STREET WORK LAWS 
 
 O F THE 
 
 STATE OF CALIFORNIA 
 
 A/VINOT ATED 
 
 By FRANK G. FI/NLAgSON, LL B. 
 
 Of the Lcs Ange es Bar 
 
 Published by 
 
 en AS. w. PALM eo, 
 
 Los Angeles, Cal. 
 
 1893. 
 
Entered according to Act of Congress, in the year 1893, 
 
 BY FRANK G. FINLAYSON 
 In the office of the Librarian of Congress, at Washington. 
 
PREFACE 
 
 The street laws peculiar to the state of California are 
 those statutory enactments which provide for improvements 
 upon existing streets streets opened or dedicated to public 
 use; also, those enactments which provide for the opening, 
 widening, extending or closing up of streets, in whole or in 
 part. To many these street laws are terra incognito. They, 
 are sui generis, covering a special territory by themselves 
 quite outside of the common and ordinary domain of the 
 general and usual practice. Heretofore these laws have 
 constituted a branch of the practice so specialized that it 
 has been explored by but few members of the profession; 
 nevertheless, it is one of the most important branches in 
 the whole wide range of jurisprudence. Municipal corpo- 
 rations are little more than public improvement corporations 
 on a large scale; and, as the present tendency seems to be 
 in the direction of a still further centralization of power in 
 the municipalities of the country, with the investiture of 
 still greater powers over public improvement in the muni- 
 cipal authorities, confiding to their care the conduct of 
 many enterprises which have heretofore usually been in the 
 hands of private individuals, it follows that any branch of 
 the law which deals with the exercise of these powers is of 
 great and growing importance, both to the profession and 
 the laity. Cities and towns are rapidly springing up in 
 this empire common wealth, and streets are as rapidly being 
 opened up and improved. Hence the necessity for some 
 book which shall facilitate the researches of those whose 
 business it is to study these street laws and assist in their 
 administration. With this end in view the author has pre- 
 pared this book for publication, and will feel himself amply 
 repaid for his labors if he has succeeded in bringing 
 together between the covers of one book such material upon 
 the subject of the street laws of this state as will serve to 
 simplify the subject and render a comprehensive knowledge 
 thereof easy of attainment. 
 
 One reason why the realm covered by this special depart- 
 ment has hitherto remained unfamiliar to many, is that the 
 statutes themselves upon the subject of street work, and the 
 many amendatory acts, have been scattered through numer- 
 
IV STREET WORK LAW PREFACE 
 
 ous volumes of our statute books. Prior to the adoption of 
 the new constitution, these statutory provisions consisted of 
 a heterogeneous mass scattered through the charters of the 
 various municipalities of the state, and found in special and 
 local laws. Therefore any general systemization of the sub- 
 ject of street laws under the old constitution was practically 
 impossible, since each city had a special and separate sys- 
 tem of its own. Under the new constitution, however, gen- 
 eral laws upon the subject have been passed, operative 
 throughout the length and breadth of the state, and super- 
 seding all special laws in conflict therewith. It is therefore 
 possible now to reduce these general laws to some system, 
 and present them as they exist at the present time, i. e., as 
 amended up to date. The mere presentation, therefore, of 
 the naked statutes in force to-day, will serve to remove 
 much doubt that would otherwise harass the mind of the 
 busy practitioner, who, after exploring the statute books for 
 hours or even days, might still doubt whether he had found 
 all the statutory enactments upon the subject, or whether 
 some amendment had escaped his search or not. The 
 author has therefore set forth in full all the general street 
 laws of the state now in force in every municipality, as the 
 same have been amended up to date, and has also referred 
 to each and every amendment which has been made to 
 each section of the acts from the time of the original enact- 
 ment. Thus, any person seeking to know what the statute 
 provisions are at present, will find them set forth in full. 
 Should he desire to know what the statute provisions have 
 been at any time intermediate, between the time of the 
 original enactment and the present date, he has but to turn 
 to the book and page of the statutes containing the original 
 enactment, or any subsequent and intermediate amenda- 
 tory act. 
 
 Another, and perhaps still less surmountable obstacle 
 lying in the path" leading to a comprehensive knowledge of 
 these street laws is the fact that, even when the practitioner 
 has unearthed from the statute books all the enactments in 
 force upon the subject of street work or street improve- 
 ment, and has carefully studied their provisions, he must 
 still, in the absence of an authoritative construction by the 
 Supreme Court, remain in doubt as to the correct interpret- 
 ation of many of the provisions; or he may even entertain a 
 fixed, but mistaken, opinion as to the true meaning or scope 
 of a provision, without being aware of his mistake. A care- 
 ful study of the decisions which have been rendered by our 
 Supreme Court in cases calling for a construction of these, 
 and of similar prior street work laws, will undoubtedly do 
 
PREFACE V 
 
 much to illumine the doubtful provisions of these enact- 
 ments, and dissipate the mists that obscure their true 
 meaning. 
 
 Therefore, by publishing in book form the statutes now 
 in force, relative to street work, and annotating the sections 
 with notes and excerpts from the decisions of our Supreme 
 Court construing these or similar provisions, the reader, 
 in a comparatively short time, may so far master this 
 whole subject as to equip himself with a comprehensive 
 knowledge of these laws. 
 
 The aim and object of this book is, therefore, to present 
 together in one book all the general statutory enactments 
 upon the subject of street work, together with such annota- 
 tions and citations from the decisions of our Supreme 
 Court as will serve to interpret the true meaning of these 
 statutes, and in doing so the author has endeavored 
 to cite every case upon this subject that has ever been 
 decided by the Supreme Court of this state. 
 
 It is not the purpose of this book to consider general prin- 
 ciples, either of street law in general or of street 
 assessments. These general principles may readily 
 be found in works upon streets, roads and highways, and 
 in works upon assessments and taxation. The sole aim of 
 the author is to present to the profession, and to those 
 interested therein, the street law of California as the same 
 is found in the general statutory enactments of this state 
 upon the subject of street work and street improvement, 
 and to exemplify the meaning of these statutory provisions 
 by cases cited from the decisions of our own courts. The 
 questions arising out of these statutes are principally ques- 
 tions of interpretation and construction, and it would be 
 idle, therefore, to cite the decisions of the courts of other 
 states whose statutory provisions are unlike our own. 
 Nevertheless, wherever the author has thought there might 
 be any question as to the constitutionality of any of these 
 statutes or of any of the provisions thereof, that has not 
 been directly settled by the decisions of our own Supreme 
 Court, he has stated the questions that have thus 
 suggested themselves to his mind, and has in this connec- 
 tion, cited some few decisions by the highest courts of 
 other states. However, as the questions which these stat- 
 utes give rise to are, in the main, questions of interpreta- 
 tion or construction, it is impossible to foresee, how many 
 of the questions arising out of these street laws, will ulti- 
 mately be settled by the Supreme Court. Nevertheless, the 
 author has everywhere endeavored to reach a correct inter- 
 pretation, and to extract from U)je-eees-a-.statement of gen- 
 
 .^Xm&fcSE LIBR^ft^s. 
 
 f* OF THE Y \ 
 
VI STREET WORK LAW PREFACE 
 
 eral doctrines which shall aid in the solution of future 
 questions, and has not hesitated to express his own views 
 and opinions, but such speculations and arguments are 
 always plainly indicated and represented in their real char- 
 acter, so that the reader need never confound them with 
 the results of actual judicial decision, and be thus led to 
 accept as settled law what is only a personal conviction or 
 suggestion of the author. 
 
 Los Angeles, Cal., December 1, 1893. 
 
 FRANK G. FINLAYSOX. 
 
TABLE OF CONTENTS. 
 INTRODUCTION xxi. 
 
 Classification of the street work laws xxi 
 
 History of the street work laws xxm 
 
 History of the street improvement acts in San Francisco 
 
 prior to the present constitution xxiv 
 
 History of the street improvement acts since the adoption 
 
 of the present constitution xxix 
 
 The Vroonian act of March 18, 1885 xxxvii 
 
 Outline of the provisions of the Vrooman act, as amended XLIV 
 
 The Bond act of February 27, 1893 XLVII 
 
 The Tree Planting, or shade tree act XLVII 
 
 The Sanitary District act XLVIII 
 
 The Street Opening act of March 6, 1889 XLVIII 
 
 History cf street opening acts XLIX 
 
 The Street Opening act of March 23, 1893 LI 
 
 The Municipal Indebtedness act of March 19, 1889 LII 
 
 GENERAL STREET IMPROVEMENT ACT OF MARCH 
 18, 1885. (The Vrooman Act.) 1-216 
 
 SI-KTION 1 1-5 
 
 1. Scope of section 1 1-2 
 
 2. Meaning of the word "Street." 2-5 
 
 3. Dedication 5 
 
 SECTION 2 5-8 
 
 1. Scope of section 2 6-7 
 
 2. Grading 7-8 
 
 SECTION 3 8-37 
 
 1. Jurisdiction 10-18 
 
 2. Ten jurisdictional prerequisites to valid contract 18-19 
 
 3. Resolution of intention 19-20 
 
 4. Posting and publishing resolution of intention. . 20-24 
 
 5. Posting and publishing notices of passage of 
 
 resolution of intention 24-25 
 
 6. Order for the work to be done 26-27 
 
 7. Publication of order to do work 27-28 
 
 8. Petition of remonstrance 28-30 
 
 9. Written objections 28-33 
 
 10. District assessments 33-34 
 
 11. Sewer construction and district assessments. . . . 35-37 
 SECTION 4 37-42 
 
 1. Petition of owners for work to be done 37 
 
 2. Effect of petition decision by Judge Shaw .... 38-42 
 SECTION 5 42-61 
 
 1. Jurisdictional prerequisites to valid contract. ... 44 
 
 2. Posting and publishing notices inviting sealed 
 
 proposals 44-48 
 
 3. Consideration of sealed proposals by council. . . . 
 
 4. Award of contract 
 
 5. Posting and publishing notices of award. 48-49 
 
 6. Execution of written contract by superinten- 
 
 dent of streets 49-52 
 
 7. Contents of contract 52-55 
 
 8. Fraudulent side agreement 55-57 
 
 9. Other requirements of section 5 57 
 
 10. Ke-advertisements for proposals or bids 57-58 
 
VIII 
 
 STREET WORK LAW CONTENTS 
 
 11. Procedure on re-advertising and re-letting 
 
 contract 58-59 
 
 12. Lot owners taking contract 59 
 
 13. Bond accompanying contract 59-60 
 
 14. Assignment of contract 60-61 
 
 SECTION 6 61-63 
 
 1. Contents of written contract 62 
 
 2. Powers of superintendent of streets 62-63 
 
 4. Extension of time to complete contract 62-63 
 
 SUCTION 7 64-84 
 
 1. Improvement of tracks, etc, by railway com- 
 
 panies 67-69 
 
 2. Mode of assessment provided by act 69-70 
 
 3. Front-foot mode of assessment constitutional 70-74 
 
 4. General principles of street assessments 74-79 
 
 (a) Legislature cannot directly exercise 
 
 power of assessment 74 
 
 (/>) Owner not personally liable 74 
 
 (c) Not an exercise of power of eminent domain 74 
 
 (d) Contract not affected by subsequent 
 
 changes in the law 74-75 
 
 () Property owner cannot set up counter claim 
 ( /') Sale f or taxes extinguishes assessment lien 75-76 
 (g) Public property exempt from street assess- 
 ment 76 
 
 (/i) Assessment need not be presented to 
 
 administrator 76 
 
 ( i ) Can only be made pursuant to term of 
 
 statute 76 
 
 (j) Avoid assessment cannot be validated by 
 
 ratification 76-78 
 
 (&) Severable assessments may be severed 
 
 and recovery had on valid part 78-79 
 
 (0 When not severable, if part is void, 
 
 whole is void 79 
 
 (TO) Each lot is independently liable 79-80 
 
 5. Subdivision 2 of section 7, front foot plan of 
 
 assessment is the general rule 80-81 
 
 6. Subdivision 3 of section 7, assessment for work 
 
 on main street crossings 81-82 
 
 7. Subdivision 4 of section 7, assessments on ter- 
 
 minations and opposite terminations 82-83 
 
 8. Subdivision 8 of section 7, assessment for work 
 
 on one side of center line 83-84 
 
 9. Subdivision 9 of section 7 84 
 
 SECTION 8 84-99 
 
 1. Form of assessment, assessment roll 85 
 
 2. Contract to be fulfilled to satisfaction of super- 
 
 intendent of streets 86 
 
 3. Assessment made after fulfillment of contract. . 87-88 
 
 4. Assessments to be made by superintendent in 
 
 conformity with section 7 88-90 
 
 5. Form of assessment roll and how made , 90-94 
 
 () To true owner if known, if not, to unknown 
 
 owner 90-92 
 
 (ft) Attestation of assessment 92 
 
 (c) Time in which assessment or re-assessment 
 
 may be made 92 
 
 (cZ) Description of property 92-94 
 
 6. Remedy for irregularities in assessment 94-98 
 
 (a) Appeal to council by lot owners 94-97 
 
 (b) Appeal to council by contractor 97-98 
 
 7. Diagram 98-99 
 
V 
 
 UNIVERSITY 
 
 SECTION .............................................. 99-107 
 
 1. Jurisdictional prerequisites to valid assessment 
 
 liens .................................... 100-101 
 
 2. Warrant, signing and countersigning .......... 101-102 
 
 2. Recording warrant, assessment, etc ............ 102-105 
 
 4. Effect of recording warrant, assessment, etc. . , . 105 
 
 5. Delivery of warrant, assessment, etc., to con- 
 
 tractor ................................... 105-106 
 
 6. Re-assessment after judgment adjudging an 
 
 assessment illegal ....................... 106-107 
 
 SECTION 10 ............................................. 107-1 16 
 
 1. Prerequisites to right of action on assessment 
 
 lien ......... , ........................... 108 
 
 2. Demand upon persons assessed or their agents . 108-110 
 
 3. Demand on premises .......................... 1 10-1 1 2 
 
 4. By whom demand made ....................... 112 
 
 5. Amount of demand ............................ 112-113 
 
 6. Contractor's return ........................... 113-114 
 
 7. Return as evidence of demand ................. 114 
 
 8. Recording return ......... .................... 114-116 
 
 9. Interest ....................................... 115-116 
 
 SECTION 11 ............................................. 116-141 
 
 1. Difference between "appeal" and "petition of 
 
 remonstrance" ........................... 117-118 
 
 2. Principles governing appeal to council under 
 
 prior street improvement acts ............ 119-128 
 
 3. Meaning of term, "Jurisdictional requirements" 
 
 127-128; 132-136 
 
 4. Principles governing appeal under Yrooman act 128-130 
 
 5. Cases in which appeal to council has been held 
 
 to be the exclusive remedy .............. 130-138 
 
 6. Cases in which it has been held' that appeal to 
 
 council affords no remedy ............... 138-140 
 
 7. Appeal by contractor .......................... 140-141 
 
 8. Unsuccessful appeal no estoppel ............... 141 
 
 9. Council cannot dismiss appeal ................. 141 
 
 10. Practice on appeal to council ................... 141 
 
 SECTION 12 ............................................. 141-162 
 
 1. Actions on assessment lien General principles 
 
 of procedure ............................. 143-146 
 
 2. Parties ........................................ 146-148 
 
 (a) Plaintiffs ................................. 14(5 
 
 (fc) Defendants ............................... 146-148 
 
 3. Pleadings, what statute governs ...... .......... 148-151 
 
 4. Complaint General principles of pleading in 
 
 action on assessment ..................... 151-154 
 
 5. Some special rules applicable to complaints ..... 154-155 
 
 6. Answer Defenses ............................. 1 55-157 
 
 7. Evidence ..................................... 157-160 
 
 8. Decree ........................................ 160-162 
 
 9. Personal judgment void ....................... 161 
 
 SECTION 12} ........................................... 162 
 
 Proportional assessment for two blocks or more 
 
 before completion of work ................ 162 
 
 SECTION 13 ........................................ , ____ 162-174 
 
 1. Scope of section 13 ............................ 163-164 
 
 2. "Repairs" and "reconstructions" Prerequisites 
 
 to imposition of cost of, on lot owner ..... 164-166 
 
 3. No primary duty resting on lot owners to repair 
 
 or reconstruct ............................ 166-169 
 
 4. Constitutionality of section 13 ................. 169-174 
 
 SECTION 14 .............. '. .............................. 174 
 
 1. Contractor's suit for cost of repairs. ... ......... 174 
 
 2. Record and lien of certificate.. 174 
 
STREET WORK LAW CONTENTS 
 
 SECTION 15 174 
 
 Additional penalties may be prescribed for neg- 
 lect to repair 174 
 
 SECTION 16 174-176 
 
 1. Who is "owner" for purpose of the act. Tenant's 
 
 possession 1 74 
 
 2. Who "proper" and who "necessary" parties 
 
 defendant ." 174-17<> 
 
 SECTION 17 176 
 
 Tenant may pay assessment or redeem after sale, 
 
 and recoup from rents 176 
 
 SECTION 18 1 76 
 
 Street superintendent's records, force and effect 
 
 of 176 
 
 SECTION 19 1 76 
 
 Service of written notice ; verification ; record . . . 176 
 
 SECTION 20 176-177 
 
 Acceptance of street by city council ; kept in order 
 thereafter at expense of city ; partial or 
 
 conditional acceptance 176 
 
 SECTION 21 177 
 
 Superintendent's office Cleaning of sewers 
 
 Expense 177 
 
 SECTION 22 177 
 
 Duties of superintendent His bonds Penalties 
 
 for official neglect 177 
 
 SECTION 23 177-178. 
 
 City not liable for damages resulting from defects 
 
 in street Who are liable 177-178- 
 
 SECTION 24 178 
 
 Certain work not barrea by written objections. . . 178. 
 
 SECTION 25 179 
 
 Repairing and watering streets, Cleaning sew- 
 ers Contingent fund Work of re-grading 
 
 etc., let as in first instance 179 
 
 SECTION 26 179 
 
 Council may order all or any part of the cost to 
 
 be paid from municipal treasury 179 
 
 PART II OF VROOMAN ACT. 179-187 
 
 SECTION 27. Extraordinary modes of paying for sewer 
 
 construction 179 
 
 1. Sewer assessments 180-185- 
 
 SECTION 28. Special election for incurring indebtedness 
 
 for sewer construction 185-186 
 
 SECTION 29. Bonds, farm of, etc 186 
 
 SECTION 30. Bonds, how sold 186 
 
 SECTION 31. Bonds may be sold at or above par without 
 
 notice 
 
 SECTION 32. Proceeds of sale of bonds 187 
 
 SECTION 33. Sewer plans and specifications Award 
 
 Rejecting bids 187 
 
 PAET III OF VEOOMAN ACT 188-190 
 SECTION 34. Miscellaneous provisions and definition of 
 
 words, etc 188-189 
 
 SECTION 35. Special suparintenJent of construction 189 
 
 SECTION 36. Vrooman act of 1883 repealed 190 
 
 SECTION 37. When act takes effect 190 
 
 SECTIONS 38 to 53. Relative to proceedings to change an 
 
 established grade, and to do work on 
 
 altered grade 191-216 
 
 1. Comments upon sections 38 to 53 192-208 
 
 2. Establishment of grade, what is 193 
 
 3. Constitutionality of sections 38 to 53 194-208 
 
, CONTENTS, XI 
 
 4. Purpose of sections 38 to 52; damages resulting 
 
 from change of grade lines, etc 199-204 
 
 STREET IMPROVEMENT BOND ACT, OF FEBRUARY 
 27, 1893. 217-235. 
 
 SECTION 1. 217 
 
 1. Contents of section Meaning of certain words 
 
 and phrases used in the act 217 
 
 2. Comments upon provisions of bond act 217-220 
 
 3. Constitutionality of the bond act 220-226 
 
 SECTION 2 226 
 
 Contents of section Estimates by city engineer 
 Minimum costof work Features of bonds 
 Payable by city treasurer from a fund 
 Payments of interest and upon principal, 
 both by coupons Register 226 
 
 SECTION 3 226 
 
 Contents of section Description of bonds must 
 be in the resolution of intention, resolution 
 ordering the work, resolution of award, and 
 in all notices Notice in warrant 226 
 
 SECTION 4 227 
 
 Contents of section Listing unpaid assessments 
 of $50, or over Issuance of a bond for each 
 lot Description of lot Form of bond 
 Assessment for the bond is first lien upon 
 the lot Bond is payable from the fund of 
 its series Its term Annual payments by 
 coupons upon principal Coupons for semi- 
 annual interest Upon defaul% lot may be 
 sold as for taxes Assessments less than $50, 
 not bonded, but collected otherwise Lot 
 owner upon notice may prevent issuance of 
 bond for his assessment Bonds payable to 
 party or order Interest coupons First lien 
 on the lot Conclusive evidence of all pro- 
 ceedings up to the listing 227-229 
 
 SECTION 5 229 
 
 Contents of section Upon any default in pay- 
 ment, bond becomes due immediately, if 
 holder so demands Lot to be then sold as 
 for taxes delinquent 229 
 
 SECTION 6 230 
 
 1. Contents of section Council may separately 
 
 order similar street work upon theexcepted 
 R. R. portion of streets, and at 
 cost of R. R. Co. Notice Refusal 
 or neglect of R. R. Co. Duty of council 
 in such case R. R. Co. may do its 
 own work or have it done Proceed- 
 ings when R. R. Co. prefers not to do its 
 own work Bonds to be issued in certain 
 cases When Notices Description of the R 
 R. bond Record Sums First lien on all 
 R. R. plant and franchise except as against 
 taxes Protests in street work inapplicable 
 here 230-231 
 
 2. Improvements by street railways 231-234 
 
 SECTION 7 234 
 
 Contents ot section City treasurer defined 234 
 
 SECTION 8 235 
 
 Contents of section Repeal of bond act of 1891 235 
 
 SECTION 9 235 
 
 Contents of section Act takes effect on passage 235 
 
XII STREET WORK LAW CONSENTS. , 
 
 PLANT AND SHADE TREE ACT. 236-240 
 
 SECTION 1. Powers of council to plant and maintain shade 
 
 trees, and regulate hedges 2 38 
 
 SECTION 2. Resolution of intention Posting of notice 
 
 Publication .' 236 
 
 SECTION 3. Objection by owners of a major frontage 237 
 
 SECTION 4. Time for hearing notice Decision upon hear- 
 ing Bar Proceedings de novo 237 
 
 SECTION 5. Posting notice with specifications Advertis- 
 ing for bids Requisites in bids Certified 
 check Rejecting bids Award Notice 
 
 Contract Re-advertising Reletting 237 
 
 SECTION 6. Bond Justification of sureties Payment of 
 
 incidental expenses 238 
 
 SECTION 7. Duty of superintendent of streets 238 
 
 SECTION 8. Payments by installments 239 
 
 SsjrtoN 9. Assessment Diagram Warrant Recording 
 
 Lien 2S9 
 
 SECTION 10. Collections 240 
 
 SECTION 11. Power to prohibit certain things and to make 
 other regulations Condemnation Eradica- 
 tion 240 
 
 SECTION 12. Replacement and care 240 
 
 SECTION 13. Act applicable after vote of the electors 240 
 
 STREET OPENING ACT OF MARCH 6, 1889. 
 241-271. 
 
 SECTION 1, 211 
 
 1. Scope of section 1 Powers of council to open 
 
 streets, etc 241 
 
 2. Outline of the provisions of the street opening 
 
 act of 1889 241-243 
 
 3. Street opening act does not provide for "improve- 
 
 ments" upon existing streets 244-245 
 
 4. Constitutionality of street opening act of 1889. . . 246-250 
 
 5. Decisions under' prior street opening acts 250-254 
 
 SECTION 2 254 
 
 1. Contents oi section 2 Resolution of intention 
 
 2. The resolution must specify the exterior bound- 
 
 aries of the assessment district 
 
 SECTION 3 254 
 
 Contents of section 3 Notice of passage of reso- 
 lution of intention, posted and published 
 
 SECTION 4 254 
 
 Contents of section 4 Interested persons may 
 file objections to the work or to the extent 
 of the district 
 
 SECTION 5 255 
 
 Contents of section 5 Decision of council is 
 final When jurisdiction is deemed to have 
 been acquired 
 
 SECTION 6 255 
 
 Contents of section Order of work Com- 
 missioners Compensation Qualification 
 Removal of commissioners 
 
 SECTION 7 258 
 
 Contents of section 7 Office of commissioners 
 Assistants Incidental expenses 
 
 SECTION 8 256- 
 
 Contents of section 8 Incidental expenses 
 Payments for property taken or damaged, 
 to be by warrants 
 
CONTENTS. XIII 
 
 SECTION 9 256 
 
 1 . Contents of section 9 Viewing of lands E xam- 
 
 ination of witnesses Assessments, how made 256 
 
 2. Rules by which commissioners are guided in 
 
 ascertaining amount of damages, and in 
 making assessments 256-259 
 
 SECTION 10 259 
 
 Contents of section 10 Commissioners' report 
 Plat of assessment district 
 
 SECTION 11 259 
 
 Contents of section 11 What report must 
 specify 
 
 SECTION 12 260 
 
 Contents of section 12 Assessments to unknown 
 owners Error in name does not invalidate 
 
 >N ]:! 260 
 
 Contents of section 13 Publication of notice of 
 filing report and plat 
 
 SECTION 14 260 
 
 Contents of section 14 Objections to confirma- 
 tion of report Hearing of objections 
 
 SECTION 15 260 
 
 Contents of section 15 Assessment roll, what 
 constitutes 
 
 SECTION 16 260-261 
 
 Contents of section 16 Proceedings for collec- 
 tion of assessments Sale of property 
 Redemption 
 
 SECTION 17 262 
 
 Contents of section 17 Notice to owners of 
 property taken or damaged, that a warrant 
 Las been drawn for payment of the same 
 
 SECTION 18 262 
 
 1. Contents of section 18 Proceedings to condemn 
 
 property on refusal of owner to accept 
 warrant 
 
 2. Rules of procedure in actions to condemn Evi- 
 
 dence of value 263-269 
 
 SECTION 19 269 
 
 Contents of section 19 Warrants, how paid by 
 treasurer 
 
 SECTION 20 269 
 
 Contents of section 20 Supplementary assess- 
 ments Surplus, how divided 
 
 SECTION 21 270 
 
 Contents of section 21 Proceedings to settle 
 defective title 
 
 SECTION 22 270 
 
 Contents of section 22 Proceedings when bound- 
 aries of assessment district include the 
 whole city 
 
 SECTION 23 270 
 
 Contents of section 23 Definitions of words 
 used in the act Miscellaneous provisions 
 
 SECTION 24 271 
 
 Contents of section 24 Proceedings commenced 
 under any other act How continued under 
 this act 
 
 SECTION 25 271 
 
 Contents of section 25 Act-hew construed 
 When takes effect ,XjeSE ^ LlBR^t^s. 
 
 I w m. T TT TT" t3 C! T T 1 "V I 
 
XIV STREET WORK LAW CONTENTS. 
 
 STREET OPENING ACT OF MARCH 23, 1893. 
 272-294. 
 
 SECTION 1. Powers of city councils, of cities having over 
 
 40,000 inhabitants, to open streets, etc 272 
 
 Constitutionality of street opening act of March 
 
 23, 1893 272-287 
 
 SECTION 2. Resolutions of intention Boundaries of dis- 
 trict 287 
 
 SECTION 3. Post ng notices Publication 287 
 
 SECTION 4. Objections filed by owners of land affected 
 
 Time for hearing Notification 287 
 
 SECTION 5. Hearing Bar When jurisdiction is deemed 
 
 to have been gained 287-8 
 
 SECTION 6. Order of work Commissioners Compensa- 
 tion Qualification Removal of Commis- 
 sioners Board of public works City attor- 
 ney City surveyor 288 
 
 SECTION 7. Office Secretary and clerks 288 
 
 SECTION 8. Incidental expenses Payment by warrants 288-9 
 
 SECTION 9. Duties of commissioners in viewing, etc. 
 
 Assessment for grading and filling lots 289 
 
 SECTION 10. Commissioners' report Duty of council rela- 
 tive to report 289 
 
 SECTION 11. Report shall specify each lot taken, etc. ... 289 
 
 SECTION 12. Conflicting claims to title 289 
 
 SECTION 13. Report and plat to be filed Clerk to give 
 
 notice of filing, etc 290 
 
 SECTION 14. Objections to be in writing Clerk to notify 
 
 objectors Duty of council on report ". 290 
 
 SECTION 15. Clerk to send copies of assessment and plat 
 
 to street superintendent 290 
 
 SECTION 16. Duty of superintendent Notice to be pub- 
 lished Assessments become delinquent 
 Advertising delinquency Delinquent list 
 to be published Sale Redemption Deed, 
 prima facie evidence Superintendent to pay 
 to treasurer moneys collected by him 290 
 
 SECTION 17. Payments for purposed work and improve- 
 ments If warrants not called for 291 
 
 SECTION 18. Condemnation proceedings Duty of city 
 
 treasurer 292 
 
 SECTION 19. Priority of claims 292 
 
 SECTION 20. Defective title Duty of council 292 
 
 SECTION 21. "Work" and "improvement' 1 defined Post- 
 ing Proof "Municipality" and "city" 
 Who is "street superintendent'' "City 
 council" "Clerk" "Treasurer" 292 
 
 SECTION 22. Board of audit Payment of commissioners 
 
 expenditures 293 
 
 SECTION 23. Act of March 6, 1889, made applicable to 
 municipalities having 40,000 inhabitants or 
 more Life of existing commissioners may be 
 extended Otherwise back action is voided 
 and commissioners are removed What is 
 not affected by this act 293 
 
 SECTION 24. Act to be liberally construed 294 
 
 SANITARY DISTRICT ACT. 295-307 
 
 Constitutionality of sanitary district act 295 
 
 SECTION 1. Petition for formation of district 299 
 
 SECTION 2. Order for election 300 
 
 SECTION 3. Posting and publishing copy of order 300 
 
CONTENNS 
 
 SECTION 4. Election Order declaring district to be estab- 
 lished 300 
 
 SECTION 5. Powers of district 300 
 
 SECTION (>. Officers of district 301 
 
 SECTION 7. Election of assessor Vacancy 301 
 
 SECTION 8. Duties of assessor Assessment list 301 
 
 SECTION 9. Members of sanitary board, election of 
 
 Classification No compensation for services 302 
 
 SECTION 10. Sanitary board, powers of President Sign- 
 ing documents Meetings 302 
 
 SECTION 11. Board of equalization, sanitary board, to sit as 
 Power of Kate of taxation Assessment 
 list Tax lien 302 
 
 SECTION 12. Collection of taxes, by cpunty tax collector 
 
 Suits for taxes '. 303 
 
 SECTION 13. Moneys collected to be turned over to county 
 treasurer Sanitary district fund Running 
 expense fund How moneys to be paid from 
 fund 303 
 
 SECTION 14. Election to determine whether bonds shall 
 
 issue 304 
 
 SECTION 15. Election, how conducted Bonds, when may 
 
 be issued 304 
 
 SECTION 16. Bonds, when and how payable, and form of 
 
 Sale of bonds Proceeds of sale 305 
 
 SECTION 17. Tax to pay interest and principal of bonds 
 When and how levied Collection of Prin- 
 cipal and interest to be paid within twenty 
 years 305 
 
 SECTION 18. Special proceedings in court to determine the 
 
 riiiht to issue bonds and the validity thereof 306 
 
 SECTION 19. Orders of board establishing any general reg- 
 ulation to be posted and published 306 
 
 SECTION 20. Duty of district attorney, to prosecute actions 
 
 and give advice 306 
 
 SECTION 21. Dissolution of district 307 
 
 SECTION 22. Powers of board to construct a sewer in any 
 street Cost of may be borne by property 
 fronting on line of sewer 307 
 
 SECTION 23. Conflicting acts repealed 307 
 
 SECTION 24. Act takes effect immediately 307 
 
 MUNICIPAL INDEBTEDNESS ACT. 308-312 
 
 History and nature of 308-310 
 
 SECTION 1. Powers of municipal corporation under the act 308 
 SECTION 2. Ordinance determining that tne public inter- 
 est, etc., demands the acquisition, etc., of 
 any municipal improvements, etc. Publi- 
 cation of ordinance Ordinance calling a 
 special election Election, how conducted 310 
 SECTION 3. Ordinances, how published What vote re- 
 quired to authorize issuance of bonds 310 
 
 SECTION 4. Plans and estimates of cost 
 
 SECTION 5. Limit to amount of indebtedness ' 311 
 
 SECTION 6. Form and character of bonds When and how 
 
 payable Sale of bonds Proceeds of sale. . . 311 
 SECTION 7. Rate of interest Place of payment Signing 
 
 bonds, etc. 311 
 
 SECTION 8. Tax to pay interest and principal How and 
 
 when levied and collected 311 
 
 SECTION 9. Rules and regulations for carrying out and 
 
 maintaining improvements Engineers 
 
 Superintendents Board of public works. .. 312 
 
XVI STREET WORK LAW CONTENTS 
 
 SECTION 10. Contracts to be let to lowest responsible 
 bidder Advertising for sealed proposals 
 
 Bonds from bidders Rejection of bids 
 
 SECTION 11. Bonds of treasurer 312 
 
 SECTION 12. Conflicting acts repealed 312 
 
 SECTION 13. When act takes affect 312 
 
 APPENDIX, la et seq. 
 
 Vrooman Act of March 18, 1885 la 
 
 Bond Act of February 27, 1893 31a 
 
 Street Opening Act of March 6, 1889 37a 
 
 Forms in use under Vrooman Act, Bond Act and Street 
 
 Opening Act 47a 
 
TABLE OF GASES CITED. 
 
 Anderson v. De Urioste, 96 Cal. 404 63 
 
 Appeal of Brooks, et al., 252, 259 
 
 Appeal of N. B. & M. R. R. Co., 32 Cal. 500 78, 252 
 
 Appeal of Piper, 32 Cal. 530 252, 259 
 
 Appeal of Reese, 32 Cal. 568 253, 259 
 
 Argenti v. San Francisco, 16 Cal. 256 50 
 
 Barber v. San Francisco. 42 Cal. 630 141 
 
 Bassett v. Enwright, 19 Oal. (536 76, 96, 138 
 
 Baudry v. Valdez, 32 Cal. 2(59 ... .3, 4, 20, 54, 7 ( .. 92, 102, 112, 
 
 .113, 131, 161 
 
 Banm v. Raphael, 57 Cal. 361 207 
 
 I'.ays v. LapMiii', 5i> ( 1 al. 4Sl 155 
 
 Bement v. Trenton L. & M. Co. 32 N. J. L. 515 127 
 
 Bcvt'ridgr v. Livingston*-, 51 Cal. 54 62 
 
 Bituminous I. inn- Rock Pvg. Co. v. Fulton, 33 Pac. Rep. 1117. 153 
 
 Blair v. Liming, 7<i Cal. 134 79 
 
 Blatncr v. Davis, 32 Cal. 32S 91, 92, 1(51 
 
 Blount v. Jam-svillc, 31 Wis. 648 164 
 
 Bonnet v. San Francisco, 65 Cal. 230 3, 164, 177 
 
 Boornian v. Santa Barbara, 65 Oal. 313 20, 33, 41, 252 
 
 Boyle v. Hitchcock, !; Cal. 129 137 
 
 I'.nuly v. P.artlc-tt, 5'i Cal. 350 55, 86, 132, 133, 156 
 
 F.rady v. P.urk, 90 Cal. 1 24, 105, 148 
 
 Brady v. I'Visd. 5:; ( 1 al. 49 46 
 
 Brady v. Krlly, :>2 Cal. 371 161 
 
 Brady v. Kin-, 53 Cal. 44 19, 74, 77 
 
 Brady v. Pa-c, 5i> ( )al. ~>2 and 301 93 
 
 Brock v. Liming, 89 Cal. 316 13, 51, 54, 63, 140 
 
 Brook v. Horton, 68 Cal. 554 246' 
 
 Brooks v. Sattvrlee, 49 Cal. 289 46 
 
 Brmvn v. Jenks, 32 Pac. Rep. 701 55 
 
 Bucknall v. Story, 36 Cal. 67 115, 139, 143, 213, 220, 230, 262 
 
 Burke v. Turn.-y, 54 Cal. 486 51, 121, 140, 155, 156 
 
 Burnett v. Sacramento, 12 Cal. 767 2(5, 71 , 73 
 
 Butte Co. v. Boydston, 64 Cal. 110 259 
 
 Callender v. Patterson, 66 Cal. 356 61 
 
 Capron v. Hitchcock, 98 Cal. 427 17, 128, 130 
 
 Chambers v. Satterlee, 40 Cal. 497 7, 11, 22, 45, 50, 54, 55, 
 
 74, 91, 95, 121, 132, 134, 135, 139, 156, 160 
 
 Chandler v. Dunn, 50 Cal. 15 7<; 
 
 Charnock v. Los Angeles, 38 
 
 City of Bloomington v. Palmer, 67 la. 681 172 
 
 City of Los Angeles v. Dehail, 97 Cal. 13 263 
 
 City of Napa v. Easterby, 61 Cal. 510 7, 26, 28, 160 
 
 City of Pasadena v. Stfmson, 91 Cal. 251 273, 275, 281, 
 
 282, 283, 284 
 City and County of San Francisco v. Kiernan, 33 Pac. 
 
