[No. 4998.]
THE PEOPLE OF THE CITY AND COUNTY OF SAN FRANCISCO v. J. W. REAY et al.
Action to Enforce Lien of Street Assessment.—The Assistant City and County Attorney of San Francisco has no authority to commence an action under the Act of April 4th, 1870, to enforce the lien on a lot for an assessment for improving a street until after the Tax Collector of the city and county shall have published a notice for the period of thirty days that the assessment is in his hands for collection, and that the same will he delinquent if not paid in that time.
On the 7th day of March, 1872, the Superintendent of Streets in the City and County of San Francisco issued an assessment to cover the sum due on a contract made by him with J. B. Sbarboro for improving Larkin Street, from Tyler to Market Street. The defendants owned a lot which was assessed. On the 80th day of April, 1872, the Superintendent delivered the assessment to the Tax Collector, for collection. The City and County Attorney commenced this action to enforce the lien of the assessment before the Tax Collector had advertised for thirty days that it was in his hands for collection, etc. The plaintiff had judgment, and the defendants appealed.
«7. B. Townsend, for the Appellants.
W. C. Burnett and John B. Weller, for the Eespondent.
By the Coukt :
The Assistant City and County Attorney had no authority to bring this action until after the Tax Collector had given the thirty days’ notice required by sec. 10 of the Act of April 4th, 1870. The failure to give this notice is a matter which goes to the power of the Assistant City and County Attorney, not to the sufficiency of the complaint or proof, or to the question as to whether any other defenses can be made to the merits than those mentioned in sec. 11 of the same act.
An action commenced before such publication by the Tax Collector was prematurely brought.
Judgment and order reversed and cause remanded.