Blair v. Luning , 1888 Cal. LEXIS 840 ( 1888 )

McFarland, J.

This is an action to foreclose a lien for certain street work in the city and county of San Francisco, viz.: “Reconstructing the sidewalks on Hyde Street, from Broadway to Pacific Street, and for planking the roadway thereof.” Judgment went for plaintiffs, and defendant appeals.

The only point made by appellant is, that the assessment was absolutely void because no work was done on the sidewalks. It appears from the findings that the specifications in the sealed proposals required certain work to be done on the sidewalks, “where not already constructed”; but it turned out that all the sidewalks had already been constructed, and therefore no work was done on them. The authorities cited by appellant are mostly cases where the board of supervisors or street superintendent failed to give the notices, or to comply with otlmr conditions precedent which were necessary to confer the power to make contracts and assessments for street work. In these and some other cases cited the objections went to the jurisdiction; and the assessments were held to be void. But in the case at bar the thing complained of (if, indeed, it furnished any just cause of complaint at all) was a mere error, and the remedy was an appeal to the board of supervisors under section 12 of the act of April 1, 1872. (Stats. 1871-72, p. 815.) The assessment was not void for want of jurisdiction. (Himmelmann v. Hoadley, 44 Cal. 276, and cases there cited; Hines v. Reis, 40 Cal. 264; Boyle v. Hitchcock, 66 Cal. 129.)

Judgment affirmed;

Sharpstein, J., and Thornton, J., concurred.

Hearing in Bank denied.