. 40), the amendments of 1905 to section 3 them by the city engineer,” and that the of the Vrooman Act (Stats. 1905, p. 63), and contractor shall not disturb any monuments the amendment of 1909, adding section 542 or stakes until ordered to do so by the to the latter act (Stats. 1909, p. 31), it is engineer, and that all loss or damage arising not a prerequisite to the validity of bonds from any unforeseen obstruction or difficulty issued for the amount due on a street work which may be encountered in the prosecuassessment that the resolution of intention tion of the work, or from the action of the to do the work should specify the period for elements, shall be sustained by the conwhich the bonds are to run.-Cohn v. Fed tractor, does not render the contract invalid. eral Construction Co., 171 Cal. 547, 153 Pac. --Stanwood v. Carson, 169 Cal. 640, 147 Pac. 916.
562. 82. -Publication of notices.-The public 90. An assignment of a contract for cation of notices of street improvement pro street work by the contractor does not ceedings, required by the Vrooman Act, in a prevent him from making demand for paynewspaper printed in a building on the ment for the work.-Stanwood v. Carson, 169 boundary line between the city where the Cal. 640, 147 Pac. 562. work was to be done and another city, the 91. Under section 18 of the act, requiring presses being situated in the former and that after the assessment is completed and the business office in the latter city, con filed with the city council, the council shall stitutes a regular publication in a properly give notice of such filing "by publication authorized journal, where such newspaper for at least ten days in a daily newspaper is shown to have been widely circulated in published and circulated in the city," an the former city.-Stanwood v. Carson, 169 affidavit of publication stating that the noCal. 640, 147 Pac. 562.
tice was published for "ten consecutive days 83. -Contest and appeal to council.-An (Sundays excepted), commencing on the 8th appeal taken to the city council before the day of October, 1909, and ending on the expiration of the time allowed to complete 18th day of October, 1909, both days inclua street improvement operates to suspend sive, and as often during said period as the running of the time originally allowed, said newspaper was issued, to wit, daily," and the council has jurisdiction to extend is sufficient. -Tilton v. Russek, 171 Cal. 731, the time for the final completion of the 154 Pac. 860. work.-Stanwood v. Carson, 169 Cal. 640, 92. -Accepting street work, by ordi147 Pac. 562.
nance.—Where in an action for the fore84. Where an appeal to the city council closure of a street assessment lien it is is made by disaffected property owners as set up in the answer that the street was to the character of the work, and the board an accepted street at the time the contract in sustaining the appeal orders the work for the work was let, and that therefore to be completed in accordance with the con- the defendant's land abutting thereon was tract, and the work is thereafter accepted, not subject to assessment for such work, no second appeal to the council can be enter it is not a prerequisite to the admission tained. Stanwood v. Carson, 169 Cal. 640, in evidence of the ordinance accepting the 147 Pac. 562.
street that the defendant formally prove 85. The defendant in an action for the that the ordinance was properly published.foreclosure of a street lien is not estopped Barber Asphalt Pav. Co. v. Jurgens, 170 Cal. from maintaining that the street was an 273, 149 Pac. 560. accepted street by reason of failure to ap- 93. The failure of such an ordinance to peal to the council.-Barber Asphalt Pav, Co. recite in the language of section 20 of the v. Jurgens, 170 Cal. 273, 149 Pac. 560.
general street law that the work on the 86. -Contract and its award and assign street had been fully constructed to the ment.-An award of street work made by a satisfaction of the superintendent of streets three-fourths vote of the trustees does not and of the city council, is not fatal, where require the approval of the president of the the ordinance recites the construction of the board.-Stanwood v. Carson, 169 Cal. 640, roadway to the satisfaction of the super147 Pac. 562.
intendent of streets and the city council.87. A resolution of award of street work Barber Asphalt Pav. Co. v. Jurgens, 170 Cal. is not insufficient because it does not bear 273, 149 Pac. 560. the certificate of the clerk. The law does 94. The omission of the recital from the not require such certificate.-Stanwood v. ordinance that the street was in good conCarson, 169 Cal. 640, 147 Pac. 562.
dition throughout, in the language of the 88. Where extensions of time for per- statute, does not nullify the force and effect formance of a street improvement contract of the ordinance.—Barber Asphalt Pav, Co. are regularly awarded by the trustees, the v. Jurgens, 170 Cal. 273, 149 Pac. 560. failure of the clerk to certify to the passage 95. The omission to specifically mention of the same as directed by the resolution in the ordinance that the "curbing" was is not of the essence of the extensions, and accepted as a part of the "roadway" is not does not render them void.Stanwood v. fatal, as "curbing" is included within the Carson, 169 Cal. 640, 147 Pac. 562.
definition of "roadway," and an acceptance 89. Provisions in the specifications re of a "roadway" in compliance with the secquiring the contractor "to dig all stake tion of the street law is an acceptance of holes, and preserve all stakes, for the lines, the whole of the roadway including the levels or measurements of the work in their curbing.-Barber Asphalt Pav. Co. v. Jurproper places, until authorized to remove gens, 170 Cal. 273, 149 Pac. 560.
