Creighton v. Pragg , 21 Cal. 115 ( 1862 )

Cope, J. delivered the opinion of the Court

Field, C. J. and Norton, J. concurring.

This is an action to recover of the defendant his proportion of an assessment levied to defray the expenses of work done on a street crossing in the city of San Francisco. The suit was brought under the fifty-ninth section of the Consolidation Act, and the first point made is, that in 1861, and prior to the commencement of the suit, this section was repealed. The repealing act is absolute in its terms, but it was not intended that the repeal should affect past contracts, for that would have been to impair their obligation, which the Legislature had no power to do. The section created a personal liability in the property holder, and gave the contractor a right of action against him for its enforcement, and an appeal affecting this liability would amount pro tanto to an abrogation of the contract. No point is made as to the validity of the section, but simply as to its repeal; and no effect can be given to the repeal as against a contract previously made and executed.

The other points do not seem to be well taken, nor are they stated with sufficient particularity to entitle them to much consideration. It is objected to the complaint that an averment stating an act to have been “ duly ” done is bad, and that when time is important it must be averred with certainty, “ about ” not being sufficient. The portions of the complaint to which these objections apply are not pointed out; and in respect to the first, it is sufficient to say that where an averment stating an act to have been-done would be good, the ¿additional word will not make it bad. As to the second, we do not see that it amounts to anything more than an abstract proposition, for in reading the complaint we are unable to discover any averment in which time is material. On the trial of the case the defendant seems to have regarded his safety as depending upon his capacity to object, and the record discloses an array of exceptions rarely equaled. There is an exception for every step in the proceedings, and the case found its way to a conelusion over a barrier of objections as formidable as legal ingenuity could make it. The points presented, however, are few in number, and so far as we are capable of understanding them, the questions involved are easily disposed of. It is contended that the diagram given in evidence shows that the assessment was improperly made; but we find on its face nothing to justify us in so regarding it. It appears in the record without explanation, and it is impossible from an inspection of it to determine whether the assessment was properly made or not. The warrant of the Street Superintendent was the only authority required by the plaintiff to demand payment, and together with the other evidence offered it was sufficient prima fade to entitle him to recover. The subsequent proceedings provided for relate to the remedy against the property, and have no reference to the concurrent remedy against the person. The appeal given is from the assessment, and not from the proceedings under the warrant.

Judgment affirmed.