
    [No. 15693.
    Department One.
    March 20, 1895.]
    SAN JOSE IMPROVEMENT COMPANY, Appellant, v. E. AUZERAIS, Respondent.
    Street Improvement—Resolution of Intention—Description of Work. Under section 3 of the Street Improvement Act of 1891 (Stats. 1891, p. 196), the resolution of intention of the city council must describe the work; and a resolution of intention which describes the work as consisting of the construction of “granite or artificial stone curbing” in a specified street is insufficient to confer jurisdiction on the council to order the work done.
    Id.—Defense to Assessment—Appeal to Citt Council.—A property owner, in order to defend against an action brought to enforce an assessment purporting to be based on such resolution of intention, is not required by the statute to appeal to the city council.
    Appeal from a judgment of the Superior Court of Santa Clara County and from an order refusing a new trial.
    The facts are stated in the opinion of the court.
    
      H. V. Morehouse, and Hiram D. Tuttle, for Appellant.
    
      William Matthews, for Respondent.
   Harrison, J.

The mayor and common council of the city of San Jose passed a resolution May 18, 1891, declaring its intention to order the improvement of a portion of El Dorado street, “said improvement to consist of the construction therein of granite or artificial stone curbing on both sides thereof to the official curb grade, excepting therefrom any laid upon the grade; also excavating the roadway of said street to a suitable subgrade, and improving the same as follows [Giving a description of pavement to be laid upon the street] ”: The city council having afterward ordered that the work described in the foregoing resolution be done, a contract therefor was entered into by the appellant. The present action is brought to enforce against certain lands upon the line of El Dorado street an assessment which was issued to the appellant upon the completion of the work. A demurrer to the complaint filed on behalf of the defendant was overruled by the court, and the cause having been afterward tried, judgment was rendered in favor of the defendant. From this judgment and an order denying a new trial the plaintiff has appealed.

Under the principles laid down in Bolton v. Gilleran, 105 Cal. 244, the city council did not acquire jurisdiction to order the work done. The requirement in section 3 of the Street Improvement Act (Stats. 1891, p. 196) that, in order to acquire jurisdiction to improve a street, the city council shall pass a resolution of intention “ describing the work,” was not observed. By this statute the legislature has required the city council to determine the character and extent of any improvement that is to be made upon the public streets; but in the present case that body, instead of itself determining this matter, has not even designated the officer or person by whom the character of the improvement shall be determined. It was the duty of the city council to determine in the first instance whether the curbs to be constructed along the line of the street should be of granite or of artificial stone; but, instead of so doing, that body has left this matter undetermined, and in every subsequent step in the proceeding, including the contract for doing the work, the same uncertainty exists. By the terms of the contract the plaintiff was allowed to place granite curbs along the street at the rate of one dollar per lineal foot, or cement curbs at the rate of sixty cents per foot, without any limitation upon its choice, except the advantage to be derived from using one instead of the other of these materials. The vice of such a proceeding was fully pointed out in Bolton v. Gilleran, supra, and need not be here repeated. It follows that the demurrer to the complaint should have been sustained. As the evidence offered at the trial was in accordance with the averments of the complaint the judgment in favor of the defendant was the only one that could be rendered thereon.

The defendant was not required to appeal to the city council in order to enable him to defend against the assessment. As the city council never acquired any jurisdiction to order the work the subsequent acts in its performance were not within the authority conferred by the statute, and none of the provisions of the statute can be invoked in support of the acts of the municipality or of its officers, or to impair any defense that the defendant may have.

The judgment and order are affirmed.

Garoutte, J., and Van Fleet, J., concurred.  