96. The exception from the ordinance of 103. The omission of the signature of the that part of the street which according president of the board of trustees on the to law was required to be kept in order by a recorded warrant is not material where the railroad company does not make the ordi original warrant is properly signed. — nance a nullity, since the zone which the Schaffer v. Smith, 169 Cal. 764, 147 Pac. 976. railroad company is bound to keep in repair 104. -Bond of contractor-Enforcement, is not a part of the roadway.-Barber As -Where a bond given by a contractor for phalt Pav. Co. v. Jurgens, 170 Cal. 273, 149 the doing of street work, after reciting that Pac. 560.
the obligors are bound unto all persons per97. The failure of the municipal authori forming labor or furnishing materials to be ties to adopt a datum plane prior to the used in the work called for by the contract, adoption of the ordinance is immaterial to contains a provision to the effect that if the the force and validity of the ordinance, as contractor fails to pay for any materials or the same is not a question between the city supplies furnished for the work, or for any and a prospective bidder whose rights are in labor done thereon, the surety will pay the danger of being violated because of the same to an amount not exceeding the sum nonexistence of an official grade.—Barber specified in the bond, it is not necessary for Asphalt Pav. Co. v. Jurgens, 170 Cal. 273, a person who furnished certain materials 149 Pac. 560.
used in the performance of the work to a 98. Section 20 of the general street law subcontractor, as a condition of maintaining relating to the acceptance of streets and suit to recover upon the obligation of the the keeping of the same thereafter in repair bond, that he should first sue the subconat the expense of the municipality, provides tractor and establish that the materials were for the creation of a certain status by the actually used in the work, nor is it necessary adoption of the ordinance of acceptance, and that the subcontractor be made a party dethe moment this status is brought into ex fendant to the action.--Williams v. Tingey, istence the sovereign power of the state 26 Cal. App. 574, 147 Pac. 584. operates, through the act, to create an ex 105. Where the bond of a municipal conemption, and the adoption of the constitu tractor provides that in case the principal tional amendment of 1896 under which cities fails to pay for any materials furnished in and towns were freed in all "municipal the work the surety will do so, the surety affairs" from any further subjection to or is responsible for materials furnished a subcontrol by general laws did not have the contractor and used in the enterprise, aleffect of extinguishing such exemption under though the contractor is not personally the general law.Barber Asphalt Pav. Co. v. liable for the value of such materials.-WillJurgens, 170 Cal. 273, 149 Pac. 560.
iams v. Tingey, 26 Cal. App. 574, 147 Pac. 99. An ordinance of a municipal corpora- 584. tion accepting certain streets therein after 106. In an action to recover upon the their improvement under the provisions of covenant contained in a street contractor's the Vrooman Act, which falsely recites that bond to the effect that the contractor and gas mains or pipes had been laid in the surety would pay for the materials used streets when in fact such mains have not in the performance of the work, the measure been so laid, is void, as it is made by the of recovery against them for materials furstatute an essential prerequisite to the adop- nished to the subcontractor under contract tion of such an ordinance that all such is the value of the materials, not the price mains be in place, or that the governing specified in the contract.–Panama Commerboard of the municipality expressly find and cial Co. v. Tingey, 26 Cal. App. 576, 147 Pac. declare that such mains were then unneces- 585. sary, and a subsequent board of the munici 107. -Action by materialman upon bond pality has the right to repeal the ordinance of contractor.-An action by a materialman and enact a new one for the reimprovement against the surety upon a bond given for of the streets.-Raisch Improvement Co. v. the doing of public work pursuant to the Bonslett, 28 Cal. App. 649, 153 Pac. 747.
act of March 27, 1897, commenced after 100. A board of trustees may declare that the expiration of the time required therein an ordinance accepting streets is void, and for the commencement of such actions, but thus clear the way for further proceedings within the time provided in the amendatory in the way of the reimprovement of the act of 1911 enlarging the time for filing streets.—Raisch Improvement Co. v. Bons claims and commencing actions, is in time, lett, 28 Cal. App. 649, 153 Pac. 747.
notwithstanding the bond was executed 101. A false recital in an ordinance that prior to and the materials furnished after gas mains or pipes have been laid in certain the enactment of the amendment.-American streets is not final and binding on the courts. Radiator Co. v. American Bonding Co., 27 -Raisch Improvement Co. v. Bonslett, 28 Cal. App. 685, 151 Pac. 168. Cal. App. 649, 153 Pac, 747.
