The herald., 1898-04-08
ALL INVALID WARRANTS
WILL BE REPLACED BY ISSUANCE
Or GOOD ONES
SOME MISTAKEN DEDUCTIONS
Which Caused Great Anxiety Around
the City Hall-Inspection Trip.
Quarterly Reports-Notes

Since the receipt in this city of the news
of the recent decision Of the supreme court
in the matter Of the issuance OF warrants
to contractors upon street work, wherein
the justices ruled that such warrants
must be made payable to the original con-
tractor and not to an assignee or sub
contractor, inquiries for more definite in
formation upon the effect of the decision
have been numerous and the city hall cor
ridors have been thronged with anxious
contractors and others.
A morning paper yesterday, after giving
the text Of the opinion, stated that "the
decision practically removes all liens
upon property on account of street I'M
provement in nearly every contract which
has not been completed and paid for. In
other words, there is hardly contract for
street improvement being dome in this city
in which the contractor has any legal
means of enforcing lien upon the proper
ty abutting the street under contract, for
the reason, that nearly all these street con-
tracts have been assigned by the persons
to whom they were originally let"
The startling deductions drawn caused
the city attorneys office to be overrun all
day by crowd of eager inquirers. who
feared that they were to lose all they had
through the action Of the supreme court.
As a matter of fact, while the decision may
have'a far-rcaching effect upon such work
as has been done under the bond act, 1t will
make little difference as to work done by
cash assessment. The decision cites the
statutory provision, which requires that
the warrant "shall be issued in the name of
the person with whom the superintendent
of streets entered into the contract for do
ing the work. Otherwise, persons dealing
with the property would never know
whether the assessment constituted lien,
since there is no provision for recording or
authenticating for record any assignment
of the contract. And, as the superintend-
ent Of streets is not required or authorized
to verify the sufficiency of the assignment,
his act in issuing the warrant to one assum-
ing to be the assignee Of the contractor is
not conclusive Of the fact of such assign
ment or sufficient to create lien in his
favor.
"In Taylor VS.. Palmer, 81 CAL, 241, 1t was
contended that, as the contract was as
signed before the work was completed, the
warrant should have been issued to the
assignee, and that it's issuance to the orig
inal contractor was unauthorized. The
court, however, said that the issuance to
the original contractor was in precise form
of the statute, which is the proper form,
whether the contract has been assigned or
not. The provision III the section, that the
warrant shall be substantially in the form
given therein, does not authorize
u departure from this form in
one of its most essential par
ticulars. viz, the person in whose name 1t
shall be issued, and which has been specif-
cally given as substansive part Of the
form"
The effect upon assessment diagrams and
warrants issued to an assignee is merely to
declare them void, and instead of the con-
tractor having mo legal means of enforc-
ing his lien upor the property" all he will
have to do is to demand that the street
superintendent issue to him legal war
rant in proper form. In the case Of Him
melmann VS.. Cofran (36 CAL, AID, the street
superintendent refused to issue another
warrant in the place of one declared void,
claiming that he had fulfilled his duty
when he issued the assessment and war
rant, and had no power to issue another.
Upon mandamus proceedings II was de-
cided by the supreme court that the street
superintendent must make a legal assess
meut and warrant, and a failure to do so
or the issuance OF a void warrant does
not prejudice the issuance Of q valid as
sessment.
The principle Is upheld in the two similar
cases of Dyer VS.. Scalmanini (6s Cal, 637)
and Wood vs.. Strother C76 CAL, 547). In the
latter case it is also held that in regard
to any amounts which had been paid to
the holder of the void warrant must be by
him accounted for to the person entitled
to the warrant and such payments are to
be credited to the persons making them
and be regarded as mere payment in ad-
vance, because until a valid warrant and
assessment is issued the law holds that no
lien hes been created. 1t is also held that
tween the discovery of the invaldity of a
warrant and the date of its issuance. this
period having been held to be in certain
cases as much as three years, owing to CTR
cumstances surrounding the case in point.
So far as the decision being a means by
which dead-beat contractors can be
brought to book is concerned it is likely to
prove disappointment. While the war;
rant must be made out to the original
contractor, there is nothing to prevent his
assigning his interest Immediately after
ward and empowering some one else to re-
ceive the warrant and collect tie money
due upon It, All the above pertains, as
has been stated. to cash assessments and
not to work under the bond act. The law
yers differ widely in their estimate of the
probable effect of the decision upon the
bonds and as to the steps necessary to
legalize past issues. If any. That will
for the present, until test case is made,
have to remain a puzzle.
N 4 e. a