 Rep. 721 150, 245, 249, 263, 264, 271 
 
 City of Santa Ana v. Harlm, decided Sept. 13, 1893, 249, 265, 269 
 
 City of Santa Barbara v. Huse, 51 Cal. 217 146, 157, 159 
 
 City of Stockton v. Creanor, 45 Oal. 644 54, 156, 159 
 
 City of Stockton v. Dunham, 59 Cal. 608 and 609 92 
 
 Clark v. Porter, 53 Cal. 409 146, 161 
 
 Cleveland v. Wick, 18 Ohio St. 303 259 
 
 Cochran v. Collins, 29 Cal. 130 130 
 
XVIII STREET WORK LAW CASES CITED 
 
 Colton v. Rossi, 9, Cal. 595 214, 2.10, 2-U 
 
 Ooniff v. Hastings436 Oal. 292 74, 1(51 
 
 (Vmniff v. Kalm, 5 Cal. 284 15I> 
 
 Conlin v. Board of supervisors of S. F., 33 Pac. Rep, 75 >. . . . 144 
 
 Conlin v. Seaman, 22 Cal. 546 130 
 
 County of Orange v. Harris, 97 Cal. 600 2--J7 
 
 Coverdale v. Charlton, 4 L. R. Q. B. I)iv. 104 2 
 
 Creighton v. Manson, 27 Oal. 613 1 
 
 Creighton v. Pragg, 21 Oal. 115 144 
 
 Davidson v. New Orleans, 96 U, S. 97 30 
 
 Davies v. Los Angeles, 86 Cal. 37 ... .34, 73, 95, 138, 246, 249, 25.} 
 
 Deady v. Townsend, 57 Cal. 298 20, 114, 160 
 
 Dean v. Davis, 51 Cal. 406 298 
 
 Dehail v. Morford, 95 Cal. 460. . ..11, 20, 33, 94, 123, 141, 249, 
 
 2-14, 255 
 
 Desmond v. Dunn, 55 Cal. 242 274, 2S3 
 
 DeWitt v. Duncan, 46 Cal. 343 251 
 
 Diggins v. Brown, 76 Cal. 318 34, 73, 83, 95, 138, 247, 257 
 
 Diggiiis v. Reay, 54 Cal. 525 146, 101 
 
 Donahue v. Graham, 61 Oal. 276 S7 
 
 Donnelly v. Howard, 60 Cal. 291 54, 113, 140, J57 
 
 Donnelly v. Marks, 47 Cal. 187 23, 45, 49 
 
 Donnelly v. Tillman, 47 Oal. 40 23, 45, 49, 62, 154, 157 
 
 Dorland v. Bergson, 78 Cal. 637 7, 54, 79, 113, 160 
 
 Dorland v. McGlynn, 47 Cal. 48 145, 159 
 
 Dougherty v. Coffin, 69 Cal. 454 i>2 
 
 Dougherty v. Foley , 32 Cal. 402 26, 58, 5i> 
 
 Dougherty v. Harrison. 54 Oal. 428 31 
 
 Dougherty v. Henarie,47 Cal. 10 76, 105, 116, 145 
 
 Dougherty v. Hitchcock, 35 Cal. 512. . . .11, 12, 13, 15, 17, 48, 
 
 50, 51,54,92, 103,120, 139 
 
 Dougherty v. Miller, 36 Oal. 83 14, 75, 98 
 
 Dougherty v. Nevada Bank, 81 Oal. 162 63 
 
 Dowling v. Altscluil, 33 Pac. Rep. 495 73,95,127,130, 
 
 133, 138 
 
 Doyle v. Austin, 47 Cal. 353. 76, 224, 257 
 
 Dunne v. Altschul, 57 Cal. 472 53 
 
 Dyer v. Barstow, 50 Cal. 652 74, 1 55 
 
 Dyer v. Barstow, 53 Cal. 81 144 
 
 Dyer v. Brogan, 57 Cal. 234 114, 160 
 
 Dyer v. Brogan, 70 Cal. 136 159 
 
 Dyer v. Chase, 52 Cal. 440 54, 113 
 
 Dyer v. Ohase, 57 Oal. 284 . 162 
 
 Dyer v. Harrison, 63 Cal. 447 34, 73, 95, 138, 247, 257 
 
 Dyer v. Hudson, 65 Cal. 374 8, 19, 160 
 
 Dyer v. Martinovich, 63 Oal. 353 94 
 
 Dyer v. Miller, 58 Oal. 585 8, 197 
 
 1 Dyer v. North, 44 Cal. 157. 22, 144, 154 
 
 Dyer v. Parrott, 60 Oal. 551 1 37 
 
 Dyer v. Pixley, 44 Oal. 153 144 
 
 Dyer v. Scalmanini, 69 Cal. 637 54, 7!), <)2 
 
 Earl v. S. F. Board of Education. 55 Oal. 489. .. .207, 223, 273, 283 
 
 Easterbrook v. O'Brien, 33 Pac. Rep. 765 143, 220 
 
 Ede v. Cogswell, 79 Oal. 278 75 
 
 Ede v. Knight, 93 Cal. 159 (>;!, 75, 78, 92, 113, 114, 159, 160 
 
 Ely v. Thompson, 3 A. R. Marsh (Ky.) 70 28<> 
 
 Emery v. Bradford, 29 Oal. 86 15, 70, 86, 119, 124, 132 155 
 
 Emery v. S. F. Gas Co. 28 Cal. 376. . .7, 19, 52, 62, 70, 71, 7-5, 
 
 74, ISO, 165 
 
 Eustace v. Jahns, 38 Cal. 3 166, 169, ! 7S 
 
 Ex parte Ah You, 82 Cal. 343 2S5 
 
 Ex parte Henshaw, 73 Oal. 507 * 281, 284, 286 
 
CASES CITED XIX 
 
 Fanning v. Bolnne, 70 Cal. 149 159 
 
 Fanning v, Levi^ton, 93 Ual. 18G 86, 130, 137, 159 
 
 Fanning v. S.-hammel, <iS Cal. 428 62, 77 
 
 Foley v. Bui lard, decided Sept. 11, 1893. . 106, 112 
 
 Fric-k v. Morford, 87 Cal. 576 78, 92, 96, 98, 105, 130, 137, 140 
 
 Gaffney v. Donohue, 36 Cal. 104 74, 112, 161 
 
 Gafney v. San Fram-isro, 72 Cal. 146 7, 54, 160 
 
 Gately v. Irvine, 51 Cal. 172 159 
 
 Gately v. Leviston. ;:{ Cal. 3;f> 8, 197 
 
 Gillis'v. Cleveland, S7 Oal. 214 74, 79, 90, 96, 102, 103, 161 
 
 (Joddnrd. petitioner, 16 Pick, 504 173 
 
 Grove Street, In re, 61 Cal. 438 14, 29, 32. 251 
 
 (iuerin v. Kee*e, 83 Cal. 293 74, 109, 110, 161, Ko 
 
 Ila-rr v. Re.lamation Dist., Ill U. S. 701 30 
 
 llammt'tt v. Philadelphia, 65 I Van. St. 155 171 
 
 Hanrork v. P.mvnum, 49 Cal. 418 .146, 161 
 
 !lan <> -k v. Whitteniore, 50 Cal. 522 76 
 
 Harmon v. Omaha,, 17 Neb. 54S 200, 20:5 
 
 Hamey v. Ai.ple.uate, 57 Cal. 205 146, 157 
 
 1 la; -ii'.'y v. ( om.nm, 60 Cal. :;i4 157 
 
 llarm-y v. Heller, 47 Cal. 15 20, 27, 30 
 
 Barney v. MeLeran. 66 Cal. 35 157, 159 
 
 Hart v. Gaven, 12 Oal. 477 : .. .. 169 
 
 Haskell v. Harriett, 84 Cal. 281 23 
 
 Heft. v. Payne, 97 Cal. 108 6:5 
 
 Heinlrick v. Crowley, :n Cal. 472 ; 60, 145, 151 
 
 . S v. lii-is, 40 Cal. 2">5 12, 45, 91, 92 
 
 Heyneman v. Blake, 19 Oal: 579 :: i 
 
 1 iinmielmann v. r>atcinan. 50 Cal. 11 93 
 
 Hi inn i el ma nn v. I'oolli, 5:> Cal. 50 112 
 
 Himmelmann v. Uyrru-. 41 Cal. 500, 45 
 
 Himmelmann v. Calm, 49 Cal. 2S5 46, 1'2 
 
 Himmelmann v. Carpentier, 47 Cal. 42 145,159 
 
 Himmelmann v. Cofran, 36 Cal. 411 92, 10(1 
 
 Himmelmann v. I tain. s. 85 Cal. 441 103, 115, 151, 155 
 
 Himmelmann v. Haskell, 46 Cal. 67 '. 154 
 
 Himmelmann v. Hoauley, 44 Cal. 213 7, 55, 91, 103, 104, 
 
 105, 111, 114, 115, 132, 15(5, 160 
 
 Himmelmann v. Hoadley, 44 Cal. 276 79, 136 
 
 Himmelmann v. MrCreery, 51 Cal. 562 19 
 
 Himmelmann v. Oliver, 34 Cal. 246 59, 116 
 
 Himmelmann v. Keay, 38 Cal. 163 16, 115 
 
 Himmelmann v. Satterlee, 50 Cal. 69 3, 49, 54, 112 
 
 Himmelmann v. Spanagel, 39 Oal. 389 75, 156 
 
 Himmelmann v. Steiner, 38 Cal. 175 74, 91, lol 
 
 Himmelmann v. Tmvnsend, 49 Cal. 150 49, 110, 154 
 
 Himmelmann v. Woolrich, 45 Cal. 249 112, 114, 160 
 
 Houston v. McKenna, 22 Cal. 550 74 
 
 In re Beal Street, 39 Cal. 495 199, 202, 204, 208 
 
 In re Fulton Street, 29 How. Pr. (N. Y.) 429 164 
 
 In re Goddard, 16 Pick. 504 173 
 
 In re Grove Street, 61 Cal. 438 14, 29, 32, 251 
 
 In re Market Street, 49 Cal. 546 78 
 
 In re Madera Irrigation District, 92 Cal. 296 298 
 
 Irrigation District v. Williams, 76 Cal. 360 298 
 
 Jennings v. LeBreton, 80 Cal. 8 70, 86, 103, 130 
 
 Jennings, v. LeRoy, 63 Cal. 397 158 
 
 Joslyn v. Rockwell, 128 N. Y. 334 229 
 
 Kahn v. Board of Supervisors, 79 Cal. 388 176 
 
 Kelly v. Liming, 76 Cal. 311 76, 77 
 
 Kepple v. City of Keokuk 2 Am. and Eng. Corp. Cases 446 
 
 193 199 
 
STREET WORK LAW CASES CITED 
 
 Knowles v. Seale, 64 Cal. 377. . . .8, 165 
 Kreling v. Muller, 86 Cal. 465 33, 162 
 
 Leek, etc. Commissioners, v. Justices of Stafford, 20 Q. B. 
 
 Div. 797". ... 164 
 
 Lent v. Tillson, 72 Cal. 404 30, 33, 41, 70, 143, 220, 253 
 
 Libby v. Ellsworth, 97 Cal, 316 52, 62, 155 
 
 Los Angeles v. Dehail, 97 Oal. 13 263 
 
 Macadamizing Co. v. Williams, 70 Oal. 534 6, 111, 159 
 
 Mahlstadt v. Blanc, 34 Cal. 577 145 
 
 Mahoney v. Braverman, 54 Cal. 565 141 
 
 Manning v. Den, 90 Cal. 610. . .16, 51, 56, 74, 128, 140, 141, 
 
 145, 155, 156, 158, 161, 170 
 
 Mappa v. Los Angeles, 61 Cal. 309 63 
 
 Marini v. Graham, 67 Oal. 130 3 
 
 Marx v. Hawthorn, 13 Sup. Ct. Rep., 508 229 
 
 May v. Lyons, 47 
 
 Mayo v. Ah Loy, 32 Cal. 477 90 
 
 McBean v. Martin, 96 Cal. 188 110 
 
 McBean v. Redick, 98 Cal. 191 16, 54, 130, 139 
 
 McCann v. Sierra Co., 7 Oal. 121 264 
 
 McCarthy v. City of St. Paul, 22 Minn. 527 200 
 
 McCormick v. Patchin, 53 Mo. 33 172 
 
 McCready v. Sexton, 29 Iowa 356 229 
 
 McDonald v. Conniff, decided Aug. 30, 1893 98. 149 
 
 McDonald v. Dodge, 97 Oal. 112 20, 26, 32, 48 
 
 McDonald v. Patterson, 54 Cal. 245 87 
 
 McVery v. Boyd, 89 Cal. 305 6, 52, 63, 137, 158, 233 
 
 Meuser v. Risdon, 36 Cal. 239 22, 45, 59, 76 
 
 Miller v. Kister, 68 Cal. 145 274, 283 
 
 Miller v. Mayo, 88 Cal. 568 25, 60, 155 
 
 Modesto Irrigation District v. Tregea, 88 Oal. 334 299 
 
 Mok v. Detroit Ass'n, 30 Mich. 511 207, 221 
 
 Montgomery Avenue Case, 54 Cal. 579 194, 198 
 
 Morrison v. Bachert, 112 Penn. St. 322 276, 283, 286 
 
 Moulton v. Parks, 64 Cal. 181 ... .34,73, 95, 196, 198, 247, 256, 295 
 Mulligan v. Smith, 59 Cal. 206 176 
 
 Nagle v. McMurray, 84 Cal. 539 .156 
 
 Nicolson Pvg. Co. v. Fay, 35 Oal. 695 53, 54 
 
 Nicolson Pvg. Co. v. Painter, 35 Cal. 705 13, 53, 123 
 
 Nolan v. Reese, 32 Cal. 484 55, 118, 131, 156 
 
 Norton v. Courtney, 53 Oal. 691 94 
 
 Oakland Pvg. Co. v. Barstow, 79 Cal. 45 75 
 
 Oakland Pvg. Co. v. Hilton, 69 Cal. 479 88 
 
 Oakland Pvg. Co. v. Rier, 52 Cal. 270 137 
 
 Oakland Pvg. Co. v. Tompking, 72 Cal. 5 88 
 
 Pacific Coast Ry. Co. v. Porter, 74 Oal. 261 259 
 
 Pacific Pvg. Co" v. Bolton, 97 Oal. 8 153 
 
 Palmer v. McMahon, 10 Sup. Ct. Rep. 324 30 
 
 Parker v. Bernal, 66 Oal. 113 146, 175 
 
 Parker v. Reay, 76 Cal. 103 78, 81, 113 
 
 Partridge v. Lucas, decided Sept. 11, 1893 54, 77, 113 
 
 Pasadena v. Stimson, 91 Cal. 230 273, 275, 281, 282, 283, 284 
 
 People v. Brooklyn, 21 Barb. (N. Y.) 484 164 
 
 People v. Central Pac. R. R. Co., 83 Cal. 393. . ..149, 151, 282, 283 
 
 People v. Clark, 47 Cal. 456 151 
 
 People v. Eaton, 46 Cal. 100 156, 157 
 
 People v. Henshaw, 76 Cal. 442 277-286 
 
 People v. Kinsman, 51 Cal. 92 145 
 
CASKS CITED XXI 
 
 People v. Kruger, 19 Cal. 411 250 
 
 People v. Lynch, 51 Cal. 15 34. 70, 72, 73,74, 77, 95, 138, 
 
 145,170,171, 247, 256 
 
 People v. McCain, 51 Cal. 360 23, 77 
 
 People v. Olvera, 43 Cal. 492 76 
 
 People v. O'Neil, :>l Cal. 91 141, 145 
 
 People v. Strother, 67 Cal. 624 88 
 
 People v. Williams, 56 Cal. (547 298 
 
 Perine v. Forbush, 97 Cal. 305 13, 16, 52, 54, 77, 130, 137, 
 
 140, 155, 156, 162 
 
 Plu-hin v. Dunne, 72 Cal. 229 146, 175 
 
 Polack v. S. F. Orphan Asylum, 48 Cal. 490 246 
 
 Raisch v. >an Francisco, 80 Cal. 1 63 
 
 Randolph v. I.ayue, 44 Cal. 3<>6 74, 105, 116, 145, 161 
 
 Randolph v.Ciawley, 47 Cul.4.~>8 19 
 
 Reardon v. City and County of San Francisco, 66 Cal. 492 199, 203 
 
 Reclamation District v. Hagar, <)<i Cal. 54 298 
 
 Reed v. City of Toledo, 18 Ohio 161 244 
 
 Reinken v. "Fuehring, (Ind.) 30 X. E. Rep. 414 172 
 
 Reis v. (Iraff, 51 CaK 86 49, 77, 145 
 
 Richardson v. Heydenfeldt, 46 Cal. 68 19 
 
 Richardson v. Tol.in, 4o Cal. 3d 24. 148 
 
 Robinson v. Merrill, 87 Cal. 11 145, 146, 159 
 
 Sands v. City of Richmond, 31 Gratt. 571 173 
 
 San Francisco v. Certain Real Estate, 50 Cal. 188 102 
 
 San Fran<-isco v. Certain Real Kstate,42 Cal. 513 77 
 
 San Francisco v. Doe, 48 Cal. 560 154 
 
 San Francisco v. Kiernan, 33 1'ac. Rep. 721.. 150, 245, 249, 
 
 LV.:J, 264, 271 
 
 San Francisco v. McCain, 50 Cal. 210 23 
 
 San Francisco v. Quaekenbush, 53 Cal. 52 93 
 
 San Jose v. Reed, 65 Cal. 241 264 
 
 Santa Ana v. Harlin, decided Sept. 13, 1893 249, 265-269 
 
 S. & L. Society v. Thompson, 32 Cal. 347 23 
 
 Schmidt v. Market St. R. R. Co., 90 Cal. 37. .25, 67, 68, 69, 
 
 233 234 
 
 Schirmer v. Hoyt, 54 Cal. 280 ' 112 
 
 Schumacker v. Toberman, 56 Cal. 508 74, 77 
 
 Sharpe v. Johnson, 4 Hill 92 90, 94 
 
 Shaw v. Crocker, 42 Cal. 435 199 
 
 Shepard v. Colton, 44 Cal. 628 22, 45, 49, 157 
 
 Shepard v. McNeil, 38 Cal. 72 86, 92, 115, 130 
 
 Shipman v. Forbes, 97 Cal. 572 101, 102, 123, 125, 126, 127 
 
 Sinton v. Ashbnry, 41 Cal. 525 250 
 
 Smith v. Cofran, 34 Cal. 310 90, 91, 94, 96, 98, 105, 138, 140 
 
 Smith v. Davis, 30 Cal. 537 90, 110 
 
 Spaulding v. Bradley, 79 Cal. 450 5 
 
 Spauldmg v. Homestead, 87 Cal. 40 13, 29, 31, 138 
 
 Spaulding v. Wesson, 84 Cal. 141 155 
 
 Spencer v. Merchant, 125 U. S. 345 30 
 
 State v. Herrmann, 75 Mo. 340 276, 283 
 
 State v. Mitchell, 31 Ohio St. 592 277, 283 
 
 State v. Thurston, (Mo.) 4 S. W. Rep. 930 207 
 
 State v. Trenton, 42 X. J. L. 486 276, 280, 283 
 
 Stockton v. Clark, 53 Cal. 82 47 
 
 Stockton v. Creanor, 45 Cal. 643 54, 156, 159 
 
 Stockton v. Skinner, 53 Cal. 85 46 
 
 Stockton v. "Whitmore, 50 Cal. 554 54 
 
 Stone v. Brooks, 35 Cal. 490 5 
 
 Strode v. Washer, (Or.) 16 Pac. Rep. 926 229 
 
XXII STREET WORK LAW CASES CITED 
 
 Taylor v. Dormer, 31 Gal. 481 . .90, 145 
 
 Taylor v. Palmer, 31 Cal. 241. ... 20, 23, 34, 52, 60, 62, 70, 74, 
 
 77, 106, 130, 145, 161, 170 
 
 Tehama Co. v. Bryan, 68 Oal. 57 259 
 
 Thomason v. Ashworth, 73 Cal. 73 88 
 
 Turner v. Dougherty, 53 Cal. 619 63 
 
 Turrill v. Grattan, 52 Cal. 97 8, 197 
 
 Village of Carthage v. Frederick, (N. Y.) 25 N. E\ Rep. 480. . 173 
 
 Walston v. Nevin, 128 U. S. 578 30 
 
 Washburn v. Lyons, 97 Cal. 314 20, 52, 62, 155 
 
 Weber v. City 6f S. F., 1 Oal. 455 315, 148, 220 
 
 White v. Harris, 35, 184 
 
 Whiting v. Quackenbush, 54 Cal. 306 70, 72, 73, 93 
 
 Whiting v. Townsend, 57 Cal. 515 20, 70, 111, 114, 
 
 148, 157, 160 
 
 Wilcox v. City of Oakland, 49 Cal. 29 251 
 
 Williams v. McDonald, 58 Oal. 527 20, 93 
 
 Williams v. Savings and L. Soc., 97 Cal. 122 93, 160 
 
 Wistar v. Philadelphia, 80 Pa. St. 505 172 
 
 Wood v. Strother 76 Cal. 545 100, 107 
 
UNIVERSITY 
 .CALIFORNIA. 
 
 [NTRODUCTION. 
 
 CLASSIFICATION OF THE STREET LAWS. 
 
 The object of this book is to bring together in one volume 
 all the statutes of this state now in force bearing upon the 
 subject of street work, and, by a system of annotations, 
 taken from the decisions of our Supreme Court upon these 
 and prior acts, illustrate, in so far as possible, the workings 
 of the acts and the questions which their operation has 
 given rise to from time to time. 
 
 The term "street work" is a phrase of common usage and 
 has a well-defined signification. The words mean exactly 
 what they indicate upon their face, namely, work upon a 
 street work in repairing or improving an existing street, 
 or in making a street. [Electric Light and Power Co. v. 
 City of San Bernardino, No. 19,282, decided Nov. 25, 1893.] 
 
 The street laws of this state naturally divide themselves 
 into what may be called the "street improvement acts" and 
 the " street opening or street widening acts." The street 
 opening acts do not make any provision for nor authorize 
 any improvement upon streets. They merely authorize the 
 creation or partial creation of or the widening or closing of 
 streets. The street improvement acts make provision for 
 improvements upon existing streets. In fact, this is their 
 sole aim and object. The street opening and closing acts 
 provide for the closing of streets or for the taking of prop- 
 erty to open, widen or extend streets, and the assessment of 
 the costs and expenses thereof upon the property benefited 
 thereby. Beyond the acquisition of the right of way for 
 the street, or perhaps its fee in the land, if the council deem 
 that necessary, and clearing the surface of such obstructions 
 as exist on the surface of the earth and interfere with the 
 "opening," "extending," or "widening" of the street, they 
 do not provide for any artificial improvement upon the 
 street, such as grading or paving. The term " opening " 
 does not include the improving of a street by grading, pav- 
 ing, etc. It refers to throwing open to the public what be- 
 fore was appropriated to private use. Such street improve- 
 
XXII STREET WORK LAW INTRODUCTION 
 
 ments as grading, paving, sewering, etc., are provided 
 for by the street improvement acts. Hitherto it has been 
 the policy of the legislature to provide for improvements 
 upon existing streets by acts entirely distinct from the acts 
 providing for opening, extending, widening and closing 
 streets. 
 
 The "street improvement acts" include those acts which 
 provide for improvements upon existing streets streets 
 opened or dedicated to public use, and include specifically: 
 (1.) The Vrooman Act of March 18, 1885 " An act to pro- 
 vide for work upon streets, lanes, alleys, courts, places and 
 sidewalks, and for the construction of sewers within muni- 
 cipalities" together with various amendments thereto. Said 
 amendments include the amendments whereby sections 38 
 to 53, inclusive, were added to the act. These added sec- 
 tions contain provisions for changing the grade of streets in 
 all capes where the official grade has once been established. 
 (2.) The Bond Act of February 27, 1893 an act to provide 
 a system of street improvement bonds. This act is in the 
 nature of a supplementary act to the Vroornan act of March 
 18, 1885, and is appropriately classified as a "street improve- 
 ment act." (3.) The Tree Planting or 'Shade Tree Act of 
 March 11, 1893 an act. to provide for the planting, main- 
 tenance and care of shade trees upon streets, etc. This act may 
 also be classified with the "street improvement acts." (4.) 
 The Sanitary District Act of March 31, 1891 an act to pro- 
 vide for the formation, government, operation and dissolu- 
 tion of sanitary districts in any part of the state; for the 
 construction of sewers, etc. The foregoing acts, four in 
 number, constitute the existing distinctively "street improve- 
 ment acts" of this state. 
 
 The second class of acts the "street opening" or "street 
 widening" acts includes the street opening and widening 
 act of March 6, 1889, and the act of March 23, 1893. 
 
 Lastly, the Municipal Indebtedness Act of March 19 y 
 1889 an act authorizing the incurring of indebtedness by 
 cities, towns, etc. This act, since it affords means for pay- 
 ing the expenses of the work, either of improving streets 
 already opened or dedicated, or of opening or widening 
 streets, may be said to be common to both of the above clas- 
 sifications. It, in effect, supplements the provisions of each 
 ofthe foregoing acts. 
 
 The street improvement and street opening acts, with 
 annotations consisting of such decisions by the Supreme 
 Court of this state as relate to the provisions of these acts, 
 
HISTORY OF THE STREET IMPROVEMENT ACTS. XXIII 
 
 or to similar provisions of former street work acts, consti- 
 tute the subject matter of this book. 
 
 No adequate knowledge of the provisions of the street 
 work acts now in force throughout the state can be had 
 without a study of the decisions construing similar pro- 
 visions of prior acts. And for this reason some knowledge 
 of these prior acts and of their history is necessary. The 
 history of the street work acts of thisstate naturally divides 
 itself into t\vo periods. First, there are those acts which 
 existed prior to the adoption of the new constitution the 
 constitution of 1879, which went into effect on the 1st day 
 of January, 1880. And, secondly, there are those acts 
 which have existed since the adoption of the new con- 
 stitution. Prior to the new constitution special 
 and local legislation was permissible and constitu- 
 tional. Consequently, under the old constitution the 
 great body of statutes relating to street improvements was 
 to be found in the charters of the several municipalities of 
 the state and in the acts amendatory thereof. Each muni- 
 pality performed its street work, not under some general 
 statute operating uniformly all over the state, in every 
 municipality of the state, but under those provisions of its 
 own charter which related to street work, or under statutes 
 amendatory thereof, or under special and local statutes 
 applicable only to that particular municipality. But the 
 new constitution prohibits the passage of any special or 
 local legislation authorizing the laying out, opening, alter- 
 ing, maintaining, or vacating highways, streets or alleys, 
 or in fact, any fpecial or local legislation whatever, where 
 a general law can be made applicable. [Const. Art. IV sec- 
 tion 25.] And it has been held, under the new constitu- 
 tion, that street work laws, such, for example, as the Vroo- 
 man act of March 18, 1885 which apply to all the munici- 
 palities of the state are "general laws" within the mean- 
 ing of that term as used in section 6 of article XI of the 
 constitution; that such general street work laws control the 
 provisions of municipal charters granted by the legislature 
 prior to the adoption of the new constitution the charter 
 of the city and county of San Francisco, for example and 
 that in such municipalities public improvements upon 
 streets and highways must be performed under such general 
 street laws, and not under the charters of such municipali- 
 ties or special laws amendatory thereof. [Thomason v. 
 Ashworth, 73 Cal. 73; Peoples. Herishaw, 76 Cal. 436; 
 Ex parte Ah You, 82 Cal. 339.] And, it has likewise been 
 held that such general laws control and supersede the pro- 
 visions of charters framed or adopted since the new consti- 
 
XXIV STREET WORK LAW INTRODUCTION 
 
 tution went into effect "freeholders charters." [Davies v. 
 City of Los Angeles, 86 Cal. 37.] In Thomason v. Ash- 
 worth, 73 Cal. 78, Mr. Justice Thornton said: "It is argued 
 that, according to the views herein expressed, a city may 
 have its charter totally changed without its consent. This 
 is a proper deduction from the ruling herein, but this can- 
 not be done by a special or local law applicable only to a 
 particular charter. The result can only be reached by a 
 general law affecting all municipal corporations, or it may 
 be all of a class, and we can see no probability that a city 
 can be injured by general legislation." 
 
 Whatever may be said about the destruction of 
 local self-government and of municipal autonomy in 
 purely municipal affairs, which these decisions may 
 be supposed to lead to, at least one advantage 
 of considerable importance is derivable from these rulings, 
 viz: Where each city operated under special charter pro- 
 visions or special or local laws authorizing work to be done 
 upon the streets of such city, a decision construing a pro- 
 vision in the charter of any particular city, or construing a 
 provision in some special or local law, was of little use as a 
 precedent in cases arising under the charters of other cities, 
 mid hence, because of the heterogeneity of the street laws 
 of the state, there could be but little certainty, no matter 
 how numerous the decisions might be. Whereas, under 
 the ruling that the provisions of a general street work law 
 such as the Vrooman act of March 18, 1885, or the street 
 opening act of March 6, 1889 are applicable to municipa- 
 lities all over the state, every decision construing any par- 
 ticular provision of the law tends to clear away all uncer- 
 tainties, and is as helpful in determining the nature and 
 extent of the powers and duties of the municipal authorities 
 of any city of the state, as it is helpful in determining such 
 powers in the particular municipality in which the case 
 arose. It is a guide to future action in every municipality 
 of the state; and, as certainty in a bad law is often more 
 desirable than a good law without certainty, it follows that 
 advantages which may flow from holding these general 
 street work laws to control and supersede all inconsistent 
 charter provisions, by reason of the greater certainty in the 
 law which may be attained thereby, may outweigh all 
 those advantages which might possibly accrue to each 
 municipality if its own charter provisions controlled in 
 the matter. 
 
 History of Street Improvement Acts in San Francisco Prior 
 to the New Constitution. As stated supra, no adequate 
 knowledge of the present general street improvement act 
 
HISTORY OF STREET IMPROVEMENT ACTS XXV 
 
 the Vrooman act of March 18, 1885 is attainable without 
 some knowledge of the history of prior street improvement 
 acts. But as these prior street improvement acts consisted 
 of a mass of charter provisions or of special and local stat- 
 utory enactments, it is neither convenient nor necessary to 
 set them forth here, but the history of the statutory provi- 
 sions made specially applicable to the city and county of 
 San Francisco will suffice as an illustration of all the others. 
 And, as the principal distinguishing characteristic, which 
 distinguished the successive San Francisco street work 
 acts, related to the principle of assessment i. e., the prin- 
 ciple according to which the costs and expenses of the work 
 were apportioned among the property owners only the 
 date of each act will be given and the principle of assess- 
 ment by which it was characterized. Thus the various 
 acts of the legislature appertaining to and regulating street 
 work in the city and county of San Francisco, including 
 the charters of that municipality, may be used to illustrate 
 the history or growth of the street law in all of our munici- 
 palities prior to the new constitution, though many of the 
 charters of the other cities, and the various special and 
 local acts of the legislature applicable to them, may exhibit 
 many features or characteristics differing widely from the 
 charters of San Francisco and from the special laws appli- 
 cable to public improvements in this particular municipal- 
 ity. But, if it be remembered that all of the charters of 
 the several municipalities of the state, together w r ith the 
 special acts of the legislature amendatory thereof, or acts 
 which in any manner provided for work upon the streets, 
 sewers, etc., in the several cities, passed through many 
 similar stages in the progress of their evolution from the 
 establishment of the municipal governments in these cities 
 up to the present date, it will be obvious that, for the pur- 
 pose of illustrating this growth of the street laws of this 
 state prior to the adoption of the new constitution, it will 
 be sufficient to briefly sketch the history of the charters of 
 the city of San Francisco, and the special acts amendatory 
 thereof, prior to the adoption of our present constitution. 
 In this way the history 0f the street laws applicable to one 
 city may be made to serve as a sufficient illustration of the 
 growth of similar laws in all the cities of the state, not- 
 withstanding the fact that the charters of the different 
 cities and these special amendatory acts differed materially. 
 
 The history of the street improvement acts applicable to 
 the city of San Francisco, prior to the new constitution, is 
 as follows: 
 
 April 15th, 1850, the first legisl|^"iI~W^%P --State of 
 
XXVI STREET WORK LAW INTRODUCTION 
 
 California passed an act entitled "An act to incorporate 
 the city of San Francisco." This was the first charter of 
 the city of San Francisco and by it the municipality known 
 as the "city of San Francisco" was established and incor- 
 porated. [Statutes of 1850, page 223]. 
 
 Under this first charter of San Francisco, one-third of the 
 expense of doing the work was paid out of the city treasury, 
 and two-thirds "paid in equal proportions by the land on both 
 sides of the street," etc., but the principle of apportion- 
 ment, whether according to the value of the property 
 fronting the street, or the benefits accruing to such property, 
 or according to the number of front feet, was not indi- 
 cated by this charter. 
 
 April 15, 1851, the legislature passed an act entitled 
 "An act to re-incorporate the city of San Francisco." 
 This is known as the charter of 1851. By this charter the 
 expenses were apportioned according to the benefits received 
 or "advantages respectively derived from such improve- 
 ment" at least two-thirds of the expenses to be borne by 
 and assessed upon the adjacent property. [See statutes of 
 1851, page 365.] 
 
 By the charter of 1855, created or granted by an act 
 approved May 5, 1855, entitled "An act to re-incorporate 
 the city of San Francisco," it was provided that the "cost 
 and expenses of all such works shall be assessed upon the 
 property particularly benefited thereby, in proportion to 
 the benefit received from such work by said property, 
 exclusive of the general benefit shared by said property, in 
 common with the rest of the city." [See statutes of 1855, 
 page 264.] 
 
 The act known as the "consolidation act" was approved 
 April 19, 1856. It is entitled "an act to repeal the several 
 charters of the city of San Francisco, to establish the 
 boundaries of the city and county of San Francisco, and to 
 consolidate the government thereof." By this act the cor- 
 poration known and existing as the city of San Francisco 
 was expressly continued as a body politic under the name 
 of the " city and county of San Francisco," and all the 
 property and effects of both the city of San Francisco and 
 the county of San Francisco were transferred to the cor- 
 poration known as the "city and county of San Francisco," 
 which municipality, was, by the "consolidation act," formed 
 by the union or consolidation of both the city and county. 
 [Wood v. Election Commissioners, 58 Cal. 561.] Article IV 
 of this consolidation act contains the provisions of the 
 charter of the municipal corporation known as the "city 
 and county of San Francisco," which apply to street work. 
 
HISTORY OF STREET IMPROVEMENT ACTS XXVII 
 
 [Statutes of 1856, pages 156-162.] This charter adopted the 
 "front-foot" principle of apportionment, and provided that 
 "the total amount of the expense * * * * shall be 
 assessed upon and borne with absolute equality by all the 
 lands fronting thereon and in proportion to the frontage, at 
 a rate per front foot sufficient to cover such total expense 
 of the work." 
 
 In 1859 the legislature passed an act amendatory of the 
 consolidation act. By this amendment the mode of appor- 
 tionment of expense was changed from the front-foot prin- 
 ciple to the ad valorem principle. This amendatory act 
 provided that the expenses "shall be assessed upon * * * 
 the adjacent lots and land on each side of the street. Each 
 lot or portion of a lot, being assessed in proportion to the 
 assessed value of the same according to the assessment roll 
 last completed." 
 
 In 1861 an act was passed by the legislature amendatory 
 of the "consolidation act" and also of the amendatory act 
 of 1859. By this act of 1861, the legislature returned to 
 the front-foot mode of apportionment of expense, this 
 mode having been found to be the most just and equitable 
 and satisfactory in its operations. It is the same mode that 
 is now in force under the existing general street improve- 
 ment act, the Vrooman act of March 18, 1885. [See infra 
 page 1 et seq.] This amendatory act of 1861, provided that 
 the expense shall be assessed upon each lot fronting on the 
 street "according to its proportion of frontage." 
 
 An amendatory act of 1862 amended article IV of the 
 "consolidation act," relating to street work. This act, 
 while making many changes in the mode of procedure, and 
 elaborating the provisions relating to the various steps to be 
 taken by the city to acquire jurisdiction to do the work, etc., 
 did not change the mode of apportionment, it continued 
 the front-foot principle of assessment. 
 
 Mr. Justice Sawyer, in the case of Emery v. S. F. 
 Gas Co., 28 Gal. " 373-4, speaking of the differ- 
 ent principles of apportionment, said, in the course 
 of his opinion, and in respect to these charters 
 of San Francisco, and acts amendatory thereof: "Pos- 
 sibly it might tend to promote equality and justice to leave 
 to the local communities, which have the supervision of 
 this class of improvements, the discretion to adopt that 
 principle of apportionment which the exigencies of each 
 particular district designated for improvement may require. 
 In this state, particularly with reference to the city of San 
 Francisco, nearly, if not quite all the various modes of 
 apportionment have been tried, and among them the ad 
 
XXVIII STREET WORK LAW INTRODUCTION 
 
 valorem principle was for several years pursued. Each was 
 in turn attacked as unjust, and abandoned. Under the 
 first charter of San Francisco, (act of 1850) one-third of the 
 expense was paid out of the city treasury, and two-thirds 
 'paid in equal proportions by the land on both sides of the 
 street/ etc., but the principle of apportionment is not 
 indicated. Under the characters of 1851 and 1855 the 
 apportionment was according to benefits. The great reform 
 charter, the consolidation act of 1856 adopted the front- 
 foot principle, and this continued in force till 1859, when 
 it was amended, and an ad valorem apportionment adopted. 
 After trying this system two years, and after having given 
 each principle a fair trial, in 1861 the legislature again 
 returned to the front-foot principle, which had been in 
 force from 1856 to 1859 the only instance of a return to a 
 principle once tried and abandoned. And finally in 1862, 
 after twelve years experience the present principle of 
 assessing upon the front-foot was continued." 
 
 By the amendatory acts of 1866 [statutes of 1865-6, page 
 549], 1868 [statutes of 1867-8, page 358) and 1870, [statutes 
 of 1869-70, page 890], article four of the "consolidation act" 
 and the intermediate amendatory acts were amended in 
 various particulars. These amendments made many 
 changes in the mode of procedure, but the principle of 
 assessment remained unchanged, that is, the expenses were 
 apportioned and assessed according to the front-foot prin- 
 ciple. 
 
 In 1872, by an act approved April 1, 1872, [statutes of 
 1871-2, page 804] the legislature passed an act repealing 
 article four of the "consolidation act," and all acts amenda- 
 tory thereof, and "substituting this act [act of 1872] for 
 said article four." This act of 1872 amplified many of the 
 provisions contained in the original article four of the con- 
 solidation act and in the acts amendatory thereof, but con- 
 tinued in force the front-foot principle of assessment. 
 
 The general street improvement act now in force the Vroo- 
 man act of March 18, 1885, is so similar to the said act of 
 April 1, 1872, amending the charter of the city and county 
 of San Francisco, that it seems but reasonable to conclude 
 that this act of April 1, 1872, furnished the model upon 
 which the said general act now in force was patterned. 
 
 In addition to these charters of the city of San Francisco, 
 and the acts above mentioned which are amendatory of 
 said charters, there were many special acts passed, prior to 
 the present constitution, which related to or provided for 
 work upon certain particular streets or localities of the city. 
 Thus, for example, the legislature of 1875-6 passed an act 
 
HISTORY OF STREET IMPROVEMENT ACTS. XXIX 
 
 entitled "An act to provide for the opening and extending 
 of Leidesdorff street, in the city and county of San Fran- 
 cisco." [Statutes of 1875-6, page 563.] Similar special 
 acts were passed by almost, if not every legislature, prior to 
 the new constitution, relative to particular streets and local- 
 ities in other cities of the state. The charters of each city 
 and the acts amendatory thereof were general in their oper- 
 ation within the boundaries of each particular city, but 
 these last mentioned special acts applied specially to some 
 particular street or locality within the city. 
 
 History of the Street Improvement Acts passed since the 
 Adoption af the New Constitution. Under the old constitu- 
 tion it was permissible to pass special and local laws-, such 
 as those described supra, relative to street work in the city 
 and county of San Francisco. Such special and local laws 
 might consist of acts providing charters for municipalities 
 of the state, or acts amendatory of such charters, or might 
 consist of acts making provision for the opening of, or 
 improvement upon, some particular street of some city. 
 But, under the new constitution the constitution of 1879 
 the provisions of which are expressly declared to be man 
 datory and prohibitory [section 22, article I], the legisla- 
 ture may not pass local or special laws authorizing the lay- 
 ing out, opening, altering, maintaining or vacating high- 
 ways, streets, or alleys, or in any case where a general law 
 ran be made applicable [section 25, article IV], and all laws 
 of a general nature must have a uniform operation. [Sec- 
 tion 11, article I.] Since the adoption of the new constitu- 
 tion general laws have been passed by our legislature, 
 which, in so far as public improvements upon streets, etc., 
 are concerned, have superseded those provisions of the 
 charters of the several cities of the state which relate to 
 street work, as well as all acts of special or local legislation 
 theretofore made applicable to these public municipal 
 improvements. The history of these general laws passed 
 since the adoption of the new constitution relative to 
 improvements upon public streets is as follows: 
 
 The first attempt to pass a general law, (after the new 
 constitution went into effect) in relation to municipalities, 
 was what is commonly known as the " McClure Charter/' 
 This was an act approved April 24, 1880, and entitled "An 
 act to provide for the organization, incorporation, and gov- 
 ernment of merged and consolidated cities and counties of 
 more than one hundred thousand population, pursuant to 
 the provisions of section seven, of article eleven, of the con- 
 stitution of this state." This act came before the Supreme 
 Court in the case of Desmond v. Dunn, 55 Gal. 242. The 
 
XXX STREET WORK LAW INTRODUCTION 
 
 act in question attempted or purported to provide a charter 
 or complete organic law for all consolidated cities and 
 counties of more than one hundred thousand population 
 although there was but one municipal corporation in the 
 state at the date of the passage of the act to which it could 
 by its terms apply, that is, the city and county of San Fran- 
 cisco. The courl held the act to be unconstitutional. It 
 was held, First: That the act, even if constitutional, could 
 not take effect as to the corporation known as the city and 
 county of San Francisco, because the constitution, impliedly 
 at least, provides that cities incorporated previously to the 
 adoption of the constitution, shall continue to exist under 
 their existing acts of incorporation, until a majority of the 
 electors determine to be organized under general laws, or 
 frame a charter for their own government, as provided by 
 sections 6 and S, article XI of the constitution. Until 
 superseded or supplanted by a charter framed and adopted 
 in accordance with either of these provisions of the consti- 
 tion, all present charters remain in full force and effect, ex- 
 cept as to such parts as may come in conflict with the consti- 
 tution. Second: In the second place it was held that this act 
 known as the "McClure Charter," was unconstitutional 
 because sections 6 and 7 of article XI of the constitution con- 
 template the enactment of general laws which shall provide 
 for all municipal corporations regardless of population or the 
 character of the municipal government, and not for some 
 only; and such laws must be as general as the subject to 
 which they relate; such general laws may themselves class- 
 ify municipal corporations according to population, and 
 make provision for each class, but each law must be general 
 enough to cover all municipal corporations, of whatever 
 class. Held, therefore, that this act is unconstitutional 
 because, 1st. It excludes from its operation all municipal 
 corporations, except "consolidated city and county govern- 
 ments;" and 2nd, because it is limited to municipal corpor- 
 ations having more than 100,000 inhabitants, and makes 
 no provision for those having less than that population. 
 
 'In 1883 by an act approved March 13, 1883, the legislature 
 passed an act entitled "An act to provide for the organization, 
 incorporation and government of municipal corporations." 
 [Statutes 1883, page 93.] This act of March 13, 1883, commonly 
 called the "Municipal Incorporation Act," "is in harmony 
 with, and passed in obedience to the provisions of section 
 6, article XI, of the constitution." [Ex parte Campbell, 74 
 Cal. 26.] By this act, and the municipal classification act 
 of March 2, 1883, [statutes 1883, page 24], the municipali- 
 ties of the state were divided into six classes according to- 
 
HISTORY OF STREET IMPROVEMENT ACTS XXXI 
 
 population, and a complete charter provided for cities of 
 each class, electing to be incorporated thereunder, that is to 
 say, a charter for cities of the first class (cities having a 
 population of more than 100,000), a charter for cities of the 
 second class (cities having a population of more than 
 30,000 and not exceeding 100,000), etc. 
 
