BLANCHARD v. BEIDEMAN

BLANCHARD v. BEIDEMAN. The liability of owners of property in San Francisco for assessments made by the city authorities for repairing streets, depends on the statute, and only inures after the steps required by the statute have been taken. Under the Consolidation Act of 1856 for San Francisco, and the Act of 1859 amendatory thereof, the Board of Supervisors have no power to order a contract for planking, paving, piling or repaving a street which has been once paved, piled, etc., except in the instance given in section fifty-three as amended by section ten of the Act of 1859. In other cases not within this exception, where the planking or paving of a street or sidewalk needs local repairs, the Supervisors cannot authorize a contract to be made by the Superintendent of Streets for such repairs; but the proceeding must be by notice to the owner, etc., of the property, according to section fifty-six as amended by section twelve of the Act of 1859. Appeal from the Twelfth District. The complaint avers in substance that the Board of Supervisors of San Francisco having given notice of their.intention to “ repair Clay street in said city from. Davis to Drumm, including sidewalks,” took the necessary steps by advertising for proposals, etc., under the Consolidation Act, and finally passed an order directing the Superintendent of Public Streets and Highways to enter into a contract with plaintiff to do the work according to specifications— he being the lowest bidder; that he did the work, defendant, who was owner of a certain piece of property bordering on that part of Clay street, not offering to dó it himself as the law provides he might; that the Superintendent has assessed the amount due from defendant for his portion of the work, and for this sum plaintiff, as contractor, sues. The specifications referred to state that the work to be done is: “ repairing Clay street from Davis to Drumm streets by piling, capping and replanking (where necessary).” Defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. Demurrer sustained. It seems from the argument of counsel that the Court below held that the use of the word “ repair ” showed that the work came within sections fifty-six and fifty-seven of the Consolidation Act, and was a “ local repair ” over which the Superintendent alone has power, and not the Board. Plaintiff appeals. Parker & Waterman, for Appellant, argued that the “ repairs ” in this case were of so extensive a nature as not to be governed tby the fifty-sixth section of the statute regulating “ local repairs.” Wise & Gough, for Respondent, argued that the Board of Supervisors have no power to “repair” a street except under section fifty-three of the Consolidation Act, as amended by the Act of 1859 ;' that the repair in such case must be an entire repairing of a whole street for-at least its breadth.; and that this differs essentially from the “ local repairs ” provided for in the fifty-sixth section of the Act of 1856. [MAJORITY — Baldwin, J. delivered the opinion of the Court] Baldwin, J. delivered the opinion of the Court Cope, J. concurring. This was an action to enforce a contract for repairing a street in San Francisco. The contract was made by the Street Superintendent, under the provisions of the Consolidation Act applicable to that city. The liability of the defendant in such cases as this depending upon a statute, the remedy must be according to the statute ; and the liability only inures after the taking of the steps and a compliance with the requisitions prescribed by the statute. The complaint must show the existence of the facts authorizing the contract, as it is upon these, and these alone, that the liability of the defendant is predicated. It seems to us that the learned Judge below wa§ right in sustaining the demurrer, and for the reason given, that under the provisions of the Consolidation Bill and the Act of 1859 amendatory of it, the Board of Supervisors have no power to order a contract for planking, paving, piling or repaving a street which has been once paved, piled, etc., except in the instance given in section fifty-three (amended). (See sec. 10 of the Act of 1859.) The power here was not under or conformable to that section; but this work would seem to come under the fifty-sixth section (amended). (See seq. 12 of the Act of 1859, Statutes, 145.) If inconvenience or difficulty results from such a construction, we'have no power to remedy it. Judgment affirmed.