Burke v. Turney

Citations

• 54 Cal. 486

Syllabus

<p>Street Assessment—Jurisdiction — Appeal—San Francisco.—In an action upon a street assessment in San Francisco, (under the Act of April 1st, 1872) the defense was, that the Superintendent of Streets entered into the contract before the expiration of five days from the first publication of the award—the period within which, under the sixth section of the act, the property owners might elect to do the work. Held, that the premature action of the Superintendent was one that affected his power or jurisdiction, and was void; and that it did not become valid by a failure to appeal to the Board of Supervisors.</p> <p>Id.—Pleading—Evidence — Constitutional Law. — Held, further, that the provision of the statute, making the assessment, warrant, etc., prima facie evidence of the plaintiff’s right to recover, is a rule of eoidence, and not of pleading; and it was therefore competent for the defendants to disprove the presumption thus arising, by proving that the contract was prematurely made: that the defense is not an affirmatioe defense, and it is therefore unnecessary to decide whether the Legislature can deprive a defendant of other defenses than those specified in the statute.</p>