 This municipal incorporation act of March 13, 1883, 
 provides that "any portion of a county containing 
 not less than five hundred inhabitants, and not incor- 
 porated as a municipal corporation, may become incor- 
 porated under the provisions of this act, and 
 when so incorporated, shall have the powers con- 
 ferred, or that may hereafter be conferred by law upon 
 municipal corporations of the class to which the same may 
 belong." Such territory is incorporated as a municipal 
 corporation of the class to which it belongs when a majority 
 of the votes cast at the election held for that purpose are 
 for incorporation. The same act also provides that "any 
 city and county, city 'or town, organized or incorporated 
 prior to the first day of January, eighteen hundred and 
 eighty, at twelve oclock meridian" may become re-organized 
 and re-incorporated under the provisions of said act, upon 
 the proper steps being taken therefor. This is in accor- 
 dance with that provision of the constitution [section 6, 
 article XI] which provides that "cities and towns heretofore 
 organized or incorporated may become organized under 
 such general laws [that is general laws providing for the 
 incorporation, organization and classification of cities and 
 towns] whenever a majority of the electors voting at a gen- 
 eral election shall so determine." This is one of the modes 
 pointed out by Justice Myrick in his concurring opinion 
 in the case of Desmond v. Dunn, 55 Cal. 253, whereby 
 cities and towns may be incorporated. But, until the peo- 
 ple of a city or town, incorporated prior to the 1st day of 
 January, 1880, or the people of any portion of a county, deter- 
 mine to become organized under a general municipal incor- 
 poration law, such as the municipal incorporation act of March 
 13, 1883, and until a majority of the electors vote therefor, 
 the provisions of such general municipal incorporation act 
 do not apply to such city or town, or territorial portion of 
 a county. Therefore there are but few cities or towns in 
 this state to which the provisions of the municipal incor- 
 poration act, approved March 13, 1883, apply. [See In re 
 Guerrero, 69 Cal. 100.] Consequently the provisions of 
 that act need not be regarded save in those few cities or 
 towns, which being incorporated prior to January 1st, 1880, 
 have elected to re-incorporate under that act, or those cities 
 
XXXII STREET WORK LAW INTRODUCTION 
 
 and towns, which, coming into existence since the new 
 constitution took effect, have been organized under said 
 act of March 13, 18S3; and even as to such cities and towns, 
 the provisions of the general street improvement and street 
 opening acts, passed since the passage of said municipal 
 incorporation act of March 13, 1883, are controlling where 
 inconsistent with the provisions of the said municipal 
 incorporation act, but when not inconsistent the 
 provisions of the latter act, the municipal incor- 
 poration act, even in respect to street work may 
 be applicable in those cities and towns which 
 have incorporated thereunder. Thus in Capron v. Hitch- 
 cock, decided June 3, 1893, 33 Pac. Rep. 431, it was held 
 that no valid assessment can be made for street work done 
 under the general street improvement act the Vrooman act 
 of March 18, 1885, if the contract therefore is void under 
 section 628 of the municipal incorporation act of March 13, 
 1883, providing that no officer of a city of tfie fourth class, 
 organized under said act, shall be interested in a contract 
 to which the city is a party, and that any contract contrary 
 to the provisions thereof shall be void: held, further, that 
 the said municipal incorporation act of March 13, 1883 
 section 628 forbidding any officer of a city of the fourth 
 class to be interested in a contract with the city, is not 
 impliedly repealed by section 5 of the general street 
 improvement act the Vrooman act of March 18, 1885 
 providing that under certain circumstances a street con- 
 tract shall be awarded to the owners of a majority of the 
 frontage on the street to be improved. 
 
 In this case, the action was brought by plaintiff 
 to enforce the lien of an assessment on the lot of 
 defendant in the city of San Diego, for street work 
 alleged to have been done by plaintiff under a con- 
 tract awarded to him by the city council of San Diego, 
 and executed on the part of the city by the superintendent 
 of streets. At all the times mentioned in plaintiff J s com- 
 plaint the city of San Diego was a municipal corporation 
 of the fourth class organized and existing under said gen- 
 eral municipal incorporation act of March 13, 1883, and 
 plaintiff, to whom said contract to do said street work was 
 awarded as aforesaid, was a school trustee of said city of 
 San Diego, duly elected, qualified and acting as such 
 school trustee for the third ward of said city of San Diego, 
 held, that, for the reasons given above, i. e. because of the 
 lettingof the contract to plaintiff, was violative of said provi- 
 sion of section 628 of the municipal corporation act, under 
 
HISTORY OP STREET IMPROVEMENT ACTS XXXIII 
 
 which the municipality was incorporated, the contract was 
 void, and plaintiff could not recover. 
 
 Cities and towns incorporated under the general 
 municipal incorporation act of March 13, 1883, have 
 for their charter the provisions of such act applicable 
 to the particular class of cities or towns to which 
 such cities and towns belong. If any provisions of this 
 general act, applicable to street improvements and not 
 inconsistent with the provisions of the general street 
 improvement act the Vrooman act of March 18, 1885, 
 be in force in cities and towns incorporated under said 
 municipal incorporation act, and if such provisions may be 
 applied in street improvement proceedings, provisions 
 relative to the qualifications of the contractor, for example 
 then it is difficult to perceive why similar provisions in the 
 charters of other cities and towns, freeholders charters for 
 example, should not in like manner be applied to and govern 
 in street improvement proceedings. The Vrooman act of 
 March IS, 1885, may have entirely superseded all provi- 
 sions in the general municipal incorporation act bearing 
 directly upon the subject of street improvements, and may 
 in like manner have superseded all charter provisions 
 bearing directly upon the subject of street improvements, 
 and yet other provisions of said general municipal incor- 
 poration act or of such charters, not directly relating to the 
 subject of street improvements, but which, nevertheless, 
 may be applicable in street improvement proceedings, 
 provisions prescribing the qualifications of contractors, for 
 example, as that no officer of the city shall be interested in 
 any contract with the city may perhaps be properly 
 applied to and govern in all proceedings relating to street 
 improvements. This conclusion seems warranted by the 
 decision in Capron v. Hitchcock, supra. In other words, if 
 Capron v. Hitchcock is authority for the proposition that 
 any part of the general municipal incorporation act is 
 controlling in street work proceedings, in cities incorporated 
 under said act, then, by a parity of reasoning, it must like- 
 wise be authority for the proposition that similar provisions 
 in the charters of cities, incorporated under special or free- 
 holders charters, are in like manner applicable to street 
 work proceedings. 
 
 It is provided by section 6, article XI of the constitution 
 that "cities or towns heretofore or hereafter organized, and all 
 charters thereof framed or adopted by authority of this 
 constitution, shall be subject to and controlled by general 
 laws." Mr. Justice McKinstry, in his dissenting opinion in 
 the case of Thomason v. Ashworth, 73 Cal. 85, says: " On 
 
XXXIV STREET WORK LAW INTRODUCTION 
 
 the 13th of March, 1883, (seven days after the approval of 
 the act ' to provide for the improvement of streets, etc., 
 within municipalities') an act was approved entitled 'An 
 act to provide for the organization, incorporation and gov- 
 ernment of municipal corporations.' [That is to say, the 
 first Vrooman act, approved March 6th, 1883, was approved 
 seven days before the approval of the " municipal incorpo- 
 ration act," which was approved March 13th, 1883.] The 
 last act [that is, the municipal incorporation act of March 
 13, 1883] is a general statute, providing for the incorpora- 
 tion, organization, classification and government of cities 
 and towns, and was unquestionably intended to be a 
 compliance with the mandate of the first clause of section 6, 
 article XI of the constitution. It provides for the election of 
 a superintendent of streets, and prescribes his duties, which 
 are such as the title of his office would imply. Amongst the 
 powers of the municipal council is enumerated the power of 
 opening, altering, constructing, repairing, etc., streets, high- 
 ways, etc., and in subsequent sections is supplied an entire 
 scheme for r street work.' If both these statutes [that is, the 
 municipal incorporation act, approved March 13, 1883, and 
 the Vrooman act, approved March 6, 1883] were valid, the 
 provisions of the act of March 13 were substituted for those 
 of the act of March 6, 1883 at least so far as street work 
 done in cities and towns organized under the act of March 
 13 is concerned. * * * But the act of J885 [i, e., the 
 Vrooman act, approved March 18, 1885 statutes of 1884-5, 
 page 147] was an amendment of the act of March 13, 1883, 
 [the ''municipal incorporation act"] or an entire revision and 
 consequent repeal of those provisions of that act relating to 'work 
 upon streets, alleys,' etc., within 'municipalities formed under 
 the general law. * * * It was a substitution of one system 
 of street work for another system. If operative at all, it 
 made an end of the provisions of the general law of 1883 
 relating to street work." [That is to say, if operative at all, 
 it made an end of those provisions of the "municipal incor- 
 poration act" which related to and regulated street work.] 
 
 However, these observations of the learned justice from 
 whose opinion they are quoted, are not entirely compatible 
 with the subsequent decision of the Supreme Court in said 
 case of Capron v. Hitchcock, cited supra, although it may 
 be said of the decision in this latter case, that it was not 
 held that any part of the general municipal incorporation 
 act, relating directly to street work, was in force, but that a 
 very salutary provision, limiting the powers of officers of 
 the municipality to enter into contracts generally to which 
 the city is a party, was not inconsistent with any provision 
 
X 
 
 (UNIVERSITY / 
 
 HISTORY OK STEEET IMPROVEMENT ACTS XXXV 
 
 of the general street improvement act the Vrooman act of 
 March 18,1885 and was in full force in cities incorporated 
 under said municipal incorporation act, notwithstanding 
 anv of the provisions of said general street improvement act 
 of March IS, 1885. 
 
 See, also in this connection, the language of Mr. Com- 
 missioner Belcher, in Anderson v. De Urioste, 96 Cal. 405, 
 when the learned commissioner said: "The act of March 
 IS, 1885, was a general street law, and was in force in the 
 city and county of San Francisco from the date of its pas- 
 sage. [Thomason v. Ashworth, 73 Cal. 74.] li therefore, 
 as to all matters provided /or, superseded the. consolidation act 
 and became the governing law of the city." While, however, 
 it is quite probable, as stated by Mr. Commissioner Belcher, 
 that this general street law of March 18, 1885, superseded 
 all charter provisions providing for street work, in cities 
 having "freeholders' charters," or charters granted by 
 special enactment prior to the new constitution, the con- 
 solidation act of San Francisco, for example, still, it is 
 also quite probable that in these cities, as in municipalities 
 incorporated under the general municipal corporation act, 
 such charter provisions as do not directly relate to or pro- 
 vide for street work, but which, nevertheless, are, in the 
 nature of things, capable of being applied to street work 
 proceedings, will be so applied, when not inconsistent with 
 any provision of the said general street improvement act, 
 such general charter provision, for example, as prescribe 
 generally the qualifications of persons entering into con- 
 tracts with the city. But, as to all provisions of these 
 charters, relating directly to and making express provisions 
 for street work, it is undoubtedly correct to conclude that 
 all of these charter provisions have been superseded by 
 the general street improvement act of March 18, 1885, 
 the Vrooman act. 
 
 The act known as the "Vrooman act of 1883" was 
 approved March 6, 1883 seven days prior to the municipal 
 incorporation act. This act, approved March 6, 1883, com- 
 monly known as the " Vrooman act of 1883," is entitled, 
 "An act to provide for the improvement of streets, lanes, 
 alleys, courts, places and sidewalks, and the construction of 
 sewers within municipalities." [Statutes of 1883, page 32.] 
 It takes its name from its putative author, Senator Vroo- 
 man of Alameda county, by whom the bill was introduced 
 in the senate at the session of the legislature held in 1883. 
 The same senator, at the session of the legislature held in 
 1885, likewise introduced the bill which subsequently 
 became the general street improvement act of March 18, 
 
XXXVI STREET WORK LAW INTRODUCTION 
 
 1885, the general street improvement act now in force in 
 the municipalities of the state, the provisions of which are 
 to be found post, pages 1-216. These two acts may be 
 designated respectively as the first and second Vrooman 
 acts, or, as the "Vrooman act of 1883," and the "Vrooman 
 act of 1885." The latter act, the " Vroornan act of 1885," 
 expressly repealed the former act the " Vrooman act of 
 1883." 
 
 The act of March 6, 1883, known as the first Vrooman 
 act, or Vrooman act of 1883, constituted a complete system 
 of street work. At the date of the passage and approval of 
 this act, the constitution [section 19, article XI] provided 
 that " no public work or improvement of any description 
 whatsoever shall be done or made, in any city, in, upon, or 
 about the streets thereof, or otherwise, the cost and expense 
 of which is made chargeable, or may be assessed upon, pri- 
 vate property by special assessment, unless an estimate of 
 such cost and expense shall be made, and an assessment in 
 proportion to benefits, on the property to be affected or bene- 
 fited, shall be levied, collected and paid into the city treas- 
 ury before such work or improvement shall be commenced, 
 or any contract for letting or doing the same authorized or 
 performed." To meet the requirements of this provision of 
 the constitution, the said act of March 6, 1883 the Vroo- 
 man act of 1883 provided that an assessment should be 
 levied according to benefits, and that the city council should 
 proceed to award the contract for the work and improve- 
 ment, after receiving notice from the city treasurer that 
 sufficient money has been received by the treasurer, on 
 account of any such assessment, to pay the estimated costs 
 and expenses of such work and improvement, for the pay- 
 ment of which such assessment was levied and collected. 
 The act of April 1, 1872 [statutes 1871-2, p. 804J providing 
 for work upon streets in the city and county of San Fran- 
 cisco, was very similar, in its general aspects, to the present 
 general street improvement actthe Vrooman act of March 
 18, 1885, post, pp. 1-216. Like the present general street 
 improvement act, the said San Francisco street improvement 
 act of April 1, 1872, adopted the " front foot" principle of 
 assessment, and provided that the assessments should be 
 levied after the execution of the contract, and after the work 
 had been fulfilled to the satisfaction of the superintendent 
 of streets. [Section 9 of act of April 1, 1872, stats. 1871-2, 
 p. 813.] In McDonald v. Patterson, 54 Cal. 245, it was held 
 that the provisions of section 19 of article XI of the consti- 
 tution, as originally adopted, the provisions of which are 
 quoted supra, providing that an estimate of the cost and 
 
HISTOKY OF STREET IMPROVEMENT ACTS. XXXVII 
 
 expense shall be made, and an assessment levied and col- 
 lected before the letting of the contract, is not a provision 
 which requires legislation to enforce it; and that the provi- 
 sions of said act of April 1. 1872, relating to street improve- 
 ments in San Francisco, which authorize the superintend- 
 ent of streets to execute contracts for such improvements 
 in advance of the levy and collection of the assessment are 
 inconsistent with said section of the constitution, as it then 
 stood, and ceased to be operative on the 1st day of January, 
 1880. In other words, as said by Mr. Justice McKinstry in 
 his dissenting opinion in People v. Henshaw, 76 Gal. 453, 
 when the constitution of 1871) went into effect the vital parts 
 of the San Francisco street work act of April 1, 1872, were 
 "struck dead," and some act such as the first Vrooman act 
 the Vrooman act of March 6, 1883 was necessary to 
 enable the municipalities of the state, whose charter provi- 
 sions had thus been " struck dead," to proceed with their 
 street improvements until the constitution could be amended 
 by the repeal of said provisions of section 19 of article 
 XL Accordingly the said Vrooman act of March 6, 1883, 
 was drawn conformably to said requirements of section 19 
 of article XI of the constitution, and was passed by the leg- 
 islature at its session in 1883. The decision in McDonald 
 v. Patterson, supra, wa<$ rendered by the court in depart- 
 ment. It was subsequently re-affirmed, however, by the 
 court in bank in Donahue v. Graham, 61 Cal. 276, Justices 
 McKinstry and Sliarpstcin dissenting. At the same session 
 in which it passed the said Vrooman act of March 6, 1883, 
 the legislature proposed an amendment to the constitution 
 abrogating the requirement of the constitution above quoted, 
 viz., the first sentence of section 19, article XI. By said 
 proposed amendment, said first sentence of section 19, arti- 
 cle XI, referring to public work, was entirely omitted and 
 dropped from the constitution. [See statutes of 1883, page 
 2.] This proposed amendment was adopted by the people 
 at the general election in 1884, and, if the amendment was 
 properly proposed by the legislature, the constitution was 
 duly amended in this particular, and the constitution, after 
 the adoption by the people of said proposed amendment, no 
 longer required the assessment to be in proportion to "ben- 
 efits," or to be levied and collected prior to the commence- 
 ment of the work, or the awarding of the contract. 
 
 In 1885 the legislature passed the second Vrooman act, 
 the Vrooman act of March 18, 1885, entitled "An act 
 to provide for work upon streets, lanes, alleys, courts, 
 places and sidewalks, and for the construction of sewers 
 within municipalities." This act was approved March 
 
XXXVIII STREET WORK LAW INTRODUCTION 
 
 18, 1885. It expresly repealed the first Vrooman act, 
 the Vrooman act of March 6, 1883, and like the latter 
 it contains within itself a complete system for street work. 
 It differs mainly from the Vrooman act of 1 S83 in this that 
 it provides for the levy and collection of the assessment 
 after the letting of the contract and the completion of the 
 work, and adopts the "front-foot" principle of assessment 
 instead of apportioning the expenses according to the "bene- 
 fits," [statutes of 1885 page 1 47,] and, if the said proposed con- 
 stitutional amendment, abrogating said requirements of 
 section 19 of article XI of the constitution, was properly 
 submitted to the people, and adopted by them at the gen- 
 eral election in 1884, as aforesaid, then said Vrooman act 
 of March 18, 1885, repealed the first Vrooman act, the act 
 of March 6, 1883, and from the time of its passage has 
 been the street improvement act in force in the municipali- 
 ties of this state. 
 
 These two acts, the Vrooman act of 1883 and the Vroo- 
 man act of 1885, came before the Supreme Court in the 
 case of Thomason v. Ruggles, 69 Cal. 4P5. Four of the 
 justices, viz., JJ. Myrick, Ross, Morrison and McKee, 
 held that the act of April 1, 1872, relating to street 
 improvements in the city and county of San Francisco, 
 in so far as it authorized the doing of street work before a 
 levy and collection of an assessment, was repealed by sec- 
 tion 19 of article XI of the constitution. Three of said four 
 justices, viz., JJ. Myrick, Ross, and Morrison, held : 1st. That 
 the amendment to the constitution adopted by the people Nov- 
 ember 4, 1884, dispensing with the necessity of such pre- 
 vious levy and collection of assessment, was constitutionally 
 adopted. [Two of the justices McKee and Thornton held 
 that the failure to enter the proposed amendment at large 
 in the journals of the senate and assembly during its pro- 
 gress through the legislature, was in violation of section 1 
 of article 18 of the constitution, and that therefore the 
 proposed amendment never took effect see opinion of 
 McKee, J., in this case and his concurring opinion in Oak- 
 land Paving Co. v. Hilton, 69 Cal. 479, also opinion of 
 Thornton, J., in said last mentioned case.] 2nd. That said 
 act of April 1, 1872, repealed by said section 19, article XI of 
 the constitution, as originally adopted, was not revived by 
 said amendment dispensing with the said requirements of said 
 section 19 of article XI. 3rd. That the second Vrooman 
 act, the act of March 18, 1885, providing for street work 
 in municipalities, and repealing the act of March 6, 1883, 
 [the first Vrooman act] was a general law within the mean- 
 ing of the constitution; was conformable to the constitution 
 
THE VROOMAN ACT OF 1885 XXXJX 
 
 as amended by said amendment of November 4, 1884, and 
 as a general law was in force in all the municipalities of 
 the state. [See also Oakland Paving Co. i\ Hilton, 69 Gal. 479 
 and People v. Henshaw, 76 Cal. 436.] 
 
 In Oakland Paving Co. v. Tompkins, 72 Cal. 
 5, it was decided by the court in bank, Mr. 
 Justice Thornton alone dissenting, that section 1 
 of article XVIII of the constitution, providing that proposed 
 amendments to the constitution shall be entered in the 
 journals of the senate and assembly, does not require a 
 proposed amendment ta be copied at large in the journals, 
 a reference to it by title and number being sufficient; and 
 that therefore said amendment to section 19 of article XI, 
 adopted by the people November 4, 1884, dispensing with 
 the necessity of previous levy and collection of assessment, 
 was constitutionally adopted. In this case the point was 
 squarely presented, was plainly and unequivocally decided, 
 and was completely removed from the realm of doubt. 
 
 Finally, in the case of Thomason v. Ash worth, 73 Cal. 73, 
 all question, as to what law was in force, relative to street 
 improvement work, was put an end to. Mr. Justice Thorn- 
 ton delivered the opinion of the court. The opinion, as 
 well as the judgment was concurred in by three of the 
 other justices, making the constitutional number, four, 
 requisite to the pronouncing of a judgment in bank. 
 
 It was held in that case: 
 
 1st. That the act of April 1, 1872, in so far as it con- 
 flicted with the provisions of section 19 of article XI of the 
 constitution, as that section of the constitution originally 
 stood, was repealed by said section 19 of article XI. 
 
 2nd. That afterwards said act of April 1, 1872, was 
 entirely repealed by the act of March 6,1883, the first 
 Yroniuaii act, providing for the improvement of streets, 
 lanes, etc. 
 
 >r<L That said section 19 of article XI of the constitu- 
 tion of 1879, providing that no street work should be made 
 until after the assessment had been levied and collected, 
 was repealed by the amendment adopted by the people at 
 the general election in 1884. 
 
 4tlt. That the act of March 18, 1885, the second Vroo- 
 nian act, or Vrooman. act of 1885, repealed the Vrooman 
 act of 1883 on the same subject. 
 
 5th. That these acts of March 6, 1883, and March 18, 
 1885, are general laws, within the meaning of section 6 of 
 article XI of the constitution, affecting all municipal corpo- 
 rations in the state, and were within the powers of the leg- 
 islature to enact, and that the provisions of such general 
 
XL STREET WORK LAW INTRODUCTION 
 
 laws are paramount to the provisions of the charter of any 
 city in the state upon the same subject matter. 
 
 The prevailing opinion of the court concludes as follows: 
 " It follows from the above, (1.) That the act of 1872 was 
 entirely done away with by the constitution; (2.) That the 
 act of 1883 was constitutional when passed, and repealed all 
 portions of the act of 1872 in conflict with it; (3.) That the 
 act of 1885 is a constitutional act under the constitution as 
 amended; that the act of 1885 repealed the act of 1883, and 
 has been and is now in force since its passage on the eighteenth 
 day of March, 1885." Mr. Justice Thornton, in giving the 
 opinion of the court, said, page 78: "It is argued that, 
 according to the views herein expressed, a city may have its 
 charter totally changed without its consent. This is a 
 proper deduction from the ruling herein, but this cannot be 
 done by a special or local law applicable alone to a particu- 
 lar charter. The result can only be reached by a general 
 law affecting all municipal corporations, or may be all of a 
 class, and we can see no probability that a city can be 
 injured by general legislation." [See also Davies v. City of 
 Los Angeles, 86 Gal. 37.] 
 
 Therefore, unless the act of March 18, 1885, has been 
 repealed or amended, it is in full force and effect throughout 
 the length and breadth of the state, and all street work pro- 
 vided for by the provisions of said act must be done under 
 and pursuant to its provisions in every municipality of the 
 state. Has it been repealed or amended? It has been 
 amended by the legislature at each of its sessions since 
 1885. 
 
 Since its original passage and approval, March 18/1885, 
 the Vrooman act of 1885 has been amended as follows: 
 
 1887: By an act approved March 15, 1887, [statutes 
 1887, page 148] section 32 was amended. 
 
 1889: By an act approved March 14, 1889, [statutes 
 1889, page 157] sections' 2, 3, 4, 5, 7, 8, 9, 12, 13, 19, 24, 26, 
 34 and 37 were amended, and a new section, called section 
 121, relating to payment for work in installments, was added 
 thereto. This act of March 14, 1889, likewise purported to 
 amend section 35, though no mention was made of it in the 
 title to the act. Some of the sections amended by this act 
 of March 14, 1889, have been amended by subsequent acts. 
 
 1891: (a!) By an act approved March 17, 1891, [stat- 
 utes 1891, page 116] it was amended or attempted to be 
 amended, by adding thereto, an additional part, numbered 
 part IV, and consisting of seven new sections, numbered 
 respectively, 38, 39, 40, 41, 42, 43 and 44, relative to a 
 system of street improvement bonds. This act of March 
 
THE VKOOMAN ACT OK 1885 XL I 
 
 17, 1891, was repealed by the bond act of February 27> 
 1893. 
 
 (b.) By an act approved March 31, 1891, [statutes 1801, 
 page 196] sections 2, 3, 4, 5, 7, 9, 24, 26, 34, 35 and 37 were 
 amended. 
 
 (c.) By an act approved March 31, 1891, [statutes 1.S01, 
 page 4G1J sixteen new and additional sections numbered, 
 respectively, sections 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 
 49, 50, 51, 52 and 53 were added. These sixteen new sec- 
 tions thus added to the Vrooman act by said amendatory 
 act of March 31, 1891, purport to empower the city councils 
 to change the grade of any street, the official grade of 
 which has been already established, and provide the 
 machinery for accomplishing this purpose. These, sixteen 
 new and added sections should be read in connection with 
 section 2 of the act as amended in 1893. Since said sec- 
 tion 2 as amended in 1893, [act of March 11, 1893, statutes 
 1 Si):>, page 172] provides that ''whenever the grade of a street, 
 avenue, etc., shall hereafter be changed, the petition of the 
 owners of a majority of the feet fronting thereon, asking 
 for grading the same to the new grade, shall be 
 a condition precedent to the ordering of such grading to be 
 done." 
 
 1893: (a.) By an act approved February 27, 1893, [statute*, 
 1893, page 33] commonly known as the street improvement 
 bond act, provision was made for the issuance of serial bonds 
 representing the cost of any work or improvement provided 
 f<>r by the Vrooman act of 1885. This bond act of Febru- 
 ary 27, 1893, repeals the said act of March 17, 1891, by 
 which a new part, numbered part IV, and including seven 
 new sections, sections 38 to 44, inclusive, was added to the 
 Vrooman act of 1885. Said act of March 17, 1891, by 
 which said part IV was added, or attempted to be added, 
 to the Vrooman act of 1885, was likewise an act to provide 
 a system of street improvement bonds. It did not stand 
 alone, but purported to amend the Vrooman act of 1885, 
 "by adding thereto an additional pprt numbered four, con- 
 sisting of sections 38, 39, etc., relative to a system of street 
 improvement bonds." Whereas the said bond act of Feb- 
 ruary 27, 1893, by which the bond act of March 17, 1891, 
 was superseded and repealed, does not purport in terms to 
 amend the Vrooman act of 1885. In form it stands alone, 
 but, in effect, it is at least supplementary to the Vrooman 
 act of March 18, 1885, and it is a question whether it does 
 not, also, in effect and for the accomplishment of its own 
 purposes, amend the Vrooman act of 1885. 
 
 (b.) By an act approved March 9, 1893, [statutes 1893, 
 
XLIT STREET WORK LAW INTRODUCTION 
 
 page 89] the legislature passed an act entitled "An act to 
 amend sections 38 to 53, inclusive, of an act approved 
 March 31, 1891, adding those sections to 'an act to provide 
 for work upon streets, alleys, lanes, courts, places and side- 
 walks, and for the construction of sewers within municipal- 
 ities' approved March 18, 1885." 
 
 (c.\ By an act approved March 11, 1893, [statutes 1893 
 page 172] sections 2, 24 and 37 of the Vrooinaii act of 1885 
 were amended. 
 
 The act, therefore, under which improvements upon 
 opened or dedicated public streets, lanes, alleys, courts or 
 places, is to be performed, in the municipalities of this state, 
 and under which sidewalks and sewers are to be con- 
 structed, is the Vrooman act of March 18, 1885, as the 
 same has been amended by the said amendatory acts of 
 1887, 1889, 1891 and 1893. This act of March 18, 1885, as 
 thus amended, is in force in all the cities, towns, cities and 
 counties, and municipalites of the state; and the work and 
 improvement therein provided for must, in every munici- 
 pality of the state, be done and performed by and under 
 the authority of said act, and pursuant to its terms and 
 provisions. It contains within itself a complete system for 
 street improvements, and sewer construction, upon streets 
 already opened or dedicated, or which may be hereafter 
 opened or dedicated. 
 
 THE VROOMAN ACT OF MARCH 18, 1885. 
 
 The Vrooman act of March 18, 1885, as amended 
 by subsequent amendatory and supplementary acts, is 
 the act now in force by which streets which have been 
 opened or dedicated to public use, may be graded or 
 rograded, planked or replanked, paved or repaved, sewered 
 or sidewalked by the city council, or otherwise improved as 
 provided by the act. Section 2 of the act declares what 
 improvements may be made under the act upon such streets. 
 Those improvements may be done by private contract in 
 the municipalities of this state, by any private person or 
 contractor on behalf of and contracting directly with the 
 owners of the property fronting upon the street, as well as 
 by the municipal authorities themselves. 
 
 But, when a private contract is thus entered into between 
 the property owners and a contractor to improve a street 
 by grading, etc., the property owners, before the work is 
 done, must first obtain permission so to do from the coun- 
 cil as provided for by subdivision 10 of section 7 of the act. 
 [See post, page 65.] Such private contracts have no con- 
 nection with the provisions of these stfeet improvement 
 
THE VROOMAN ACT OF 18S5 XLIII 
 
 acts. The object of this street improvement act, and of all 
 other street work acts, is to empower the municipal author- 
 ities to do the work therein provided for, and assess the 
 cost thereof upon the property made liable therefor, e. g., 
 the property which fronts upon the street improved, or the 
 property which is declared to be benefited by the improve- 
 ment. 
 
 Where the improvement is done by the municipal author- 
 ities under and pursuant to the provisions of the said general 
 street improvement act, the property owners, in that case, 
 are not parties to the contract whatever. Their property 
 is assessed under the taxing power to pay for the improve- 
 ment, but the only parties to the contract are the muni- 
 cipality and the contractor. The city government and the 
 contractor are the only parties to the proceeding, so far as 
 making the improvement is concerned; that being done, 
 the city government acts alone in its political capacity in 
 apportioning and levying the tax upon the property of the 
 property owner or taxpayer; but when the time arrives 
 for the collection of the tax, the city government steps out 
 of the triangular relation existing between the contractor, 
 the city government and the property owner or taxpayer, 
 and the contractor steps in the place of the city govern- 
 ment and is made her agent for the purpose of collecting 
 the tax, /. e. where the assessment is collected by suit, and 
 not by summary sale of the property as for taxes due and 
 unpaid, as provided by some of the acts. "Independent of 
 the statute, the tax would be due from the taxpayer to the 
 city, and the city would have to demand and sue for it, if 
 necessary; but the statute provides that the city shall not 
 be responsible for the collection of the tax, or subject to 
 the risk, trouble and annoyance, but shall virtually assign 
 her right of action for the tax to the contractor, in full 
 payment for his work and labor under her contract with 
 him, and authorize him to sue in his own name to recover 
 it, if necessary. This being done, his relation of contractor 
 is at an end. * * * The thing sued for is not the con- 
 tract price, or a part of it, but the tax specified in the 
 assessment or warrant, for which he sues, not as a con- 
 tractor but as assignee of the city." [Hendrick v. Growl ey 
 31 Cal. 472.] 
 
 When, however, the property owners do the work them- 
 selves, arid enter into & private contract therefor, such con- 
 tract is controlled by the general law of contracts, and not 
 by the provisions of these street work acts. And where such 
 private contract is entered into by the property owners, 
 the contractor, or person who does the work, may have 
 
XLTV STREET WORK LAW INTRODUCTION 
 
 a lieu under the Code of Civil Procedure to secure pay- 
 ment for his work and labor done or material furnished. 
 [ 1183-1203 C. C. P. particularly 1191.] 
 
 Where the improvement is made under any such private 
 contract, the property owner is a party to the contract. It 
 is his Avill that the contract should be made, and the 
 improvement contracted for be done, and questions arising 
 out of any such contract, between the parties thereto, are 
 to be determined by the general law of contracts, and in 
 some respects at least, by the law relating to the "Liens of 
 mechanics and others" C. C. P. chapter II, title IV, part 
 III. The municipal authorities of the municipalities of this 
 state are authorized to make certain contracts for the per- 
 formance of certain improvements upon the streets of the 
 municipality, under and by virtue of certain general laws of 
 the state, and as it is the general street work laws of this 
 state, now in force, that constitute the subject matter of 
 this book, such private contracts as are above, referred to 
 need no further consideration. The general street improve- 
 ment act now in force all over the state, under which most 
 of the improvements upon public urban highways are 
 made, is the said act of March 18, 1885, commonly known 
 as the Vrooman act of 1885. 
 
 Where an improvement is made by the municipal authori- 
 ties, under a contract executed pursuant to the provisions 
 of this general street improvement act, the Vrooman act of 
 March 18, 1885, the property owners are not parties to the 
 contract; the proceedings as to them are in invitum', their 
 liability is, in a sense, that of taxpayers, [see post. 
 pp. 70-72, for a definition of the terms "assessment" and 
 "taxation"], and the proceedings to be valid, so as to entitle 
 the contractor to recover the amount of the tax or assess- 
 ment assessed against the property of the lot owner or tax- 
 payer, must be strictly in accord with the requirements of 
 the statute; the mode in such cases constitutes the measure 
 of the power of the municipal authorities. To entitle the 
 contractor to recover against the property assessed, there 
 must be a valid contract under which the work must be 
 performed; this must be followed by a valid assessment; 
 and, to vest a right of action in the contractor, certain other 
 acts must be performed after the issuance of the assess- 
 ment. 
 
 Outline of the Provisions of the Vrooman Act of March 18, 
 1885, as amended. The statute provides that the contract shall 
 be executed by the superintendent of streets. To empower 
 him to execute a valid contract, so as to bind the property 
 of the lot owner or taxpayer, there are at least ten essential 
 
THE VROOMAN ACT OF 1885 XLV 
 
 prerequisites, viz: (1.) Passage of a resolution of intention; 
 (2.) posting and publication of the resolution; (3.) posting 
 and publication of notices of passage of the resolution; (4 ) 
 passage of an order for the work to be done, or resolution 
 of construction; (5.) publication of the order for the work 
 to be done. [These five prerequisites are provided for by 
 section 3 of the act.] (6.) posting and publication of 
 notices inviting sealed proposals; (7.) opening and con- 
 sidering the bids by council; (8.) award of the contract 
 to the lowest bidder; (9.) posting and publishing notice 
 of award of contract; and (10.) execution of the written 
 contract by the superintendent of streets. [These last five 
 prerequisties are provided for by section 5 of the act.] 
 There are seven more prerequisites to a valid right of action 
 in the contractor to sue and recover from the lot owner the 
 amount of his assessment, viz: (1.) Making an assess- 
 ment roll as provided for by section 8 of the act; (2.) 
 attaching to the assessment a diagram as provided for by 
 said section 8; (3.) making, signing and countersigning 
 a warrant for the collection of the assessment and attach- 
 ing the same to the assessment roll as provided by section 
 9 of the act; (4-) recording said warrant, assessment and 
 diagram, together with the certificate of the city engineer, 
 as provided by said section 9; (5.) demand upon the lot 
 owner assessed or his agent, or upon the premises, as pro- 
 vided by section 10 of the act; (6.) return of the warrant, 
 with a return endorsed thereon, signed and verified, as pro- 
 vided by said section 10; and (7.) recording the said 
 return endorsed on the warrant, and also recording the 
 original contract, if not already recorded, as provided by 
 said section 10. The foregoing seventeen essential require- 
 ments of the act are jurisdictional, and constitute the 
 important and indispensable requirements to the existence 
 of a valid right in the contractor to enforce payment by 
 the taxpayer whose property has been assessed. 
 
 Section 1 of the act declares what streets and highways 
 are within the purview of the act, viz: All streets, lanes, 
 alleys, places or courts in the municipality opened or dedi- 
 cated to public use. Section 2 of the act declares when and 
 what kinds of work the city council may order to be done 
 upon said streets and highways. Sections 3, 4, 5 and 6, 
 prescribe the jurisdictional prerequisites to a valid contract. 
 Section 7 declares the rules of assessment under and 
 according to which the lots and lands of the property owners 
 are to be assessed. Section 8 provides when and how the 
 assessment roll shall be made, and its form. Section 9 
 prescribes two essentials to the existence of a valid assess- 
 
XI/VT STREET WORK LAW INTRODUCTION 
 
 ment lien, viz: (1. ) Issuance of the warrant; and (2.) 
 recordation of the warrant, assessment, diagram and certi- 
 ficate of the city engineer. Section 10 provides three more 
 acts necessary to the existence of a valid right of action in 
 the contractor, viz: (1.) Demand upon the persons 
 assessed, or their agents, or upon the premises; (2.) 
 return of the warrant, with a return endorsed thereon f 
 signed and verified; and (3.) recordation of the return 
 endorsed upon the warrant, and also the original contract 
 if not already recorded. In addition to the foregoing 
 prerequisites a petition for grading must be presented to 
 the council, as provided for by section 2, whenever grading 
 is to be done upon a street the official grade of which shall 
 have been changed since the amendment of section 2 by 
 the act of March 11, 1893. [See sections 38-52 for the pro- 
 cedure for changing or modifying the grade lines of any 
 street the official grade of which has once been established.] 
 
 Section 11 provides a remedy to an "aggrieved" property 
 owner, dissatisfied with any act of the superintendent of 
 streets, by an appeal to the council. Section 12 prescribes 
 the rules of procedure in an action to enforce the lien of 
 the assessment. Sections 13, 14 and 15 relate to "repairs" 
 and "reconstructions" upon streets that are out of repair or 
 need reconstruction, and are in a condition to endanger 
 persons or property passing thereon, or in condition to 
 interfere with the public convenience in the use thereof. 
 Sections 16 to 26, inclusive, contain miscellaneous provis- 
 ions of various kinds. Fart II of the act, embracing sec- 
 tions 27 to 33, inclusive, relates to sewer construction, and 
 contains certain provisions for paying the costs of con- 
 structing sewers. Part III, embracing sections 34 to 37 r 
 inclusive, contains definitions and other miscellaneous 
 provisions. Sections 38 to 53, added to the original act of 
 March 18, 1885, by an act approved March 31, 1891, [stat- 
 utes 1891, p. 461] and amended by the act of March 9, 1893, 
 [statutes 1893, p. 89,] prescribe the procedure for changing 
 or modifying the grade of any street after the official grade 
 has once been established, and for paying the damages 
 resulting from such change of grade to any property owner 
 whose property is damaged by reason thereof. 
 
 The foregoing constitutes a brief outline of the provisions 
 of the general street improvement ^ct of March 18, 1885, - 
 the Vrooman act the principle act relating to impro\ 7 e- 
 ments upon open, public or dedicated streets. 
 
BOND ACT TREE PLANTING ACT XLVII 
 
 THE STREET IMPROVEMENT BOND ACT OF FEBRUARY 27, 1893. 
 
 The bond act of February 27, 1893, [statutes 1893, p. 33] 
 may be classified as a "street improvement act." Although, 
 it does not, in terms, purport to be amendatory of, or sup- 
 plementary to, the general street improvement act, the 
 Vrooman act of March 18, 1885, yet, in effect, it is supple- 
 mentary to said general street improvement act. As stated 
 in its title, its object is "to provide a system of street 
 improvement bonds;" and it authorizes the city council, 
 whenever it shall find, upon estimates of the city engineer, 
 that the cost of any proposed work or improvement, author- 
 ized by said Vrooman act of March 18, 1885, will be greater 
 than one dollar per front foot along each line of the street 
 so proposed to be improved, to determine, in its discretion, 
 that serial bonds shall be issued to represent the cost of 
 said work or improvement. 
 
 P>y an act approved March 17, 1891, [statutes 1891, p. 
 11(>] the legislature passed an act amending the Vrooman 
 act of March 18, 1885, by adding thereto an additional part 
 numbered part IV, consisting of seven new sections num- 
 bered 38 to 44, inclusive. This act of March 17, 1891, was 
 very similar in its provisions to the bond act of February 
 27, 1893, except that, while the former added its provisions 
 to the Vrooman act of 1885. the latter act, the bond act of 
 February 27, 1893 in a measure, stands by itself, and 
 only by reference incorporates within itself any of the 
 provisions of the general street improvement act, the 
 Vrooman act of March 18, 1885. Section 8 of the bond act 
 of February 27, 1893, expressly repeals the said act of 
 March 17, 1891, except as to proceedings theretofore com- 
 menced thereunder, and the bond act of February 27, 1893, 
 is the act now in force, if constitutional authorizing the 
 issuance of serial bonds representing the cost of any work 
 or improvement done or performed under the general street 
 improvement act-, the Vrooman act of March 18, 1885. 
 
 THE TREE PLANTING OR SHADE TREE ACT OF MARCH 11, 1893. 
 
 The tree planting, or shade tree act of March 11, 1893, 
 [statutes 1893, p. 153] entitled "An act to provide for the 
 planting, maintenance, and care of shade trees upon 
 streets, lanes, alleys, courts, and places within municipali- 
 ties, and of hedges upon the lines thereof; also, for the 
 eradication of certain weeds within the city limits," may 
 also be included in the classification of street improvement 
 acts. This shade tree act is the first general law of the 
 kind ever passed in this state. 
 
XLVIII STREET WORK LAW INTRODUCTION 
 
 THE SANITARY DISTRICT ACT OF MARCH 31, 1891. 
 
 The sanitary district act of March 31, 1891 [statutes 1891, 
 p. 223], authorizes the formation of a sanitary district 
 within any count) 7 of th-e state, after an election therefor, 
 ordered by the board of supervisors of the county, upon 
 the presentation of a petition therefor to the board, signed 
 by twenty-five persons in the county. Such sanitary dis- 
 trict, it seems, may be wholly without or wholly within 
 any incorporated city or town in the county, or may be 
 partly within and partly without such incorporated city or 
 town. The sanitary district thus created is a auasi munici- 
 pal corporation, and has power to construct and maintain 
 and keep clean such sewers and drains as in the judgment 
 of the sanitary board shall be necessary or proper. 
 
 The Vrooman act of March 18, 1885, the general street 
 improvement act in force in the cities, towns, and cities 
 and counties of the state authorizes the city council of 
 any city, town, or city and county, to construct and 
 maintain and keep clean sewers and drains. This sanitary 
 district act provides for the creation of a sanitary district, or 
 quasi municipal corporation, and within the limits of such 
 district a board of directors, called the sanitary board, 
 exercises powers similar, in many respects, to the powers 
 exercised by the city council of an incorporated city or 
 town, in the construction and maintenance of sewers or 
 drains, and in keeping the same clean. It will be seen, 
 therefore, that this sanitary district act may be embraced 
 within the catagory of "street improvement acts." 
 
 By an act approved March 9, 1893 [statutes 1893, p. 88], 
 section 15 of the sanitary district act was amended. 
 
 THE STREET OPENING ACT OF MARCH 6, 1889. 
 
