Dyer v. Barstow

53 Cal. 81

• Court: California Supreme Court
• Decided: July 1, 1878
• Docket: No. 5425
• Status: Published

Opinion

By the Court :

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 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.