Dougherty v. Hitchcock , 1868 Cal. LEXIS 121 ( 1868 )

By the Court, Rhodes, J.:

It is provided by section nine of the Act of 1862, relative to the improvement of streets in San Francisco, that after the contractor has fulfilled his contract, etc., the Superintendent shall make an assessment to cover the sum due for the work performed and incidental expenses. This is an ■ official act on the part of the Superintendent, and its character and authenticity can be attested in only one manner, and that is the official signature of the Superintendent. Its official character must be made to appear on its face. In Himmelman v. Danos, ante, 441, it is held that the copies of the assessment, warrant, and diagram found in the Superintendent’s book could not be considered as a record until signed by the Superintendent, because the making of the record was an official act, and its official character must be made to appear on its face; The document cannot be regarded as an assessment, and, standing by itself, is was clearly inadmissible.

But it is contended that it was helped out by the warrant, which was signed by the Superintendent, and countersigned by the Auditor, and was attached to the assessment. This position might be maintained if the two papers constituted only one official document; but they are distinct, and each must be in truth what it purports to be before they can be attached together for the purposes specified in the Act. The position contended for would make a summons without the signature of the clerk valid, if it was attached to the other papers constituting the judgment roll.

It is further contended, that as the statute, in providing for the assessment, warrant, and diagram, expressly requires only one—the warrant—to be signed by the Superintendent, it was not intended that either of the others should be signed, and the rule, that the mention of the one is the exclusion of the others, is relied upon to sustain the position. There would be great merit in the argument if either of these documents could be regarded as official, in the absence of an official signature. Its application in respect to the signature of thé Auditor is very apparent. But the statutory requirement'that the warrant should be signed by the Superintendent was an unnecessary repetition, for the issuing of the warrant as necessarily imports and includes its signature as the averment that a summons was issued by the clerk imports that it received his official signature. This view is illustrated by the positions taken in Himmelman v. Danos in respect to the provisions of the next section of the statute. It is there provided that the Superintendent shall record the assessment, diagram, warrant, and the return, and the contract also, if it has not already been recorded, “ and shall sign the record;” and upon the question whether the copies of the first three constituted a record capable of creating the statutory lien, it was held that they did not amount to a record, because the signature of the Superintendent was wanting from the copies.

The street work mentioned in the resolution of intention is the grading of Clay street from Taylor to Jones, and from Jones to Leavenworth streets, and the crossing of Clay and Jones streets. The Board ordered that work to be done; the advertisement for proposals was for the same work—the bidders being notified to put in separate bids for each block and the crossing—and by the resolution of award, the con-, tract for the whole work was awarded to the lowest bidder at specified prices for each block and the street crossing. The contract was entered into between the Superintendent and the contractor for the grading of one block only—that from Jones to Leavenworth streets. It is very apparent from this statement that the contract was wholly unauthorized by the resolution of the Board. The resolution of intention and its publication confer upon the Board jurisdiction to proceed in the prescribed mode to order the proposed work to be done, and in the exercise of the jurisdiction thus acquired the Board has no power to act upon any other or different work. The proposed work is a distinct and entire subject matter. There is a manifest propriety in confining the Board to the specific improvement mentioned in their resolution. The owners of the adjoining lots may be quite willing that the proposed improvement should be made, but they may have well grounded objections to a work either of a greater or less extent. Suppose Clay street had been graded from Kearny to Taylor street. The lot owners might desire that the grading should be continued to Leavenworth street, but if they were sane they would not consent that the block between Taylor and Jones streets should be passed by, and that a vast chasm should be dug in the street by the excavation of about forty thousand cubic yards of earth from the block between Jones and Leavenworth streets. The resolution of award is the letter of authority to the Superintendent, and he has no more power to contract for the performance of only a part of the work therein specified than of additional work. The execution of the contract by him was purely a ministerial act, and a contract that does not accord with the award is as destitute of binding force as one executed in the absence of an award. A contract authorized and executed in the mode prescribed by the Act is indispensable to the validity of the_ assessment. This defect is not cured by the failure of the lot holders to appeal to the Board, because had an appeal been taken, the defect could not have been remedied by the Board.

Judgment reversed.