 Thus far the history and evolution of the street improve- 
 ment acts, i. e. y acts providing for work and improvements 
 upon existing streets, or streets already opened or dedi- 
 cated, have been briefly traced. It remains now to 
 trace, in the briefest possible manner, the history 
 of the street opening acts, i. e., acts providing 
 for the opening, widening, closing, etc., of streets. 
 These street opening acts do not make any provi- 
 sion for nor authorize any improvement upon street*;. 
 They merely authorize the creation or partial creation or 
 widening of streets and the closing of streets. Heretofore 
 it has been the policy of the legislature to provide for 
 improvements upon existing streets by acts entirely dis- 
 tinct from acts providing for opening, extending and 
 
HISTORY OF STREET OPENING ACTS. XLIX 
 
 widening streets. [City and County of San Francisco v. 
 Kiernan, 33 Pac. Rep. 723.] Acts providing for improve- 
 ments upon existing streets, and acts providing for open- 
 ing, extending, widening or closing streets belong to two 
 entirely distinct classes. Nevertheless, the history of the 
 street improvement acts, given supra [page xxni et seq.] 
 and what is said in connection therewith, will also serve as 
 an illustration of the growth and history of the acts pro- 
 viding for opening, extending, widening and closing streets 
 prior to the adoption of the new constitution. 
 
 Jfixtory of Street Opening, Widening and Closing Acts prior 
 to the New Constitution. Like the acts passed under the old 
 constitution providing for improvements upon existing 
 streets, the acts passed during the existence of said consti- 
 tution, relative to the opening, closing, widening and 
 extending of streets, were in almost all, if not in every case, 
 special and local laws, found in the charters of the various 
 municipalities, or in the acts amendatory thereof, or else 
 were acts providing especially for the opening, widening, 
 extending or closing of some particular street designated 
 by name. The San Francisco consolidation act, the act 
 providing for the consolidation of the city of San Francisco 
 and the county of San Francisco, into the municipal cor- 
 poration known as the city and county of San Francisco 
 [statutes 1856, p. 145], provided for the opening of streets, 
 and may serve as an illustration of charter provisions rel- 
 ative to the subject matter of this class of acts. Thus, it is 
 provided in section 34 of the said consolidation act, [stat- 
 utes 1856, p. 156], "that the board of supervisors shall have 
 power to lay out and open new streets within the former 
 corporate limits of the city of San Francisco, * * * * 
 but shall have no power' to subject the city and county 
 to any expense therefor, exceeding the sum of one thous- 
 and dollars." 
 
 The act of April 25, 1863 [statutes 1863, p. 560], entitled 
 "An act to confer further power upon the board of super- 
 visors of the city and county of San Francisco," empow- 
 ering the said board of supervisors "to provide, by order, 
 for laying out, opening, extending, widening, straightening 
 or closing up, in whole or in part, any street, square, lane 
 or alley, within the bounds of said city" was, in effect, an 
 act amendatory of the consolidation act, and affords an 
 illustration of the special and local laws amendatory of 
 existing city charters, passed prior to the new constitution, 
 relative to the subject matter of acts providing for the 
 opening and closing of streets, etc. [See also the act of 
 April 4, 1864, statutes 1863-64, p. 347.] 
 
L STREET WORK LAW INTRODUCTION 
 
 Acts illustrative of those special and local laws passed 
 under the old constitution, and which provided especially for 
 the opening, widening, extending or closing of some particu- 
 lar street in a city, maybe found in the following acts: (1.) 
 An act entitled "An act to open and establish a public 
 street in the city and county of San Francisco, to be called 
 'Montgomery avenue,' and to take private lands therefor," 
 approved April 1, 1872. [Statutes 1871-2, p. 911.] This 
 "Montgomery avenue" act was considered by the Supreme 
 Court in Mulligan v. Smith, 59 Cal. 206, and Kahn v. 
 Board of Supervisors, 79 Cal. 388. (0.) An act entitled 
 "An act to authorise the widening of Dupont street, in the 
 city of San Francisco," approved March 23, 1876. [Stat- 
 utes 1875-76, p. 433.] This "Dupont street" act came 
 before the Supreme Court in Lent v. Tillson, 72 Cal. 404, 
 when its constitutionality was upheld in a very learned 
 opinion by Mr. Justice Temple. 
 
 History of Street Opening, Widening and Closing Acts since 
 the Adoption of the New Constitution. Under the new con- 
 stitution the present organic law of the state the legisla- 
 ture may not pass any local or special law "authorizing the 
 laying out, opening, altering, maintaining, or vacating roads, 
 highways, streets, alleys, town plats, parks, cemeteries, 
 grave yards, or public grounds not owned by the state," nor 
 "in all other cases where a general law can be made applica- 
 ble." [Constitution, article IV, section 25, subdivisions 7 
 and 33.] Accordingly general laws, operative in every 
 municipality of the state, have been passed, empowering the 
 city council of any municipality, " to order the opening, 
 extending, straightening, or closing up in whole or in part, 
 of any street, square, lane, alley, court, or place within the 
 bounds of such city and to condemn and acquire any arid 
 all land and property necessary or convenient for that pur- 
 pose." The first act of the kind passed since the adoption of 
 the new constitution was the act of March 6, 1889, [statutes 
 1889, page 70.] This act is still in force in every city, town, 
 or city and county in the state having a population of less 
 than forty thousand inhabitants. The act itself does not 
 confine its provisions to municipalities of less than forty 
 thousand inhabitants; on the contrary, it purports to be 
 uniform in its operation in ever} 7 municipal corporation 
 throughout, the state. But, by an act approved March 23, 
 1893, [statutes 1893, page 220] the legislature has attempted 
 to limit the provisions of the said street opening act of 
 March 6, 1889, to cities and cities and counties having a 
 population of less than forty thousand inhabitants, and, if 
 the said act of March 23, 1893, is constitutional, the provi- 
 
HISTORY OF STREET OPENING ACTS I.I 
 
 sions of the street opening act of March 6, 1889, are thus 
 limited ami circumscrihed. [See post pp. 272-287.] 
 
 The street opening act of March 6, 1889, came before the 
 Supreme Court in Davies v. City of Los Angeles, 86 Cal.37, 
 and was held to he constitutional and operative in all the 
 municipalities of the state, including cities having "free- 
 holders' charters," framed since the adoption of the new 
 constitution under the provisions of section 8 of article XI, 
 as well as in municipalities organized and incorporated 
 under the old constitution. Justices Fox and Beatty dis- 
 sented. The act subsequently came hefore the Supreme 
 Court in Dehail v. Morford, 95 Cal.457; City and County of 
 San Francisco v. Kiernan, 33 Pac. Rep. 721"; and in City of 
 Santa Ana v. Harlin, No. 19,030, decided Sept. 13, 1893. 
 
 TIIK STREET OPENING ACT OF MARCH 23, 1893. 
 
 The street opening, widening, extending and closing act 
 <f March 23, 1893, is very similar, in its essential provisions, 
 to the street opening act of March 6, 1889. Only whereas 
 the street opening act of March 6, 1889, is, in terms, uniform 
 in its operation throughout all the municipalities of the state, 
 regardless of size or population, the act of March 23, 1893, 
 on the other hand, is, in terms, limited in its operation to 
 cities and cities and counties having a population of forty 
 thousand inhabitants or over. It is entitled "an act to 
 provide for laying out, opening, extending, widening, 
 straightening, diverging, curving, contracting, or closing 
 up, in whole or in part, any street, square, lane, alley, 
 court or place, within municipalities, or cities, and cities 
 and counties, of forty thousand inhabitants or over, and to 
 condemn and acquire any and all land and property neces- 
 sary or convenient for that purpose." This title expresses 
 the general subject of the act. Section 23 of the act pro- 
 vides as follows: "The act approved March sixth, eighteen 
 hundred and eighty-nine, entitled 'an act for opening, 
 widening, and extending streets/ etc., after the passage of 
 this act, shall not apply to any city, or city and county hav- 
 ing a population of forty thousand inhabitants or over, but 
 as to any city or city and county having a population of 
 forty thousand inhabitants or over said act shall not apply; 
 but said cities and cities and counties shall be subject only 
 to the provisions of this act in all matters embraced within 
 the perview of this act." 
 
 It is a serious question as to whether this street opening- 
 act of March 23, 1893, is constitutional. If it is not consti- 
 tutional, then the street opening act of March 6, 1889, is the 
 act which is in force and effect in all the municipal corpora- 
 
LIT STREET WORK LAW INTRODUCTION 
 
 tions of the state, regardless of size or population. [For a 
 consideration of its constitutionality see post pp. 272-286.] 
 
 THE MUNICIPAL INDEBTEDNESS ACT OF MARCH 19, 1889. 
 
 The municipal indebtedness act now in force in all the 
 municipalities of the state is the act approved March 19, 
 1889, [Statutes 1889, page 399] as amended by subsequent 
 amendatory acts. It is a general act. Its subject and 
 purpose is sufficiently shown by its title. It is entitled "An 
 act authorizing the incurring of indebtedness by cities, 
 towns and municipal corporations, incorporated under the 
 laws of this state, for the construction of water-works, sew- 
 ers, and all necessary public improvements, or for any pur- 
 pose whatever, and to repeal the act approved March 9, 
 1885, entitled an act to authorize municipal corporations 
 of the fifth class, containing more than three thousand and 
 less than ten thousand inhabitants, to obtain water-works; 
 also to repeal an act approved March 15, 1887, entitled an 
 act authorizing the incurring of indebtedness by cities, 
 towns, and municipal corporations, incorporated under the 
 laws of this state." 
 
 This general municipal indebtedness act is common to 
 both of the classes of acts which constitute the street laws 
 of this state, i. e., acts providing for improvements upon 
 existing streets, and acts providing for the creation or par- 
 tial creation or closing up of streets. For, under this 
 municipal indebtedness act, the city council is authorized 
 to "incur an indebtedness to pay the cost of any municipal 
 improvement, or for any purpose whatever, requiring an 
 expenditure greater than the amount allowed for such 
 improvement by the annual tax levy." And, while the 
 street opening and closing acts have been distinguished in 
 this book from the acts which have been designated as 
 "street improvement acts," because the latter provide for 
 improvements to be made in or upon existing streets, still 
 the word "improvement" in its broadest sense, includes the 
 opening, closing, widening, extending and straighten- 
 ing of streets. Thus in section 23 of the street opening act 
 of March 6, 1889, and in section 21 of the street opening 
 act of March 23, 1893, it is provided that "the words 'work' 
 and 'improvement,' as used in this act, shall include all 
 work mentioned in section one of this act." 
 
 The history of these municipal indebtedness acts since 
 the new constitution went into effect, is as follows: 
 
 1. In 1885, by an act approved March 9, 1885, [statutes 
 1885, page 42] the legislature passed an act entitled "An 
 act to authorize municipal corporations of the fifth class, 
 
THE MUNICIPAL INDEBTEDNESS ACT LIII 
 
 containing more than three thousand and less than ten 
 thousand inhabitants, to obtain water-works." This act of 
 March 9, 1885, was repealed by the general municipal 
 indebtedness act now in force the act of March 19, 1889. 
 
 2. In 1887, by an act approved March 15, 1887 [statutes 
 1887, page 120], the legislature passed an act entitled "An 
 act authorizing the incurring of indebtedness by cities, 
 tovvns or municipal corporations, incorporated under the 
 laws of this state." This was the first general municipal 
 indebtedness act, operative in all the municipalities of the 
 state, passed since the adoption of the new constitution. It 
 was repealed by the general municipal indebtedness act of 
 March 19, 1889. 
 
 3. In 1889, by an act approved February 16, 18S9,[stat- 
 utes 1S89, page 14] the legislature passed an act amending 
 section four of said act of March 15, 1887. 
 
 4- In 1SS9, the legislature passed the said general muni- 
 cipal indebtedness act of March 19, 1889, the general 
 municipal indebtedness act now in force. [Statutes 18S9, p. 
 o ( ,M).] By this act each of said prior'acts relative to munici- 
 pal indebtedness; viz., the act approved March 9, 1885, and 
 the act approved March 15, 1887, were expressly repealed, 
 and likewise "till general acts, or special acts, or parts of 
 acts," conflicting with said act of March 19, 1889. 
 
 5. In 1891, by an act approved March 11, 1891, [statutes 
 1891, p. 94] the legislature passed an act amending section 
 2 of the general municipal indebtedness act of March 19, 
 1889. 
 
 6. In 1891, by an act approved March 11, 1891, [statutes 
 1891, p. 84] the legislature passed an act amending section 
 
 5 of the general municipal indebtedness act of March 19, 
 1889. 
 
 7. In 1891, by an act approved March 19, 1891, [statutes 
 1891, p. 132,] the legislature passed an act amending sec- 
 tions 9 and 10 of the general municipal indebtedness act 
 <f March 19, 1889. 
 
 8. In 1893, by an act approved March 1, 1893, [statutes 
 1893, p. 61] the legislature passed an act amending sections 
 
 6 and 8 of said general municipal indebtedness act of 
 March 1 ( .), 1889. By these amendments to sections 6 and 8, 
 it was provided that the bonds issued under the act should 
 run for forty years instead of twenty, and that one-fortieth 
 part, instead of one-twentieth part, of the whole amount of 
 indebtedness shall be paid each and every year. These 
 amendments to sections 6 and 8, were made pursuant to 
 the amendment to the constitution adopted at the general 
 
 election held in 1892, by which section 18 of article XI 
 
 E Li&ft^L 
 
 CFTHE r ^^ 
 
STREET WORK LAW INTRODUCTION 
 
 was amended so as to permit the issuance of forty year 
 bonds. 
 
 The foregoing pages attempt to give, in as brief a manner 
 as possible, a succinct statement of the history and growth 
 of the street laws of this state, and a brief statement of the 
 acts now in force relative to improvements in and upon 
 existing streets, as well as those relating to street 
 opening, extending, widening and closing. In 
 the following pages these several acts, now in force, 
 as amended up to date, are set forth in full, and 
 with such notes thereto consisting, for the most part, 
 of decisions by our Supreme Court construing the pro- 
 visions of these and similar acts as will serve to illustrate 
 the meaning of their provisions and such points as have 
 arisen in their operation from time to time since their 
 enactment or such as may hereafter arise. 
 
 In the appendix, the Vrooman act of March 18, 
 1885, the street bond act of February 27, 1893, and 
 the street opening act of March 6, 1889, are :gain 
 set forth in full, and as amended up to date. It wj:s 
 thought best to duplicate these last mentioned acts, 
 as, by setting them forth separately, unincum- 
 bered with the annotations, the busy practitioner will 
 be the more easily enabled to find any particular provision 
 which he may be looking for, and in this way an examina- 
 tion of the provisions of these acts will be facilitated with- 
 out having to run over a great number of pages devoted to 
 the annotations. 
 
 In the appendix will also be found some of the forms 
 most commonly in use in proceedings under these acts. 
 
-e$E 
 OF THE 
 IVERSITT 
 
 Street M/ork tfcf of March 18th, 1885 
 
 AS AMENDED BY 
 
 SUBSEQUENT AMENDATORY AND SUPPLEMENTARY ACTS UP 
 TO AND INCLUDING ACTS OF 1893. 
 
 An Act to provide for work upon streets, lanes, alleys, courts, 
 places and sidewalks, and for the construction of sewers 
 within municipalities. 
 
 [Approved March 18, 1885.] 
 
 PART I. 
 
 SECTION 1. All streets, lanes, alleys, places, or courts, in the muni- 
 cipalities of this state now open or dedicated, or which may hereafter 
 be opened or dedicated to public use, shall be deemed and held to be open 
 public streets, lanes, alleys, places, or courts, for the purposes of this act, 
 and the city council of each municipality is hereby empowered to establish 
 and change the grades of said streets, lanes, alleys, places, or courts, and 
 fix the width thereof, and is hereby invested with jurisdiction to order to 
 be done thereon any of the work mentioned in section two of this act, 
 under the proceedings hereinafter described. {Statutes 1885, page 147.] 
 
 [Section 1 of the act of March 18, 1885, has never been altered or 
 amended.] 
 
 1. Scope of Section 1. The municipal government of a 
 city, in causing street improvements to be made, acts under 
 the authority conferred upon it by the legislature, and is 
 subject to all the constitutional limitations and retraints 
 imposed on the legislature, and has no other or greater 
 power than is, and lawfully may be, conferred on it by the 
 legislative act. [Creighton v. Manson, 27 Gal. 613.] 
 
 Section one of the act declares what streets and urban 
 highways are within the purview of the act, and empowers 
 the city council of each municipality to establish and 
 change the grade of such streets and urban highways, and 
 fix the width thereof, and invests such city council with 
 jurisdiction to order to be done on such streets, lanes, etc., 
 any of the work mentioned in section two of the act, under 
 the proceedings in the act thereafter described and pro- 
 vided for. 
 
 Section two of the act declares when and what kinds of 
 work the city councils may order to be done upon said 
 streets and other urban highways. 
 
2 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 Subsequent sections of the act describe the proceedings 
 necessary to cloth the council with jurisdiction to order 
 such street work to be done, the mode and manner of 
 letting the contracts, principles of assessment to pay the 
 expenses, mode of making the assessment, proceedings 
 necessary to acquire a lien for the amounts assessed, pro- 
 ceedings necessary to enforce the lien, etc. 
 
 The urban highways subject to the jurisdiction of the 
 act are, "all streets, lanes, alleys, places, or courts, in the 
 municipalities of this state, now open or dedicated, or 
 which may hereafter be opened or dedicated to public use." 
 
 Streets, lanes, alleys, etc., open or dedicated to public use 
 are public highways. The term "highway" is generic. It is 
 the name for all kinds of public ways, including county 
 and township roads, streets and alleys, turnpikes and plank 
 roads, railroads and tramways, bridges and ferries, canals 
 and navigable rivers. In short, every public thoroughfare 
 is a highway, but every highway need not be a thorough- 
 fare, as it is now well settled that a cut de sac may be a 
 highway. [Elliott on Roads and Stieets, page 1.] 
 
 The term "highways" includes "'rural highways," usually 
 denominated "roads," and "urban highways," or the public 
 ways of a town or city, usually called "streets." But the 
 term "highways" is a very comprehensive one, embracing 
 in its wide sweep more ways than urban streets or sub- 
 urban roads. 
 
 2. Meaning of the Word "Street." A street is a road or 
 public way in a city, town or village. [Elliott on Roads and 
 Streets, page 12.] In its ordinary acceptation the term 
 "street" is a generic term and includes all urban ways 
 which can, and are, generally used for the ordinary pur- 
 poses of travel. A narrow way, less in size than a street, is 
 generally called an alley. [Id.] " 'Street' means more than 
 the surface; it means the whole surface and so much of 
 the depth as is or can be used, not unfairly, for the ordi- 
 nary purpose of a street. It comprises a depth which 
 authorizes the urban authority to do that which is done in 
 every street, namely, to raise the street, and lay down sewers 
 for, at the present day, there can be no street in a town 
 without sewers and also for the purpose of laying down 
 gas and water pipes. 'Street/ therefore, includes the sur- 
 face and so much of the depth as may not unfairly be used 
 as streets are used." [Coverdale v. Charlton, 4 L. R. Q. 
 B. Div. 104.] 
 
 In its ordinary legal signification the term "street" 
 includes all parts of the urban highway, namely, the road- 
 way, the gutters, the curbs and the sidewalks. [Elliott on 
 
MEANING OF WORD . 
 
 Roads and Streets, page 17; Emmet v. San Francisco, 65 Cal. 
 230; Marini v. Graham, 67 Cal. 130.] But, while the term is 
 ordinarily used as designating the whole of the urban way it 
 does not invariably receive this meaning. Whether the 
 term "street," as used in a statute, means simply the road- 
 way between the curbs or sidewalks, or whether it includes 
 the curbs and sidewalks, as well as the roadway, depends 
 upon the context, and it may be used in either or both 
 senses in the same statute. Thus, there is no doubt that in 
 section 1, of the act of March 18, 1885, the word "street" is 
 used in its broader sense, and includes sidewalks as well as 
 the roadway, while in the very next section, section 2, it 
 is used in its limited sense, i. e., it means simply the road- 
 way and does not include the curbs or sidewalks. For, as 
 section 1 of the act declares that the counsel is invested 
 with jurisdiction, under the proceedings thereinafter 
 described, to order to be done upon all streets, lanes, alleys, 
 places or courts, now open or dedicated, or which may 
 hereafter be opened or dedicated to public use, any of the 
 street work mentioned in section 2 of the act, and as section 
 2 enumerates the construction of sidewalks and curbs as 
 part of the work authorized by the act to be done, and as sec- 
 tion 1 says nothing about sidewalks, it follows that, since the 
 construction of sidewalks and curbs upon open or dedicated 
 streets is part of the work authorized by section 2 to be 
 done, that the word "street," as used in section 1 of the act, 
 includes all parts of the highway, the roadway, gutters, 
 curbs, and the sidewalks. But, as used in section 2 of the 
 act the word "street" is limited to the roadway, i. e., the part 
 intended especially for the use of horsemen and vehicles, 
 lying between the sidewalks. Section 2 authorizes the council 
 to order the whole or any portion, either in length or width 
 of the streets, etc., to be graded, paved, macadamized, etc. 
 and likewise especially authorizes the council to order 
 sidewalks, curbing, etc., to be constructed therein. This 
 section mentions the work authorized to be done upon 
 streets, lanes, alleys, etc.. i. e., grading, paving, planking, 
 macadamizing, etc., and likewise mentions, as separate, 
 and distinct work, the construction of sidewalks and 
 curbs. The work authorized to be done upon streets, 
 lanes, etc., and the construction of sidewalks and curbs 
 are mentioned as different and distinct kinds of street 
 work, which circumstance shows that in the sense in 
 which the terms "street" and "sidewalk" are used in 
 section 2, the former does not include the latter. [See 
 Baudry v. Valdez, 32 Cal. 269; Himmelmann v. Satterlee, 
 50 Cal. 69.] In the latter case the resolution of intention 
 
4 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 and the resolution directing the improvement to be 
 made in terms provided for ''macadamizing the street." 
 The contract for the improvement, and the assessment, 
 both called for macadamizing the street and the sidewalk. 
 It is a well established principle th'at the contract must 
 be for the work authorized by the resolution of intention 
 and no more. If more is called for by the contract the 
 contract is void as to the excess, and if that which is 
 authorized to be done cannot be segregated from the unau- 
 thorized excess, and the assessment is for the whole, the 
 assessment is void in toto so that, if the term "street" 
 in a resolution authorizing a "street" to be macadamized, 
 does not include the term "sidewalk," so as to authorize 
 the macadamizing of the sidewalk, it follows that a resolu- 
 tion directing a "street" to be macadamized is not authority 
 for macadamizing a "sidewalk, "and a decision holding that 
 a resolution directing a street to be macadamized is not 
 authority for macadamizing the sidewalk, must necessarily 
 include the corollary that the term "street" does not 
 include the sidewalks. Such was the decision in Himmel- 
 marin v. Satterlee, supra. In Baudry v. Valdez, 32 Cal. 
 276, it was said: "The question whether the term 'macada- 
 mizing' also includes 'curbing' is settled by the statute 
 under which the parties having the matter in charge were 
 working. The second section prescribes what street 
 improvements the city council shall have power to 
 cause to be made. Each kind is separately named and 
 described. 'Macadamizing' is named as one, and 'curb- 
 ing' as another. Hence, whether the former might or* 
 might not, under other circumstances, include the latter, is 
 not the question. Does it, within the meaning of the stat- 
 ute under which the parties were working is the question, 
 and it is clear that it does not, for they are there mentioned 
 as different and distinct kinds of street work, which cir- 
 cumstance shows that hi the sense in which the former 
 term is used in the statute, it does not include the latter." 
 We conclude therefore, that, while the term "street," in 
 ordinary legal signification, includes all parts of the way 
 the roadway, the gutters, cufbing and sidewalks still in 
 statutes and municipal ordinances, directing the grading 
 and paving and improvement of urban ways, the word 
 "street" is often, and, indeed, generally understood to 
 mean the roadway only, that is, the part of the way 
 intended especially for the use of horsemen and vehicles, 
 lying between the curbs and sidewalks. [See Elliott on 
 Roads and Streets, page 17.] In any event, whether the 
 terms "street," as used in a statute, is used in its ordinary 
 
signification as including tha sidewalks as well as the road- 
 way, or whether it is used in its limited sense, meaning 
 the road way only, is a question which must be decided in 
 each case in the light of the context. 
 
 As stated above the term "alley" is used to designate a 
 narrow way, less in size than a street, but it is obvious 
 that whether the way is or is not to be called an alley 
 depends upon the relation it bears to other ways in the same 
 city or town; for in some cities or towns the way would be 
 deemed so narrow as to be merely an alley and not a street, 
 while in others it would be comparatively of such a consid- 
 erable width as to take rank as a street. 
 
 3. Dedication. As stated in section 1, the street, alley, 
 lane, etc., must be open or dedicated, but no formal accept- 
 ance of the same by the legislative body of the city is 
 necessary. The mere dedication of land by the owner to 
 public use, as public streets, lanes, alleys or other public 
 places, converts it into a public street, lane, alley, or other 
 public place, for the purposes of said act, without any 
 formal acceptance of the same as such by the legislative 
 body of the city, who may thereafter improve them in the 
 manner provided by law. [Stone v. Brooks, 35 Gal. 490.] 
 Held, therefore, that where the owner of a lot fronting on 
 Perry street, a cul de sac, sells the same, and at the sale 
 represents the lot as fronting on an extension of the cul de 
 sac so extended as to terminate at and open upon a public 
 street running at right angles that this is a dedication to 
 public use as a street of that portion of the lot represented 
 on the map as an extension of Perry street, and as such 
 was thereafter subject to the jurisdiction of the board for 
 all purposes of its improvement, which, when made, 
 operates as a complete acceptance of the dedication, and 
 perfects the right of the public to its use as a public high- 
 way for all purposes. [Id.] [See Spaulding v. Bradley, 79 
 Gal. 450.] 
 
 SECTION 2. Whenever the public interest or convenience may require, the 
 city council is hereby authorized and empowered to order the whole, or any 
 portion, either in length or width, of the streets, avenues, lanes, alleys, courts, 
 or places of any such city graded or re-graded to the official grade, planked 
 or re-planked, paved or re-paved, macadamized or re- macadamized, grav- 
 eled, or re-graveled, piled or re-piled, capped or re-capped, sewered or 
 re-se\vered, and to order sidewalks, manholes, culverts, cesspools, gutters, 
 tunnels, curbing, and cross-walks to be constructed therein, or to order break- 
 waters, levees, or walls of rock, or other material to protect the same from 
 overflow or injury, and to order any other work to be done which shall be 
 necessary to complete the whole or any portion of said streets, avenues, 
 sidewalks, lanes, alleys, courts, or places, and it may order any of the said 
 work to be improved ; and also to order a sewer or sewers, with outlets, for 
 
STREET WORK LAW STREET IMPROVEMENT ACT 
 
 drainage or sanitary purposes, in, over or through any right of way granted 
 or obtained for such purpose; provided, that whenever the grade of a street, 
 avenue, lane, alley, court, or place shall hereafter be changed, the petition 
 of the owners of a majority of the feet fronting thereon, asking for grading 
 the same to the new grade, shall be a condition precedent to the ordering 
 of such grading to be done. [Amendment, approved March 11, 1893, Stat- 
 utes 1893, page 172.] 
 
 [Section 2 was amended 1889, by act of March 14, 1889, statutes 1889, 
 page 157: again in 1891, by act of March 31, 1891, statutes 1891, page 196; 
 and again in 1893, by act of March 11, 1893, statutes!893, page 172. j 
 
 1. Scope of Section 2. Section two of the act declares 
 what kinds of street work may be done upon the streets, 
 lane?, alleys, etc., which section one declares to be subject 
 to the provisions of the act. Section one designates the 
 kinds of highways subject to the provisions of the act, and 
 section two designates the kinds of work which may be 
 done upon these highways. 
 
 The section allows work to be ordered for less than the 
 width of the roadway or street, and for any defined part of a 
 block iii length. There is no limit to the length of the pro- 
 posed work, except that it must be confined to streets, lanes, 
 etc., that is, it must not include any extension, like the dis- 
 charge of a sewer, over private property, unless, for sewers, 
 the right of way has been obtained. The jurisdiction 
 of the council is limited to streets, lanes, alleys, etc., opened 
 or dedicated. 
 
 Under the San Francisco Street Work Act of 1863, 
 authorizing the city council to order "the whole or any portion 
 of the streets" to be improved, the council has power to let 
 the work of improving separate portions of a street by one 
 proceeding and in one contract therefor. [Macadamizing 
 Co. v. Williams, 70 Cal. 534.] 
 
 The work authorized by section two of the act may be 
 separated into three kinds, viz: (1) Work upon the road- 
 way only, viz., grading and re-grading, planking and 
 replanking, paving and repaying, etc. "Ke-grading" is 
 when a street, degraded by use, is brought back again to 
 the same grade. But if the grade of the street has been 
 officially changed meanwhile by ordinance ''re-grading" is 
 not the proper word. The work will then be, as in the 
 first instance, grading to the official grade. In McVary v. 
 Boyd, 89 Cal. 305, it was held, that, whenever the condi- 
 tion of a street is such as, in the estimation of the legisla- 
 tive authorities of the city, it is proper that the burden of 
 "re-grading" should be borne by the entire block, the 
 improvement may be ordered even though a similar 
 expense had been previously borne by the property owners 
 for the original grading. (What is said about re-grading 
 
GRADING 
 
 applies also to re-planking, re-paving, etc.) (2.) The 
 second class of work provided for by section two is such as 
 is not necessarily confined to the roadway, or street in its 
 limited sense, viz., sidewalks, manholes, culverts, cesspools, 
 gutters, tunnels, curbing, etc. (3.) The third class of 
 work provided for by section two is the improvement of 
 any of the other work mentioned in the section. The word 
 "improved" is here used in its most technical sense, i. e., 
 the restoration, or enlargement, or completion of work 
 once done on the same grade. In common speech, and 
 frequently throughout the act [See subd. 2 of sec. 34] 
 the word is applied also to work in the first instance. But 
 wherever work is to be ordered, after the first instance, 
 and on the previous grade, and adds certain things to com- 
 plete the street, the proceedings should designate the work 
 to be done "to improve * * * street, by" etc. 
 
 2. Grading. Section 2 of the act provides that "the city 
 council is hereby authorized and empowered to order 
 * * * the streets * * * graded or re-graded to the 
 official grade." Consequently the council only has power 
 to grade a street to the official grade, and therefore, whether 
 the grade was officially established or not before proceed- 
 ings were begun to grade it, is a material issue in an action 
 upon a street assessment, and must be proved by the plaint- 
 iff if denied by defendant. 
 
 "The power to lay out, open and grade streets carries 
 with it, by necessary implication, the power to establish the 
 grade of such streets, unless the power be expressly reserved 
 or granted to another body or officer." [Himmelmann v. 
 Hoadley, 44 Cal. 224.] As to what is evidence of the estab- 
 lishment of the official grade of a street, see Gafney v. San 
 Francisco, 72 Cal. 146; Dorland v. Bergson, 78 Cal. 637; 
 City of Napa v. Easterby, 61 Cal. 510; Chambers v. Satter- 
 lee, 40 Cal. 497; Himmelmann v. Hoadley, 44 Cal. 213. 
 
 As the city council can only grade a street to its official 
 grade, it is not necessary that the resolution of intention to 
 do the work should state that the street is to be graded to 
 the official grade; a statement that it is to be "graded" is 
 sufficient. For, in view of the fact that the street can only 
 be graded to its official grade, "a resolution that a street be 
 graded is equivalent to a resolution that it be graded to the 
 official grade." [Emery v. S. F. Gas. Co., 28 Cal. 376-7.] 
 
 Grading must necessarily precede macadamizing but 
 where the statute does not expressly provide that 
 no contract for macadamizing shall be made until the street 
 is graded, the city authorities may authorize a contract for 
 macadamizing after a contract for grading has been 
 
STREET WORK LAW STREET IMPROVEMENT ACT 
 
 entered into, but before the grading has been done. 
 [Dyer v. Hudson, 65 Cal. 374.] The board may order a 
 street to be planked before it is graded, and it seems before 
 a contract for grading has been entered into, provided the 
 grade and width has been officially established. [Knowles 
 v. Seale, 64 Cal. 377 under a San Francisco street act.] 
 
 Under section two as amended in 1893 (Sts. '93, p. 
 172-3) where the grade of a street, avenue, lane, alley, etc., 
 has been changed, the street, avenue, lane, etc., can not 
 be graded to the new grade, except upon petition of the 
 owners of a majority of the frontage, asking for grading the 
 same to the new grade. Without such petition proceedings 
 to grade such street, avenue, lane, etc., to the new grade, 
 would be void. [See Turrill v. Grattan, 52 Cal. 97; Dyer v. 
 Miller, 58 Cal. 585; Gately v. Leviston, 63 Cal. 365.] 
 
 SECTION 3. Before ordering any work done or improvement made, which 
 is authorized by section two of this act, the city council shall pass a resolu- 
 tion of intention so to do, and describing the work, which shall be posted 
 conspicuously for two days on or near the chamber door of said council, 
 and published by two insertions in one or more daily, semi-weekly, or 
 weekly newpapers published and circulated in said city, and designated by 
 said council for that purpose. The street superintendent shall thereupon 
 cause to be conspicuously posted along the line of said contemplated work 
 or improvement, at not more than one hundred feet in distance apart, 
 but not less than three in all, or when the work to be done is only upon 
 an entire crossing or any part thereof, in front of each quarter block and 
 irregular block liable to be assessed, notices of the passage of said resolu- 
 tion. Said notice shall be headed ''Notice of Street Work," in letters of 
 not less than one inch in length, and shall, in legible characters, state the 
 fact of the passage of the resolution, its date, and briefly the work 
 or improvement proposed, and refer to the resolution for further particu- 
 lars. He shall also cause a notice, similar in substance, to be published 
 for six days, in one or more daily newspapers published and circulated in 
 said city, and designated by said city council, or in cities where there is no 
 daily newspaper, by one insertion in a semi-weekly or weekly newspaper 
 so published, circulated, and designated. In case there is no such paper 
 published in said city, said notice shall be posted for six days on or near 
 the chamber door of said council and in two other conspicuous places in 
 said city, as hereinafter provided. The owners of a majority of the front- 
 age of the property fronting on said proposed work or improvement, where 
 the same is for one block, or more, may make a written objection to the 
 same within ten days after the expiration of the time of the publica- 
 tion and posting of said notice, which objection shall be delivered to the 
 clerk of the city council, who shall indorse thereon the date of its reception by 
 him, and such objections so delivered and indorsed shall be a bar for six 
 months to any further proceedings in relation to the doing of said work, 
 or making said improvements unless the owners of the one-half or more 
 of the frontage, as aforesaid, shall meanwhile petition for the same to be 
 done. At any time before the issuance of the assessment roll, all owners 
 of lots or lands liable to assessment therein, who, after the first publica- 
 
CTrnTTr^-v rrTTT?T7V Sec. 3 as amended Q 
 
 SECTION THKkk , J 
 
 Mar ;U 1S ,, L 
 
 tion of said resolution of intention, may feel aggrieved, or who may have 
 objections to any of the subsequent proceedings of said council in relation 
 to the performance of the work mentioned in said notice of intention, 
 shall h'le with the clerk a petition of remonstrance, wherein they shall 
 state in what respect they feel aggrieved, or the proceedings to which they 
 object; such petition or remonstrance shall be passed upon by the said 
 city council, and it3 decision therein shall be final and conclusive. But 
 when the work or improvement proposed to be done is the construction of 
 sewers, man-holes, culverts, or cesspools, cross-walks or sidewalks, and 
 curbs, and the objection thereto is signed by the owners of a majority of 
 tlu- frontage liable to be assessed for the expense of said work, as afore- 
 said, the said city council shall, at its next meeting, fix a time for hearing 
 said objections, not less than one week thereafter. The city clerk shall 
 thereupon notify the persons making such objections, by depositing a 
 notice thereof in thepostofficeof said ciiy, postage prepaid, addressed to each 
 objector, or his agent, when he appears for such objector. At the time 
 specified said city council shall hear the objections urged, and pass upon 
 the same, and its decisions shall l>e final and conclusive, and the said bar 
 for six months to any further proceedings shall not be applicable thereto. 
 And when not more than two blocks, including street crossings, remain 
 ungraded to the official grade, or otherwise unimproved, in whole or in 
 part, and a block or more on each side upon said street has been so graded 
 or otherwise improved, or when not inoivthan two blocks at the end of 
 a street remain so ungraded or otherwise unimproved, said city council 
 may order any of the work mentioned in this act to be done upon said 
 intervening, ungraded, or unimproved part of said street, or at the end of 
 a street, ami said work upon said intervening part, or at the end of a 
 . shall not be stayed or prevented by any written or other objection, 
 unless such council shall deem proper. And if one-half or more in width 
 or in length, or as to grading one-half or more of the grading work of any 
 street lying and being between two successive main street crossings, or 
 if a crossing has been already partially graded or improved, as aforesaid, 
 said council may order the remainder improved, graded, or otherwise, not- 
 withstanding such objections of property owners. At the expiration of 
 twenty days after the expiration of the time of said publication by said 
 street superintendent, and at the expiration of twenty-five days after the 
 advertising and posting, as aforesaid, of any resolution of intention, if no 
 written objection to the work therein described has been delivered, as 
 aforesaid, by the owners of a major frontage of the property fronting on 
 said proposed work or improvement, or if any written objection purport- 
 ing to be signed by the owners of a major frontage is disallowed by said 
 council, as not of itself barring said work for six months, because, in its 
 judgment, said objection has not been legally signed by the owners of a 
 majority of said frontage, the city council shall be deemed to have acquired 
 jurisdiction to order any of the work to be done, or improvement to be 
 made, which is authorized by this act; which order, w r hen made, shall be 
 published for two days, the same as provided for the publication of the 
 resolution of intention. Before passing any resolution for the construction 
 of said improvements, plans and specifications and careful estimates of the 
 costs and expenses thereof shall be furnished to said city council, if 
 required by it, by the city engineer of said city; and for the work of con- 
 structing sewers, specifications shall always be furmsk<*iby-ka^ When- 
 
 E ifiB^Jpr^ 
 
 OF THE 
 
10 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 ever the contemplated work of improvement, in the opinion of the city 
 council, is of more than local or ordinary public benefit, or whenever, 
 according to estimate to be furnished by the city engineer, the total esti- 
 mated costs and expenses thereof would exceed one-half the total assessed 
 value of the lots and lands assessed, if assessed upon the lots or land front- 
 ing upon said proposed work or improvement, according to the valuation 
 fixed by the last assessment roll whereon it was assessed for taxes for 
 municipal purposes, and allowing a reasonable depth from such frontage 
 for lots or lands assessed in bulk, the city council may make the expense 
 of such work or improvement chargeable upon a district, which the said 
 city council shall in its resolution of intention deolare to be the district 
 benefited by said work or improvement, and to be assessed to pay the 
 eosts and expenses thereof. Objections to the extent of the district of ' 
 lands to be affected or benefited by said work or improvement, and to be 
 assessed to pay the costs and expanses thereof, may be made by interested 
 parties, in writing, within ten days after the expiration of the time of the 
 publication of the notice of the passage of the resolution of intention. The 
 city clerk shall lay said objections before the city council, which shall, at 
 its next meeting, fix a time for hearing said objections, not less than one 
 week thereafter. The city clerk shall thereupon notify the persons mak- 
 ing such objections by depositing a notice thereof in the postoffice of said 
 city, postage prepaid, addressed to each objeotor. At the time specified 
 the city council shall hear the objections urged, and pass upon the same, 
 and its decision shall be final and conclusive. If the objections are sus- 
 tained, all proceedings shall be stopped; but proceedings may be imme- 
 diately again commenced by giving the notice of intention to do the said 
 work or make said improvements. If the objections are overruled by the 
 city council, the proceedings shall continue the same as if such objections 
 had not been made. [Amendment, approved March 31, 1891. Statutes 1891, 
 page 192.] 
 
 [Section 3 was amended in 1889 by act of March 14, 1889, Sta. '89, p. 158; 
 and again in 1891, .by act of March 31, 1891, Sta. '91, p. 196.] 
 
 1. Jurisdiction. Street work under the act is inaugurated 
 by a resolution of intention, followed by certain notices and 
 advertised proposals, ending in a written contract. The 
 superintendent of streets is required to approve the work, 
 when satisfactorily performed, and to issue to the con- 
 tractor, in payment for the work-, an assessment upon the 
 adjoining lots, or lots liable to assessment. Here the con- 
 cern of the city ends. The contractor assumes control 
 of all further proceedings, and the issuance of the assess- 
 ment discharges the city from all further liability to him. 
 Under this system the lot owner can set up to defeat the 
 action, not only jurisdictional defects in the proceedings 
 before the contract was let, but also jurisdictional defects 
 in the assessment, which assessment, except as provided 
 in section 12i of the act, can only be made after 
 the superintendent of streets has determined that the 
 contract has been fully performed. The contractor 
 cannot control the action of the superintendent, except 
 
TTTT>TarTrT>Tn\r Sec. 3 as amended 11 
 
 JURISDICTION Mnr 31 1K91 - 1 - -* 
 
 Mar. 31, 1S1. 
 
 by appeal to the council, and he is liable to lose the 
 entire reward of his labor through ari oversight of 
 this officer. The proceedings having been held to be in 
 invitum, a strict compliance with the statute is exacted, and 
 very frequently great hardship results without fault on the 
 part of the contractor. Before the contractor can acquire 
 any rights under his contract, the city council must have 
 acquired jurisdiction that is power to award the con- 
 tract, and the superintendent of streets must have acquired 
 jurisdiction or power to enter into and formally execute 
 the written contract. The contract is in fact complete 
 when the contractor's bid is accepted. There is then a 
 contract between the council and the contractor. This 
 contract made by the council is formally reduced to writ- 
 ing by the superintendent of streets, and executed by him 
 on behalf of the city authorities. [Opinion of Temple, J., 
 in Chambers v. Satterlee, 40 Cal. 526.] Notwithstanding 
 the fact, however, that there may be a meeting of minds 
 between the city authorities and the contractor, and there- 
 fore, theoretically at least, an agreement, just as soon as the 
 contractor's bid is accepted, still "a written contract duly 
 authorized under the act, and executed according to its 
 requirements is indispensable to the validity of any assess- 
 ment upon property to pay for street improvements." 
 [Dougherty r. Hitchcock, 35 Cal. 512.] There are certain 
 tilings required by the statute which are essential to the 
 acquisition of jurisdiction or power to enter into and execute 
 a valid contract, and for the purpose of acquiring this 
 jurisdiction every one of these essentials must be complied 
 with in the manner and mode required by the statute. 
 "After the jurisdiction has once been acquired, subsequent 
 proceedings can be attacked for only such irregularities 
 as affect substantial rights, but for the purpose of acquiring 
 jurisdiction every requirement must be regarded as of equal 
 necessity." [Dehail v. Morford, 95 Cal. 460.] 
 
