struction of the pavement, it would seem that the cost of publication of Notices in connection with the establishment of a special street lighting system, or of special assessments therein to be levied, should be considered a part of the cost of construction thereof. With what above has been stated in mind, we may proceed to a disposition of the questions here presented.
This action, as above ‘stated, being one to procure the issuance of a peremptory writ of mandamus for the purpose above mentioned, it is incumbent upon the plaintiff to show that it is the plain legal duty of the defendants to perform the act which it seeks to compel by the writ, and to further show, otherwise than by a mandamus proceeding, that the plaintiff had no plain, speedy, or adequate remedy. From what has above been said, it is clear that no such plain legal duty rested on the defendants. Hence the court, in the circumstances of this case, was fully justified in refusing the issuance of the writ.
The only errors assigned on this appeal are that the court erred in granting the judgment from which appeal had been taken, and further erred in dismissing the action. It is clear that the court erred in neither respect.
The judgment appealed from is affirmed. The respondents are entitled to their costs and disbursements on appeal.
Birdzell and Robinson, JJ., concur.
Bronson, J., concurs in the result.
Christianson, J. (concurring). The publication of the necessary notices relating to an improvement, to be paid for by special assessments against the property benefited, under article 20, c. 44, Political Code, Comp. Laws 1913, is a proper item of the cost of the improvement. § 3726, C. L. 1913.
A city has power, subject to the debt limit provisions of the constitution, to provide that not exceeding one-fifth of the cost of certain local improvements be paid by general taxation. § 3723, C. L. 1913. But it is averred in the return of the defendants in this case that special assessments were levied to pay all the costs of the improvement, including all expenses incident thereto. Hence, under the facts shown to exist in this case, the plaintiff’s claim was properly allowable against, and payable by warrant drawn upon, the special assessment fund; and plaintiff was not entitled to a warrant drawn upon the general fund of the city.
