The record-union., 1891-02-09

ana Sargent " Harphain.
DEPARTMENT ONE.
FRICK ET AL, Appellants,
vs.. No. 1869.
MoRFoRD, Respondent.
The plaintiffs applied to the Superior
Court OF Los Angeles County for writ OF
mandate TO the superintendent. OF Streets
OF the City OF Los Angeles, directing him
to make an assessment for certain work
done by them in laying Il sewer in
Seventh street, under contract with the
city authorities. In their application
they aver that they entered into con-
tract with the Superintendent of Streets
by which they agreed to lay the sewer
in accordance with plans and specitica-
tons therefor on file in the office of the
CITY Surveyor" $ ''but
said plans and specifications were faulty
and erroneous in this: that about eight
feet OF sewer more We're required by said
plans and specifications to be laid, and
were laid by affiants, than was authorized
by the resolution OF intention;'' that
they had performed their work to the
satisfaction Of the Superintendent of
Streets, and that he accepted the same
and made an assessment therefor, land
IN SAID assessment included the cost and
incidental expenses of said unauthorized
eight 1eet;" that they brought an action
TO recover the amount of a portion of
the assessment against one III. l..
Williams, who had refused to pay the
same, because of said excess of work,
and that they had dismissed the said
action.
The defendant demurred to the appli-
cation, and his demurrer having been
sustained, the plaintiff declined to amend.
and appealed to this court from the order
denying the writ. The plaintiffs do not
IN their application aver in terms that the
assessment that had been issued was
void, nor can we say from the facts averred
by them that it was void. Neither do
they aver that the court in which they
brought an action upon it decided that it
was void, but they say that they dismissed
their action against Williams upon 'be-
coming convinced from the rulings of
the honorable court That Judgment could
not be recovered by them"
Ii the assessment was valid one, the
superintendent of Streets cannot be re-
CURED to make another, and unless facts
showing that it was not valid We're clearly
set forth in their application, the court
was justified in refusing to grant the writ.
L. The plaintiffs do not show very
clearly in their application wherein the
plans and specifications which were on
file in the office of the City Surveyor "re-
quired about eight feet of sewer more to
be lald'' than was authorized by the reso-
luton of intention, but we understand
therefrom that they required the sewer to
pc laid to point SSS feet west of the east
line OF Pearl street, instead of $50 feet
westerly therefrom as specified in the
resolution. Ii this be the fact, it would
result that the plaintiffs laid the westerly
eight feet OF the sewer without authority,
and that they are not entitled to an
assessment for that portion of the work
done by them. 1t does not result. how
ever, that the assessment for the work
done by them that had been authorized
by the resolution of intention was void.
Neither does it clearly appear from the
application where the lot of Williams was
situated with reference to this excess of
eight feet. If it was wholly or in
part within the eight feet, the
plaintiffs are not entitled to an assess
ment against that part of the lot not
fronting upon the work authorized by
the City Council. If his lot was east of
the $50 feet limit the assessment against it
would not be rendered void by the fact
that the entire assessment purported also
TO make a charge upon lots that were not
within the resolution of intention. In
aspuch- as the price at which the plain
tiffs We're to do the work was estimated
by the lineal foot, thecost of that which
was done by them outside of the $50 feet
limit could be easily segregated from the
remainder. (Himmelman VS.. Hoadley,
A CAL, 276.)
z. Ii the assessment embraced only
the frontage upon the, $50 feet covered by
the resolution of intention, but included
the expense of laying the sewer in the
eight feet outside Of that limit, it was an
error which could have been corrected by
the city Council upon appeal, and the
failure to take7su appeal was conclusive
upon the owner as well as upon the con-
TRACTOR (H1mmelman VS.. Hoadley.
supra; Boyle VS.. Hitchcock. 66 Cal. 1851
II the lot of Williams as assessed was
partly within the $50 feet authorized by
the resolution of intention to be ''im-
proved" by the sewer, and partly outside |
thereof, it was the duty of plaintiffs to
appeal to the City Council within thirty
days after the date of the warrant for the |
purpose OF having the assessment COR
rected. Upon such appeal the City Coun- |
Gil would have limited the assessment to |
the $50 feet authorized by their resolution |
of intention
Section II of the Act of March 8, 1885
lStats. 1855, p. 1860 provides that: ''The |
contractor having or making |
any objections to the correctness or legal |
lty OF the assessment shall |
within thirty days after the date of the |
warrant appeal to the City Council. |
Upon such appeal the said City Council |
correct the assessment in such manner as /
to them shall seem just; and |
may instruct and direct the Superintend-
ent of Streets to correct the assessment in I
any particular, or to make and issue q
new assessment to conform to the decis-
ions OF. the City Council in relation there
70. All the decisions and determine
lions of said City Council .. shall |
be final and concliesiue upon all persons
entitled to appeal under the provisions of
this section, as to all errors, informalities
and irregularities which said City Coun-