 The resolution of intention, in due form and properly 
 adopted, is the foundation of the proceedings to acquire 
 jurisdiction, but it alone is not sufficient to clothe the city 
 authorities with jurisdiction or power to enter into and 
 execute a valid contract. To authorize a valid contract all 
 the essentials leading up to its execution must be complied 
 with in the manner provided and required by the statute. 
 And to authorize a recovery by the contractor after the 
 due performance of the work by him or his assignee, under 
 a valid contract, all the essentials of a valid assessment 
 must be complied with. As said by Mr. Justice Temple in 
 Chambers v. Satterlee, 40 Cal. 525, "There is no magic in 
 
1 2 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 the fact that, after notice of intention, the board acquire 
 jurisdiction, which will excuse to any extent, a compli- 
 ance with the requirements of the statute. The word juris- 
 diction, of course, means power, for there is nothing of a 
 judicial nature in that portion of the proceedings which 
 relates to ordering the work and letting the contract. There 
 is nothing peculiar in this statute in this respect. It is gen- 
 erally, if not always the case, in statutes conferring the 
 power to divost vested rights that notice is given to the 
 parties, whose rights are affected, as a condition precedent 
 to the exercise of the power. The statutes in regard to 
 laying out or changing highways provide for notice, which 
 must be given before the board has jurisdiction to act; but I 
 never heard the proposition advanced that this dispensed with 
 a full compliance with the statute, in the exercise of the power j 
 after the jurisdiction had been acquired." [See alsoHewes v. 
 Reis, 40 Cal. 255.] 
 
 Thus, after the proper adoption of a resolution of inten- 
 tion, due posting and publication of the same, and likewise 
 due posting and publication of a proper notice of the pas- 
 sage of such resolution, the council, after the lapse of a 
 certain length of time, if the work is not barred by a suf- 
 ficient objection in writing by the property owners, 
 acquires jurisdiction or power to pass an order, ordering 
 the work to be done. But this is not sufficient to authorize 
 the execution of a valid contract by the superintendent of 
 streets. There are other essentials to be done leading up 
 to the execution of the written contract with the con- 
 tractor. After the council has passed the order, ordering 
 the work to be done, the order must be published; then a 
 notice inviting sealed proposals must be posted and pub- 
 lished; after this the bids must be considered; then the 
 contract must be awarded to the lowest bidder; after this 
 notice of the awarding of the contract must be posted and 
 published, and within a certain time thereafter if nothing 
 intervenes to prevent, such, for example, as an election by 
 the property owners themselves to take the work and enter 
 into a contract to do the same the superintendent acquires 
 the power to execute the written contract with the con- 
 tractor. But all these things are essentials to a valid con- 
 tract. Thus the contract is not valid unless there be a 
 valid award, and the contract must follow the award. Any 
 substantial variance between the contract and the award is 
 fatal. Thus in Dougherty v. Hitchcock, 35 Cal. 512, the 
 board of supervisors of San Francisco adopted a resolution 
 of intention to grade Glay street from Taylor to Jones, and 
 from Jones to Leavenworth streets, and the crossings of 
 
Sec. 3 as amended 
 Mar. 31, 1891. 
 
 Clay and Jones streets, and, after ordering the work to be 
 done, and after notice to bidders, awarded a contract for 
 the whole work. The contract executed by the superin- 
 tendent of streets was for the grading of one block only 
 that from Jones to Leaven worth. Held, that the 
 award constituted the sole authority to the superintendent, 
 who acted ministerially only in making acontract under it, 
 and that the contract by reason of variance between its 
 terms and the award, was unauthorized and void; also that 
 a written contract duly authorized under the act, and exe- 
 cuted according to its requirements, is indispensable to the 
 validity of any assessment upon property to pay for street 
 improvements. [See also Brock v. Luning, 89 Gal. 31^; 
 Ferine r. Forbush, 97 Cal. 305.] "The resolution 
 of intention and its publication confer upon the 
 council jurisdiction to proceed in the prescribed mode 
 to order the proposed work to be done," [Dougherty 
 v. Hitchcock, o-~> Cal. ""> _>:]] that is, jurisdiction to take all the 
 stops necessary to the execution of a valid contract eventuat- 
 ing in a valid assessment, but in thus proceeding to do the 
 work proposed to be done, the city authorities must pro- 
 ceed by doing or causing to be done all those essentials 
 pointed out by the statute.. As stated by Mr. Justice San- 
 derson in Nicolsori Pavement Co. v. Painter, 35 Cal. 705, 
 "In the matter of street improvements the board of super- 
 visors have whatever power the statutes upon that subject 
 have conferred upon them, and no other; and that the 
 power which they possess must be exercised in the mode 
 prescribed by the statute, and in no other; 'the mode in such 
 cv/.svs constitutes the measure of the power.' ' 
 
 When the jurisdiction of the council depends upon the 
 existence of some fact, as to the existence of which the 
 statute has expressly said that the council shall have the 
 power to adjudicate upon, after a hearing to those affected 
 thereby, the decision of the council upon such fact is con- 
 clusive. Thus, for example, the San Francisco Street Law 
 Act of 1871-72 provided that, to start proceedings for grad- 
 ing, a petition therefor by the owners of a majority of the 
 frontage should be necessary, and expressly authorized the 
 board of supervisors to adjudicate upon the fact as to 
 whether or not the owners of 9 majority of the 
 frontage had joined in such petition, providing also 
 that the adjudication of such jurisdictional fact by the 
 the board should be final and conclusive after a hearing 
 to the parties affected; and it was held in Spaulding v. 
 Homestead Association, 87 Cal. 40, that judgment of the 
 
14 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 council upon this jurisdictional fact, after due opportunity 
 for hearing, was final and conclusive. 
 
 In the matter of Grove Street, 61 Cal. 453-4, Mr. Justice 
 McKinstry said: "An inferior board may determine 
 conclusively its own jurisdiction or power by adjudicating 
 the existence of facts, upon the existence of which its juris- 
 diction or power depends. Where, however, the power 
 depends not upon the existence or non-existence of matters 
 in pais, to be established by evidence, but upon allegations 
 in a petition, a portion of the record, the question is not 
 the same." That is to say, while the council, for example, 
 might conclusively determine, by its decision thereon, that 
 the owners of a majority of the frontage had actually 
 joined in signing the petition for the work, provided an 
 opportunity to be heard is given to those interested, still 
 its decision upon the sufficiency of the petition would not 
 be conclusive, where, for any reason, it appears upon its 
 face to be insufficient, as where, for example, the statute 
 requires the petition to state that "in. the opinion of the 
 petitioners the public interests require that the improve- 
 ment should be made," and the petition merely states that 
 "in the opinion of the petitioners the improvement asked 
 for should be made." 
 
 Not only does the passage of the resolution of in-tention 
 and its publication confer upon the council jurisdiction or 
 power to proceed in the mode prescribed by the statute to 
 take the steps necessary to bring about the due peiform- 
 ance of the work under a valid contract therefor, eventuat- 
 ing in a valid assessment and lien against the property of 
 the lot owners, but in the language of Chief Justice Sawyer 
 in Dougherty v. Miller, 36 Cal. 87, after the expiration of 
 the notice of intention, the council acquires "juris- 
 diction of the subject matter of the improvement." 
 Whatever the phrase "subject matter of the improvement" 
 may mean, it was used there as including the lots fronting 
 on the street; so that it was held in. that case that, if, after 
 the expiration of the notice of intention to improve, a lot 
 owner should divide his lot by conveying to a third party a 
 narrow strip along the whole line of the improvement, 
 thereby cutting off the whole of the remainder from a 
 frontage on the street, the owner thus separating the 
 remainder from a frontage upon the street, could not in 
 this manner prevent the assessment attaching to the whole 
 lot as it existed at the time when the notice of intention 
 was given. Mr. Justice Sawyer, speaking for the court, 
 said: "The board of supervisors acquired jurisdiction of 
 the subject matter of the improvement after the expiration 
 
JURISDICTION g'^f S ended 1 5 
 
 of the notice of intention. * * * * * ^he j ur i s _ 
 diction when it once attached [that is attached to 
 the subject matter of the improvement] extended 
 through all subsequent proceedings regularly had, till 
 the assessment was made and collected. That juris- 
 diction could not be ousted by the act of a lot owner. 
 * * * * * The whole lot as it existed when the 
 jurisdiction of the board of supervisors attached, is liable 
 to be assessed upon the completion of the work, no 
 matter who owns it, or what subdivisions, fraudulent, 
 fanciful or otherwise, may subsequently have been made 
 by the owner." 
 
 *But while jurisdiction of the subject matter of the 
 improvement in the sense used by the court in this case of 
 Dougherty /-. M iller, may attach to the subject matter of 
 the improvement, upon the due passage and publication of 
 the resolution of intention, nevertheless jurisdiction or 
 power to execute a valid contract and make a valid assess- 
 ment, so that the contractor shall have a valid lien upon 
 the property of the lot owner, does not exist unless the con- 
 tract and assessment are preceded by a due performance of 
 all of the jurisdictional prerequisites, which include the due 
 performance of a large number of necessary acts. Thus, 
 as held in Dougherty v. Hitchcock, 35 Cal. 512, and many 
 other cases, the superintendent of streets has no jurisdic- 
 tion or power to execute a valid contract unless the council 
 has previously made an award of the contract, and the 
 formal written contract must correspond with the award. 
 It is often difficult to draw the line of demarkation 
 between the necessary jurisdictional prerequisites to a valid 
 contract or a valid assessment, and those mere irregulari- 
 ties which do not effect substantial rights. This question 
 frequently arises where the question is: Was the irregu- 
 larity complained of waived by a failure to appeal to the 
 council? Section eleven authorizes the property owner to 
 appeal to the council, and by section three he is author- 
 ized to file a petition of remonstrance at any time before the 
 issuance of the assessment roll, wherein he can specify his 
 grievances and "such petition or remonstrance shall be passed 
 upon by the city council, and its decision therein shall be final 
 and conclusive." The San Francisco street law act of 1862, 
 [Statutes 1862, page 392] contained similar provisions, and 
 it was said in Emery v. Bradford, 29 Cal. 86, that "this 
 conclusive determination on appeal doubtless refers to 
 those matters upon which the superintendent is required 
 in the discharge of his duties to exercise his judgment 
 those matters in which his errors are to be revised and 
 
16 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 corrected. There are acts to be performed of a jurisdic- 
 tional character essential to the validity of any assessment. 
 It is not to be supposed that the conclusiveness of the 
 decision of the board of supervisors is to extend to that class 
 of acts. The provisions in section twelve [Section 11 of the 
 Vrooman Act] indicate the kind of errors upon which the 
 decisions of the board are to be final. It is that 'all the 
 decisions and determinations of said board, upon notice and 
 hearing aforesaid, shall be final and conclusive upon all 
 persons entitled to an appeal under the provisions of this 
 section, as to all errors and irregularities which said board 
 could have avoided.' ' 
 
 The last clause of section eleven of the Vrooman act 
 (post) seems to make, or attempt to make, all pro- 
 ceedings of the council, subsequent to the passage and 
 publication of the notice of intention, unimpeachable, 
 unless an appeal has been taken to the council as provided 
 in that section. It seems, however, from recent decisions 
 of our Supreme Court that a failure to appeal to the council 
 is not a waiver, under this act, of the right to attack the 
 proceedings in court, for failure to comply with those juris- 
 dictional requirements which are to be performed 
 subsequently to the publication of the notice of intention. 
 In Ferine v. Forbush, 97 Cal. 305, the proceedings 
 were had and the work done under the act of March 
 18, 1885. There was no objection made to the resolu- 
 tion_ of intention or to the regularity of its publica- 
 tion. It was held that the contract was void because 
 not entered into within fifteen days after the first posting 
 of the notice of award, as required by section 5 of 
 the act. It was claimed, however, by the plaintiff that, 
 even if the contract were void for this reason, the prop- 
 erty owner could not complain and the assessment could 
 not be held invalid, because the property owner had failed 
 to appeal to the city council from the action of the superin- 
 tendent in entering into the contract after the expiration of 
 fifteen days from the posting of the notice of award. Held, 
 that the prdperty ow r ner is not required to appeal to the 
 council when the assessment is based upon an invalid con- 
 tract. The same ruling was made inMcBean v. Redick, 96 
 Cal. 191, where the proceedings were had and work done 
 under the act of March 18, 1885. 
 
 In Manning v. Den, 90 Cal. 610, the question was directly 
 considered. In that case the proceedings and work were 
 performed under the act of March 18, 1885. It was held 
 that the contract executed by the superintendent of streets 
 was void because it was entered into prior to the expiration 
 
TrTTT<JrTnTTr>v Sec 3 as amended -i 17 
 
 J I KlbDICllOJN XI.... .;, ,cn, I/ 
 
 Mar. 31. 181U. 
 
 of ten days after the first posting of notice of the award; 
 held, also," that the property owner, notwithstanding the 
 provisions of section 11 of the act, does not waive his right 
 to object to the proceedings by reason of his failure to appeal 
 to the council. The court, quoting from Dougherty v. Hitch- 
 cock, 35 Cal. 524, said: " A contract authorized and executed in 
 the mode prescribed by the act is indispensable to the validity 
 of the assessment. This defect is not cured by the failure of 
 the lot holders to appeal to the board, because, had an 
 appeal been taken, the defect could not have been remedied 
 by the board. The premature action of the superintendent 
 was one which affected his power or jurisdiction. His 
 action was void, and that which ivas void does not become 
 valid by reason of a failure to appeal. The property owners 
 were not 'aggrieved', and the failure of the contractor to 
 appeal did not operate, (L) To create a grievance on the 
 part of defendants [property owners 1, and, (2.) To estop 
 them from complaining of it." 
 
 In Capron v. Hitchcock, decided June 3, 1893, the 
 Supreme Court said: "The provision authorizing a petition 
 of remonstrance against the acts and proceedings of the 
 city council was intended to be applicable only to acts and 
 proceedings within the power of the council." 
 
 In Dougherty v. Hitchcock, 85 Cal. 520, counsel for appel- 
 lant said: "These provisions [that is provisions for appeal] 
 cannot be regarded as furnishing an exclusive remedy in 
 respect to proceedings invalid for want of jurisdiction. 
 Such a construction would place the board on a higher foot- 
 ing than any other tribunal in the state, and enable it to act 
 independent of the law from which it derives its power. 
 Its proceedings could never be collaterally assailed, and 
 whatever it chose to do the courts would be compelled to 
 accept as valid and binding. The objection we make is, 
 not that the board proceeded irregularly, but that it acted 
 without jurisdiction." 
 
 (See this same subject of apoeal considered in notes to 
 section eleven of the act, post.) 
 
 From the foregoing it appears: 
 
 1. That an assessment is not valid unless all the juris- 
 dictional prerequisites or jurisdictional acts are performed 
 by the proper persons, i. e., all the acts required by the 
 statute to be done, and which affect substantial rights, 
 must be done, and if any one of them is omitted or is not 
 done as required by the act the omission is fatal. 
 
 2. That if any one of the necessary jurisdictional acts 
 is not done as required, the property owner may defeat an 
 action upon the assessment, or what purports to be the 
 
18 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 assessment, even though he has not appealed to the coun- 
 cil. He is not a party "aggrieved" within the meaning of 
 the act, and therefore need not appeal, and he may thus, 
 without appealing to the council, defeat an action upon the 
 assessment, where one of the jurisdictional prerequisites has 
 been omitted, notwithstanding the fact that a resolution of 
 intention in due form has been passed and published in 
 the manner required by the statute. 
 
 II. Jurisdictional Prerequisites. There are ten things 
 required by the act to be done before there is 
 a valid contract, each one of which is jurisdictional 
 and without any one of them there is no valid 
 contract under which the contractor may proceed. An 
 omission of any one of these jurisdictional prerequisites to 
 a valid contract is fatal. (There are likewise certain juris- 
 dictional prerequisites to a valid assessment, to be done 
 after the written contract has been entered into, and after 
 the completion of the work under the same by the con- 
 tractor. These jurisdictional acts subsequent to the execu- 
 tion of the contract are considered in the notes to sections 
 eight, nine and ten (post). 
 
 The ten jurisdictional prerequisites to a valid contract 
 are: (1.) Resolution of intention, passed by the council. 
 (2.) Posting and publication of the resolution of intention. 
 (3.) Posting and publication of notices of the passage of the 
 resolution of intention. (4-) Order for the work to be done, 
 or resolution for construction passed by council. (5.) Pub- 
 lication of order for work to be done. (6.) Publication and 
 posting of notices inviting sealed proposals. (7.) Consider- 
 ation of bids. (8.) Award of contract to lowest responsible, 
 bidder. (9.) Publication and posting of notices of award. 
 (10.) Execution of written contract by the superintendent 
 of streets. 
 
 The first five of these ten jurisdictional prerequisites 
 one to five inclusive are provided for by the above section 
 of the act (section 3) and will therefore be considered in 
 these notes to that section. The last five of these ten juris- 
 dictional acts six to ten inclusive are provided for hy 
 section 5 of the act, and will therefore be considered in the 
 notes to that section. 
 
 In addition to the said ten jurisdictional prerequisites to 
 a valid contract, it is also required by section 2 of the act, 
 as amended in 1893, that "whenever the grade of a street, 
 avenue, etc., shall hereafter be changed, the petition of the 
 owners of a majority of the feet fronting thereon, asking 
 for grading the same to the new grade, shall be a condition 
 precedent to the ordering of such grading to be done." 
 
RESOLUTION OF INTENTION iR'afiS?**** 19 
 
 The above division of the jurisdictional prerequisites, 
 precedent to the existence of a valid contract, into ten in 
 number or eleven, where the work to be done is grading 
 and the grade has been changed since the amendment of 
 1893 to section 2 is not to be deemed as inclusive of all the 
 acts which circumstances might make necessary to the exist- 
 ence of a valid contract. Thus, for example, a petition of 
 remonstrance might, under section 3 of the act, be filed 
 by the property owners. In such case the council must 
 hear and pass upon such petition of remonstrance 
 before it can proceed further. Again, some of the said ten 
 jurisdictional acts might be generic and include one or 
 more other acts. Thus, for example, the second jurisdic- 
 tional act given above is the publication and posting of the 
 resolution of intention. But this includes also, and as a 
 part thereof, the passage or adoption of an order or resolu- 
 tion by the council, directing the resolution of inten- 
 tion to be posted and published. Therefore, the above 
 division of the necessary jurisdictional acts into ten in num- 
 ber, might be thought to be more or less arbitrary. But 
 it is adopted because it includes all these generic acts, which 
 are necessary, in any event, to the existence of a valid con- 
 tract. Circumstances may or may not, in the course of the 
 proceedings, develop a necessity for other acts. 
 
 1. Resolution of Intention. By subdivision 11 of section 
 7 of the act it is expressly provided that "the council may 
 include in one resolution and order any of the different 
 kinds of work mentioned in this act, and it may except 
 therefrom any of said work already done upon the street 
 to the official grade." 
 
 The power to include different kinds of work in one 
 resolution has frequently been upheld under this and other 
 acts. [See Emery v. S. F. Gas Co., 28 Gal. 346; Dyer v. Hud- 
 son, 65 Gal. 374.] 
 
 The resolution, to give the council jurisdiction, must 
 describe the work to be done. [Brady v. King. 53 Cal. 44.] 
 It sufficiently describes the work to be done if it declares 
 that the street will be graded and macadamized from one 
 designated point to another. [Emery v. S. F. Gas Co., 28 
 Cal. 346.] It must specify the work to be done. It is not 
 sufficient to declare the council's intention to cause certain 
 repairs to be made "where necessary." [Randolph v. Gaw- 
 ley, 47 Cal. 458; Himmelman v. McCreery, 51 Cal. 562; 
 Richardson v. Heydenfeldt, 46 Cal. 68.] Publication of the 
 resolution of intention, describing the property affected, is 
 in the nature of constructive service by publication of sum- 
 mons in an ordinary action at law, and as some such con- 
 
20 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 structive service is necessary to give the council jurisdic- 
 tion over the property to be affected, it follows that the 
 resolution must describe the property, otherwise the prop- 
 erty owners will have no notice. [See Boor man v. Santa 
 Barbara, G5 Cal. 313.] It need not, however, contain a 
 complete plan and specifications of the proposed improve- 
 ment. It need not describe the work with any more exact- 
 ness than it is described in the law itself. [Harney v. Heller, 
 47 Cal. 15.] When the district assessment plan is adopted 
 the exterior boundaries of the proposed district should be 
 accurately described in th^ resolution. It is not sufficient 
 to describe the land in the district, as all lots fronting on 
 a certain street. [Dehail v. Morford, 95 Cal. 457; Boorman 
 v. Santa Barbara, 65 Cal. 313.] 
 
 A resolution excepting that part of a street which a 
 railroad company is required by law to keep in order, i? 
 not void for uncertainty of description. As every citizen 
 is conclusively presumed to know this provision of the law 
 he is presumed to know the portions excepted. [Whiting 
 v. Townsend, 57 Cal. 515.] A resolution providing that a 
 particular crossing be planked and that the angular corners 
 be reconstructed sufficiently describes the work. The 
 meaning of such a resolution is that the angular corners 
 formed by the crossing of the two streets are to be recon- 
 structed in accordance with plans and specifications to be 
 prepared by the superintendent of streets. [Deady v. 
 Townsend, 57 Cal. 298.J 
 
 The resolution of the council need not be signed by the 
 mayor unless there is some special provision of the statute 
 requiring the mayor's signature. [Taylors. Palmer, 31 Cal. 
 241; Baudry v. Valdez, 32 Cal. 269.] Under the act of 
 March 18, 1885, the resolution need not be presented to 
 or approved by the mayor, provided it be approved by a 
 three-fourths vote of the council. If it receives less than a 
 three-fourths vote of the council it must then be approved 
 by the mayor. [McDonald v. Dodge, 97 Cal. 112.] 
 
 The signature of the clerk, where required, may be 
 printed. [Williams v. McDonald, 58 Cal. 527.] 
 
 2. Posting and Publishing Resolution ( of Intention. 
 
 (a.) Posting. Prior to the amendment of 1891 [Statutes 
 1891, page 196] it was held that the act of March 18, 1885, as 
 amended by the act of 1889 [Statutes 1889, page 157] did 
 not require the resolution to be posted, where there was a 
 paper in which publication could be made, and that if 
 there is no such paper, then, and only then, must the notice 
 be "posted" as provided in section 34 of the act. [Washburn 
 v. Lyons, 97 Cal. 314.] But section 3 of the act as it now reads, 
 
POSTING AND PUBLISHING RESOLUTION v&^SSF*** 21 
 
 i. e., as amended by the net of 1891 [Statutes 1S91 V page 196] 
 expressly provides that, in addition to publication, the 
 resolution shall likewise "be posted conspicuously for two 
 days on or near the chamber door of said council." 
 
 "(b.) Pnbticntion. In addition to such posting the resolu- 
 tion must be "published by two insertions in one or more 
 daily, semi-weekly, or weekly newpapers published and cir- 
 culated in -aid city and designated by said council for that 
 purpose." 
 
 l/iider this express provision of the statute the council 
 must "designate" the paper in which the resolution is to be 
 published. In addition to "designating" the newspaper, 
 the council, it seems, should, either in the resolution itself, 
 or by a separate order, order that particular resolution to 
 be published for the length of time prescribed by law, in 
 some newspaper designated by the resolution or by such sep- 
 arate order. The usual method is for the resolution itself 
 to direct its own publication in a designated newspaper. 
 
 It is often customary for the council or board of super- 
 visors, by an ordinance or resolution passed at the com- 
 mencement of the calendar year, to designate some news- 
 paper as the oilicial newspaper for nil municipal advertise- 
 ments during that year. And it has often happened in 
 such case that the resolution has been published by the 
 clerk in such oilicial newspaper without any special order 
 therefor, and without any designation by the council of that 
 particular newspaper for that particular case, and the ques- 
 tion has frequently arisen as to whether such publication 
 was sufficient. It would seem from the plain letter of the 
 statute, as amended in 1891, that publication is not sufficient 
 unless the council in each instance especially orders the 
 resolution to be published, and for that purpose designates 
 the particular newspaper for that particular purpose. The 
 statute says that the resolution must be published in a 
 newspaper "designated by said council for that purpose," i. 
 e., for the purpose of that particular resolution, and if the 
 council must in each case "designate" the newspaper in 
 which the resolution is to be published, it would seem that 
 it must likewise, in each case "order" the resolution to be 
 published. For designating the newspaper and ordering 
 the publication are so intimately blended that it would 
 seem difficult to "designate" the newspaper without also 
 ordering the publication to be made. 
 
 The San Francisco street law act of 1863, authorized the 
 board to order the work to be done "after notice of their 
 intention so to do, in the form of a resolution describing 
 the work, and signed by the clerk of said board, has been 
 
22 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 published for a period of ten days." In Chambers v. Sat- 
 terlee, 40 Cal. 497, Mr. Justice Wallace held that the publi- 
 cation need not be ordered by the board, while Justice Tem- 
 ple, page 521, said: "The statute says the board may order 
 the work to be done after notice of their intention so to do 
 (signed by the clerk) has been published for ten days. As 
 I understand this statute, it requires notice to be given by 
 the board itself. At that time there were no parties to the 
 proceedings, and consequently the notice can be given by 
 no one but the board itself. The power to grade streets is 
 in them, but the very first step in the exercise of that power 
 is to give the notice, or rather this is a condition precedent 
 to their exercising the power at all. The requirement that 
 the resolution shall be signed by the clerk is directed to the 
 board and not to the clerk. He is the mere servant of the 
 board and has no power except as their servant. The 
 provision only directs the mode of attestation by the board. 
 The manner of giving notice is by publishing the resolu- 
 tion; and it seems to me it must inevitably follow that the 
 publication must be made by the board. * * No one is 
 authorized to contract for the city and county save the 
 board of supervisors, and I think the publication required 
 by the statute can only be made by their authority," that 
 is the board must order the publication to be made. 
 [Pages 521-522.] See Dyer v. North, 44 Cal. 160, for 
 explanation of Chambers v. Satterlee on this point. In 
 Shepard v. Colton, 44 Cal. 628, it was held that the notice 
 of award of the contract was not sufficient because the 
 board never passed any resolution directing a notice of the 
 resolution of award to be published in any manner. 
 
 In the case of Chambers v. Satterlee, Judge Temple says 
 that "the publication must be made by the board." In the 
 same statute it was provided, in the part relating to sealed 
 proposals for doing the work, that the board, before giving 
 out contracts for street work shall "cause notice to be 
 * * * posted * * * and also published * * * 
 inviting sealed proposals," etc. [Statutes 1862, p. 393.] 
 In the case of Meuser v. Risdon, 36 Cal. 239, it was held, 
 under the same statute that was considered in Chambers v. 
 Satterlee, that where a contractor fails to perform his 
 work, and it becomes necessary to relet the contract, 
 the same course must be pursued in reletting; which 
 is prescribed in the first instance; that the clerk has no 
 authority in the first instance, independent of an order 
 of the board therefor, to give the notice inviting sealed 
 proposals, and that, therefore, in case of such relet- 
 ting, he has no such power, independent of such order; 
 
PUBLISHING RESOLUTION f^ 8 .? 1 ^ 1 " 1 * 1 23 
 
 Mar. 31. 
 
 also, held tliat each proceeding to improve a street is a 'sep- 
 arate and independent proceeding, and must stand or fall 
 by itself, and that, therefore, authority cannot be conferred 
 upon the clerk to post notices by a general resolution direct- 
 ing him in all cases where the contractors fail to perform to 
 re-advertise for bids. If, therefore, as held by Mr. Justice 
 Temple in Chambers v. Satterlee, the council must make 
 the publication of the resolution of intention, or cause it to 
 be made, it must follow, under the decision in Meuser v. 
 Ivisdon, that it can only do so by ordering the posting 
 and publication of the resolution in each particular case, 
 and designate, in each particular case, the newspaper in 
 which the publication is to be made. [See Donnelly v. 
 Tillman, 47 Cal. 40; Donnelly r. Marks, 47 Gal. 187.] 
 
 However the statute as it now reads seems to settle all 
 doubts which formerly existed relative to the necessity fora 
 direction or order by the council that the resolution be 
 published as required by law in a newspaper designated 
 " for that purpose" by the council. 
 
 It must appear that the newspaper is both published and 
 circulated in the city either alone is insufficient. [Has- 
 kell v. Bartlett, 34 Cal. 2S1.] 
 
 The act says the resolution must be ''published by two 
 insertions," but does not expressly except Sundays or other 
 non-judicial days, rnd the question arises: Would the 
 publication be sufficient if one of the days fell on Sunday? 
 It was held in S. F. v. McCain, 50 Cal. 210 and People v. 
 McCain, 51 Cal. 360, that under the act of April 4, 1870, 
 the resolution must be published five days exclusive of Sun- 
 day, and that the proceedings were void if the fifth day fell 
 on a Sunday. But in that case the statute required the 
 publication to be made for five days, "Sundays and non- 
 judicial days excepted," whereas the present act does not 
 thus expressly except Sundays and non-judicial days. In 
 Taylor v. Palmer, 31 Cal. 241, it was held that the publica- 
 tion was sufficient if published for a period of ten days only, 
 even though a Sunday should have intervened between the 
 first and the last insertion. But in that case the statute only 
 required the resolution to be published for a period of ten 
 days, without making any exception of Sundays. Conse- 
 quently the publication was sufficient if it covered the period 
 of ten days; i. e. if published every day, except Sundays, 
 for a period of ten days not for ten days. These cases do 
 not, on account of the difference in the reading of the 
 statutes, throw much light upon the question arising under 
 the act of March 18, 1885, as amended. In the case of S. 
 & L. Society v. Thompson, 32 Cal. 347, it was held that 
 
24 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 constructive service of summons by publication is sufficient 
 even if some of the publications, including the last, were 
 made on Sunday. It is a mere ministerial act and may be 
 performed upon a dies non juridicus.. There does not seem 
 to be any reason why a resolution of intention may not 
 likewise be published on a Sunday, or rather there does not 
 seem to be any reason why the fact that one of the publica- 
 tions falls on a Sunday, should vitiate the constructive 
 notice to property owners of the passage of a resolution of 
 intention, any more than that fact should vitiate the con- 
 structive service of a summons in the absence of a statute 
 expressly excepting Sundays. 
 
 Furthermore, it would seem from the express language of 
 the act that part of the publication may be made on Sun- 
 day, that is, that a publication of the resolution of inten- 
 tion on Saturday and the following Sunday, for example, 
 if made in a daily newspaper published on Sundays, 
 would be sufficient. For section 34, subdivision 4, 
 expressly provides that all notices, resolutions, orders, etc., 
 when published in a newspaper shall be published "as 
 often as the same is issued." 
 
 A newspaper which is published six days in each week 
 is a "daily" newspaper, [Richardson v. Tobin, 45 Cal. 30] 
 and where the statute does not specify a particular language 
 in which it must be published, a publication in a German 
 newspaper, but in the English language, is sufficient. [Id.] 
 
 If the resolution is not published for the length of time 
 required by law the whole proceedings are void. [Brady v. 
 Burke, 90 Cal. 1.] 
 
 3. Posting and Publication of Notices of the Passage of the 
 Resolution. The superintendent of streets is required by sec- 
 tion 3 of the act to cause to be conspicuously posted along the 
 line of the contemplated work, at not more than 100 feet in 
 distance apart, etc., notices of the passage of the resolution. 
 Also to cause a notice, similar in substance, to be published 
 for six days in one or more daily newspapers, designated by 
 the city council, or in cities where there is no daily news- 
 paper, by one insertion in a semi-weekly or weekly newspa- 
 per, so published, circulated and designated. Or, "in case 
 there is no such paper published in said city, said notice 
 shall be posted for six days on or near the chamber door of 
 the council, and in two other conspicuous places in said 
 city," as provided in sections 3 and 34 of the act. 
 
 (a.) Posting. The act requires the notices to be posted 
 along the line of the contemplated work, or, "when the work 
 to be done is only upon an entire crossing, or any part 
 thereof, in front of each quarter block, or irregular block, 
 
^UNIVERSITY) 
 
 NOTICES OF PASSAGE OF RESOLUTION M P jf r . R 3 ^S? nde<J 25 
 
 liable to assessment." [See section 7, subdivisions 3, 4, 5 
 and 6, for mode of assessing for work done on street cross- 
 ings.] 
 
 In Miller v. Mayo, 88 Cal. 568, it was held that where the 
 contemplated work is work along a street for two or more 
 blocks so as to include one or more crossings made by the 
 intersections of other streets with the street along which the 
 work is to be done, it is sufficient if the notices required to 
 be posted along the line of the contemplated improvement 
 are posted without posting any notices in front of the quar- 
 ter blocks adjoining and cornering upon the crossings, or 
 quarter blocks liable to assessment. The reason is that the 
 proviso in section 3 of the act of 1885, " or when the work 
 to be done is the improvement of an entire crossing, in front 
 of each quarter block liable to be assessed," is in the dis- 
 junctive, and is a separate mandate from that with which it 
 is connected. This is still more clearly the case under the 
 act as amended in 1891. For, as it now reads, the notices 
 are to be posted in front of the quarter blocks cornering 
 upon a crossing, "when the work to be done is only upon an 
 entire crossing or any part thereof." Accordingly, when 
 the proposed work is along a street, causing notices to be 
 posted along the line of the contemplated work, i. e. along 
 the street at not more than 100 feet in distance apart, but 
 not less than three in all, is sufficient even if one or more 
 crossings are included. But when the work to be done is 
 only upon an entire crossing, or any part thereof, the notices 
 must be posted in front of each quarter or irregular block 
 adjoining and cornering upon the crossings, or quarter 
 blocks liable to be assessed. 
 
 (b.) Publishing. The act likewise requires the superin- 
 tendent of streets to cause to be published a notice of the 
 passage of the resolution, similar in substance to the notices 
 to be posted. It need not be exactly identical in all respects, 
 provided it be "similar in substance." It must be pub- 
 lished for six days, if there be a daily, semi-weekly or 
 weekly newspaper printed and circulated in the city. If 
 there is no such paper, it must be posted for six days on or 
 near the chamber door of the council and in two other 
 conspicuous places. 
 
 A notice published by the superintendent of streets, con- 
 taining the whole of the resolution of intention, and stating 
 the date and fact of its passage, is sufficient, and is not ren- 
 dered defective because of an omission to refer to the reso- 
 lution for further particulars. [Schmidt v. Market St. R. 
 R. Co., 90 Cal. 37.] 
 
26 STREET WORK LAW -STREET IMPROVEMENT ACT 
 
 4- Order for the Work to be Done. A certain length of 
 time after the posting and publication of the notices of the 
 passage of the resolution of intention is allowed the property 
 owners within which to file written objections to the doing 
 of the proposed work. In some kinds of work, the filing of 
 such written objections by the owners of a majority of the 
 frontage operates as a bar to further proceedings for six 
 months. In other classes of work, e. g., sewers, man-holes, 
 etc., the council, after the filing of such written objections, 
 and notices to the objectors, may determine to go on with 
 the work notwithstanding the objections. Nor will a pro- 
 test against the proposed work by the owners of a majority 
 of the frontage bar further proceedings when the proposed 
 work is to be done in a block lying between blocks which 
 have already been graded or otherwise improved. And in 
 such case the work shall not be stayed, unless the council 
 deem proper. Accordingly, when such objections have been 
 filed, and the judgment of the trial court is nevertheless in 
 favor of the assessment for work done upon a block, it will be 
 presumed on appeal, unless the contrary appear in the 
 record, that the block in question was between graded blocks. 
 [McDonald v. Dodge, 97 Cal. 112. J 
 
 At the expiration of twenty days after the expiration of the 
 time of the publication of the notices of the passage of the 
 resolution, and at the expiration of twenty-five days after the 
 advertising and posting of the resolution of intention, if 
 further proceedings have not been barred or ceased by reason 
 of the filing of written objections, the council has "jurisdic- 
 tion to order any of the work to be done or improvement to 
 be made." 
 
 The council, when it has thus acquired jurisdiction to 
 order the proposed work to be done, should then make and 
 pass such an order. 
 
 The order that the proposed work be done is not an 
 "ordinance," and need not follow the for mof ordinances. 
 [City of Napa v. Easter-by, 76 Cal. 222.] An order for street 
 work, made after the council has acquired jurisdiction, is 
 in the nature of a judgment. The subsequent proceedings 
 $i&. ministerial in their character, and are taken for the 
 purpose of carrying the order into execution, and for this 
 reason, if the contractor fails to enter upon the performance 
 of his work within the time fixed in his contract the coun- 
 cil may re-advertise for bids and relet the contract without 
 taking steps to acquire jurisdiction as in the first instance. 
 [Do.ugherty v. Foley, 32 Cal. 402.] 
 
 In Burnett v. Sacramento, 12 Cal. 76, it was held that an 
 ordinance for the improvement of streets, passed by the 
 
ORDER TO DO THE WORK 
 
 council before the expiration of the time for the presenta- 
 tion of the protest, was not thereby, under the then charter 
 of Sacramento, invalid. It is doubtful if an order for work 
 passed before the time for protest had expired, would be 
 valid under the present general law the act of March 
 18, 1885. This act says that "at the expiration 
 of twenty days after the expiration of the time 
 of said publication by said street superintendent," 
 etc., the city council shall be deemed to have acquired juris- 
 diction to order the work to be done. And upon the prin- 
 ciple of expressio unius etc., it would seem that the council 
 has no jurisdiction to make such an order until after the 
 expiration of the time for the presentation of the protest. 
 
 Parties who do not remonstrate against a proposed street 
 improvement, can not claim the benefit of a remonstrance 
 filed by others. [Handy v. Heller, 47 Cal. 15.] 
 
 5. Publication of Order to do Work. Section 3 of the 
 act provides that the order to do the work when made or 
 passed by the council "shall be published for two days, the 
 same as provided for the publication of the resolution of 
 intention." The same section provides that the resolution 
 shall be published as follows: It shall be "published by 
 two insertions in one or more daily, semi-weekly or weekly 
 newspapers published and circulated in said city, and 
 designated by said council for that purpose." By sub-division 
 4 of section 34 of the act, it is provided that "the notices, 
 resolutions, orders, or other matter required to be published 
 by the provisions of this act, * * * * s } la ]i be pub- 
 lished in a daily newspaper, in cities where such there is, 
 and where there is no daily newspaper, in a semi-weekly or 
 weekly newspaper, to be designated by the council of such 
 city, as often as the same is issued." From which it fol- 
 lows (1} that, if there be a daily newspaper, the order 
 should be published in a daily newspaper, and in a semi- 
 weekly or weekly newspaper only when there is no daily 
 newspaper published and circulated in the city; (2) that 
 the council should either in the order for work itself, or in 
 a separate order or resolution, designate the paper in which 
 it is to be published, and (3) that it should be published 
 as often as the paper is issued, i. e. if published in a daily 
 newspaper, for example, it should be published two days in 
 immediate succession, without any intervening day of 
 non-publication, provided the paper is issued on such inter- 
 vening da} 7 . 
 
 The order may perhaps refer to certain maps on file in 
 the street superintendent's office, and while by a fiction of 
 law, such maps by such reference, become constructively 
 
28 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 and for certain purposes, a part of the order, still it seems 
 they need not be published as a part of the order. [City of 
 Napa v. Easterby, 76 Cal. 222.] 
 
 III. "Petition of Remonstrance" and " Written Objections." 
 The first five steps to be taken in the proceedings to acquire 
 jurisdiction to enter into and execute a valid contract, viz: 
 (1) Passage of resolution of intention; (2) posting and pub- 
 libhing the resolution; (3) posting and publishing notices 
 of the passage of the resolution; (4) passage of order for the 
 work to be done, and (5) publication of the order to do the 
 work, have been described above in the notes to this section. 
 The remaining five steps necessary to the execution of a 
 valid contract are described in the notes to section five, 
 infra. There are certain other requirements of this section, 
 (section 3), which must be complied with if occasion gives 
 rise to them, e. g., if written objections to sewer work be 
 filed notices must be mailed to each objector by the clerk, 
 etc. These other requirements will be considered under 
 the heading "Written Objections," and "Petition of Remon- 
 strance." 
 
