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Dyer v. Barstow

53 Cal. 81 Court Cal. Docket No. 5425 English

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p. 81
[No. 5425.]
JAS. S. DYER v. GEORGE BARSTOW et. al.

Headnote

Street Assessments kmor to the Act oe April 4th, 1870.—The Act of April 4th, 1870, relative to street assessments in San Francisco, does not apply to contracts made previous to the passage of that act, nor to the remedies for their enforcement.
Appeal from the District Court of the Third Judicial Dis-. trict, City and County of San Francisco.
The action was brought to recover a street assessment. The contract was executed October 4th, 1869, and the assessment issued November 23rd, 1870, in compliance with the contract. The contract provided that upon the performance of the work by the contractor, the Superintendent of Streets should make and issue an assessment, as provided by the laws existing at the date of the contract.
The plaintiff had judgment, and the defendant appealed.
This cause was before the Supreme Court on a former appeal, which is reported in 50 Cal. 652 . The original complaint embraced several assessments for improving the same street, which was held to be inadmissible, and in this case but one assessment was sued for.
M. A. Edmonds, for Appellant, argued that the act of April 4th, 1870, applies, because it does not take away any vested rights, but merely regulates the remedy for enforcing them.
J. C. Bates relied upon Dyer v. Pixley, 44 Cal. 158 .

Dyer v. Pixley, 44 Cal. 158 , was an action by the contractor to recover a street assessment, under a contract entered into in the year 1869, the diagram, assessment, and warrant having been issued and recorded in July, 1870. The facts were precisely analogous to those involved in the present case, which is also an action by the contractor founded on a contract made in . 1869, the diagram, assessment, and warrant having been issued

p. 82
in November, 1870. In each case the contract was made before and the assessment after the passage of the Act of April 4th, 1870, (Statutes 1869—70, p. 890.) In the former case the point was made that the assessment having been made and issued after the passage of the Act of 1870, the action could not be maintained by the contractor, but only by the City and County of San Francisco, as authorized by that act. But the thirteenth section of the act provides that the act shall not be construed so as to “ affect any contracts heretofore awarded or assessments issued.” In construing this clausé we held its correct interpretation to be that the act should not be construed as “ applicable ” to previous contracts, or the remedies for their enforcement, and consequently that the contractor might maintain the action as though the Act of 1870 had never passed. We see no reason to doubt the correctness of this ruling, and we think it is decisive of the present action.

Judgment affirmed. Remittitur forthwith.

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