Dyer v. Chase

52 Cal. 440

• Court: California Supreme Court
• Decided: July 1, 1877
• Docket: No. 5450
• Status: Published

Opinion

The Court has no power to correct assessments. “ It is impossible to distinguish between that part of a tax which might have been rightly assessed, and that for which no authority is given, so that the assessment should be valid for one part and. void for another.” (Libby v. Burnham, 15 Mass. 147; Stetson. v. Kempton, 13 Ibid. 283; Hardenburgh v. Kidd, 10 Cal. 402;. Buclcnall v. Story, 36 Ibid. 72, 73; Huse v. Merriam, 2 Greenl. 376, 377; Joyner v. Egremont, 3 Cush. 567.)

J. M. Wood, for the Respondent.

As to the divisibility and apportionment of the contract and assessment, the case of Beaudry v. Valdez, 32 Cal. 276, is authority. See, also, Chambers v. Satterlee, 40 Cal. 528; Himmelman v. Hoadley, 44 Cal. 279.)

By the COURT:

The resolution of intention described the proposed work as follows: “That Vallejo Street from Polk to Gough Street (except the crossing of Van Mess Avenue and Vallejo Street) be macadamized and curbed with redwood curbs.” The specifications and the contract for the doing of the work included the macadamizing of the sidewalks as well as the roadway. The resolution does not include work on the sidewalks, but is limited to that to be done to the roadway. (Himmelman v. Satterlee, 50 Cal. 68.) The Court found the cost of the work on the roadway and that on the sidewalk separately, and, deducting the latter from the whole assessment, gave judgment for the remainder, as for the cost of the work on the roadway. But the demand made by the plaintiff was for the whole assessment, and not for the portion thereof which would be chargéable for the work on the roadway. The plaintiff is not entitled to a recovery, unless he proves a demand for the amount legally due for the work.

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