 1. Petition of Remonstrance. The "Written Objections" 
 must not be confounded with the "Petition of Remonstrance." 
 The object of the former is to enable a certain proportion of 
 the property owners, by filing written objections, to bar all 
 further proceedings for six months as respects some classes 
 of work or, as respects other classes of work, to call forth 
 the decision of the council as to whether or not the pro- 
 ceedings shall be continued. The object of the "Petition of 
 Remonstrance" is to enable any property owner, who may 
 feel aggrieved because the proceedings have not been regu- 
 larly conducted, or because of some inequity, to appeal to 
 the council, and there have his grievance passed upon. 
 The written objections must be filed with the clerk within 
 a certain time after notice to the property owners of the 
 council's intention to do the work, viz., within ten days 
 after the expiration of the time of the publication and post- 
 ing of the notices of the passage of the resolution, if the 
 front foot-plan of assessment is adopted, and must, in that 
 case, in order to effect a six months' bar of the proceedings, 
 be signed by the owners of a majority of the frontage. The 
 delivery of such written objections to the clerk within said 
 time operates ipso facto to bar any further proceedings for 
 six months, except in certain specially excepted cases, such as 
 sewers, man-holes, etc. The provision for the filing of 
 "written objections," signed by the owners of a majority 
 of the frontage, is intended to enable the owners of a 
 majority of the frontage to determine for themselves, in 
 
PETITION OP REMONSTRANCE Mar. 3 31 8 18i ended 29 
 
 some cases, whether the proposed work shall be done, or, 
 in the excepted cases, such as sewers, etc., to call forth the 
 decision of the council as to the wisdom or desirability of 
 further continuance of the proceedings. It has no neces- 
 sary connection with the question as to whether the pro- 
 ceedings, assessments, etc., are regular or just and equitable 
 in their nature. But, if any of the property owners, even less 
 than a majority of the frontage, deem the work inadvisable, or 
 that it would work a hardship or inequalities, or if there 
 has been any inequality or irregularity in the proceedings 
 of the council in relation to the performance of the work, 
 a "petition of remonstrance" may be filed. Unlike 
 the " written objections," the " petition of remonstrance " 
 ni.'iv be filed "at any time before the issuance of the assessment 
 roll,'' and by any owner or "owners of lots or lands liable to 
 assessment thereon, who, after the first publication of said 
 notice of intention, may feel aggrieved, or who may have 
 objections to any of the subsequent proceedings of said coun- 
 cil in relation to the performance of the work mentioned in 
 said notice of intention * * * such petition or remon- 
 strance shall be passed upon by the said city council, and 
 the decision therein shall be final and conclusive." The 
 object of this petition of remonstrance is, not to stop or bar 
 the work or proceedings, as in the case of written objections; 
 but to enable any owner or owners of land liable to assess- 
 ment to point out wherein the proceedings are unjust or 
 inequitable, or irregular. The council may pass upon the peti- 
 tion or remonstrance, and in doing so it exercises quasi judi- 
 cial functions, and it may correct the alleged abuse or not, or 
 may find that there is no substantial irregularity, and if 
 there be none that is, no irregularity of a jurisdictional 
 nature its decision is final and conclusive. Whereas, when 
 the written objection is delivered to the clerk, signed by the 
 owners of a majority in frontage, the council exercises no 
 judicial function whatever except in the especially excepted 
 cases of sewers, man-holes, etc., and except that it may deter- 
 mine whether the petition has been signed by a majority of 
 the frontage or not, in which respect, it seems, its decision 
 would be final and conclusive. [Spaulding v. Homestead 
 Ass'n, 87 Cal. 40; In re Grove Street, 61 Cal. 453-4.] It 
 has no discretion in the matter, (except when the 
 proposed work is the construction of sewers, man-holes, 
 etc.) but must, nolens volens, stop all proceedings for six 
 months. The object of the "petition of remonstrance" is 
 to secure to each individual his constitutional right which 
 guarantees that he shall not be deprived of his property 
 without "due process of law." Compliance with this con 
 
30 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 stitutional safeguard requires that the act should provide 
 for due notice to the property owner, and afford him an 
 opportunity to be heard. The posting and publication of 
 the resolution of intention and the posting and publication 
 of the notices of the passage of the resolution of intention 
 constitute such "due notice," when read in conjunction with 
 all the provisions of the act, as they should be; and the 
 provision for the filing of the "petition of remonstrance" 
 would seem to afford sufficient opportunity for a hearing. 
 " When a hearing is given by the act, as to the apportion- 
 ment among the land owners, which furnishes to them an 
 opportunity to raise all pertinent and available questions, 
 and to dispute their liability, or its amount and extent, such 
 hearing is sufficient, and the act is, in this respect, consti- 
 tutional." [See Spencer v. Merchant, 125 U. S. 345; Wal- 
 ston v. Nevin, 128 U. S. 578; Davidson v. New Orleans, 96 
 U. S. 97; Hagar v. Reclamation District, 111 U. S. 701; 
 Palmer v. McMahon, 10 Supreme Court Rep. 324; Lent v. 
 Tillson, 72 Gal. 404.] 
 
 If a petition of remonstrance is filed with the council, and 
 is referred to a committee, and the council, before the com- 
 mittee reports, and without acting directly on the petition 
 or remonstrance, directs the work to be done, it is practi- 
 cally and in effect a passing upon and a decision against the 
 petition or remonstrance. [Harney v. Heller, 47 Cal. 15.] 
 
 This part of section 3 of the Vrooman act, providing for 
 a petition of remonstrance, in reality provides for an appeal 
 to the council, and should be read in connection with sec- 
 tion 11 of the act (post) which section provides for appeals 
 to the council and the procedure therein. For a further 
 consideration of this subject "petition of remonstrance" 
 and "appeal to council" see notes under section 11 infra. 
 
 2. " Written Objections." The effect of filing the written 
 objections, the time of filing the same, and the number of 
 property owners who must sign, depend upon the class of 
 work to be done, and whether the front-foot or district 
 assessment plan is adopted. For the purpose of determin- 
 ing the effect of filing the objections, etc., the work which 
 the act authorizes the council to do, is divisible into three 
 classes, viz: 
 
 (a.) First Class. The first class includes any work author- 
 ized by section 2 of the act, excepting that mentioned in the 
 next class below [see second class, infra, p. 32] i. e. all work 
 other than sewers, man-holes, etc., provided the proposed 
 work is for one block or more, and it is proposed to follow the 
 front-foot plan of assessment. In this class the owners of a 
 majority of the frontage may make a written objection within 
 
WRITTEN OBJECTIONS Er'ffSBI^ ** 31 
 
 ten days after the expiration of the time of the publication 
 and posting by the superintendent of streets of the notices of 
 the passage of the resolution of intention. The objection must 
 be delivered to the clerk, who shall endorse thereon the date 
 of its reception by him, and such objections so delivered and 
 indorsed shall be a bar for six months to any further proceed- 
 ings, unless the owners of one-half or more of the frontage 
 shall meanwhile petition for the same to be done. In this 
 class of work the filing of the written objections by a majority 
 of the frontage works a bar of six months ipso facto, and the 
 bar continues for six months, "unless the owners of the one- 
 half or more of the frontage, as aforesaid, shall meanwhile 
 petition for the same to be done." 
 
 In Dougherty v. Harrison, 54 Cal. 428, it was held that 
 where the work has been barred for six months by the 
 filing of sufficient objections, and, before the expiration of 
 the six months, proceedings are resumed, the burden of 
 proof is upon those asserting the validity of the proceedings 
 to prove that the bar effected by the objections has been 
 removed by the filing of a petition, pending the bar, by 
 one-half or more of the frontage, petitioning for the work to 
 be done, and in the absence of such proof, it will not be 
 presumed prima facie even that the bar was removed. The 
 court said: "The protest or written objections of the prop- 
 erty owners introduced in evidence displaced the prima 
 facie proof of regularity made by the warrant, assessment 
 and diagram introduced by plaintiff, and throw upon him 
 (plaintiff) the burden of showing that the bar effected by 
 the objections on file had been removed. The bar existing, 
 the proceedings subsequent thereto were irregular and void." 
 
 The statute, infereutially at least, authorizes the council 
 to decide whether the written objection has been legally 
 signed by the owners of a majority of the frontage. It 
 provides that "at the expiration of twenty days after the 
 expiration of the time of said publication by said superin- 
 tendent [of notice of the passage of the resolution of inten- 
 tion] * * * if any written objection purporting to be 
 signed by the owners of a major frontage is disallowed by 
 said council, as not of itself barring said work for six 
 months, because in its judgment, said objection has not been 
 legally signed by the owners of a majority of said frontage, the 
 city council shall be deemed to have acquired jurisdiction," 
 etc. And it would seem from the ruling in Spaulding v. 
 Homestead Ass'n, 87 Cal. 40, that the judgment of the. 
 council upon the question as to whether or not the owners 
 of a majority of the frontage have legally signed the petition 
 or not is final and conclusive, although the act does not 
 
32 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 expressly say so. To give the ruling of the council the 
 effect of a conclusive determination, it must be an adjudica- 
 tion upon the existence of facts, or matters in pais, to be 
 established by evidence dehors the petition itself. [In re 
 Grove Street, 61 Cal. 453-4.] 
 
 As to who are, for the purposes of the act, deemed to be 
 "owners," see section 16 of the act, infra. 
 
 (b.) Second Class. The second class of work or improve- 
 ment includes "the construction of sewers, man-holes, cul- 
 verts, or cesspools, crosswalks, or sidewalks, and curbs; also 
 any work or improvement upon the intervening ungraded 
 or unimproved part of a street, where not more than two 
 blocks, including street crossings, remain ungraded to the 
 official grade, or otherwise unimproved, in whole or in part, 
 and a block or more on each side upon said street has 
 been so graded or improved, so that the two blocks or less, 
 ungraded or unimproved, lie between blocks which have 
 been already graded or improved. [See McDonald v. Dodge, 
 97 Cal. 112.] The second class also includes work upon 
 not more than two blocks at the end of a street remaining so 
 ungraded or otherwise unimproved; also work or improve- 
 ment upon the unimproved or ungraded portion of a street 
 lying and being between two successive main street crossings, 
 where one-half or more in width or in length of such street 
 has been already partially graded or improved, also work 
 upon a crossing that has been already partially graded or 
 improved. 
 
 The filing of written objections does not ipso facto bar 
 proceedings under this second class, but the council may 
 proceed with the work, notwithstanding the filing of written 
 objections, if they deem proper. Provision is also made by 
 the act for a hearing upon the objections filed, after notice 
 served by the clerk upon the objectors through the mails, 
 where the proposed work is the construction of sewers, 
 man-holes, culverts, or cesspools, crosswalks or sidewalks, 
 and curbs. At the hearing the council hears and passes 
 upon the objections urged, and its decision is final and con- 
 clusive, and the bar for six months does not apply. 
 
 Section 24 of the act likewise provides that none of the 
 work or improvements described in said section 24, namely, 
 work upon sewers, gutters, man-holes, culverts, cesspools, 
 crosswalks and sidewalks, shall be stayed or prevented by 
 any written or any other remonstrance or objection, unless 
 the council deems proper. 
 
 (c.) Third Class. The third class of work includes any 
 of the work or improvement authorized by section 2 of the 
 act, where the council, deeming the work to be of more 
 
DISTRICT ASSESSMENTS iS?SS^ 33 
 
 than local or ordinary public benefit, or that the total esti- 
 mated costs and expenses will exceed one-half the total 
 assessed value of the lots and hinds assessed if the front- 
 foot plan should be adopted determines to make the 
 expense of the work or improvement chargeable upon a 
 district. In other words, the third class includes all work 
 done under the district assessment plan. Where the district 
 assessment plan is adopted, the council must in its resolu- 
 tion of intention describe the district [Dehail v.Morford,95 
 Cal. 457; Boorman v. Santa Barbara, 65 Cal. 313; Lent 
 r. Tillson, 72 Cal. 404-410] and declare it to be the dis- 
 trict to be benefited by said work or improvement, 
 and to be assessed to pay the costs and expenses 
 thereof. Objections in writing to the extent of the dis- 
 trict may be filed within ten days after the expiration 
 of the time of the publication of the notice of the passage of 
 the resolution of intention. The clerk serves notices upon 
 the objectors, through the mail, of the time and place set 
 for hearing. At the hearing the council passes upon the 
 objections, and its decision is iinal and conclusive. If the 
 objections are sustained, all proceedings are stopped; if 
 overruled, the proceedings continue as if no objections had 
 been made. 
 
 IV. District Assessments. Section 3 of the Vrooman act, 
 as amended in 1891 [Statutes 1891 p. 198] provides that the 
 council, instead of following the front-foot plan of assess- 
 ment provided for by the act, may make the expense of the 
 work chargeable upon a district in two cases, viz: 
 1st. Whenever the contemplated work or improvement, in 
 the opinion of the council, is of more than local or ordinary 
 public benefit; or W. Whenever, according to estimates to 
 be furnished by the city engineer, the total estimated cost 
 and expenses would exceed one-half of the total assessed 
 value of the lots and lands assessed, if assessed upon the lots 
 and lands fronting upon said proposed work or improve- 
 ment, etc. 
 
 It was held in Kreling v. Muller, 86 Cal. 465, that under 
 the act of March 18, 1885, the Vrooman act, a lot can not 
 be charged in a greater sum than one-half of its value upon 
 the preceding assessment roll. Therefore, under the act 
 of 1885, prior to the amendments of 1889 and 1891, if the 
 contemplated work or improvement would, according to 
 the estimate furnished by the city engineer, cost more than 
 one-half of the assessed value of the lots to be assessed, or 
 any of them, under the front-foot plan of assessment, the 
 council had no option but either to adopt the district 
 assessment plan, and declare in its resolution the district 
 
34 STREET WORK LAW 'STREET IMPROVEMENT ACT 
 
 to be assessed, or else pay all over one-half of such assessed 
 value of any lot or lots out of the city funds. The decision 
 in this case is based upon the provisions of sections 3 and 
 7 (sub. 1 of section 7) of the act of 1885, as those sections 
 stood prior to the amendments of 1889 and 1891. Sec- 
 tion 3 of the act of 1885, prior to these amendments, provided 
 that whenever the expense exceeded one-half of the assessed 
 value of any lot, the amount exceeding such one-half 
 "shall" be paid out of the city treasury, unless the owner 
 shall, in writing, consent that the whole expense may be 
 made a charge against the lot. Section 7, subdivision 1, pro- 
 vided, in substance, that such excess "shall" not be assessed 
 upon the lot, but shall be assessed to the city and be pay- 
 able out of the city treasury. These mandatory provisions 
 of the statute, in express terms forbidding a lot to be 
 charged with more than one-half of its assessed value, were 
 swept away by the amendments of 1889, [Statutes 1889, pp. 
 159, 160, 163] and likewise by the amendments of 1891, 
 [Statutes 1891, pp. 198, 201] the amendments of 1891 being 
 in this respect similar to the amendments of 1889, and the 
 act as it now reads simply provides that whenever, accord- 
 ing to the estimates to be furnished by the city engineer, 
 the total estimated costs and expenses would exceed one- 
 half the total assessed value of the lots and lands assessed, if 
 assessed upon the front-foot plan, etc., the city council "may" 
 make the expense chargeable upon a district. There does 
 not, therefore, seem to be any reason why, under the act of 
 1885, as it now reads, that is, as amended by the amenda- 
 tory act of 1891, the whole lot may not be taken to pay for 
 the improvement. The legislature has no power to author- 
 ize a personal judgment against the person whose property 
 is assessed, [Taylor v. Palmer, 31 Cal. 241] but the whole of 
 the lot itself may be taken to pay for the improvement, if 
 there be no contrary provision in the statute and if the 
 lot may be fairly deemed to be benefited by the improve- 
 ment. It seems, therefore, that under the act, as it now 
 reads, the council may adopt the district assessment plan, 
 in those cases where, under the front-foot plan, more than 
 half of the assessed value of the lot will have to be taken to 
 pay the expenses of the improvement or, it seems, it may 
 follow the front-foot plan even to the extent of taking all 
 the lots fronting upon the proposed improvement. 
 
 A district assessment is void unless every lot within the 
 district, liable to assessment, is included. [People v. Lynch, 
 51 Cal. 19; Diggins v. Brown, 76 Cal. 318; Davies v. Los 
 Angeles, 86 Cal. 37; Moulton v. Parks, 64 Cal. 181; Dyer 
 v. Harrison, 63 Cal. 447.] 
 
SEWER CONSTRUCTION U& 
 
 V. 'Seirer Construction and District Assessments. It has 
 recently been held by Judge Wade of the Superior Court of 
 Los Angeles county in the case of White v. Harris, on 
 demurrer to complaint, that the front-foot plan of assess- 
 ment cannot be adopted when the work to be done is sewer 
 construction, but that the mode of payment for sewer con- 
 struction is that prescribed by section 27 of the act, and 
 must be either by district assessment or out of the street 
 contingent fund. In this connection the learned judge says: 
 
 "Defendant claims that the mode of payment for sewer 
 construction is that prescribed by section 27, and must be 
 either by district assessment or out of the street contingent 
 fund, while plaintiff contends that the council may resort 
 to either of these methods or to that prescribed by section 
 7, subdivision 1. Assessment'in proportion to the frontage, 
 at a rate per front foot^ sufficient to cover the total expense 
 of the work.' The language of section 27 is as follows: 
 
 " 'Whenever the city council deem it necessary to con- 
 struct a sewer, then the said council may in its discretion 
 determine to construct said sewer and assess the cost and 
 expenses thereof upon the property to be affected or bene- 
 fited thereby, in such manner and within such assessment 
 district as it shall prescribe, and the lien therefor upon said 
 property shall be the same as is provided in section nine 
 of this act; or said conncil may determine to construct 
 said sewer and pay therefor out of the street contingent 
 fund/ 
 
 "Plaintiff's contention hinges upon the words 'in its dis- 
 cretion.' If this section stood alone, so far as any refer- 
 ence to sewers is concerned, there could be no doubt 
 whatever that the discretionary authority of the council 
 was limited to the two methods of payment therein men- 
 tioned. There are, however, several other references to 
 sewers. Section two mentions sewers, and they are not 
 expressly excepted from the provisions of section seven, as 
 to assessments by frontage. The exceptions are (./.) of 
 repairs, etc., on railroad streets; (2.) work done and assess- 
 ments made in districts, and (3.) street crossings and street 
 junctions, set out in section seven, subdivisions two to 
 seven, inclusive. It does not seem reasonable that the 
 mention of street work at crossings, or where one street 
 terminates in another street, 'main' streets and 'small or 
 subdivision' streets (whatever those terms may mean) were 
 intended to have reference to the making of sewers. But 
 mention is also made of assessment by districts, in several 
 other places than in section twenty-seven. It is a method 
 of payment not strictly confined to sewer construction. 
 
36 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 And yet it is peculiarly adapted to this sort of work. Assess- 
 ment by frontage would seem to be notably inapt for the 
 purpose of paying the expense of constructing a sewer. 
 The rule would seem to be almost universal that one would 
 have ingress and egress to and from his lot by moans of 
 the street in front thereof. The rule is not nearly so uni- 
 form that one would discharge his sewage tli rough a con- 
 duit laid on the street upon which he fronted. The 
 topography of the ground and many other circumstances 
 might include a particular lot in an assessment district for 
 a sewer laid upon another street, for the reason that the lot 
 'would be benefited thereby.' The probabilities of such 
 being the case were fully discussed when the demurrer in 
 this case was argued. Taking all the different sections o.f 
 this difficult statute into consideration, it seems that the 
 correct interpretation of section twenty-seven is that the 
 discretion with which the council is there clothed is to 
 choose which of the two methods of securing payment 
 therein mentioned it will adopt. Had it been intended to 
 include the method of assessment by frontage, it would 
 have been so easy for the legislature to have so expressed 
 itself, while the subject of sewers was before it as the chief 
 subject of consideration, that the omission seems signifi- 
 cant. The assessment in this case was clearly not made 
 by districts nor was there any district established so far as 
 the pleadings show." 
 
 The learned judge says in effect that if it had been the 
 intention of the legislature to include assessments for sewer 
 construction in the method of assessing by frontage, the 
 legislature would have so expressed itself while treating of 
 the subject of sewers in part II of the act. But the act does 
 provide as follows: "The expenses incurred to? any work 
 authorized by this act * * [Sec. 2 of the act specifies 
 the work which the act authorizes to be done, and includes 
 sewer construction] shall be assessed upon the lots and 
 lands fronting thereon, except as hereinafter specifically pro- 
 vided] each lot or portion of a lot being separately assessed, 
 in proportion to the frontage, at a rate per front foot suffi- 
 cient to cover the total expense of the work." [Section 7, 
 subdivision 1.] And section three of the act expressly 
 recognizes the application to sewer work of the front foot 
 method of assessment. Section three provides that "when 
 the work or improvement proposed to be done is the con- 
 truction of sewers, man-holes, culverts, or cesspools, cross- 
 walks or sidewalks, and curbs, and the objection thereto is 
 signed by the owners of a majority of the frontage liable to 
 be assessed for the expense of said work, as aforesaid, the 
 
SECTION FOUR OP THE ACT f^/gfffif^ 37 
 
 sai<l city council shall, at its next meeting, fix a time for 
 hearing said objections," etc. 
 
 The last sentence of subdivision 8 of section 7 likewise 
 recognizes the applicability of the front-foot method of 
 assessment to work of this kind. It provides that " when 
 sewering or resawering is ordered to be done under the 
 sidewalk on only one side of a street for any length thereof, 
 the assessment for its expenses shall be made only upon the 
 lots and lands fronting nearest upon that side," etc. 
 
 Part II of the act, which includes section 27, was inserted 
 in the act as it was originally passed, i. e., before the 
 adoption or passage of any subsequent amendatory acts. At 
 that time, section 3 of the act did not, as it d >33 no.v, give 
 the council authority to adopt the district assessment plan, 
 whenever, in its opinion, the contemplated work or 
 improvement is of more than local or ordinary public bene- 
 fit, and therefore section 27 was necessary as a specially 
 enabling provision to enable the council to adopt the dis- 
 trict assessment plan whenever a sewer was to be con- 
 structed. And, as sewer construction is very often a work 
 or improvement of more than local or ordinary public 
 benefit, it follows that some such specially enabling provis- 
 ion was wise and just. See notes to section 27 of the act 
 for a further consideration of this subject. 
 
 Section 4. The owners of a majority in frontage of lots and lands front- 
 in- on any street, avenue, lane, alley, place or court, or of lots or lands lia- 
 ble to be assessed for the expense of the work petitioned to be done, or 
 their duly authori/i'd agents, may petition the city council to order any of 
 the work mentioned in this act to be done, and the city council may order 
 the \v >rk mentioned in said petition to be done, after notice of its intention 
 s.i to <lo has been posted and published as provided in section 3 of this act 
 [Amendment approved March 31, 1891, statutes 1891, page 199.] 
 
 ion 4 was amended in 1889 by act of March 14, 1889, statutes '89, p- 
 160; and again in 1891 by act of March 31, 1891, statutes '91, p. 199.] 
 
 Except where the work to be done is the grading 
 of a street, avenue, lane, etc., to a new grade the old 
 grade having been changed since the amendment of 
 March 11, 1S93, to section 2 of the act the council may, 
 under section 3 of the act, on its own motion, or on petition 
 of less than a majority of the frontage, inaugurate proceed- 
 ings to do any of the work which the act authorizes to be 
 done the council in that case taking the chances of the 
 proceedings being barred for six months by the filing of 
 " written objections" signed by a majority of" the frontage, 
 as provided for by section 3. By section 4 it is 
 provided that the owners of a majority of the frontage, 
 or their duly authorized agents, may inaugurate the pro- 
 
38 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 ceedings by filing a petition petitioning the council to order 
 to be done any of the work mentioned in the act, in which 
 case the council, if it deems it proper to do so, may order 
 the work mentioned in such petition to be done. In either 
 case the object of the law is to make the wishes of the own- 
 ers of a majorit} 7 of the frontage, as to certain classes of 
 work, controlling in the matter. If the proceedings are begun 
 under section 3 of the act, the owners of a majority of the 
 frontage may, as to certain classes of work, stop all proceed- 
 ings by filing written objections. If the proceedings are 
 begun under section 4 of the act, i. e., inaugurated by a peti- 
 tion signed by a majority of the frontage, the will of the 
 majority thus expressed is controlling upon the minority if 
 the council sees fit to order the work to be done. But the 
 law aims to collect the wishes of the majority once and only 
 once. Whenever a majority appears either way, there is no 
 need to collect further the votes of the owners. Therefore, 
 section 3 provides for written objections when there has 
 been no sufficient petition, and section 4 provides for such 
 a petition without providing for any objections to be filed. 
 If such objections are filed they are of no avail, and cannot 
 bar the work. If, after filing the petition provided for by 
 section 4, some of the owners change their minds, this will 
 not avail to stop the proceedings. 
 
 Judge Shaw, of the Superior Court of Los Angeles county, 
 in an opinion delivered in the case of Charnock v. City of 
 Los Angeles, passing upon a motion for an injunction, com- 
 pares these provisions of sections 3 and 4 of the act, and, in 
 this connection, says: "The proceedings were instituted 
 under what is known as the Vrooman act, which provides 
 [here section 4 is quoted in full.] In this proceeding the 
 initiatory step was a petition to the council signed by a 
 majority of the owners. Afterwards, and within the time 
 limited after the passage of the resolution of intention, a 
 protest, also signed by the owners of a majority of the front- 
 age, was duly delivered to the clerk of the council. This 
 was signed by some of the persons who had previously 
 signed the petition, and without their names would not 
 have had a majority of the frontage. 
 
 "It is contended by the defendant that the provisions of 
 section 3 of the act concerning the protest of a major- 
 ity of the frontage against the work, and the conse- 
 quent stay of proceedings for six months, have no applica- 
 tion to a proceeding begun by petition under section 4. 
 
 "I am of the opinion that this is the correct interpretation 
 of the act. 
 
EFFECT OF PETITION UNDER SECTION FOUR Mn 
 
 "Section 1 of the act invests the city council with juris- 
 diction to order to be done on the streets any of the work 
 mentioned in section 3 under the proceedings thereinafter 
 prescribed. 
 
 "Section 2 gives the council power, of their own motion 
 and without request or petition from any person, to begin 
 the proceedings whenever in their opinion the public inter- 
 est or convenience may require the work. 
 
 "Section 3 outlines the method of procedure in detail. 
 It provides that they shall first pass a resolution 
 of intention to do the work and describe the work 
 therein. Then certain notices are to be given by the 
 street superintendent. At this stage of the case an 
 objection in writing by the owners of one-half or more of 
 the frontage stops the proceedings for six months unless 
 within that time the owners of one-half or more of the 
 frontage shall petition for the same to be done. Each of 
 these may be by one-half only, which is not a majority. 
 This objection is the only means by which the owners of 
 the property can interfere with the proceedings when they 
 are instituted by the council of its own motion. It seems 
 to me that the provision was inserted for the -sole purpose 
 of giving the owners of the frontage the power to check 
 the council to the extent of a six months' stay. Without 
 this they would be entirely powerless and the council would 
 have full control. There was, therefore, a good reason for 
 inserting this provision and making it apply to a proceed- 
 ing begun by the council without petition. But there is no 
 good reason for making this provision apply to a case begun 
 )ijx>n the voluntary petition of the owners of a majority of the 
 frontage asking for the doing of the very work in question. 
 
 "It would appear silly to allow the owners to stop work 
 which is ordered upon their own petition. Such a con- 
 struction of the act ought not to be made unless the lan- 
 guage clearly requires it either expressly or by implication. 
 This it does not do. 
 
 "Section 4 prescribes the method of proceeding 
 when the work is ordered on the petition of the own- 
 ers. In the first place it requires the petition of more 
 than one-half the frontage. It implies that the petition must 
 describe the work desired to be done, and the council have no 
 authority under this section to order any other work done. 
 The language is: 'The city council may order the work 
 mentioned in said petition to be done.' Therefore this 
 section gives no authority for other work. In my opinion 
 it calls for the application of the rule: 'Expressio unius est 
 exclusio alterious.' It declares that the council may order 
 
40 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 the work to be done "after notice of its intention so to do 
 has been posted as required in section 3 of this act.' This 
 is the only reference to section 3 and it is the only prerequisite to 
 the ordering of the ivork. It follows from the application of 
 the rule that the other restrictions of section 3 do not apply. 
 
 "Again, it must be admitted that the legislature in enact- 
 ing section 4 had some object in view. 
 
 "If, however, the theory of the plaintiff is correct, and 
 after the petition under section 4 is filed, all the proceed- 
 ings mentioned in section 3 are necessary or allowable, 
 then there is no use for section 4. It would be without 
 any force whatever. For the owners have the right of 
 petition without section 4. Now, if, under section 4, the 
 council must pass a resolution of intention, which they 
 could do without the petition, then of what use is the peti- 
 tion? And the council might refuse to pass the resolution. 
 If it did refuse, the petitioners could not force its passage. 
 
 u lt is my opinion that the petition mentioned in section 4 is 
 intended to take the place of the resolution of intention required 
 by section 3, and that when the proceeding is begun by the 
 proper petition no resolution of intention is necessary, but the 
 notice of intention must be the intention to do the ivork men- 
 tioned in the petition, and the provisions of section 3 as to 
 stay of proceedings or objections in writing do not apply to 
 proceedings by petition under section 4- 
 
 "This, however, leads to another consideration which is 
 fatal to the proceedings. When the proceeding is by peti- 
 tion the work ordered to be done must correspond in all 
 respects to the work described in the petition. The council 
 in such a proceeding can order to be done only 'the work 
 mentioned in said petition.' [Sec. 4.]" 
 
 The foregoing opinion of Judge Shaw shows clearly the 
 relation of sections 3 and 4 of the Vrooman act to each 
 other and to the question of jurisdiction by the council to 
 order the work to be done a question to which these sec- 
 tions (3 and 4) are mutually related. The opinion also 
 clearly shows the mode which, in the opinion of the learned 
 judge, is provided for by each of said sections for the attain- 
 ment of such jurisdiction, in the cases to which said sec- 
 tions respectively relate. 
 
 The judge is doubtless correct in his conclusion that 
 where the proceeding is inaugurated under the provision 
 of section 4 of the act, by the filing of a petition, it can 
 not be barred by the filing of written objections as pro- 
 vided for by section 3 of the act, even if some of the owners 
 have meanwhile changed their minds so that a majority of 
 the frontage appears on the written objections. But the 
 
EFFECT OF PETITION UNDER SECTION FOUR 8.*n?"J5P a: 41 
 
 opinion also declares "the petition mentioned in section 4 
 is intended to take the place of the resolution of intention 
 required by section 3, and when the proceeding is begun 
 by the proper petition no resolution of intention is neces- 
 sary, but the notice of intention must be the intention to 
 do the work mentioned in the petition." In so far as the 
 opinion holds that the petition takes the place of a resolu- 
 tion of intention, the learned judge seems to be in error. 
 The mere filing of a petition signed by the owners of a 
 majority of the frontage, while it might be sufficient to cut 
 off all possibility of barring the proceedings by written 
 objections filed thereafter, is not sufficient as notice to the 
 possible minority who have not signed the petition. Every 
 owner whose property is liable to be assessed is entitled to 
 notice of some kind, and if the act does not contain provi- 
 sions for such notice it is unconstitutional, or if notice is 
 not given to the lot owners in some proper manner his 
 constitutional rights are violated and the proceedings are 
 void. [Lent r. Tillson, 72 Cal. 404; Boorman v. Santa Bar- 
 bara, 65 Cal. 313.] Judge Shaw's opinion seems to contem- 
 plate some sort of notice. But if the act has provided what 
 kind of notice shall be given, when the proceedings are 
 inaugurated under section 4 by the filing of a petition 
 and if the notice thus provided for by the act includes the 
 passage of a resolution of intention then a resolution of 
 intention to order to be done the work mentioned in the 
 petition, must be filed, notwithstanding the filing of the 
 petition. The act provides [Sec. 4] that upon filing the 
 petition, the council "may ordbr the work mentioned in 
 said petition to be done, after notice of its intention so to 
 do has been posted and published as provided in section 3 
 of this act." Section 3 of the act provides that notice of 
 the council's intention to order the work to be done shall 
 be given by two postings and two publications, viz.: 
 1. By posting the resolution of intention, and by posting 
 notices of the passage of the resolution of intention, (which 
 notices of passage of the resolution, after stating the fact of 
 the passage of the resolution, and the work proposed, must 
 "refer to the resolution for further particulars;") 2. By pub- 
 lishing the resolution of intention and by publishing said 
 notices of the passage of the resolution. So that, in order 
 to post and publish notice of its intention to order to be 
 done the work mentioned in the petition, in the manner 
 provided by section 3 of the act, the council must pass a 
 resolution of intention to order said work to be done. 
 
 The words "notice of its [the council's] intention so to 
 do" have in all the acts, when used, meant ''notice of its 
 
V 
 
 42 STREET WORK LA.W STREET IMPROVEMENT ACT 
 
 intention so to do, in the form of a resolution, describing 
 the work, and published or posted for a certain time." 
 Thus the act of 1862, amending San Francisco's consolida- 
 tion.act, provided that "the board of supervisors may order 
 any work * * * to be done, after notice of their inten- 
 tion so to do, in the form of a resolution, describing the 
 work, * * * has been published for a period of ten 
 days." [Statutes 1862 p. 392.] So that it would seem from 
 the meaning heretofore placed upon the phrase, "notice of 
 its intention/' as well. as the context in which it appears in 
 section 4 of the act, that the true meaning of this section 
 (section 4) is that "the council may order the work men- 
 tioned in said petition to be done, after notice of its inten- 
 tion so to do, (in the form of a resolution) has been posted 
 and published as provided in section 3 of this act." 
 
 SECTION 5. Before the awarding of any contract by the city council for 
 doing any work authorized by this act, the city council shall cause notice, 
 with specifications, to be posted conspicuously for five days on or near the 
 council chamber door of said council, inviting sealed proposals or bids for 
 doing the work ordered, and shall also cause notice, of said work inviting 
 said proposals, and referring to the specifications posted or on file, to be 
 published for two days in a daily, semi-weekly ,or weekly newspaper pub- 
 lished and circulated in said city, designated by the council for that 
 purpose, and in case there is no newspaper published in said city, then it 
 shall only be posted as hereinbefore provided. All proposals or bids 
 offered shall be accompanied by a check payable to the order of the mayor of 
 the city, certified by a responsible bank, for an amount which shall not be 
 less than ten per cent, of the aggregate of the proposal, or by a bond for the 
 said amount and so payable, signed by the bidder and by two sureties, 
 who shall justify, before any officer competent to administer an oath, in 
 double the said amount, and over and above all statutory exemptions. 
 Said proposals or bids shall be delivered to the clerk of the said city 
 council, and said council shall, in open session, examine and publicly 
 declare the same ; provided, however, that no proposal or bid shall be con- 
 sidered unless accompanied by said check or bond satisfactory to the 
 council. The city council may reject any and all proposals or bids should 
 it deem this for the public good, and also the bid of any party who has 
 been delinquent and unfaithful in any former contract with the munici- 
 pality, and shall reject all proposals or bids other than the lowest regular 
 pioposal or bid of any responsible bidder, and may award the contract for 
 said work or improvement to the lowest responsible bidder at the prices 
 named in his bid, which award shall be approved by the mayor, or a three- 
 fourths vote of the city council. If not approved by him, or a three-fourths 
 vote of the city council, without further proceedings, the city council may 
 readvertise for proposals or bids for the performance of the work as in the 
 first instance, and thereafter proceed in the manner in this section pro- 
 vided, and shall thereupon return to the proper parties the respective 
 checks snd bonds corresponding to the bid so rejected. But the checks 
 accompanying such accepted proposals or bids shall be held by the city 
 
SECTION FIVE OF THE ACT Mar. 5 31, S 189lf nded 43 
 
 clerk of said city until the contract for doing said work, as hereinafter 
 provided, has been entered into, either by said lowest bidder or by the 
 owners of three-fourths part of the frontage, whereupon said certified 
 check shall be returned to said bidder. But if said bidder fails, neglects, 
 or refuses to enter into the contract to perform said work or improvement, 
 as hereinafter provided, then the certified check accompanying his bid and 
 the amount therein mentioned, shall be declared to be forfeited to said 
 city, and shall be collected by it, and paid into its fund for repairs of 
 streets; and any bond forfeited may be prosecuted, and the amount due 
 thereon collected and paid into said fund. Notice of such awards of 
 contract shall be posted for five days, in the same manner as hereinbefore 
 provided for the posting of proposals for said work, and shall be published for 
 two days in a daily newspaper published and circulated in said city, and des- 
 ignated by said city council, or in cities where there is no daily newspaper, 
 by one insertion in a semi-weekly or weekly newspaper so published, cir- 
 culated and designated; pmrided, however, that in case there is no news- 
 paper printed or published in any such city, then such notice of award 
 shall only be kept posted as hereinbefore provided. The owners of three- 
 fourths of the frontage of lots and lands upon the street whereon said 
 work is to be done, or their agents, and who shall make oath that they are 
 such owners or agents, shall not b x e required to present sealed pro- 
 posals or bids, but may, within ten days after the first posting and publi- 
 cation of said notice of said award, elect to take said work and enter into 
 a written contract to do the whole work at the price at which the same 
 has been awarded. Should the said owners fail to elect to take said 
 work, and to enter into a written contract therefor within ten days, or to 
 commence the work within fifteen days after the first posting and publication 
 of said award, and to prosecute the same with diligence to completion, it 
 shall be the duty of the superintendent of streets to enter into a contract 
 with the original bidder to whom the contract was awarded, and at the 
 prices specified in his bid. But if such original bidder neglects, fails or 
 refuses, for fifteen days after the first posting and publication of the notice 
 of award, to enter into the contract, then the city council, without further 
 proceedings, shall again advertise for proposals or bids as in the first 
 instance, and award the contract for the said work to the then lowest regular 
 bidder. The bids of all persons and the election of all owners as aforesaid, 
 who have failed to enter into the contract as herein provided, shall be 
 rejected in any bidding or election subsequent to the first for the same 
 work. If the owner or contractor who may have taken any contract, do 
 not complete the same within the time limited in the contract, or within 
 such further time as the city council may give them, the superintendent 
 of streets shall report such delinquency to the city council, which may 
 relet the unfinished portion of said work, after pursuing the formalities 
 prescribed hereinbefore for the letting of the whole in the first instance. 
 All contractors, contracting owners included, shall, at the time of execut- 
 ing any contract for street work, execute a bond to the satisfaction and 
 approval of the superintendent of streets of said city, with*two or more 
 sureties and payable to such city, in such sums as the mayor shall deem 
 adequate, conditioned for the faithful performance of the contract; and 
 the sureties shall justify before any person competent to administer an 
 oath, in double the amount mentioned injsaidbond, over and above all 
 
44 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 statutory exemptions. Before being entitled to a contract, the bidder ta 
 whom the award was made, or the owners who have elected to take the 
 contract, must advance to the superintendent of streets, for payment by 
 him, the cost of publication of the notices, resolutions, orders, or other 
 incidental expenses and matters required under the proceedings prescribed 
 in this act, and such other notices as may be deemed requisite by the city 
 council. And in case the work is abandoned by the city before the letting 
 of the contract, the incidental expenses incurred previous to such aban- 
 donment shall be paid out of the city treasury. [Amendment approved 
 March 31, 1891, statutes 1891, page 199.} 
 
 [Section 5 was amended in 1889, by act of March 14, 1889, statutes 1889 r 
 p. 160, and again in 1891 by act of March 31, 1891, statutes, 1891, p. 199.J 
 
 As stated in the notes to section three, there are, 
 oidinarily, at least ten things essential to the acqui- 
 sition of jurisdiction or power to execute a valid con- 
 tract under which the property of the lot owner will be 
 liable, including the execution of the contract itself. [Pages 
 18-19, supra. \ Five of these jurisdictional prerequisites, 
 viz: (1.) Passage of resolution of intention; (2.) post- 
 ing and publication of resolution; (3.) posting and publica- 
 tion of notices of passage of the resolution; (4-) passage of 
 order for the work to be done, and (5.) publication of order for 
 the work to be done or resolution of construction are con- 
 sidered in the notes under section 3, supra. The remain- 
 ing five jurisdictional prerequisites to the existenceof a valid 
 contract are provided for by section 5 of the act. They 
 are: (1.) Posting and publication of notices inviting sealed 
 proposals; (2.) consideration of bids; (3.) award of contract; 
 (4-) posting and publication of notice of award of contracts, 
 and (5.) execution of written contract by superintendent of 
 streets. 
 
 1. Posting and Publication of Notices Inviting Sealed Pro- 
 posals. Notices inviting sealed proposals must be both 
 posted and published. 
 
 (a.) Posting Notices Inviting Proposals. The act provides 
 [Sec. 5] that notices inviting sealed proposals for doing the 
 work ordered to be done shall be posted conspicuously for 
 five days on or near the council chamber door; that the city 
 council shall cause such notices to be posted, and that the 
 " specifications" shall be posted along with such posted 
 notices. The section provides that the council shall 
 cause tne notices to be posted. From which it would seem 
 that the posting is not sufficient unless the council passes 
 an order or resolution directing the notices inviting sealed 
 proposals to be posted by the clerk or by the superintendent 
 of streets, or by some one under their authority. This 
 direction may be contained in a separate and independent 
 order or in the resolution of construction or order for the 
 
NOTICES INVITING SEALED PROPOSALS SfiAiffiB?^ 6 * 45 
 
 work to be done. Thus, in Shepard v. Colton, 44 Cal. 628, 
 the resolution of construction, or order for the work to be 
 done, after resolving that the work be done, contained a 
 provision, as follows: "And the clerk is hereby authorized 
 to advertise for proposals to do the above work." Held, that 
 the resolution directing or authorizing the clerk to "adver- 
 tise" for proposals was sufficient authority to the clerk to 
 advertise for proposals in the mode provided by law that 
 it authorized him to post the notice as well as to publish it. 
 This case holds that the use of the word "advertise" was 
 sufficient authority to the clerk to both post and publish 
 the notice. At the same time it seems to be assumed that 
 the posting or publishing by the clerk would not be sufficient 
 unless there was some kind of order or direction to him 
 from the council to do so. [See also opinion of Temple J. 
 in Chambers v. Satterlee, 40 Cal. 521-522; Hewes v. 
 Reis, 40 Cal. 255.] 
 
