Himmelmann v. Hoadley

By the Court, Rhodes, J.:

The contract was awarded for the macadamizing and curbing of California street, from Gough street to Cemetery Avenue, at a specified rate per square foot for the macadamizing, and at a specified rate per lineal foot for the curbing. Subsequent to the award, the line of Cemetery Avenue was changed to the west, so that the distance from Gough street to Cemetery Avenue was increased about two hundred feet. The contractor macadamized and curbed the additional two hundred feet of the street, and the Superintendent included the cost of the additional work in the assessment. The lots sought to be charged with the lien, lie to the east of the former line of Cemetery Avenue.

The defendants contend that the assessment is void, because it includes work on a portion of the street not specified in the resolution of intention, or in the contract as awarded. It is very clear that the Superintendent had no authority to make an assessment for the work on the additional two hundred feet of the street; hut it is not contended that he had not competent power to make an assessment for the work *279 performed on the portion of the street specified in the contract—that is, for all the work except that performed on the additidnal two hundred feet. There is nothing in the case which shows whether the charge against the defendant’s lots was increased or diminished, by including in the assessment the amount allowed for the work on the additional two hundred feet. The plaintiff maintains, that as the Superintendent had jurisdiction to make an assessment for the expense of the work performed on the street, up to the former line of Cemetery Avenue, if he included in the assessment any sum which, for any reason, ought not to have been included, then the property holder should have appealed to the Board of Supervisors. This position is sustained by Emory v. Bradford, 29 Cal. 88 ; Smith v. Davis, 30 Cal. 536 ; Nolan v. Reese, 32 Cal. 484 ; Smith v. Coffran, 34 Cal. 314 , and many other cases in this Court. The question would be different had the action been brought to enforce a lien upon property fronting on the street lying west of the former line of Cemetery Avenue—a question of jurisdiction would have been presented. But when the contract is valid, if the Superintendent includes in the assessment the expenses of work not provided for in the contract, or not performed under it, it is an error on his part, which may be corrected on appeal to the Board, as provided for in the statute. The cases above cited, hold that that is the only remedy for an error of the Superintendent, which might have been corrected on such appeal.

Judgment and order reversed, and pause remanded for a new trial.