McDonald v. Conniff
McDonald v. Conniff
Opinion of the Court
Action to foreclose the lien of a street assessment in the city and county of San Francisco.
At the trial the plaintiff offered in evidence the assessment, diagram, warrant, certificate of engineer, with the affidavit of demand and non-payment indorsed upon the warrant, to the introduction of which the defendants objected upon the grounds “ that the same were immaterial, irrelevant, and incompetent, because the assessment is void on its face, as only a part of the lots on Tenth Street, between Folsom and Harrison Streets,
1. Section 2 of the act under which the proceedings were had (Stats. 1889, p. 157) authorizes the city council to order the improvement of “the whole or any portion, either in length or width,” of the streets of the city, and in subdivision 11 of section 7 the council is authorized in its order for any of the work mentioned in the act, “to except therefrom any of said work already done upon the street to the official grade.” Subdivision 8 of section 7 of the act provides that “ where any work .... is done on either or both sides of the center line of any street for one block or less, and further work opposite to the work of the same class already done is ordered to be done to complete the unimproved portion of said street, the assessment to cover the total expense of said work so ordered shall be made-upon the lots or portions of the lots only fronting the portions of the work so ordered.” It thus appears that authority'is given to the city council in certain cases to order the improvement of only a portion of a street lying between two main street crossings, and that such improvement may be confined to a portion of the street upon ope side of its middle line, and also that when only such portion of a street is to be improved, the assessment therefor must be upon only the lots which front the portions of the work ordered.
In the present case the improvement ordered by the supervisors, and for which the assessment was made, was “that granite curbs be laid on Tenth Street, between Folsom and Harrison Streets, where not already laid; that the roadway thereof be paved with basalt blocks where not already so paved,
It was for the supervisors to determine what portion of Tenth Street they would order improved, and if, in fact, prior to the passing of the resolution of intention any portion of the street had been so improved, it was the duty of the superintendent to make the assessment for the work done under the contract upon only the lots “fronting upon the work so ordered,” and to exclude therefrom the lots “fronting upon said excepted work already done.” If the superintendent in making such assessment included lots which ought not to have been assessed, or failed to include those which should" have been assessed, the remedy of the party aggrieved was by an appeal to the supervisors for a correction of the assessment. Inasmuch, therefore, as there are instances in which an assessment is authorized to be made upon only a portion of the lots fronting upon a street on which an improvement has been ordered, it cannot be said that the assessment in question is void upon its face.
2. The objection that the diagram does not show “on which side of Tenth Street, or what particular part of Tenth Street the work for which the assessment was made,” is not clear. The grammatical construction of the objection is that the diagram does not show the work for which the assessment was made, and it is sufficient to say that there is no requirement in the statute that the “work” shall be shown or even designated upon the diagram; but if it be construed as an objection that the diagram does not show upon what portion of Tenth Street the work was done, it may also be said that the statute does not make this requirement. The provision of the statute is that a diagram shall be attached to the assessment, “exhibiting each street on which any work lias been done, and showing the relative location of each lot to the work done, numbered to correspond with the numbers in the assessments, and showing the number of feet fronting, or number of lots assessed for said work contracted for and performed.” The diagram is only auxiliary to the assessment, and is intended to be merely a map exhibiting “each street” upon which the work has been done, and not the particular portion of the street in which the work
3. The statute makes the assessment, with the other documents offered by the plaintiff, prima facie evidence of the regularity and correctness of the assessment and of the prior proceedings aud acts of the superintendent .of streets and city council upon which it is based, and it was therefore not necessary to offer any evidence of these prior proceedings as the foundation for introducing these documents. It is competent for the legislature to prescribe rules of evidence for the trial of actions, and statutes which make a document prima facie evidence of the regularity of official proceedings in reference thereto, or which cast the burden of proof in an issue upon either party
4. The objection to an item for engineering is evidently the result of an oversight. Section 8 of the act under consideration requires the superintendent to include “any incidental expenses” in the assessment to be made by him. Section 34 provides that the city and county surveyor shall do the surveying and “other engineering work” necessary to be done, and that his com
The court, therefore, erred in excluding the evidence, and for this error its judgment is reversed.
Garoutte, J., and Paterson, J., concurred.
Hearing in Bank denied.
Reference
- Full Case Name
- JOHN W. McDonald v. MICHAEL CONNIFF
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- 37 cases
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- Street Assessment—Improvement op Part op Street between Crossings — Validity op Assessment__Under the act of 1889 (Stats. 1889, p. 157), the ci:y council has authority in certain cases to order the improvement of only a portion of a street lying between two main street crossings, and when so ordered, the assessment therefor must be upon only the lots which front on the portions of the work ordered; and an assessment for work done under such order is not void upon its face because only a part of the lots on the street on which the work is to be done are assessed therefor. Id.—Improper Assessment — Remedy by Appeal.—It is the duty of the superintendent of streets, when part only of a street is ordered improved, to exclude from the assessment lots fronting upon excepted work already done; but the remedy of the party aggrieved is by an appeal to the supervisors for correction of the assessment, and it is not rendered void upon its face for including lots Which ought not to be assessed. Id. — Diagram of Street Work Auxiliary to Assessment—Contents—Location of Work not Required. —A diagram of street work attached to an assessment therefor is only auxiliary to the assessment, and if it exhibits the street upon which the work was done and also delineates the several lots assessed and shows that each of the lots assessed fronts upon such street and that its location is within the territory liable to be assessed for the work done, it sufficiently complies with the statute, and is not required to show the location of the particular portion of the street in which the work was done. Id. — Prima Facie Evidence of Regularity of Proceedings—Constitutional Law.—The statute making the assessment and other documents prima facie evidence of the regularity and correctness of the assessment and of the prior proceedings is a constitutional regulation of the rules of evidence, and is not a local or special law “ regulating the practice of courts of justice ” within the inhibition of the state constitution. Is. — Regulation of Rules of Evidence: —It is competent for the legislature to prescribe rules of evidence for the trial of actions, and statutes which make a document prima facie evidence of the regularity of official proceedings in reference thereto, or which cast the burden of proof in an issue upon either party to the action, are within the constitutional power of the legislature. Id.—General Law—Statute Regulating Judicial Procedure—Special Legislation. —It is not necessary that a law shall affect all the people of the state in order that it may he general, or that a statute concerning procedure in courts of justice shall be applicable to every action that may be brought in the courts of the state to prevent it from being subject to the constitutional inhibition against special legislation. A statute which affects all the individuals of a class, or all actions of a particular kind, and is in force in all parts of the state, is a general and not a special law. Id. — Charge fob Engineering—Incidental Expenses—Presumption.—An item for engineering work done is properly included in the “incidental expenses” in the assessment, and upon the face of the assessment it must be assumed that the work was done and the amount included therefor is correct.