 In Meuser v. Risdon, 36 Cal. 239, it was held that where 
 the contractor fails to perform the work, and it becomes 
 necessary to relet the contract the same course must be 
 pursued in reletting which is prescribed in the first 
 instance after the order to do the work is made and pub- 
 lished; that in the first instance the clerk has no authority 
 independent of an order of the board therefor to give the notice 
 inriting sealed proposals; and, therefore, in case of such 
 reletting, he has no such power independent of such order, 
 and if there be no such order the second contract made 
 after such attempted reletting is void; also that each pro- 
 ceeding to improve a street is a separate and independent 
 proceeding and must stand or fall by itself, and that, there- 
 fore, authority cannot be conferred upon the clerk to post 
 notices by a general resolution directing him in all cases 
 where the contractors fail to perform to re-advertise for 
 proposals. [See also Donnelly v. Tillman, 47 Cal. 40; Don- 
 nelly v. Marks, 47 Cal. 187.] 
 
 The posting of the notice inviting sealed proposals in 
 the manner required by the law is one of the necessary, 
 indispensable jurisdictional prerequisites, and if not posted 
 for the time required by law, the con tract and all subsequent 
 proceedings are void. [Hewes v. Reis, 40 Cal. 255.] 
 
 The order of the council authorizing the clerk to adver- 
 tise for proposals to do street work is sufficient, although it 
 does not mention "sealed" proposals, nor specify the time 
 or place of giving notice. [Himmelman v. Byrne, 41 Cal. 
 500.] 
 
 When the statute directs a notice to be posted in the 
 office of any official, as, for example, in the office of the 
 
46 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 superintendent of streets, for a certain number of days, 
 it must be posted in such office and kept posted for each 
 one of such days during the whole time during which the 
 office is by law to be kept open. That is, in such case the 
 days during which the notice is to be posted are "official" 
 days. Thus, in Himmelmanii v. Cahn, 49 Gal. 285, the law 
 required the notice inviting sealed proposals to be posted in 
 the office of the superintendent of streets for five days, and 
 it was held that it must be posted before the commencement 
 of the first official day, that is, before 9 o'clock A. M., 
 when by statute the office was to be opened, and remain 
 posted during the whole of the first, second, third, fourth 
 and until 4 o'clock of the fifth day, at which hour the 
 statute authorized the office to be closed. [Brooks v. Satter- 
 lee, 49 Cal. 289.] 
 
 If a resolution to "grade" a street is properly passed, 
 posted and published, and the notice inviting sealed pro- 
 posals is "for grading" the street, and refers to the reso- 
 lution, it will not vitiate the notice, if, as explanatory, it 
 also informs bidders that the street is to be "regraded." 
 [Brady v. Feisel, 53 Cal. 49.] 
 
 The act provides that "specifications" must be posted 
 along with the posted notice, and also that the published 
 notice shall refer to "the specifications posted or on file." 
 If the city engineer has previously prepared specifications, 
 but has done so without authority or order from the coun- 
 cil directing them to be made, the subsequent passage of a 
 resolution directing the clerk to post and publish the notices 
 inviting proposals, to be done "in accordance with the plans 
 and specifications now on file in the office of the city clerk," 
 is tantamount to a prior direction to the city engineer to 
 make the specifications, and will be sufficient. [Stockton v. 
 Skinner, 53 Cal. 85.] ' 
 
 (b.) Publishing Notices Inviting Proposals. The act pro- 
 vides [Sec. 5] not only for posting the notice inviting 
 sealed proposals, but that the council "shall also cause 
 notice of said work, inviting said proposals, and referring 
 to the specifications posted or on file, to be published for 
 two days in a daily, semi-weekly or weekly newspaper pub- 
 lished and circulated in said city, designated by the council 
 for that purpose, and in case there is no newspaper pub- 
 lished in said city, then it shall only be posted as hereinbe- 
 fore provided." 
 
 Many of the notes and citations relative to the publica- 
 tion of the resolution of intention, of notice of the passage 
 of the same, publication of the order to do the work, and 
 likewise the notes and citations relative to posting the 
 
PUBLISHING NOTICES INVITING PROPOSALS Ma r Al?l88l? nded ^ 
 
 notices inviting sealed proposals, are applicable here. 
 For example, the citations relative to the questions: "What 
 is a 'daily' newspaper?" "Must there be an order directing 
 the publication?" etc. And, therefore, these notes and 
 citations should be read in this connection. 
 
 If the published notice inviting sealed proposals does 
 not refer to the specifications posted or on file, the proceed- 
 ings are invalid. [Stockton v. Clark, 53 Cal. 82.] 
 
 The act requires the notices inviting proposals to per- 
 form the work to be posted for five days and published 
 for two days. Judge Shaw of the Superior Court of Los 
 Angeles county recently held, in the case of May v . Lyons, 
 that the publication and the posting of the notices must be 
 contemporaneous in point of commencement. The act 
 provides that the published notice shall refer to the specifi- 
 cations on file or to the copy posted along with the posted 
 notice, and, therefore, when the notice is published there 
 must be a notice posted with specifications, to which the 
 published notice may refer. The opinion of the learned 
 judge in that case upon this point is in substance as 
 follows: 
 
 "One objection to the validity of the lien was that the 
 publication of the notice calling for proposals to perform 
 the work was not made at the proper time. In this case 
 the notice, with specifications, was posted on the 19th day 
 of August, 1889, and kept standing until the 23rd of the 
 same month, both days included, and the notice of such 
 posting was published on the 24th and 25th of August. 
 The defendant insisted that the notice of posting should be 
 contemporaneous with the posting itself, while the plaintiff 
 contended that the notice must be of a posting that is com- 
 plete, and that, therefore, the publication of the notice 
 must not begin until after the specifications have been 
 posted five days. 
 
 "The object of the proceedings required by the statute 
 was evidently to publish as widely as possible the fact that 
 bids for the proposed work were to be received, and that 
 the specifications could be seen on file and also posted at 
 the council chamber door. The specifications were to be 
 posted so as to make them easy of access, and at the same 
 time the original copy was to be seen on file. It was a nec- 
 .essary implication that there were to be two copies. It was 
 intended that those who read the published notice might 
 have time afterward to consult the specifications on file or 
 those posted, as might be most convenient. It followed 
 that a publication of the notice after the posting was com- 
 pleted and the specifications removed was not a compliance 
 
48 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 with the statute. In a case construing a statute similar to 
 this it had been held that any failure to make the publica- 
 tion as required rendered all subsequent proceedings void, 
 including the assessment. It follows, therefore, that the 
 assessment which the plaintiff sought to foreclose was void." 
 
 #. Consideration by Council of Proposals or Bids. The 
 seventh jurisdictional prerequisite, according to the division 
 adopted in the notes to section 3 [page 18 supra], is the con- 
 sideration by the council of the proposals or bids put in by 
 the bidders in response to the posted and published notices 
 inviting proposals. 
 
 All proposals or bids must be accompanied by a certified 
 check for not less than ten per cent, of the aggregate of the 
 proposal, or by a bond therefor. After all the proposals or 
 bids are delivered to the clerk within the time provided by 
 the notices inviting the same, the council, in open session, 
 examines and publicly declares the same. The council may 
 reject any and all bids, and advertise for bids over again, 
 and must reject all but the lowest regular proposal or bid of 
 any responsible bidder. If it is satisfied to accept the 
 lowest regular responsible bid, it may thereupon award the 
 contract to such lowest responsible bidder at the prices 
 named in his bid, returning to the other bidders their 
 checks or bonds as provided by the act. 
 
 3. Award of Contract. The eighth jurisdictional prere- 
 quisite is the awarding of the contract. The council must 
 award the contract for the proposed work or improvement 
 to the lowest regular and responsible bidder at the prices 
 named in his bid. This it may do by an order or resolution 
 to that effect. See Dougherty v. Hitchcock, 35 Cal. 517, for 
 form of a "resolution of award." The resolution, order or 
 ordinance of award is the authority of the superintendent 
 of streets to enter into and execute the contract. [Dougherty 
 v. Hitchcock, supra. ] The award, if made by less than a three- 
 fourths vote of the city council as, if made by a bare 
 majority of a quorum, for example must be approved by 
 the mayor, if made by a three-fourths vote of the whole 
 council, it need not receive the mayor's approval. [McDon- 
 ald v. Dodge, 97 Cal. 112.] 
 
 4. Posting and Publishing Notice of Award. The ninth 
 jurisdictional prerequisite to the. existence of a valid con- 
 tract is the posting and publishing of a notice that the con- 
 tract has been awarded. Notice of the award of the con- 
 tract must be posted for five days and published for two 
 days. 
 
 (a.) Posting Notice of Award. Notice of the award of 
 the contract to the lowest regular and responsible bidder 
 
PUBLISHING NOTICE OF AWAED Er.ffS^ 49 
 
 must be posted for five days in the same manner as notices 
 inviting proposals are directed to be posted, viz., conspicu- 
 ously for five days on or near the council chamber door of 
 the city council. 
 
 (b.) Publishing Notice of Award. Notice of award must 
 likewise be published for two days in a daily newspaper 
 published and circulated in said city and designated by the 
 city council, or in cities where there is no daily newspaper, 
 by one insertion in a semi-weekly or weekly newspaper so 
 published, circulated and designated. If there is no such 
 daily, semi-weekly or weekly newspaper, then the notice 
 need not be published, but must be posted and kept posted 
 as above provided. 
 
 The council must pass a resolution or order directing 
 notice of the resolution of award to be posted and published, 
 or else all proceedings, subsequent to the resolution of 
 award, will be void. 
 
 In Donnelly v. Tillman, 47 Cal. 40, the court held that 
 the board of supervisors of the city and county of San Fran- 
 cisco must make an order that the notice of the award of 
 the contract for improving a street be published. A publica- 
 tion of the notice without such order is void. The court iu 
 that case said: "The plaintiff claims that this duty [publi- 
 cation of notice of award] is incumbent on the superintend- 
 ent of streets, and the defendant claims that it devolves on 
 the board of supervisors. The power to improve the streets 
 is granted to the board, and authority is given to it to insti- 
 tute and conduct the proceedings in the cases where the 
 law requires a contract for the doing of the work. The 
 board makes all orders up to and including the award of 
 the contract to the successful bidder, and in most respects 
 it has control or supervision of all subsequent proceedings. 
 The statute declares that at a certain stage in the proceed- 
 ings the board shall be deemed to have acquired jurisdic- 
 tion to order the proposed work to be done. These provisions 
 lead to the conclusion that it is the intention of the statute 
 that the board should have all authority in respect to the 
 improvement of streets, which is granted by the statute, but 
 which is not conferred expressly or by necessary implication 
 upon some of the officers mentioned in the statute, and not 
 as contended by plaintiff, that the statute grants such resid- 
 uary authority to the superintendent of streets." [See also 
 Donnelly v. Marks, 47 Cal. 187; Shepard v. Colton, 44 Cal. 
 628; Himmelmann r. Town send, 49 Cal. 150; Himmelmann 
 v. Satterlee, 49 Cal. 387; Reis v. Graff, 51 Cal. 86.] 
 
 5. Execution of the Contract by the Superintendent of Streets. 
 The tenth and last act necessary to the existence of a valid 
 
50 STREET WORK LAW STREET IMPROVEMENT ACT< 
 
 contract, under Which the contractor may proceed to do the 
 work, is th^ execution of the formal written contract by the 
 superintendent of streets. 
 
 For some purposes, and in some respects, the contract is 
 complete when the council accepts the contractor's bid and 
 awards the contract, although it is subject to the right of 
 the property owners to come in and elect to take the work 
 and enter into a contract therefor themselves. The draw- 
 ing up of a formal written contract, specific in its terms, 
 executed by the superintendent on behalf of the city, is a 
 formal reduction to writing of the contract made by the 
 acceptance of the contractor's proposals. In Chambers v. 
 Satterlee, 40 Gal. 526, Judge Temple said: "The agree- 
 inent is complete when the bid is accepted, and it is the 
 contract made by the board [council] which the superin- 
 tendent is required to reduce to writing." [See also Argen- 
 tia v. San Francisco, 16 Cal. 256, 280.] Nevertheless, in 
 order to make the property of the lot owners liable under an 
 assessment to pay for the work, a formal written contract 
 duly authorized by the act, and executed according to its 
 requirements, is indispensable. In other words, the agree- 
 ment called into existence by the acceptance of the con- 
 tractor's proposals, or bid, must be formally reduced to 
 writing and signed by the superintendent of streets before 
 the property of the lot owners can be held liable. [Dough- 
 erty v. Hitchcock, 35 Cal. 512.] 
 
 Under the act the owners of three-fourths of the frontage 
 have ten days after the first posting and publication of the 
 notice of award, within which to elect to take the work 
 themselves, at the price at which the same has been 
 awarded, and enter into a written contract therefor. If the 
 said owners fail to elect to take said work, or, if after entering 
 into a contract to do so, they fail to commence the work 
 within fifteen days after the first posting and publishing of 
 notice of the award, and to prosecute the same with diligence, 
 it becomes the duty of the superintendent of streets to enter 
 into and execute a contract with the original bidder to 
 whom the contract was awarded and at the prices specified 
 in his bid. 
 
 Section 6 of the act (post) specifically authorizes the 
 superintendent of streets to make all written contracts, and 
 provides that the contract shall contain certain provisions, 
 viz: (1.) The contract shall fix the time for the com- 
 mencement of the work, which shall not be less than fifteen 
 days from the date of the contract, and for the completion. 
 (2.) A proviso to the effect that the work must be done 
 under the direction and to the satisfaction of the superin- 
 
EXECUTION OF THE WRITTEN CONTRACT ?f_ c : ^? 8 1 S5? ended 51 
 
 Mar. 31, 
 
 tendent of streets. (3.) Likewise that the materials shall 
 comply with the specifications and be to the satisfaction of 
 the superintendent of streets, arid (4-) Express notice that 
 in no case, except where it is otherwise provided by said 
 act, will the city, or any officer thereof, be liable for any 
 portion of the expense nor for any delinquency of persons 
 or property assessed. 
 
 The resolution of award, or order awarding the con- 
 tract, is the letter of authority to the superintendent, and 
 the contract executed by him must be such as is author- 
 ized by the resolution of award and no other. [Dough- 
 erty v. Hitchcock, 35 Cal. 512; Brock v. Luning, 89 Cal. 
 316.] 
 
 The act [Section 5], in addition to the execution of the 
 formal written contract by the superintendent of streets, 
 provides that all contractors, including contracting owners, 
 shall, at the time of executing any contract for street work, 
 execute a bond to the satisfaction and approval of the 
 superintendent of streets, conditioned for the faithful per- 
 formance of the contract. But while the due execution of 
 the formal written contract is jurisdictional, it seems that 
 the execution of such accompanying bond is not. In Miller 
 r. Mayo, ss Cal. .'>(',*, it was held that u a failure to execute 
 a bond that should be satisfactory to the superintendent of 
 streets might be a sufficient reason for the superintendent 
 to refuse to enter into the contract with the contractor 
 but after the work has been completed to the satisfaction 
 of the superintendent of streets the property owner can 
 not object to the correctness of the assessment by reason of 
 the omission on the part of the superintendent to approve 
 the bond of the contractor." 
 
 The superintendent has no power or jurisdiction to enter 
 into a contract at any time prior to the expiration of the 
 time within which the property owners may take the con- 
 tract, i. e., within ten days after the first posting and publi- 
 cation of the notice of award, and if the superintendent 
 does execute the contract within that time, it, and all pro- 
 ceedings following, are void, and do not become valid by 
 reason of a failure to appeal. [Burke v. Turney, 54 Cal. 
 486; Manning v. Den, 90 Cal. 610.] Not only is a contract 
 entered into prematurely, i. e., prior to the expiration of 
 ten days after the first posting and publishing of the notice of 
 award, void, but likewise, a contract is void which is not 
 entered into within the time prescribed by the statute, 
 which, according to the express provision of the act, is fif- 
 teen days after the first posting and publication of the 
 
52 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 notice of award, and a failure to appeal does not cure the 
 defect. [Ferine v. Forbush, 97 Cal. 305.] 
 
 The successful bidder may by power of attorney, author- 
 ize another person to enter into the contract with the super- 
 intendent. [McVerry v. Boyd, 89 Cal. 304.] 
 
 Contents of Contract. The contract must contain a pro- 
 vision fixing the time for the commencement of the work, 
 which shall not be less than fifteen days from the date of 
 the contract, and also for its completion. [Section 6 of the 
 act.] If the contract does not contain such a provision it 
 is void. [Libby v. Ellsworth, 97 Cal. 316; Washburn v. 
 Lyons, 97 Cal. 314.] The same result would follow if either 
 of the other three things required by section 6 of the act were 
 omitted from the contract, that is to say, the contract must, 
 in addition to a provision fixing the time for the commence- 
 ment of the work, and for the completion, likewise contain 
 the following provisions, viz.: (1.) A provision to the effect 
 that the work shall be done under the direction and to the 
 satisfaction of the superintendent of streets; (2.) that the 
 materials used shall comply with the specifications and be 
 to the s itisfaction of the superintendent of streets, and 
 (3.) that in no case except where it is otherwise provided by 
 the act, will the city or any officer thereof, be liable for any 
 portion of the expense, nor for any delinquency of persons 
 or property assessed. If the contract does not contain these 
 provisions, it, and all subsequent proceedings, are void. 
 
 If specifications made by the superintendent of streets are 
 annexed to the contract, and the contract refers to the speci- 
 fications so as to make them a part thereof, and the specifi- 
 cations state what kind of material shall be used in this 
 case "Goat island rock," for macadamizing purposes this 
 is a sufficient compliance with the requirement that the 
 contract shall contain a provision to the. effect that the 
 materials used shall "be to the satisfaction of the superin- 
 tendent of streets," etc. [Emery v. S. F. Gas Co., 28 Cal. 346, 
 347, 377 ; Taylor v. Palmer, 31 Cal. 240.] In this latter case the 
 court said: " It is next claimed that the contract in suit * * 
 is invalid, because it does not contain the condition made 
 essential by the statute that 'the materials used shall be such 
 as are required by the superintendent of streets.' The 
 objection is without substantial foundation. The contract 
 may not follow the precise language of the statute. It is 
 not necessary that it should. If it can be held to contain 
 the condition in question by a fair and reasonable construc- 
 tion, the call of the statute is fully answered." 
 
 If the council, in the advertisement for proposals or bids, 
 calls for a patented article for doing the street work in 
 
CONTENTS OF THE WRITTEN CONTRACT M^f i$ 3nded 53 
 
 question as, to pave a street with NicolsDn pavement, for 
 example and awards a contract therefor to one who owned 
 the exclusive right to put down such pavement in the city, 
 the award, and the written contract made in pursuance 
 thereof, are void. The reason is that the council has no 
 power, in making street improvements, to do any kind of 
 work which for any reason cannot be let or contracted for 
 in the mode prescribed in the statute, or which the owners 
 of the frontage are legally prohibited from performing. In 
 such a case there could be no letting to the "lowest bidder/' 
 since there could be but one bidder who would enjoy a 
 monopoly. All persons, other than the owner of the patent, 
 would be precluded from bidding. [Nicolson Pavement Co. 
 v. Painter, 35 Cal. 699; Nicolson Pavement Co. v. Fay, 35 
 Cal. 095.] 
 
 Where, however, the advertisement for proposals, the 
 award and the contract, are all silent as to the use of pat- 
 ented materials neither requiring nor prohibiting the use 
 of the same and the contractor, in performing his contract, 
 uses patented materials, the mere use of such materials by 
 the contractor will not vitiate the assessment, where the 
 superintendent of streets certifies that the work was properly 
 done. [Dunne v. Altschul, 57 Cal. 472. See subdivision 6 
 of section 34 of the act.] 
 
 The council has jurisdiction or power to contract only 
 for such street work as is named in the resolution of inten- 
 tion, and the contract should be for the exact work named 
 in the resolution of intention no more and no less. How- 
 ever, if the contract includes more work than is mentioned 
 in the resolution of intention, the result may be different 
 from what it would be if the contract were for less work 
 than that mentioned in the resolution. 
 
 In the former case, i. e., where the contract includes more 
 work than is named in the resolution, the right of the con- 
 tractor to recover depends upon whether the contract is 
 severable or not. 
 
 If the contract includes work not named in the resolu- 
 tion the right of the contractor to recover, in that case, 
 depends upon whether the work named in the resolution 
 and in the contract therefor, can be separated from the 
 work included in the contract but not named in the resolu- 
 tion. Thus, if the resolution of intention declares only an 
 intention to macadamize a street, and the contract should 
 include curbing as well as macadamizing, the contractor 
 may, nevertheless, recover for the macadamizing, if it can 
 be separated from the curbing so that the cost of macada- 
 mizing, according to the contract price of the same, can 
 
54 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 be separated from the cost of the curbing. The only 
 remedy of the property owner is by appeal to the council. 
 [Baudry v. Valdez, 32 Gal. 269; Dyer v. Scalmaiiiiii, 69 Gal. 
 637.] 
 
 So, also, if the resolution of intention includes two or 
 more kinds of work, and the contract follows the resolution 
 in this respect, and as to one of the kinds of work ordered 
 the council never acquired jurisdiction, the contract is still 
 valid as to the work properly included in the resolution of 
 intention. Thus under the act of 1872, a petition was 
 necessary to empower the board of supervisors to order 
 grading, but was not necessary to empower the board to 
 order macadamizing; nevertheless, if both be ordered in one 
 resolution of intention, without any petition being filed, the 
 contract for macadamizing is valid, though void as to the 
 grading. [Gafney v. San Francisco, 72 Gal. 146, 151.] 
 
 The assessment and demand, however, must be for the 
 amount recoverable. [Borland v. Bergson, 78 Gal. 637; 
 Chambers v. Satterlee, 40 Gal. 497; Dyer v. Chase, 52 Gal. 
 440; Donnelly v. Howard, 60 Gal. 291.] On the other hand 
 the contractor cannot recover at all if the work named in 
 the resolution of intention, and the cost thereof cannot 
 be separated from that which is not mentioned in the reso- 
 lution. The contract is void as to the work not mentioned 
 in the resolution, because as to this work the council never 
 acquired jurisdiction to order it to be done, and if the con- 
 tract is not severable, the whole must fall. [Himmelmaim 
 v. Satterlee, 50 Gal. 68; Nicolson Pavement Co. v. Fay, 35 
 Gal. 695; Dorland v. Bergson, 78 Gal. 637; City of Stockton 
 v. Creanor, 45 Gal. 643; Partridge v. Lucas, decided Sept. 
 11, 1893.] 
 
 While the contractor may recover, notwithstanding the 
 fact that the contract calls for more work than the resolu- 
 tion of intention authorizes, provided the contract be sev- 
 erable, the converse of the proposition is not true. That is 
 to say, if the contract calls for less work than that 
 named in the resolution of intention, it is void and there 
 can be no recovery under it. [City of Stockton v. Whit- 
 more, 50 Gal. 554; McBean v. Redick, 96 Gal. 191; Dough- 
 erty v. Hitchcock, 35 Gal. 512.] 
 
 The written contract must follow the award, and if it 
 grants more time for the completion of the work than is 
 specified in the award, it is not the contract the superin- 
 tendent is authorized to execute, and is, therefore, void. 
 [Brock v. Luning, 89 Gal. 316.] 
 
 The contract will not be invalidated if it contain a 
 provision to the effect that there shall be no assessment on 
 
FRAUDULENT SIDE AGREEMENT g 1 m 
 
 the adjoining property for improving that part of the street 
 occupied by a street railway company, but that the com- 
 pany shall pay therefor. [Ferine v. Forbush, 97 Cal. 305.] 
 
 A clause in a contract to the effect that the contractor 
 shall keep the street in repair for five years imposes an 
 additional burden on the property owner, not authorized 
 by the statute, and the contract and assessment under it 
 are void. It matters not that the testimony of the con- 
 tractor shows that this clause did not enhance the amount 
 of his bid, as others might have bid a less amount if the 
 contract had not contained such requirement. [Brown v. 
 Jenks, decided by our Supreme Court, March 27, 1893, 32 
 Pac. Rep. 701.] 
 
 Fraud on the Part of the Contractor in Entering into the 
 Contract. If the contractor, before the contract is awarded, 
 combines and confederates with a portion of the property 
 owners, and, for the purpose of inducing those with whom 
 he thus combines to sign a petition asking the council to 
 do the work, he enters into a private side agreement with 
 these property owners, agreeing to charge them less for 
 their portion of the cost of the work than the other prop- 
 erty owners, this side agreement is a fraud upon the prop- 
 erty owners not confederating with the contractor. It was 
 held in Nolan v. Reese, 32 Cal. 484, that, notwithstanding 
 the fact that this side agreement was a fraud in law, the 
 defrauded property owners could not set it up as a defense 
 to an action by the contractor upon the assessment, because 
 the act then in existence the act of 1862, statutes 1862, 
 page 391 et seq. did not admit such a defense, and that 
 the property owner's only remedy was by appeal to the 
 council. [Chambers v. Satterlee, 40 Cal. 520; Himmel- 
 mann v. Hoadley, 44 Cal. 213.] 
 
 In the case of Brady v. Bartlett, 56 Cal. 350, however, it 
 was held that under the 13th section of the act of 1872 
 [Statutes 1871-2, p. 817], this defense could be set up 
 by the property owner, arid in that case it was held 
 that such fraudulent side agreement invalidated the con- 
 tract with the city, and also the assessment made thereun- 
 der. This act of 1872 expressly provided that "fraud in 
 the assessment or in any of the acts or proceedings prior 
 thereto" might be set up in defense to the action. [Statutes 
 1871-2, p. 817.J Section 12 of the Vrooman act is the 
 section which corresponds to section 13 of this act of 1872. 
 [See section 12 of the Act, post.] Section 12 of 
 the Vrooman act does not expressly provide for such 
 a defense, and it is probable, unless there be some 
 provision overlooked by the author, that the doctrine 
 
56 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 of Nolan v. Eeese, 32 Gal. 484, will be followed by the 
 courts in actions arising under the Vrooman act, if such 
 a defense is interposed to an action upon an assessment for 
 work done under the Vrooman act. By section 11 of the 
 Act it is provided that "no assessment shall be 
 held invalid, except upon appeal to the city council, as 
 provided by this section, for any error, informality or other 
 defect in any of the proceedings prior to the assessment, 
 or in the assessment itself, when notice of the intention of 
 the council to order the work to be done, for which the 
 assessment is made, has been actually published in any 
 designated newspaper of said city for the length of time 
 prescribed by law, before the passage of the resolution 
 ordering the work to be done." This language is, in itself, 
 broad enough to shut out all inquiry (except upon appeal to 
 the council) into the performance of the jurisdictional 
 prerequisites to be performed subsequent to the publication 
 of notice of intention to order the work to be done. But, 
 as held in Manning v. Den, 90 Cal. 610, the property 
 owner does not, by failing to appeal to the council, waive 
 the right to resist payment of an assessment when there 
 has been a failure to perform any one of the jurisdictional 
 prerequisites in the manner provided for by the statute, 
 as, for example, where the superintendent of streets and the 
 contractor have executed the contract prematurely or 
 have neglected to enter into and execute the written con- 
 tract within the time required by the statute. But this ruling 
 does not prevent a failure to appeal from operating as a 
 waiver of the right to collaterally attack the contract or 
 assessment because of some error, informality or 
 other defect in the proceedings, not amounting to 
 a failure to perform a jurisdictional prerequisite, and it 
 appears from the decision in Nolan v. Reese that a fraudu- 
 lent side agreement is an informality or defect which does 
 not effect the jurisdiction or power of the city authorities. 
 The ten necessary jurisdictional prerequisites to the 
 existence of a valid contract, under which the contractor 
 may recover upon assessments for work performed, have 
 now been considered in the notes to the above section of 
 the act [Sec. 5] and in. the notes to section 3. They are: 
 (1.) Passage of resolution of intention; (2.) posting and 
 publication of resolution of intention; (3.) posting and pub- 
 lication of notices of passage of the resolution of inten- 
 tion; (4-) passage of resolution of construction or order 
 that the work be done; (5.) publication of order to do the 
 work (these five jurisdictional prerequisites are provided 
 for by section 3 of the act); (6.) publication and posting 
 
RE-ADVERTISEMENT FOR 1'ROPOSALS ifi.^jffif 11 *^ 1 57 
 
 of notices inviting sealed proposals; (7.) consideration of 
 the bids by the council; (8.) award of the contract; (9.) 
 publication and posting of notices of award of contract; 
 (10.) execution of written contract by the superintendent 
 of streets. [See xiipi-n, pp. 1819.] 
 
 6. OtJicr rrfjtt'nr in cuts of Section 5- Section 5 of the act like- 
 wise provides for certain other requirements, some of 
 which must be complied with if occasion gives rise to 
 them, e. g., the re-advertisement for bids, etc., while 
 others aro a part of the procedure attending the regular 
 performance of the jurisdictions! requirements. These 
 requirements are: 
 
 (J.) Proposals must be accompanied by a certified check 
 or bond, and "no proposal or bid shall be considered unless 
 accompanied by said check or bond satisfactory to the 
 council." 
 
 (2.) Re-advertisement for Proposals or Bids. There are three 
 cases in which it might become necessary to re-advertise for 
 bids, viz: 
 
 (a.) The council may reject any and all proposals, should 
 it deem this for the public good, and also the bid of any 
 party who has been delinquent and unfaithful in any former 
 contract with the municipality. Should the council thus 
 reject all proposals or bids, it may re-advertise for bids. 
 
 (b.) A majority of the council, less than three-fourths, 
 may vote to award the contract to a bidder, but the mayor 
 may not approve the award; in such case, the award not 
 being approved by the mayor or a three-fourths vote of the 
 council, the council, without further proceedings, may re-ad- 
 vertise for proposals or bids, as in the first instance. 
 
 (c.) If an original bidder to whom the contract was duly 
 awarded in the iirst instance neglects, fails or refuses, for 
 fifteen days after the first posting and publication of the 
 notice of award, to enter into the contract, the council, with- 
 out further proceedings, may again advertise for proposals 
 or bids, as in the first instance, and award the contract to 
 the lowest bidder. 
 
 The contractor, or the owners who have themselves taken 
 the contract, might not complete the same within the time lim- 
 ited in the contract, or within such further time as the city 
 council may have given them. In such case, after the 
 superintendent of streets has reported such delinquency to 
 the council, the council " may relet the unfinished portion 
 of such work, after pursuing the formalities prescribed 
 hereinbefore for the letting of the whole in the first 
 instance." In such case, i.e., where the contractor by failing 
 to complete his contract within the proper time has left a 
 
58 STREET WORK LAW- STREET IMPROVEMENT ACT 
 
 portion of the work unfinished, the council does not re-ad- 
 vertise for bids, or relet the contract, as in the three cases 
 above enumerated, but commences original proceedings, de 
 novo, and relets such unfinished portion only ''after pursu- 
 ing the formalities prescribed hereinbefore for the letting 
 of the whole in the first instance." The portion thus left 
 unfinished is not the same work as that described in the 
 original resolution of intention and the notices subsequent 
 thereto. It is a smaller part of the work originally proposed 
 to be done, and therefore, as such unfinished work is not 
 the same work originally described in the resolution of 
 intention, it would seem, but reasonable to require entirely 
 new proceedings, de capo, to be begun. 
 
 Furthermore, the portion of the work thus left unfinished 
 is not the work which the council, in the first instance, 
 ordered to be done. It is true that if, after the coun- 
 cil has ordered certain work to be done, no valid 
 contract therefor is let, or, if being let, the contract 
 is not performed at all, the council may proceed to 
 re-advertise for bids and relet the contract without tak- 
 ing steps to acquire jurisdiction as in the first instance. 
 The order to do the work is in the nature* of a judgment 
 [Dougherty v. Foley, 32 Cal. 403], and the subsequent pro- 
 ceedings are ministerial in their character and for the pur- 
 pose of carrying this order or quasi judgment into effect. 
 In such case there is a valid subsisting order for the work 
 which may be made the foundation for a subsequent con- 
 tract to do the work described in the order and ordered to 
 be done. But where a contract has been duly let and the 
 work partly perfoimed and left unfinished, there is then no 
 order for doing that particular work which constitutes such 
 unfinished portion, and to bring into existence a valid 
 order upon which a contract for doing this unfinished por- 
 tion may be based, it seems to be necessary for the council 
 to commence entirely new proceedings de capo so as to 
 acquire jurisdiction to make an order to do such unfinished 
 portion, in order that the contract may follow the order and 
 be a contract for the performance of the particular work 
 thus ordered to be done. 
 
 Procedure on Re-advertising and Reletting Contract. If r 
 after the contract has been let and entered into, but before 
 any portion of the work has been done, the contractor fails 
 to enter upon the performance of the work within the 
 time fixed in his contract to perform, the council may 
 re-advertise for bids and relet the contract without taking 
 steps to acquire jurisdiction as in the first instance. And 
 this, even though there should be no express provision of 
 
RE- ADVERTISING CONTRACTOR'S BOND ^ r I ,f 8 1 2S ended 59 
 
 Mar. 31, 1891. 
 
 the statute authorizing re-advertising and reletting in such 
 case. [Dougherty v. Foley, 32 Cal. 403.] In this case the 
 court, per Shafter, J., said: "The board having acquired 
 jurisdiction in the manner pointed out in the fourth sec- 
 tion of the act of 1862 [statutes 1862, p. 392], ordered the 
 work to be done. This order was in the nature of a judg- 
 ment. The subsequent steps were ministerial in their 
 character. They were taken for the purpose of carrying 
 the order into execution. The failure of the contractor to 
 perform his contract could not on any known principle 
 affect the validity nor impair the efficiency of the order. 
 If the contract had been kept, the order would have been 
 fnn<ius officio; but as it was not kept the requirement that 
 the 'work should be done' stood unexecuted, and as 
 mandatory as ever. * * * The work having been 
 ordered, the process of doing it was by contract. When 
 the contract failed by the bad faith of the man who made 
 it, the case stood as it would if no contract had ever been 
 made, and the statute process could be repeated upon the 
 unexecuted order." [See also Himmelmann v. Oliver, 34 
 Cal. 246.] 
 
 If the contractor, or the owners who take the contract, 
 fail to perform any part of it, and the council re-advertises 
 for proposals, and relets the contract, or if in any case 
 where it is proper, proposals are re-advertised for, the same 
 course must be pursued which is prescribed in the first 
 instance for letting the contract, in so far as the proceedings 
 subsequent to the order for doing the work are concerned. 
 Therefore, as in the first instance, it is necessary that the 
 council should pass a resolution or order directing the 
 clerk to post and publish the notices inviting proposals, it 
 follows that if, in re-advertising for sealed proposals, the 
 clerk posts and publishes such notices without a resolution 
 or order by the council therefor, the posting and publish- 
 ing are insufficient and the proceedings are therefore void. 
 [Meuser v. Risdon, 36 Cal. 239.] 
 
 (3.) Lot Owners Taking Contract. The owners of three- 
 fourths of the frontage, or their agents, who shall make 
 oath that they are such owners or agents, may, without pre- 
 senting sealed proposals or bids, and within ten days after 
 the first posting and publication of the notice of the 
 award of the contract to the successful bidder, elect to 
 take the work and enter into a contract to do it at the same 
 price at which it was awarded. 
 
 (4-) Bond Accompanying Contract. All contractors, con- 
 tracting owners included are, by the act, required to give a 
 bond, at the time of executing the contract, conditioned for 
 
60 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 the faithful performance of the contract, the bond to be 
 to the satisfaction and approval of the superintendent of 
 streets. 
 
 It was held in Miller v. Mayo, 88 Gal. 568, that the prop- 
 erty owner, in an action to foreclose alien for street assess- 
 ment can not object to the correctness of the assessment by 
 reason of the omission of the superintendent of streets to 
 approve the bond of the contractor. 
 
 7. Assignment of Contract. A contract to perform street 
 work may be assigned, and the contract may be fulfilled by 
 the assignee, who can enforce the same. [Taylor v. Palmer, 
 31 Cal. 241.] These street work contract's do not belong to 
 that class of contracts which the party who is to perform 
 the stipulated work is not permitted to assign by 
 reason of the trust and confidence reposed in his skill and 
 ability by the other contracting party. [Id.] 
 
 Where a contract is thus assigned and the assignee does 
 the work, the warrant running to the original contractor, 
 his agents or assigns, may be issued and delivered to the 
 original contractor, and the demand for payment may be 
 made by him. In suph case the original contractor acts as 
 the agent of his assignee. [Id.] 
 
 If a lot owner takes the contract and then assigns it to 
 some one else, who performs the contract, the assignee 
 may sue his assignor the lot owner arid original con- 
 tractor for the assessment 'against his lot, and it cannot be 
 objected that the lot owner, as contractor, cannot sue him- 
 self as lot owner upon a contract made with himself, and 
 that therefore his assignee cannot sue him. The reason is 
 that the contractor or his assignee does not sue upon the 
 contract, but takes the place of the city in suing to recover 
 the tax levied or assessed upon the lots to pay for the 
 improvement. A triangular relation exists between the 
 city, the contractor and the lot owner. The city govern- 
 ment and the contractor are the only parties to the pro- 
 ceeding so far as making the improvement is concerned. 
 The adjoining property holders are not parties to 
 the contract. The improvement being done, 
 the city government acts alone in its political 
 capacity in apportioning and levying the tax; but when 
 provision is made for the collection of the tax the city gov- 
 ernment steps out of the triangle, and the contractor is 
 thrust into her place and made her agent for the collec- 
 tion of the tax. [Hendrick v. Crowley, 31 Cal. 472. J In 
 case of an assignment of the contract, a debt due to a prop- 
 erty owner from the contractor agreed to be set off* by the 
 latter, cannot be set off against the contractor's assignee by 
 
SECTION SIX OF THE ACT B < 5M? f 61 
 
 whom the whole work was done without notice of the agree- 
 ment. [Himmelmann r. Reay, 38 Cal. 163. J In this case 
 the contractor agreed with one of the property owners 
 whose property was assessed to pay for the improvement, 
 and to whom the contractor was indebted, that the con- 
 tractor's debt to the property owner might be credited by 
 the amount of the property owner's 'assessment. Before 
 any work was done by the contractor he assigned his con- 
 tract to another who did the work. The assignee of the 
 contractor after doing the work, assigned his claim to the 
 plaintiff. Neither the plaintiff nor his assignor who did 
 the work the assignee of the contractor had any notice 
 of the agreement between the property owner and the con- 
 tractor. In an action by plaintiff against defendant, the 
 property owner, for the amount of his assessment, it was 
 held that the indebtedness from the contractor to the 
 defendant furnished no ground for a counter claim. 
 
 If certain of the property owners take the' contract, and 
 after they have done the work and the assessment is made, 
 assign all their right and title in the contract and in the 
 assessment, warrant and diagram, and all the moneys due 
 and to grow due thereon, they are estopped to deny the 
 validity of the contract and of the assessment. [Callender 
 v. Patterson, GO Cal. 356.] 
 
 SECTION- (j. Ti, intendent of streets is hereby authorized, in his 
 
 official capacity, to make all written contracts, and receive all bonds 
 authorized hy this act, and to do any other act, either express or implied, 
 that pertains to the street department under this act; and he shall fix the 
 time for the commencement, which shall not be more than fifteen days 
 from the date of the contract, and for the completion of the work under 
 all contracts entered into by him, which work shall be prosecuted with 
 diligence from day to day thereafter to completion, and he may extend 
 the time so fixed from time to time, under the direction of the city coun- 
 cil. The work provided for in section 2 of this act, must, in all cases, be 
 done ujider the direction and to the satisfaction of the superintendent of 
 streets, and the materials used shall comply with the specifications and be 
 to the satisfaction of said superintendent of streets, and all contracts 
 made therefor must contain a provision to that effect, and also express 
 notice, that, in no case, except where it is otherwise provided in this act, 
 will the city, or any officer thereof, be liable for any portion of the 
 expense, nor for any delinquency of persons or property assessed. The 
 city council may, by ordinance, prescribe general rules directing the 
 superintendent of streets and the contractor as to the materials to be 
 used, and the mode of executing the work, under all contracts thereafter 
 made. The assessment and apportionment of the expenses of all such 
 work or improvement shall be made by the superintendent of streets in 
 the mode herein provided. [Statutes 1885, p. 161.] 
 
 [Section 6 of the act of March 18, 1885, never has been amended.] 
 
62 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 Section 6 of the act expressly directs the superintendent 
 to insert four certain provisions in the written contract, 
 viz: (1.) A provision fixing the time for the commence- 
 ment and completion of the work; (#,) a provision that the 
 work shall be done under his direction and to his satisfac- 
 tion; (3.) that the materials used shall comply with the speci- 
 fications and be to the satisfaction of the superintendent of 
 streets, and (4.) that, in no case, except where it is other- 
 wise provided in the act, will the city or any officer thereof 
 be liable for any portion of the expense, nor for any delin- 
 quency of persons or property assessed. These four pro- 
 visions must be inserted in the contract or else it will be 
 void. [Supra, page 52; Libby v. Ellsworth, 97 Cal. 316; 
 Washburn v. Lyons, 97 Cal. 314.] But the contract 
 need not follow the precise language of the statute, 
 the call of the statute will be satisfied if the contract "can 
 be held to contain the condition in question by a fair and 
 reasonable construction." [Taylor v. Palmer, 31 Cal. 240; 
 Emery v. S. F. Gas Co., 28 Cal. 346, 377.] 
 