108. The amendment of 1911 to the act 102. -Certification of warrant.-The cer- of March 27, 1897, securing the payment tification of the warrant, diagram and as of the claims of materialmen, mechanics sessment in such a proceeding by the acting or laborers employed by contractors upon street superintendent, who earlier in the state, municipal or other public work, by proceedings was city engineer and who had enlarging the time within which such claims not yet relinquished that office, is a sufficient may be filed and actions thereon begun, certification.-Schaffer v. Smith, 169 Cal. 764, amounts merely to a modification of the 147 Pac. 976.
remedy, and is not to be construed to be a material interference with the obligation of the city treasury for the benefit of the taxthe bond.-American Radiator Co. v. Ameri payers and property owners of the city can Bonding Co., 27 Cal. App. 685, 151 Pac. certain alleged illegal expenditures of public 168.
moneys, is not subject to general demurrer 109. Streets-Repair of bridges-Liability without leave to amend for the technical for safety.-A municipal corporation, in the absence of the municipality as a party deabsence of statutory requirement, is under fendant.-Osburn v. Stone, 170 Cal. 480, 150 no duty to build or maintain bridges within Pac. 367. its limits or across a stream which is a 116. A complaint in an action by a taxboundary between it and another political payer in the city of Santa Cruz against the subdivision of the state, and therefore is mayor and councilmen to recover on behalf not responsible in damages for personal in of the city alleged illegal expenditures of juries received from its omission to erect the city's funds for street work, which or maintain a bridge over such a waterway. alleges that the claims for such work so -Coffey v. Berkeley, 170 Cal. 258, 149 Pac, audited, allowed and paid were not itemized, 559.
and for that reason it is impossible for the 110. A municipal corporation, under the plaintiff to make the allegations of his comact of 1911 relating to the liability of public plaint more specific as to the character of officers for damages resulting from defects the work done or where it was done, that or dangers in streets, etc., is not responsible no resolution of intention to perform the in damages for injuries sustained by an work was ever passed or adopted, that no automobile passenger from falling into a competitive bids or proposals were ever creek at a street crossing within the city called for, that the work was not let to the limits, where the complaint does not count lowest responsible bidder, and that no asupon the defendant's liability by reason of sessment was ever levied upon the lot or a defective condition of the highway (the lands fronting upon the streets upon which liability contemplated by the statute), but the work was done, but, to the contrary, upon the failure to bridge the creek and it was done by day labor and paid for out the further failure to light the crossing.- of the general fund of the city, is sufficient Coffey v. Berkeley, 170 Cal, 258, 149 Pac. 559. as against a general demurrer.--Osburn v.
111. Where the complaint in such an Stone, 170 Cal. 480, 150 Pac. 367. action fails to allege that no protection 117. Payment to a city street superintenwhatever was provided for the traveling dent of a sum of money for the rental of a public, or that the defendant totally failed surveying outfit belonging to him to the to guard against accidents, the city is not city is illegal.-Osburn v. Stone, 170 Cal. 480, liable for failure to maintain signals, lights 150 Pac. 367. or other warnings at the crossing, since the 118. Payment to a law partnership of a manner and extent of protection against sum of money for legal services to be renpossible accidents in such a case are confided dered to a municipality, when at the time so largely to the discretion of the corpora of entering into the contract and at the tion that courts will seldom hold the cor time of the payment of the money one of poration responsible for failing to supply the members of the partnership was a memmore elaborate and complete protection. ber of the board of education of the city, Coffey v. Berkeley, 170 Cal. 258, 149 Pac. 559. is illegal.-Osburn v. Stone, 170 Cal. 480,
112. It is also essential, in order to state 150 Pac. 367. the liability of a municipal corporation under the act of 1911, that the complaint § 4412. should aver facts exonerating the officer or 1. Construction. — This section, even if board charged with the care and repair of still in force, has no application to a conthe street in question, as the statute pro
tract between a town and a water company vides that the city is to be liable only in the
whereby the former purchases a bulk supply event that the officer charged with the duty
of water for a period of ten years, but has of repairing a street should be innocent
reference to the supplying of water to public of knowledge or notice of the condition from
buildings and the terms of contracts for which the accident became possible.-Coffey
such service.-Marin Water & P. Co. v. Sauv. Berkeley, 170 Cal. 258, 149 Pac. 559.
salito, Town of, 168 Cal. 587, 143 Pac. 767. 113. Taxpayer's action, A taxpayer has the right to maintain an action on behalf
$ 4458. of his municipality against its municipal officers to recover money belonging to the
1. Construction.-A paper published only city alleged to have been illegally expended
six days of the week is a "daily newspaper," by them.-Osburn v. Stone, 170 Cal. 480,
and a publication for the required period 150 Pac. 367.
in every issue of such a paper is a compli114. Where municipal officers refuse to
ance with the statute.-Tilton v. Russek, 171
Cal. 731. 154 Pac. 860. bring an action to recover funds which have been illegally expended, it should be impleaded as a party defendant in a taxpayer's
$ 4468 action.-Osburn v. Stone, 170 Cal. 480, 150 1. Construction.-Although the rules of Pac. 367.
common law are the basis of our jurispru115. A complaint in an action by a tax dence where our own laws are silent, they payer of a municipality against its mayor will be recognized and adopted only where and councilmen to compel them to pay into they meet the conditions existing in the