The herald., 1893-02-19
TWO OPINIONS.

The Supreme Court Passes Upon Two
Street Assessment Gases.
Two opinions were received yesterday
by Deputy Clerk of the Supreme Court
W. 7. Sesnon in this city.
In the case of Washburn, appellant,
Va. Lyous ct al, respondents, the judg-
ment of the lower court was sustained.
The opinion, which is brief, ia as fol-
lows:
"The court below sustained demur-
rer to the complaint, and thereupon gave
judgment for the defendant, and the
plaintiff appeals. The complaint does
not allsge that the resolution of inten-
ton was posted, but it does aver that
such resolution was published for two
days in a daily paper printed in the city
and designated by the city council for
that purpose. The first sentence OF sec-
tion s of the act to provide for work
upon streets within municipal
tiles, as amended by the act of March
IA, 1889, is as follows: Before ordering
any work done or Improvements made
which is authorized by section 2 of this
act, the city council shall pass resolu-
tion of intention go to do, which
shall be published and posted for two
days in the manner prescribed by Sec
tion "a of this act.' 1t is claimed
by the defendants that under
this provision the resolution itself
should have been posted, as
well as published but we do not think
so. The reference to section 81 of the
act and consideration of the subse-
quent part of section three, which pro-
vides for the posting of the notice of the
passage OF the resolution, make it very
clear that the word "and" as used in the
clause published and posted" in the
sentence above quoted should be con-
strued to mean or. Thus construed the
statute requires the resolution of inten-
ton to be published the prescribed
length of time if there ia no such paper
printed that then it ehall be posted in
tho manner prescribed by section "a sof
the act. The objection of the defend
ants therefore to this part of the COM
plant ia not we'll taken.
"But in another respect the complaint
is defective. 1t fails to show that the
contract, which is the foundation for the
assessment sought to be enforced, fixed
the time for the commencement and
completion of the work to be done there
under in accordance with the require
ments of section five OF the act of March
IS, 1885, before referred to. In the re-
cent case of Libby vs. Ellsworth ct al,
we hold this to be omission fatal to the
complaint in this class of actions and
upon the authority of that case the
judgment must be affirmed" The opin-
ion is by Judge De Haven.
In the case of Libbey vs. Ellsworth,
also an action on street improvement,
Judge De Haven sustained the lower
court in the following opinion:
"We think the demurrer was prop
erly sustained by the lower court. 1t
appears from the complaint that the
contract, which is the basis of the as
sessment sought to be enforced, was not
entered into between the assignor of
plaintiff and the superintendent of
streets within Is days after the first
posting of the notice of it's award to
plaintiffs sssignor, the plaintiff alleg-
ing that the posting of such notice was
first made September 90 1890, and the
contract executed on October 8th follow
ing. There is no averment in the COM
plant that this delay in executing the
contract was not caused by the neglect,
failure or refusal of plaintiffs assignor,
and we held in the case of Perine We.
Forbush that such an allegation was
necessary. The Judgment here must be
affirmed upon the authority of that
case.
sit is not sufficient to allege
generally, as in this case, that the con-
tract entered into with the superintend.
ent of streets was one by which the
contractor agreed to do the work named
therein in accordance with the
specifications, which are not set
out, and under the direction and
to the satisfaction of the superintendent
of streets; but it must affirmatively ap-
pear from the statement of the contract
whether it is set out in haec verba, or
according to it's legal effect that it con-
tanned everything essential to make it a
valid contract under the statute"