Himmelmann v. Hoadley

Power to Establish Grade ot Streets in City. — The power conferred on a Board of Supervisors to lay out, open, and grade streets in a city, carries with it, by necessary implication, the power to establish the grade of such streets. Confirmation ot Void Order Fixing Grade ot Streets.—An order of a Board of Supervisors, establishing the location, width, and grade of streets, if passed without authority, is rendered valid by being subsequently confirmed by the Legislature. Authentication ot Records ot Street Superintendent.—The proper modo for authenticating the record of the assessment, diagram, and warrant in cases of a tax on lots for improving or grading a street in San Francisco, is to append thereto the official certificate of the officer whose duty it is to make the record. The assessment need not have a separate cei tificate. Idem.—Such certificate need not specify the pages upon which the assessment, diagram, and warrant are copied, but if it does, it will be limited to the pages specified, unless the record itself shows that the reference to the pages is a clerical error. Idem. — "When such record is copied on to six pages, ending with page seventy-nine, and the certificate states that “ the foregoing on pages No. 79 is a true and correct record of the assessment, diagram, and warrant,” it is apparent that the omission of the five preceding pages was a mere clerical error. Ceetifigate of Deputy in Name of Pbincipal.—The certificate authenticating the record of the assessment, diagram, and warrant in case of tax on a street for improving the same in San Francisco, may he signed hy a deputy of the Street Superintendent, in the name of his principal, and such deputy need not affix the word “ deputy” to his signature if the certificate purports in the body of it to be the official signature of the principal. Judicial Notice of Official Signatukes.— Courts will talce judicial notice of the officers of a comity, and of the genuineness of their official signatures, and of the genuineness of the official signatures of such deputies as the law authorizes them to appoint. Demand of Payment of Stbeet Assessment.—In an action hy a contractor to recover an assessment on a lot in San Francisco for improving the street, the return of an agent of the plaintiff, indorsed on the warrant for the collection of the assessment, showing a demand of payment of the assessment, is evidence of such demand. Idem.—The Superintendent of Streets in San Francisco, unless he is satisfied beyond all doubt as to the ownership of a lot, may assess it to “ unknown owner ” (and it is almost impossible to show that lie did know the owner), and when the assessment is made to “unknown owner,” payment of an assessment on it for improving the street -may be demanded publicly on the premises. New Tbial.—The appellant from an order denying a new trial cannot avail himself of an error appearing in the statement, unless he mentions it in his specifications of reasons why a new trial should he granted. Feaudulent Side-coñteacts with Ownebs of Lots.—If the contractor to improve streets in San Francisco makes a private fraudulent contract with a part of the owners, it is no defense in an action brought hy the contractor against another lot owner to recover his assessment. If such fraud is not discovered in time to appeal to the Board of Supervisors, relief can only be obtained by a direct attack on the contract.

Appeal from the District Court of the Twelfth Judicial District, City and County of San Francisco. On the 9th day of July, 1869, the Board of Supervisors of the City and County of San Francisco resolved to improve the sidewalks on California street, from Gough street to Cemetery Avenue, hy macadamizing them. The contract was let to B. Kenny, on the 6th day of October, 1869, at six cents per square foot. The work having been completed, the Superintendent of Public Streets, Highways, and Squares, on the 20th day of October, 1870, made an assessment to cover the sum due on the contract, and attached thereto a diagram exhibiting each street and crossing, lane, alley, place, and court, and showing the location of lots, and attached thereto a warrant authorizing said Kenny, his agents or assigns, to demand and receive the assessments. The warrant, assessment, and diagram were recorded in the office of said Superintendent, on pages 77, 78, 79. Upon the warrant was an indorsement, signed by F. Tobleman, the plaintiff’s agent, dated the 28th day of October, 1870, stating that he had publicly demanded payment of the assessment sued for upon the lots assessed. The return was verified by the agent’s oath. This return was recorded in the margin of the record. The assessment was assigned to the plaintiff. The delinquent lots were assessed to unknown owners. This action was brought to recover an assessment on several lots, and it was alleged in the complaint that Milo Hoadley owned the lots, but the other defendants had some interest in them. The plaintiff introduced in evidence the assessment, diagram, warrant, and return thereon, together with the certificates of the recording of said assessment, diagram, warrant, and return indorsed on the back thereof. When they were offered in evidence defendant objected to the same, on the ground that the return thereon was defective, informal, and insufficient to create, when recorded, any lien upon any of the lots described in the complaint, or to authorize plaintiff to maintain • this suit, as it did not show that the respective sums alleged to have been assessed to each of said lots was demanded thereon, nor of defendants personally, and that the assessment did not sufficiently refer to or designate any contract under which the work was done. The Court overruled these objections. The plaintiff produced from the Street Superintendent’s office volume Ho. 49, wherein said assessment, diagram, warrant, and return are copied at length in pages 77-77, 78-78, 79-79. When plaintiff offered in evidence said volume Ho. 49, to prove the record of said assessment, defendants objected to the same on the following grounds: That the signing and certificate to the alleged record of assessment on the face thereof applied to nothing else than what appears on those two pages marked and numbered 79, and did not include or apply to pages 77-77; and that the alleged record of said return does not purport to be signed by the Street Superintendent, but by J. Donnelly, who does not sign either as principal or deputy, so that the same is no record and creates no lien on defendants’ said lots, or either of them, and is insufficient to authorize plaintiff to maintain this suit. The Court overruled said objections, and allowed the plaintiff to read in evidence pages 77-77, 78-78, 79-79, from said volume Ho. 49, to prove plaintiff’s record and lien, to which ruling defendants excepted. Here plaintiff" rested, when the defendant moved the Court for a nonsuit, on the ground that no proof was offered of any of the