Year: 1859

u
decision which may interest our towns peo-
ple, inasmuch as we have the best streets in
California, and wish to keep up repairs
Here it is:


HART V. GAvEN.-The seth section of the Con-
sodaton Act, applicable to the city of San Fran
cisco, passed April 10th, 1858, provides that each
owner of lots fronting on streets which have been
planked and graded, shall keep the same IN front
of his lot IN repair, at his own expense and the
Superintendent of Public Streets and Highways
shall require of such owner, by verbal or written
notice, to make the repairs. BY section 81, if
such repairs are not commenced within three
days, (aiter notice given as aforesaid, and dill
gently and without any interruption, prosecuted
to completion, the Superintendent shall employ
any suitable person applying to do the work at
the expense of the tenant and owner, or occupant,
at reasonable price, to be determined by the said
Superintendent


In this case the defendant was the owner of the
property, and had notice to repair, which he de-
clined doing, and the Superintendent made the
contract to repair with the plaintiff, who did the
work; and the question is, as to defendants liza.
blity for the price. Section SO provides that an
action may be instituted by the contractor under
these circumstances.


Though no privity of contract exists between
the plaintiff and defendant yet if the Legislature
had right to require this duty or to lay this bur
den upon the owner, we suppose that the power
to provide for the collection of the sum in this
way cannot be disputed. There is no difference
between the power to authorize a suit in the name
of the tax collector, OF the State, or county, and
IN the name of the contractor the mode of enforc-
ing this obligation being mere matter of remedy
following the right.


Some provision being necessary for repairing
streets, the mode by which this is done, If it be
uniform and equal in its operation, must be left
to legislative discretion. This duty of repairing
the streets is in the nature of public burthen or
tax, and we do not see that the rule adopted ap-
plying to all the streets of municipality, is not
as near an approximation to uniformity as could
well be attained. Absolute justice in the opera
tion of human laws is impossible; there is no rule
however just in its general working, which has
not its exceptional instances of hardship, and
especially in the results of the taxing power is
this mcurable infrmity of laws to secure exact
and equal justice to all those upon whom they
operate, apparent. No tax law could ever stand
if subjected to a rigid test on the score of uni
formity. All we can expect is general equality
of operation. And we think that this is secured
by this Act


Regarding this obligation as creating tax to
the extent OF the needed repairs, which the Legs-
lature had right to impose and the giving Of the
action to the contractor as merely the remedy to
inforce it, we think that the judgment of the court
below on the facts was right.


III duF ulCSdSOndOle contract were maze, or I'm
reasonable repairs required, or advantage were
taken by fraud or otherwise, the case might be
different.


We decide here the precise case before us and
nothing more-the case Of the liability of an own.
er for repairs in front of his lot on graded and
planked or paved street, in proceeding to recov-
er on a fair and just contract.


The cases in Dana, 52l, and 10 Ohio, AIS, ci-
ted by the respondent, fully sustain the princi.
pies ofthis case.


The judgment is affirmed. BALDWIN, J.


concur: TERRY, G. J.


GETTING Tired OF IT-His Excelency the
Governor, wants TO get out of the State Pris
on. We see by the Union, that On the sth
inst, the following message was receiv ed
from the Governor, and was referred to the
Committee on the State Prison:


EXECUTIVE DEPARTMENT,


SACRAMENTO, March 7th, 1859. (
To the assembly of California:


A bill has passed the Senate, and is now
pending in your honorable body, which pro
poses to continue the Governor upon the
Board of State Prison Directors, to which ]
beg your attention. During the past year
as member of the Board, devoted, alto
gether, some two months of my time exclu
svely to this institution, and it is probabl,
that during the coming year much more at
tention will be demanded, for the reason thai
none of the Directors named in the bill car
be expected to reside at the Prison. The
Prison has already given me much trouble
and anxiety. This was anticipated; but
was willing to endure it in an effort to reduce
the expenses, reform the institution, and place
it upon respectable footing. Having, in
conjunction with the other members of the
Board, succeeded in accomplishing this, tc
some extent, think that am entitled to q
discharge. | venture the assertion that in nc
other State are the duties of the Governor SC
varied and arduous as in California Many
of the most difficult duties have been imposed
upon the office | entered it; whilst the com
pensation, as compared with that of my pre-
decessors, is very materially diminished. The
prison is located so far from the seat of gov
ernment, that it is exceedingly inconvenent
for the Governor to visit it. and would not
be willing to be held responsible to the pnb-
lie forits management nnless | could go there
frequently. ! am therefore constrained to
request your honorable body to amend the
bill by substituting some other officer or per-
son in place of the Governor. In making
this request, l wish it distinctly understood
that | have no objection whatever to the
other members of the Board The two gen.
tlemen named in the new bill are as accepta.
BILE to me in all respects as my old associates.


JoHN B. WELLER.