Los Angeles herald., 1892-09-16
A SAN BERNARD|NO SEWER,
The Case Settled in Favor OF
the City.
Matters of Interest Gathered in the
Various Courts Yesterday.
Several Decisions Received From the
Eupreme Court-Lacey Wants Large
Damages-SwindlersC Convicted.
New Cases-Notes.

Supreme Court Clerk Ashmore re-
ceived an opinion by the supreme court,
yesterday, affirming the judgment in the
case of Mclean VS.. the city of San Ber-
nardino. Tie case was an action
brought for the purpose of recovering
from the city the sum of $4221 10, claimed
to be due from it on account of the con-
struction of sewer along the center line
OF First street, in San Bernardino, be-
tween 9 and streets, and between these
terminal points. A demurrer to the
complaint was sustained, and judgment
was given for the defendant.
One-half OF the sewer, as constructed,
was outside OF the city limits. 1t was
constructed under contract awarded by
the city board OF trustees, and the con-
tract contained the clause required by
the act regulating such contracts, to the
effect that in no case, except where it
is otherwise provided in this act, will
the city, or any officer thereof, be liable
for any portion of the expense, nor for
any delinquency of persons or property
The complaint alleged that the city
was liable for the balance of the cost of
constructing the sewer, $4221.91, and
that the board of trustees passed reso-
luton agreeing to pay that amount.
The court holds that the facts do not
show any liability of the defendant
upon the original contract for the con-
struction of the sewer. 1t was expressly
provided in the contract that the city
should not be liable. As to the effect
OF the resolution of the trustees, the
court says that it was passed after the
contract was fully performed, and did
not have the effect of creating binding
objection where none existed before.
If it had been executed, it would have
been purely voluntary payment by the
city. The court concludes by Saying
that the contract under which the as
signor of the plaintiff constructed the
sewer, contemplated no liability by the
city, but that the work should be paid
for by an assessment upon adjacent
city was under any moral obligation to
pay for that for which not only the law,
but the contract, expressly provided it
should not be Responsible.
An opinion was received reversing
the Judgment in the case of Mclean vs.
Martin. It was an action brought to
forclose an alleged lien upon lot be-
longing to the defendant, upon an as
sessment for the construction of sewer
along G. street in San Bernardino.
Judgment was given in favor of the
plaintiff, and defendant appealed. The
court holds that the complaint failed to
show proper demand for the payment
of the assessment within thirty days
after the date of the warrant, and such
demand was necessary in order to
preserve the lien of the assessment.
The failure of the plaintiff to show a
strict compliance with the essential re-
quirement was fatal to the judgment.
An opinion was also received affirming
the judgment in the case of Mclean We.
Redick, ct al. 1t was also an action to
recover upon an assessment for the con-
struction of a sewer upon one OF the
streets of San Bernardino, and the fore
closure of the alleged lien upon lot
owned by the defendant. The superior
court rendered judgment for the defend
ants, and the plaintiff appealed. There
was no bill of exceptions in the record,
and the only question was whether the
findings support the judgment.
The foundation of the plaintiffs right
to maintain the action, rested upon a
resolution of intention passed by the
board of city trustees to do the work for
which the assessment was made. The
resolution of intention to construct
sewer along part of Third street in San
Bernardino, was duly passed. The court
finds that subsequently and without
further resolution or notice to the prop
erty owners, an advertisement calling
for bids was made; but it called for the
sewering of the street between and G
81 vuhtah hn1 t>lNnH 1oou
than specified by the resolution of in
tention. The court holds that upon
these facts the contract for the construc-
done hereunder, and subsequent assess
upon the defendants property.