Perine v. Forbush

Citations

• 97 Cal. 305
• 32 P. 226
• 1893 Cal. LEXIS 537

Syllabus

<p>Street Assessment—Foreclosure—Pleading — Delay in Entering into Contract — Fault of Contractor. — A complaint in an action upon a street assessment which shows that the contract which is the basis of the assessment was not entered into within fifteen days after the first posting of the notice of the award to the contractor, as required by section 5 of the act of March 18, 1885 (Stats. 1885, p. 147), but which contains no averment that the delay in entering into the contract was not caused by the fault of the contractor, is fatally defective.</p> <p>Id. — Mandatory Statute—Time for Executing Contract. — The provision of section 5 of the act of March 18, 1885 (St its. 1885, p. 147), which fixes the time within which contracts for street improvements shall be executed, is mandatory, and not merely directory.</p> <p>Id. — Statutes, when not Directory. —Although statutes which fix the ,time within which official acts are to be performed are often held to he merely directory as to the time so fixed, yet such a statute is never so construed when its language indicates the contrary intention, as when the statute attaches a consequence to the failure to perform the act within the time limited. In such a case, the consequence can he avoided only by a compliance with the statute.</p> <p>Id.—Invalid Contract —Void Assessment — Appeal.—The contract in such case being invalid because of the failure of the superintendent to enter into the contract within the time fixed by the statute, the assessment based thereon is void; and the failure of the property owner to appeal to the city council from the act of the superintendent in entering into the contract after the time fixed does not validate the assessment.</p> <p>Id. — Pleading — Complaint — Compliance with Statute.—It is incumbent upon the plaintiff, in an action upon a street assessment, to show in the complaint, by either special or general averments of the character permitted by statute, that the various provisions of the s