Guerin v. Reese , 33 Cal. 292 ( 1867 )

By the Court, Rhodes, J.:

The contractor’s return upon each of the warrants of the Superintendent of Streets, so far as it relates to the points we shall consider, is “ that he [the contractor] could not conveniently find Michael Reese,” and “ that he also went u^pn^ each of the lots numbered and exhibited on the dia,gt’aimattached to said assessment list and warrant as lot^nuá^ers 1, 2, 3, 4, 5 and 6, and publicly demanded on each lot payment of the sum assessed thereon in said assessment list, but that notwithstanding such demands so made the several sums assessed in said assessment list against the lots numbered and exhibited as aforesaid remain due and unpaid.”

The tenth section of the Act of 1862, relating to streets in San Francisco, (Stats. 1862, p. 397,) provides that the “ said warrant, assessment and diagram shall be'recorded. When so recorded, the several amounts assessed shall be a lien upon lands, lots or portions of lots assessed, respectively, for the period of two years from the date of said recording, unless sooner discharged.” The eleventh section of the Act, as amended in 1863 (Statutes 1863, p. 529), among other things, provides that “ if any contractor shall fail to return his warrant within the time, and in the form provided in this section, he shall thenceforth have no lien upon the'property assessed.” The return, therefore, in conformity to the provisions of that section, is essential to the continuance of the lien.

As the contractor, under the authority of Taylor v. Palmer, 31 Cal. 240, is not entitled to a personal judgment against the person assessed, he is under the necessity of taking the steps requisite to preserve his lien upon the lot; otherwise he is without remedy for the collection of the assessment. That section (Section 11) prescribes the manner of making the demand. There are three modes in which the demand may be made. First, of the person assessed; second, of his agents; and third, a demand publicly made on the premises assessed. The purpose of the demand is very obvious. Up to that time the owner has only constructive notice of the proceedings, from their initiation up to the recording of the warrant, assessment and diagram; and as by the record a lien is cast upon his property, he is required to be notified in order that he may take the proper steps for its discharge. The statute gives him certain days of grace—not less than five nor more than fifteen—"within which to pay the amount due, so as to relieve his lot of the lien and save himself from the annoyance and expense of defending an action for its enforcement, and also to enable him to take an appeal to the Board of Supervisors upon questions respecting the legality or correctness of the assessment, etc. The purpose of the. demand was to give him the full benefit of those days of grace. The record of the warrant, assessment and diagram, it is declared by section ten, shall be constructive notice to him of its contents; and, of course, the statute could not be reasonably construed as intending that another proceeding should be taken within the ensuing ten days, to impart to him again constructive notice of the same thing. It was devised as the surest and readiest means by which actual notice might be imparted to him, if that was practicable. Impossibilities are not required of the contractor. He is not required to call on the owner if he cannot be found, nor upon the agent (if he has an agent) if he cannot be found, nor to go upon the premises if they are inaccessible. The warrant is a process which he is required to serve, and he is held to the same measure of diligence in its service as an officer holding legal process for service. He must make diligent search and inquiry for the person assessed.

The word “ conveniently,” in the section requiring the contractor to call on the person assessed, if he can conveniently be found, and demand payment, is very unusual in such a connection, though the proper interpretation may not be doubtful. It certainly does not mean that he should call on the owner of the lot if it suits his convenience. It may, in one sense, be inconvenient for him to leave his residence, or to pass along a single block, or to enter the lot-owner’s place of business to demand payment; but that interpretation would made the requirement a useless and absurd one. Whatever it is the duty of an officer to do while engaged in the performance of services enjoined upon him by law, and may be accomplished by the exercise of reasonable diligence, that, it may be said, can conveniently be done by him.

The effort must he made to find the person assessed before going in search of his agent, and the return must show that fact. If he is a non-resident of the city or State, or if he is temporarily absent, or if he has absconded, or if, after an attempt in good faith to find him he cannot be found, there is no difficulty in stating the fact. The statute requires the return to state the “ nature and character of the demand,” and as the continuance of the lien for two years depends on the return, there is a marked propriety in requiring the return to show a demand upon the person assessed, or a reason why it was not done, before resorting to the other modes of making the demand. Suppose the fact was, as suggested by the defendant’s counsel, that the defendant was as universally known, and as easily found, as any man in San Francisco, it is obvious that the return of the contractor that he could not conveniently find Michael Beese, would be the merest evasion. Had the return been that the defendant “ cannot be found,” or that “ he could not find ” the defendant, it would have been sufficient, so far as the personal demand is concerned, to show a compliance with the requirements of the statute, but as it now stands it is insufficient. ,

Before the contractor is permitted to resort to the third mode of making the demand he must have exhausted the second as well as the first mode. He should show either that the person assessed has no agent, or, if he has an agent, that he could not be found. The return does not show either of those facts, although it shows that he called upon the agents of other persons who were assessed. For this reason, also, the return is insufficient.

Judgment reversed.