preliminary proceedings of the Board of Supervisors, or Street Superintendent, beyond the recitals in said papers so introduced in evidence. The Court overruled the motion. In rebuttal of the alleged return on said assessment, diagram, and warrant, and to maintain the issues on their part that no demand was ever made by plaintiff" of the defendants personally, nor upon any of said lots of laud, for the alleged assessments, defendants called F. Tobleman, who testified that he “is the same F. Tobleman named in the complaint as plaintiff’s agent in making the demand and signing the returns therein named; that on the 28th day of October, 1870, he signed and verified the return upon the assessment in this case, already in evidence, after reading the same, said return having been written out for him by some one else, at the office of plaintiff’s attorneys, but by whom he does not know; that, at the same time, when he was making the demands mentioned in the return in this case, he also had in hand the assessment, warrant, and diagram for the grading of California street, from Gough street to Cemetery Avenue, and also the assessment, warrant, and diagram for macadamizing California street, from Gough street to Cemetery Avenue.” There were one hundred and ninety-six lots in all, and three assessments on each lot. The witness said “ he did not make all the demands therein mentioned on the 28th of October, but he made said demands on two different days, but what date he does not recollect, and was engaged at the lots in making said demands in all about four hours, of each said two days; that he started from the city about nine o’clock in the morning, and went out along California street—the first day along one side, and the next day on the other side of the street, making his demands; that he came into town for lunch each time at midday, which took him about an hour, and each time he quit about three p. m. or after, and returned in the afternoon, getting back to his office before four o’clock p. m. each time; that he went and came on horseback; that when the lot on which the demand was to be made was fenced in, he hitched his horse, got over the fence, produced his bills, which he had with him—all made out for each lot, respectively—made the demand, and then proceeded to the next lot; that he had with him three assessment lists, and three sets of bills; that when there happened to be a house on the lot, of which demand was to be made, he rang or rapped at the door, waited until somebody came to the door, and he found out who owned the property, then made his demand, and left; generally left the bill at the house; on California street, between Baker and Broderick streets, there are houses oh every two or three lots; that most of the lots were unimproved, and without houses.” The witness further testified: “At the time I made the demand, there were seven houses on the north sidé of California street, between Gough street and Cemetery Avenue, and on the south side about ten; I think most of the lots were without houses, and are barren sand hills; I spoke to the lot in each case in making the demand, and not to any person, except at the houses, unless there was some person on the lot; in demanding on the lot, unless there was some person on the lot, I did not speak in a loud tone of voice, , not so loud as I am speaking now;” (in a low tone, barely audible to the Judge and Reporter.) In reference to these lots, the witness says, in making the demand on such lots, he ascertained their boundaries, with the- help of the diagram, which he had with him, and by reference to the lines of the cross streets and pacing the distances he was enabled to guess pretty accurately just where the boundaries of the lots were, and he made the demand accordingly. Witness further testified that he did not see or make demand of defendant Hoadley personally, when he was out making his demands on the land; but some time after making his return, and a short time prior to the commencement of this suit, he went to the office of the defendant, Milo Hoadley, and delivered to him a number of bills for the various ■ assessments in this suit, and bills for grading and macadamizing this part of California street, but said nothing—only handed to and left with him said bills, and left. The witness being asked to explain the difference between his testimony here, that he made the demands on two different days, and the statement in the returns, that he made the demands all on the twenty-eighth day of October, says: “I done it up to that day. I closed it on that day; that was the last day. I did not make all the demands on the twenty-eighth, but some on the day before, I suppose. I don’t recollect. I am sure I was not more than two days about it.” ¡No appeal was taken from the assessment to the Board of Supervisors. Prior to the passage of the resolution to do the work, Kenny, the contractor, and the owners of certain lots on California street, entered into the following contract, the fulfillment of which was guaranteed by the plaintiff: “Agreement between B. Kenny, contractor, and the undersigned property-holders on the line of California street, between Gough street and Cemetery Avenue, in the matter of grading, sidewalking, curbing, and macadamizing said California street and its crossings: “ In consideration of the sums hereinafter mentioned to be paid and assistance rendered, the said Kenny engages to obtain the city contract for grading, sidewalking, curbing, and macadamizing said California street and its crossings, from Gough street to Cemetery .Avenue, complete. Customary macadam, to be not less than one foot deep between curbs and six inches on the sidewalks; curbing and all work to be accepted by the Superintendent of Streets, and to be finished and completed on or before June 1st, 1868, next. “ And the parties of the second part, each for himself and not jointly, agree, for such work done in front of his premises, to pay said B. Kenny or his assigns at the rate of three dollars and thirty cents per lineal front foot on California street, such rate to include all charges for street crossings; separate payments to be made, seventy-five (75) per cent on completion of all work fronting each individual entire properly, and balance, twenty-five per cent, on completion and acceptance of proposed street improvements. This contract to be binding on all parties, and in full satisfaction of and guarantee on part of said Kenny against any official contract made or to be made for said work. “Dated San Francisco, this October 18th, 1867. “ Signed, B. KEHHY. “Signed, FEED. BILLIHGS, “Blocks 196 and 313 W. A. by attorney, D. B. Horthrop. “P. SATHEB, “Block Ho. 161 and 50-vara lot in Block Ho. 160 (southeasterly corner). “ J. S. HUTCHIHSOH, “ 100-vara in Block 271. “JOSEPH BIHGOT, “Lots Hos. 1, 2, and 3, in Block 461. “P. H, BLAKE, “108f- feet in Block 353.” The plaintiff recovered judgment, and the defendants appealed. The other facts are stated in the opinion.