People v. McCain — 51 Cal. 360

Majority

p. 360

[No. 4980.]

THE PEOPLE OF THE CITY AND COUNTY OF SAN FRANCISCO v. J. S. McCAIN and P. McCUNE.

Headnote

Improvement of Street in San Francisco.—A resolution of intention to improve a street in San Francisco, under the act of April 4, 1870, must he published five days, exclusive of Sundays.

Act validating Street Assessments in San Francisco.—The act approved March 19, 1874 (Stats. 1873-4, p. 487), validating street assessments in San Francisco, if it has the effect to make assessments valid, operated on

p. 361

them only when it took effect, and, therefore, did not validate defective assessments in cases where actions were pending when the act was approved.

Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.

Action to enforce a lien on a lot for an assessment for tho improvement of a street in San Francisco, made under the statute of 1869-70, p. 890. The action was commenced on the 8th day of June, 1872. The contract for the improvement of the street was made on the 14th day of September, 1870; and the assessment was made and issued on the 19th day of February, 1872, and recorded on the 2d day of March, 1872, and became delinquent on the 1st day of April, 1872. The work for which the assessment was levied was the grading of Scott street from California street to Sacramento street. The court rendered judgment for the defendants. The plaintiff appealed.

W. C. Burnett and E. F. Preston, for the Appellants.

D. H. Whittemore, for the Despondent.

The resolution of intention to order the street work in question to be done was published in the Daily San Francisco Chronicle only five days, the last day being Sunday. In this respect the case is the same as San Francisco v. McCain ( 50 Cal. 210 ); and upon the authority of that case the publication in this case must be held to be insufficient to give the Board jurisdiction to order the work to be done.

It is contended by the plaintiff that this defect in the proceedings was cured by the act of March 19, 1874 (Stats. 1873-4, p. 487). This cause was pending at the time of the passage of that act. Itwas held in Reis v. Graff, ante, page 86, which was also pending when the act was passed, that the act did not have the effect to make tho assessment valid, as of tho date on which it was made; that if it was made valid by the act, the time when it became valid was the time when the act took effect; that the lien of the assessment, if

p. 362

it attached to the lot, did not attach until after the commencement of the action, and that for that reason the action could not be maintained. That case is decisive of the point here presented.

Judgment and order affirmed.

Mr. Chief Justice Wallace did not express an opinion.

Cases cited

People of San Francisco v. McCain 50 Cal. 210 Cal. p. 361