 Section 6 likewise empowers the superintendent of 
 streets as follows: 
 
 1. To make all written contracts and receive all 
 bonds, and to do any other act, either express or implied, 
 that pertains to the street department. The clause, 
 authorizing the superintendent of streets "to do any other 
 act, either express or implied, that pertains to the street 
 department," received a construction in Donnelly v. Till- 
 man, 47 Cal. 40, where it was held that it is the intention 
 of the statute that the council should have all the authority 
 in respect to the improvement of streets, which is granted 
 by the statute, but which is not conferred expressly or by 
 necessary implication upon some of the officers mentioned 
 in the statute, and that the statute only grants to the super- 
 intendent of streets power over such acts as relate to the 
 business of the street department. 
 
 2. Section 6 likewise authorizes the superintendent of 
 streets to extend the time fixed for the completion of the 
 work, from time to time, "under the direction of the city 
 council" The superintendent has no authority to grant an 
 extension of time except "under the direction of the city 
 council," i, e., pursuant to an order or resolution of the 
 council granting an extension, and the extension, if 
 granted, must be granted during the life of the contract, 
 i. e., before the time for completion has run out. If not 
 granted during the life of the contract the assessment is 
 void. [Dougherty v. Coffin, 69 Cal. 454; Fanning v. 
 Schammel, 68 Cal. 428; Beveridge v. Livingstone, 54 Cal. 
 
EXTENSION OF TIME ON CONTRACT M arches A i885 f 63 
 
 54; Mappa v. Los Angeles, 61 Cal. 309; Turney v. Dough- 
 erty, 53 Cal. 619.] The fact that the extension was made 
 with knowledge that the work had not been finished, and 
 that upon the faith thereof the contractor expended money 
 in good faith to complete the contract, cannot cure the 
 invalidity of the extension. [Raisch v. San Francisco, 80 
 Cal. 1; Dougherty v. Nevada Bank, 81 Cal. lf)2."| 
 The extension must he granted by the council during 
 the life of the contract, and if, during this time, the 
 council grants the extension, the extension will be valid 
 even if the ministerial acts which the statute requires of 
 the superintendent to be done in this connection, be not 
 done. Me Vary v. Boyd, 89 Cal. 304, where it was held fchat 
 a failure of the superintendent of streets 'to endorse upon 
 the original contract any extension of time properly 
 granted by the board of supervisors under the act of 
 1872 or to cause the resolution of extension to be recorded 
 until after the period fixed by the contract, does not render 
 the extension ineffectual. [See Ede v. Knight, 93 Cal. 159; 
 Brock v. Luning, 89 Cal. 316.] The extension will be 
 sufficient if, by an application of the maxim id cerium est 
 quod cerium reddi poiest it can be sufficiently seen that the 
 resolution of extension points to the particular contract in 
 question. Thus, if the resolution of extension refer to the 
 contract by number and specify the streets and the work to 
 be done as described in the contract, it will not be invali- 
 dated because of an error in naming the contractor. 
 [Anderson v. De Urioste, 96 Cal. 404.] If the work is not 
 completed within the time mentioned in the contract, 
 or within the time provided for by regular extension, 
 granted during the life of the contract, the assessment will 
 be void and the fact that the city failed to furnish a steam 
 roller as provided in the specifications, and that therefore 
 the contractor could not complete the w r ork in time, will 
 not prevent the assessment from ~being void. [Heft v. 
 Payne, 97 Cal. 108.] 
 
 3. Section 6 likewise empowers the superintendent of 
 streets to make the assessment and apportion the expense 
 in the mode provided by the act. 
 
 The next section (section 7 of the act) provides the rules 
 in accordance with which the assessments are to be made, 
 and section 8 prescribes the form of the assessment. [Vide 
 sections 7 and 8 and the notes thereto.] 
 
G4 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 SECTION 7. Subdivision One The expenses incurred for any work 
 authorized by this act (which expense shall not include the cost of any 
 work done in such portion of any street as is required by law to be kept 
 in order or repair by any person or company having railroad tracks 
 thereon, nor include work which shall have been declared in the resolution 
 of intention to be assessed on a district benefited) shall be assessed upon 
 the lots and lands fronting thereon, except as hereinafter specifically pro- 
 vided; each lot or portion of a lot being separately assessed, ir_ proportion 
 to the frontage, at a rate per front foot sufficient to cover the total expense 
 of 'the work. 
 
 Subdivision Two The expense of all improvements, except such as are 
 done by contractors under the provisions of section thirteen of this act, until 
 the streets, avenues, street crossings, lanes, alleys, places, or courts are finally 
 accepted, as provided in section twenty of this act, shall be assessed upon 
 the lots and lands as provided in this section, according to the nature and 
 character of the work ; and after su?h acceptance the expense of all the 
 work thereafter done thereon shall be paid by said city out of the street 
 department fund. 
 
 Subditision Three The expense of the work done on main street cross- 
 ings shall be assessed at a uniform rate per front foot of the quarter blocks 
 and irregular blocks adjoining and cornering upon the crossings, and 
 separately upon the whole of each lot or portion of a lot having any 
 frontage in the said blocks fronting on said main streets, half way to the 
 next main street crossing, and all the way on said blocks to a boundary 
 line of the city where no such crossing intervenes, but only according to 
 its frontage in said quarter blocks and irregular blocks. 
 
 Subdivision Four Where a main street terminates in another main 
 street, the expenses of the work done on one-half of the width of the 
 street opposite the termination shall be assessed upon the lots in each of 
 the two quarter blocks adjoining and cornering on the same, according to 
 the frontage of such lots on said main streets, and the expense of the 
 other half of the width of said street upon the lot or lots fronting on the 
 latter half of the street at such termination. 
 
 Subdivision Five Where any alley or subdivision street crosses a main 
 street, the expense of all work done on said crossing shall be assessed on all 
 lots or portions of lots half way on said alley or subdivision street to the next 
 crossing or intersection, or to the end of such alley or subdivision street if 
 it does not meet another. 
 
 Subdivision Six The expense of work done on alley or subdivision 
 street cross ings shall be assessed upon the lots fronting upon such alley or 
 subdivision streets on each side thereof, in all directions, half way to the 
 next street, place, or court, on either side, respectively, or to the end of 
 such alley or subdivision street, if it does not meet another. 
 
 Subdivision Seven Where a subdivision street, avenue, lane, alley, 
 place, or court terminates in another street, avenue, lane, alley, place, or 
 court, the expense of the work done on one-half of the width of the sub- 
 division street, avenue, lane, alley, place, or court opposite the termina- 
 tion, shall be assessed upon the lot or lots fronting on such subdivision 
 street, or avenue, lane, alley, place or court so terminating, according to 
 its frontage thereon, half way on each side, respectively, to the next 
 street, avenue, lane, alley, court or place, or to the end of such street, 
 
^SITT 
 
 SECTION SEVEN OP THE ACT 
 
 avenue, lane, alley, place or court, if it does not meet another, and 
 the other one-half of the width upon the lots fronting such termination. 
 
 Subdivision Eight Where any work mentioned in this act (man-holes, 
 cesspools, culverts, crosswalks, piling and capping excepted) is done on 
 either or both sides of the center line of any street for one block or less, 
 and further work opposite to the work of the same class already done is 
 ordered to be done to complete the unimproved portion of said street, the 
 assessment to cover the total expenses of said work so ordered shall bo 
 made upon the lots or portions of the lots only fronting the portions of 
 the work so ordered. And when sewering or resewering is ordered to be 
 done under the sidewalk on only one side of a street for any length 
 thereof, the assessment for its expenses shall be made only upon the lot? 
 and lands fronting nearest upon that side, and for intervening intersections 
 only upon the two quarter blocks adjoining and cornering upon that side. 
 
 Subdivision Nine Section one of chapter three hundred and twenty-five 
 of the laws of this state entitled "An act amendatory of and supple- 
 mentary to 'An act to provide revenue for the support of the government 
 of this state,' approved April twenty-ninth, eighteen hundred and fifty- 
 seven," approved April nineteenth, eighteen hundred and fifty-nine, 
 shall not be applicable to the provisions of this section; but the property 
 herein mentioned shall be subject to the provisions of this act, and be 
 assessed for work done under the provisions of this section. 
 
 Subdivision Ten It shall be lawful for the owner or owners of lots or 
 lands fronting upon any street, the width and grade of which have been 
 established by the city council, to perform at his or their own expense 
 (after obtaining permission from the council so to do, but before said 
 council has passed its resolution of intention to order grading inclusive of 
 this) any grading upon said street, to its full width, or to the center line 
 thereof, and to its grade as then established, and thereupon to procure, at 
 his or their own expense, a certificate from the city engineer, setting forth 
 the number of cubic yards of cutting and filling made by him or them in 
 said grading, and the proportions performed by each owner, and that the 
 the same is done to the established width and grade of said street, or to 
 tne center line thereof, and thereafter to file said certificate with the super- 
 intendent of streets, which certificate the superintendent shail record in a 
 book kept for that purpose in his office, properly indexed. Whenever 
 thereafter the city council orders the grading of said street, or any portion 
 thereof, on which any grading certified as aforesaid has been done, the 
 bids and the contract must express the price by the cubic yard for cutting 
 and filling in grading; and the said owner or owners, and his or their 
 successors in interest, shall be entitled to credit on the assessment upon his 
 or their lots and lands fronting on said street for the grading thereof, to 
 the amount of the cubic yards of cutting and filling set forth in his or 
 their said certificate, at the prices named in the contract for said cutting 
 and filling; or, ii the grade meanwhile has been duly altered, only for so 
 much of said certified work as would be required for grading to the 
 altered grade; provided, hoirece.r, that such owner cr owners shall not be 
 entitled to such credit as may be in excess of the assessments for grading 
 upon the lots and lands owned by him or them, and proportionately 
 assessed 1'or the whole of said grading; and the superintendent of streets 
 shall include in the assessment for the whole of said grading upon the 
 
06 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 same grade the number of cubic yards of cutting and filling set forth in 
 any and all certificates so recorded in his office, or for the whole of said 
 grading to the duly altered grade so much of said certified work as would 
 be required for grading thereto, and shall enter corresponding credits, 
 deducting the same as payments upon the amounts assessed against the 
 lots and lands owned, respectively, by said certified owners and their suc- 
 cessors in interest; provided, however, that he shall not so include any 
 grading quantities or credit any sums in excess of the proportionate 
 assessments for the whole of the grading which are made upon any lota 
 and lands fronting upon said street and belonging to any such certified 
 owners or their successors in interest. Whenever any owner or owners of 
 any lots and lands fronting on any street shall have heretofore done, or shall 
 hereafter do, any work (except grading) on such street, in front of any 
 block, at his or their own expense, and the city council shall subsequently 
 order any work to be done of the same class in front of the same block, said 
 work so done at the expense of such owner or owners shall be exceptecl 
 from the order ordering work to be done, as provided in subdivision 
 eleven of this section of this act; provided, that the work so done at the 
 expense of such owner or owners shall be upon the official grade, and in 
 condition satisfactory to the street superintendent at the time said order is 
 passed. 
 
 Subdivision Eleven The city council may include in ore resolution of 
 intention and order any of the different kinds of work mentioned in this 
 act, and it may except therefrom any of said work already done upon the 
 street to the official grade. The lots and portions of lots fronting upon 
 said excepted work already done shall not be included in the frontage 
 assessment for the class of work from which the exception is made; pro- 
 vided, that this shall not be construed so as to affect the special provisions 
 as to grading contained in subdivision ten of this section. 
 
 Subdivision Twelve Whenever the resolution of intention declares that 
 the costs and expenses of the work and improvement are to be assessed 
 upon a district, the city council shall direct the city engineer to make a 
 diagram of the property affected or benefited by the proposed work or 
 improvement, as described in the resolution of intention, and to be 
 assessed to pay the expenses thereof. Such diagram shall show each sepa- 
 rate lot, piece, or parcel of land, the area in square feet of each of such 
 lots, pieces, or parcels of land, and the relative location of the same to the 
 work proposed to be done, all within the limits of the assessment district; 
 and when said diagram shall have been approved by the city council, the 
 clerk shall, at the time of such approval, certify the fact and date thereof. 
 Immediately thereafter the said diagram shall be delivered to the superin- 
 tendent of streets of said city, who shall, after the contractor of any street 
 work has fulfilled his contract to the satisfaction of said superintendent of 
 streets, or city council, on appeal, proceed to estimate upon the lands, 
 lots or portions of lots within said assessment district, as shown by said 
 diagram, the benefits arising from such work, and to be received by each 
 such lot, portion of such lot, piece, or subdivision of land, and shall 
 thereupon assess upon and against said lands in said assessment district 
 the total amount of the costs and expenses of such proposed work, and in 
 so doing shall assess said total sum upon the several pieces, parcels, lots, 
 or portions of lots, and subdivisions of land in said district benefited 
 
IMPROVEMENTS BY RAILWAY COMPANIES. g. .^f^l; as amended 67 
 
 thereby, to wit: Upon each, respectively, in proportion to the estimated 
 benefits to be received by each of said several lots, portions of lots, or 
 subdivisions of land. In other respects the assessment shall be as pro- 
 vided in the next section, and the provisions of subdivisions three, four, 
 five, six, seven and eight of this section shall not be applicable to the work 
 or improvement provided for in this subdivision. [Amendment approved 
 March 31, 1891, Statutes 1891, p. 201.} 
 
 [Section 7 was amended in 1889, by act of March 14, 1889, statutes 
 '89, p. 103; and again in 1891, by act of March 31, 1891. statutes '91, p. 201.] 
 
 SUBDIVISION 1 OF SECTION SEVEN. 
 
 Subdivision 1. Subdivision 1 of section 7 provides: (1.) 
 That the expense incurred for any work authorized by 
 the act shall not include the cost of any work done in such 
 portion of any street as is required by law to be kept in 
 order or repair by any person or company having railroad 
 tracks thereon, nor shall such expense include work which 
 shall have been declared in the resolution of intention to be 
 assessed on a district benefited; (2.) that the expense 
 incurred for any work authorized by the act shall be 
 assessed upon the lots and lands fronting thereon, except 
 as in this act otherwise specially provided; and (3.) that 
 each lot or portion of a lot shall be separately assessed in 
 proportion to the frontage, at a rate per front foot suffi- 
 cient to cover the total expense of the work. 
 
 I. Cost of Work Upon Such Portion of a Street as is Re- 
 <jvired by Law to be Kept in Order or Repair by Oivnersof Street 
 Railways. The law not the act under consideration provid- 
 ing for work upon streets, alleys, lanes etc., but section 498 of 
 the Civil Code requires the city authorities to impose upon 
 street railway companies, as a condition to grants of their 
 franchises, an obligation or agreement "to plank, pave, or 
 macadamize the entire length of the street used by their 
 track, between the rails, and for two feet on each side 
 thereof, and between the tracks, if there be more than one, 
 and to keep the same constantly in repair, flush with the 
 street and with good crossings." [Civil Code section 498.] 
 Section 511 of the Civil Code makes the above provisions 
 of section 498, applicable to street railroads constructed, 
 owned and operated by natural persons, as well as corpor- 
 ations. The act providing for work upon streets, lanes, 
 alleys, etc., i. e. the act of March 18, 1885, and the several 
 acts amendatory thereof, prior to 'the act of February 27, 
 1893 do not include any mode for collecting from the 
 owners of street railways any portion of the expense of 
 improving a street. [Schmidt r. Market St. R. R. Co., 90 
 Cal. 39.] The above section of the act i. e. section 7 of the 
 
()8 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 act of March 18, 1885, as amended exempts from the 1 
 expense assessable against the lots of the property owners, 
 all the expense of any work done in such portion of any 
 street as is required by law to be kept in order or repair by 
 any person or company having railroad tracks thereon, 
 and section 6 of the act of February 27, 1893, [statutes 
 1893, pages 36-38] provides that whenever any railroad 
 track or tracks exist upon any street or streets on which 
 street or streets the city council has ordered work to be 
 done or improvements made, the council may, at anytime 
 thereafter; order the person or company having such tracks 
 to perform upon the portion required by law to be kept in 
 order or repair by such person or company, the work or 
 improvements, similar in all respects to that already ordered 
 to be performed upon the main part of the street, under the 
 same specifications and superintendence, with the same 
 materials, within the same time, and to the like satisfaction 
 and acceptance by the superintendent of streets. 
 The section then proceeds to provide how the work 
 shall be ordered done and how done, in case the 
 person or company having the railroad tracks refuses to 
 obey the order, and how the cost thereof shall be paid, etc. 
 
 Prior to the passage of this act of February 27, 1893, 
 there was no machinery provided by law for collecting 
 from a street railway company, whose road occupies a por- 
 tion of the street, any portion of the expense of improv- 
 ing the street. [Schmidt v. Market St. R. 11. Co. supra.] 
 
 If section 6 of the act of February, 27, 1893, 
 be considered as providing such machinery, it 
 is a provision injected into an act, which, as expressed 
 in its title, is "An act to provide a system of street improve- 
 ment bonds to represent certain assessments 
 for the cost of street work and improvements 
 within municipalities, and also for the payment of 
 such bonds. " It is essentially and primarily an act to pro- 
 vide for the issuance of bonds as a means of paying the cost 
 of street work. The title of the act says nothing about pro- 
 viding the machinery for imposing upon the owners of 
 street railways, whose tracks occupy a portion of the street, 
 the cost of the improvements which the law [section 498 C. 
 C.] requires to be done by such owners. The act is con- 
 structed upon the assumption or theory that other acts, 
 which it collectively designates as the " Street Work Act," 
 provide all the machinery for acquiring jurisdiction to 
 order street work to be done, for levying assessments to pay 
 for the same, etc. Its primary object is to provide for a sys- 
 tem of serial bonds, each bond representing the amount which 
 
ASSESSMENTS AGAINST RAILWAYS 
 
 has been assessed against each lot or parcel of land under the 
 provisions of the acts collectively designated as the "Street 
 Work Act." And, quaere, if the title of the act did state that 
 one of its objects was to provide the machinery for collect- 
 ing from the owners of street railways the portion of the 
 expense which the law [Sec. 498 C. C.] imposes upon them 
 as a condition of the grant of their franchises, would not 
 the act be repugnant to the provisions of article IV, section 
 24 of the constitution? " Every act shall embrace but one 
 subject, which subject shall be expressed in its title. " And, 
 as the title of the act states, its subject is " a system of 
 street improvement bonds." 
 
 If section 6 of the act of Feby. 27, 1893 in so far as it 
 purports to provide a mode for collecting from street rail- 
 way owners the cost of the work which the law [section 498 
 C. C.] requires such owners to do -be repugnant to article 
 IV of section 24 of the constitution, then, the statement by 
 Mr. Justice Harrison in Schmidt v. Market St. R. R. Co. ,90 
 Ciil.39 "no mode is provided in the act for collecting from 
 a street- railroad corporation, whose road occupies a portion 
 of the street, any portion of the expense of improving the 
 street" is as true now as it was prior to the said act of Feb. 
 27, 1893. 
 
 In said case of Schmidt v. Market St. R. R. Co., it was 
 held that the amount of the assessment might be recovered 
 by the contractor upon an implied contract on the part of 
 the railroad company, arising out of its acceptance of its 
 franchise under a grant containing a condition that the 
 company should be held for the payment of its proportion 
 of the cost of the improvement, and that the amount of the 
 assessment might be collected in the manner provided by 
 law for the collection of other street assessments. But, 
 quaere, in the absence of such a condition in the ordinance 
 granting the franchise, how shall a street car company, or 
 persons owning and operating street cars, be compelled to 
 pay the cost of improving the street between the rails, etc.? 
 [See notes to section 6 of the act of Feby. 27, 1893, post.] 
 
 II. Front-Foot Mode of Assessment is the Mode Provided 
 by the Act. Subdivision 1 of section 7 of the act lays down 
 the general rule which is to govern in levying assessments 
 to pay the expense incurred for any work authorized by the 
 act. That general rule is that such expense shall be assessed 
 upon the lots and lands fronting upon the work. That is, 
 the act adopts the front-foot mode of assessment, and the 
 only exceptions thereto are such as are specially provided 
 by the act. 
 
70 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 The last part of subdivision 1 of the section defines this 
 front-foot mode and general rule of assessment as follows: 
 Each lot or portion of a lot fronting on the work shall be 
 separately assessed, in proportion to the frontage, at a rate 
 per front foot sufficient to cover the total expense of the 
 work. That is, the total expense of the work including 
 the incidentals, as printing, etc., is divided by the total 
 number of front feet fronting on the whole work or 
 improvement, and the quotient is the rate of assessment per 
 front foot, and there is assessed against each lot or portion of 
 a lot fronting on the work an amount equal to this quotient, 
 or rate of assessment per front foot, multiplied by the num- 
 ber of front feet in such lot or portion of a lot. 
 
 In People v. Lynch, 51 Cal. 22-23, Mr. Justice McKinstry 
 said: " It has been repeatedly held that an attempt by the 
 legislature to compel each lot upon a street to pay the whole 
 expense of grading and paving along its front can not be 
 maintained, because, while there is an apparent uniformity, 
 the measure of equality required by the constitution is 
 entirely wanting" citing 9 Dana 513; 8 Mich. 274. That 
 is to say, a law which should attempt to make each lot liable 
 for the whole cost of doing that particular part of the improve- 
 ment which lies in front of each lot, would be unconstitu- 
 tional. But the front-foot mode of assessment, as defined 
 by subdivision 1 of section 7 of the act is constitutional, 
 because it apportions to each lot its share of the total 
 expense according to the amount of frontage of each lot, 
 and the amount assessed against each lot is increased or 
 diminished by the assessment upon the adjacent lots. 
 [See Cooley's Constitutional Limitations, page 508, 3rd Ed.] 
 
 III. Front-Foot Mode of Assessment is Constitutional. 
 
 The front foot mode of assessment is constitutional. 
 [Emery v. S. F. Gas Co., 28 Cal. 346; Emery v. Bradford 29 
 Cal. 82; Taylor v. Palmer 31 Cal. 241; Whiting v. Quacken- 
 bush, 54 Cal. 306; Whiting v. Townsend, 57 Cal. 515; Lent 
 v. Tillson, 72 Cal. 426; Jennings v. Le Breton, 80 Cal. 8,15- 
 16.] 
 
 The power of assessment is a part of the general power of 
 taxation. The word "assessment," however, while it repre- 
 sents in part the general power of taxation vested in the 
 government, is used to designate a particular branch of 
 that power specifically different in its purpose and mode of 
 working from that intended by the more general and com- 
 prehensive term of "taxation." By the latter the power of 
 imposing taxes upon the property of the citizens generally, 
 for the support of the government, is intended. By the for- 
 *. e., "assessment," is meant the power of imposing for 
 
CONSTITUTIONALITY ^1 ?, ub J,t a9 amended 71 
 
 March 31. 1891. 
 
 the purpose of improving the ptreets of cities and incorporated 
 villages, a tax upon the property bordering upon or in the 
 vicinity of the improvement. In Emery v. S. F. Gas Co. 
 supra, page 357, Judge Sawyer said: "The term 'taxation/ 
 both in common parlance and in the laws of the several 
 states, has been ordinarily used, not to express the idea of 
 the sovereign power which is exercised, but the exercise 
 of that power for a particular purpose, viz., to raise a 
 revenue for the general and ordinary expenses of the govern- 
 ment, whether it be the stato, county, town or city gov- 
 ernment. But there is another class of expenses, also of a 
 public nature, necessary to be provided for, peculiar to 
 the local governments of counties, cites, towns and even 
 smaller subdivisions, such as opening, grading, improving 
 in various ways, and repairing, highways and streets, and 
 constructing sewers in cities, and canals and ditches 
 for the purpose of drainage in the country. These burdens 
 have always, in every state, from its first settlement, been 
 charged upon the localities benefited, and have been 
 apportioned upon various principles; but whatever princi- 
 ple of apportionment has been adopted they have been 
 known, both in the legislation and ordinary speech of the 
 country, by the name of assessments" 
 
 It was held in the case of Burnett v. Mayor, etc., of Sacra- 
 ment!2 Cal. 76, that the provision of the constitution requir- 
 ing "taxation" to be equal and uniform, was not applicable 
 to assessments for street purposes, and in Emery v. S. F. 
 Gas. Co., supra, it was held that the further provision 
 of the constitution that "all property in this state 
 shall be taxed in proportion to its value" is equally 
 inapplicable to "assessments." In this latter case, the 
 court, Sawyer justice, after quoting from the opinion in 
 Burnett v. Mayor etc., of Sacramento, said: "The question 
 was [in the case uf Burnett vs. Mayor etc. of Sacramento] 
 whether the term 'taxation/ as used in that section 
 [section 13, article XI, constitution of 1863], is applicable 
 to assessments for street improvements. If the term 
 'taxation' in the first clause, 'taxation shall be equal and 
 uniform/ is inapplicable to a street assessment, of 
 course the term, as used in the second clause of the same 
 section, 'all property in this state shall be taxed in propor- 
 tion to its value/ must also be inapplicable." [28 Cal. 361.] 
 Accordingly, it was held in this latter case, Emery v. S. F. 
 Gas. Co., that there is no restriction in the constitution 
 upon the power of the legislature to impose assessments to 
 defray the expenses of public improvements in the nature 
 of grading, planking and improving streets upon the prop- 
 
72 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 erty supposed to be benefited thereby. And that it is 
 authorized to apportion the amount to be raised according 
 to value, according to the benefits received, in proportion 
 to frontage or the superficial contents, or to adopt any prin- 
 ciple of apportionment that can be referred to the general 
 sovereign rights of taxation. | 28 Gal. pp. 372-3.] While 
 the term "assessment" though referable to the general 
 power of taxation, is not synonomous with the term "taxa- 
 tion" as used in common parlance and in the restrictions 
 of the constitution upon the exercise of the power of taxa- 
 tion for purposes of raising revenue for the general and 
 ordinary expenses of the government, still an assessment 
 is a tax. And although it is such a tax as is not prohibited 
 by that clause of the constitution which provides that "all 
 property shall be taxed in proportion to its value," it is of 
 the very essence of all taxation, in every form, that it be 
 levied with equality and uniformity, and therefore there 
 must be some system of apportionment. The express 
 written inhibitions of the constitution relative to "taxa- 
 tion" may not be* applicable to "assessments," because of 
 the difference between these two branches of the general 
 power of taxation, as pointed out supra, nevertheless, aside 
 from the provisions of all written. constitutions, in every 
 free country an approximation toward equality and uni- 
 formity in the exercise of the sovereign power of taxation 
 is inherently necessary, and, as an "assessment" is made by 
 the exercise of that power, it follows that, to approximate 
 equality and uniformity, the assessment must be levied pur- 
 suant to some general system of apportionment. The legis- 
 lature may adopt any principle of apportionment that can 
 be referred to the general sovereign power of taxation, but 
 there must be some system of apportionment which will 
 approximate equality and uniformity. For, whatever the 
 standard of apportionment, or the basis of taxation, the 
 requirement that it shall be uniform is universal, the differ- 
 ence being only in the character of the uniformity. [Peo- 
 ple v. Lynch, 51 Cal. 15; Whiting v. Quackenbush, 54 Cal. 
 306.] In People v. Lynch, supra, Mr. Justice McKinstry 
 said: "The terms 'tax' and 'assessment' both include the 
 idea of some ratio or rule of apportionment; so that, of 
 the whole sum to be raised the part paid by one piece of 
 property shall have some known relation to or be affected 
 by that paid by another." 
 
 An assessment for local improvements, as improvements 
 upon streets, etc., is not required to be equal and uniform 
 because a section of the constitution dealing with the gen- 
 eral subject of revenue may say that "taxation shall be 
 
nnvTCTTT'TTT'TnAJ A T TTV Pec. 7. Pub. 1, as amended 70 
 
 ONSIIJ OJNA.L1JLY Mar. 31, 1891. * 
 
 equal and uniform" [Burnett v. Mayor, etc., of Sacramento 
 12 Gal. 83; Emery v. S. F. Gas. Co., 28 Cal. 361-2,] but 
 every assessment is required to approximate equality and 
 uniformity and therefore to be levied under a system which 
 apportions it with reference to some standard which will 
 approximate equality and uniformity, because it is a tax. 
 And all taxes, in free countries, should be levied upon prin- 
 ciples that approximate uniformity and equality whether 
 their constitutions expressly require it or not. Therefore, 
 it is held that, in levying an assessment, if a lot of land, 
 within the district declared to be benefited, be not assessed, 
 there is no equality or uniformity in the assess- 
 ment, and the assessment is, therefore, void. The 
 omission of the lot from the assessment disturbs the 
 equality and uniformity of the levy, and renders the 
 assessment void. [People v. Lynch, 51 Cal. 15; 
 Whiting v. Quackenbush, 54 Cal. 310; Moulton v. Parks, 64 
 Cal. 181; Dyer v. Harrison, 63 Cal. 447; Diggins v. Brown, 
 76 Cal. 318; Davies v. Los Angeles, 86 Cal. 49.] In Whiting 
 v. Quackenbush, supra, the court said: "Every tax must be 
 levied with equality and uniformity under some system of 
 apportionment; an assessment for improving a street in a 
 city is a tax; therefore, every assessment must be levied 
 with equality and uniformity. But if it be so levied, under 
 a system which apportions it with reference to the number 
 of feet fronting on the improvement, or to any other standard 
 which will approximate equality and uniformity, it is not 
 void for want of equality and uniformity." While, as held 
 in the cases last above cited, the assessment is at least irreg- 
 ular if any lot liable to assessment is omitted from the 
 assessment roll, still section 11 of the act provides that an 
 appeal may be taken to the council by any owner raising 
 any objection to the legality or correctness of the assessment; 
 that on such appeal the council may correct the assessment; 
 that its decision shall be final, and that no assessment 
 shall be held invalid, except upon appeal to the city council, 
 for any error, informality or defect in the assessment. And 
 in the very recent case of Dowling v. Altschul, decided 
 June 13, 1893, 33 Pac. Rep. 495, it was held that, under the 
 act of March 18, 1885, an appeal on the ground that an 
 assessment for paving a cul-de-sac failed to assess the land 
 at the end of the same, presented a question which the 
 city council had power to determine on appeal, and that, 
 therefore, its decision was conclusive. This case does not 
 hold that an assessment is valid if a lot, liable to assess- 
 ment, be omitted from the assessment roll; but, as the 
 statute now in force section 11 of act of March 18, 1885, 
 
74 STREET WORK LAW 'STREET IMPROVEMENT ACT 
 
 provides a tribunal for the litigation of this question, 
 namely the city council and as the statute expressly states 
 that the decision of such tribunal upon such a question, shall 
 be final and conclusive, it is therefore held that an 
 appeal is the only remedy of a lot owner dissatisfied because 
 a lot, liable to assessment, has been omitted, and that the 
 decision of the council upon such question is final and con- 
 clusive. An error in the assessment roll is an error capable 
 of correction by the council on appeal if the work has been 
 properly done under a valid contract therefor. And it 
 seems that, if the error or irregularity complained of is cap- 
 able of correction by the council on appeal, the appeal to 
 the council is the only remedy. [See opinion of Temple J., 
 in Chambers^. Satterlee 40 Gal. 524. See post section 11 o 
 the act, and the notes thereto.] 
 
 IV. General Principles of Street Assessments. 
 
 (a.) Legislature can not Directly Exercise Power of 
 Assessment. The legislature can not directly exercise the 
 power of assessment within an. incorporated city, but may 
 empower the municipal authorities to do so. In cities the 
 power of assessment can only be exercised through the 
 medium of the corporate authorities. [People v. Lynch, 
 51 Cal. 15; Taylor v. Palmer, 31 Gal. 240; Brady v. King, 53 
 Gal. 44; Schumacker v. Toberman, 56 Cal. 508.] 
 
 (b.) Owner not Personally Liable. The owner, of the 
 land, bordering upon an improved street, can not be made 
 liable for the cost of the improvement beyond the value of 
 his land. The legislature can not impose a personal liabil- 
 ity upon the owners of the property assessed, and any 
 statute purporting to impose such personal liability is, in 
 this respect, unconstitutional and void. [Taylor v. Palmer, 
 31 Cal. 240; Guerin v. Eeese, 33 Cal. 296; Coniff v. Hastings, 
 36 Cal. 292; Gaffney v. Donohue, 36 Cal. 104; Himraelmaim 
 v. Steiner, 38 Cal. 175, 178; Randolph v. Bayue, 44 Cal. 
 366; Gillis v. Cleveland, 87 Cal. 214; Manning v. Den, 90 
 Cal. 610.] Nor can the property owner be held liable upon 
 the ground of a contract. [Dyer v. Barstow, 50 Cal. 652.] 
 
 (c.) Not an Exercise of Power of Eminent Domain. Street 
 assessments do not take private property for public use. 
 [Emery v. S. F." Gas Co., 28 Cal. 346; Chambers v. Satterlee, 
 40 Cal. 497.] 
 
 (d. ) Contract Not Affected by Subsequent Changes in the 
 Law. Improvement begun under a law, after execution of 
 the contract, makes that law a part of the contract as to 
 mode of assessment, which subsequent amendment of the 
 law does not affect. [Houston v. McKenna, 22 Cal. 550.] 
 The same is true as to changes in the constitution made 
 
rtvvr-D'D AT i>rTvr-TT>T IT c Fro. 7. Sub. 1 , as amended 7 K 
 GENERAL PRINCIPTjES MM-. :;i. IMH. '*' 
 
 after the contract is made. If, after the contract is made, 
 the constitution is changed so as to provide a new method 
 of assessment, it will not affect the contract, and the grant- 
 ing of an extension of time for the completion of the work 
 will not constitute a new contract. The provisions of the 
 law under which a contract is made enter into and become a 
 part of the contract, including all provisions for extensions 
 of time, and a valid contract can not be abrogated by the 
 adoption of a new constitution, any more than it can 
 by the enactment of a new law by the legislature. If 
 it did it would impair the obligation of the contract 
 and thus controvene the provision of section 10, article I 
 of the federal constitution, providing that no state shall 
 pass any law impairing the obligation of contracts. [Oak- 
 land Pvg. Co. v. Barstpw, 7 ( . < ; Ede v. Cogswell, 79 
 Cal: 278; I-M<- v. Knight, 93 Cal. 151).] 
 
 The contractor is entitled to have the improvement 
 opposite a lot assessed to the whole lot without regard to 
 subsequent sal< rtions. The lien attaches to the 
 
 whole lot in the hands of a subsequent purchaser. After 
 the expiration of the notice of intention that is posting 
 and publication of the resolution of intention and of notice 
 of its passage the council acquires jurisdiction of the sub- 
 ject matter of the improvement, and the contractor acquires 
 a right, under his contract, to have the assessment made 
 upon the lots fronting the improvement as they existed at 
 the time the jurisdiction of the council over the subject 
 matter attached under the statute, and the owner of a lot 
 cannot defeat this right by subsequently conveying a por- 
 tion of the lot. The whole lot, as it existed when the juris- 
 diction of the council over the subject matter of the improve- 
 ments attached, is liable to be assessed upon completion 
 of the work, no matter who owns it, or what subdivisions 
 may subsequently have been made by the owner. [Dough- 
 erty v. Miller, 36 Cal. 83.] 
 
 (e.) The Property Owner Cannot set up a Counter Claim 
 for Damages. An assessment for the improvement of 
 streets is a municipal tax, levied by the corporation upon 
 the property adjacent to the street, to defray the expenses of 
 the improvement, and therefore the property owner in a 
 suit to recover the amount assessed against his lot cannot 
 set up a counter claim for damages to his land. "The 
 origin , obligatory force and whole nature of a tax, is such 
 that it is impossible to conceive of a demand that might be 
 set off against it, unless expressly so authorized by statute." 
 [Himmelmann v. Spanagel, 39 Cal. 389. ] 
 
 (f.) Sale for Taxes Extinguishes Assessment Lien. A valid 
 
7H STREET WORK LAW 'STREET IMPROVEMENT ACT 
 
 tax deed extinguishes the prior lien of a street assessment. 
 For, as a general rule, a sale and conveyance in due form 
 for taxes extinguishes all prior liens, whether for taxes or 
 otherwise, and therefore where, pending an action to enforce 
 the collection of a street assessment, a third party procures 
 a valid tax deed, the tax deed extinguishes the lien of the 
 assessment. [Dougherty v. Heuarie, 47 Cal. 10; Chand- 
 ler r. Dunn, 50 Cal. 15.1 
 
 (g.) Public Property Exempt from Street Assessment. 
 Public property is exempt from street assessments and such 
 property may be exempted from the assessment although 
 situated within an assessment district declared to be bene- 
 fited by the improvement; and such exemption will not ren- 
 der the assessment violative of the principle that all assess- 
 ments must be equal and uniform. [Doyle v. Austin, 47 
 Cal. 353.] 
 
 (h.) Assessment need not be Presented to Administrator. 
 An assessment made after the death of a property owner 
 need not be presented to his estate for allowance. It is a 
 municipal tax, aud the rule is that taxes assessed against 
 the property of an estate, pending administration, are not 
 claims against the estate which must be presented to the 
 administrator for allowance. [Hancock r. Whittemore, 50 
 Cal. 522; People v. Olvera, 43 Cal. 492.] 
 
 (i.) Can Only be Made Pursuant to Terms of a Statute. 
 An assessment can only be made according to the terms of 
 the statute, and where the statute does not provide for an 
 assessment for doing a particular kind of work, or does not 
 provide for an assessment for work done upon some partic- 
 ular place, the assessment is void. [Bassettr. EnwrigM, 19 
 Cal. 636; Kelly v. Liming, 76 Cal. 311.] 
 
 (j.) A Void Assessment Cannot be Validated by Ratifi- 
 cation. The doctrine of ratification has no application to 
 street assessments, and, so far as the lot owner is concerned, 
 the city cannot, by any act on its part, ratify proceedings 
 taken to improve a street and impose an assessment on the 
 lot for the same, so as to make the same valid, when they 
 were invalid in the first instance. So far as the lot owner 
 is concerned, these proceedings are but steps taken for the 
 purpose of imposing upon him a tax for a specific purpose, 
 and to such proceedings the doctrine of ratification has no 
 application. The power of ratification, if it exits at all, is in 
 the legislature. [Meuser v. Kisdon, 36 Gal. 239.] And the 
 power of the legislature to ratify the proceedings, if it exist- at 
 all in the case of assessments for municipal improvements, 
 is limited to dispensing with those things which it might 
 have dispensed with in the first place. That is to say, if the 
 
GENERAL PRINCIPLES Si SSife* "** 77 
 
 thing wanting, or which failed to be done, and which con- 
 stitutes the defect in the proceedings, is something the 
 necessity of which the legislature might not have 
 dispensed with by prior statute, then it is 
 beyond the power of the legislature to dispense with it by 
 subsequent statute. [People v. Lynch, 51 Cal. 15.] In this 
 case of People v. Lynch, the "thing wanting" in the original 
 proceeding was "uniformity" in the assessment. If the 
 assessment is void the legislature cannot validate it, nor can 
 it make an assessment within an incorporated city. [Brady 
 v. King, 53 Cal. 44; Schumacker v. Toberman, 56 Cal. 
 508,511; Kelly v. Liming, 76 Cal. 309.] 
 
 In San Francisco v. Certain Real Estate, 42 Cal. 513, it 
 was said that it is competent for the legislature, by subse- 
 quent enactment, to cure defects in the original proceeding. 
 But in People v. Lynch, svpra, Mr. Justice McKinstry seems 
 to be of the opinion that since, according to the decision in 
 Taylor v. Palmer, 31 Cal. 242, the legislature cannot exer- 
 cise the power of assessment directly within municipalities, 
 that therefore it cannot, in any case, ratify an assessment 
 proceeding. 
 
 In Keis r. Gruff, 51 Cal. 8fi, the court, through Mr. Jus- 
 tice Rhodes, stated that validating a void assessment is 
 equivalent to making an assessment in the first instance. 
 In that case Judge Rhodes said: "Assuming that the legis- 
 lature may itself make the assessment, or, what amounts to 
 the same thing, validate a void assessment, does the act have 
 the effect to make the assessment valid, by relation, as of 
 the date of the invalid assessment," etc. If, therefore, 
 validating an assessment amounts to making an assessment, 
 and if the legislature may not make an assessment within 
 a municipality, it would seem to follow, necessarily, that 
 the legislature cannot in any case validate an assessment 
 within municipalities. In this case of Reis v. Graff it was 
 held that even if the legislature may validate a void 
 assessment within municipalities, the assessment can only 
 become valid at the date when the curative act takes effect, 
 and the curative act can not, by relation, make the assess- 
 ment valid as of the date when it was levied. [See also 
 People v. McCain, 51 Cal. 360.] 
 
 In Fanning v. Schammel, 68 Cal. 428, the work was not 
 completed within the time limited by the contract. Subse- 
 quently the board of supervisors extended the time, but as 
 it had no jurisdiction to extend the time after the life of the 
 contract, (see notes to sec. 6 of the act, pages 62-63 supra) the 
 order of extension was unauthorized and void. Nearly a 
 year after this void order of extension, the legislature passed 
 
78 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 an act purporting to validate, ratify and confirm " all orders 
 and resolutions heretofore from time to time passed by said 
 board of supervisors '* * * in relation to street work, "etc., 
 and it was contended that this act cured said defect in the 
 proceedings, and validated said order of extension, but the 
 court said: "So far as the statute attempts to vitalize a dead 
 contract and validate a void assessment for street work, it is 
 unconstitutional and void." 
 
 The validity of an assessment does not depend upon the 
 validity of the remedy for its enforcement. [Appeal of N. B. 
 and M. R. R. Co., 32 Gal. 520.] An assessment to pay for 
 prior work under an abortive contract is invalid. [In the 
 Matter of Market Street, 49 Gal. 546.] 
 
 (k ) Severable Assessments Severed and Recovery had on 
 Valid Part. If an assessment be severable, and part be void 
 and part valid, the total assessment may be severed and 
 recovery had upon the valid part, provided there be a proper 
 demand for the part that is valid. That is to say, where 
 there are two assessments one void and the other valid 
 as, for example, where several assessments are made to pay 
 the expenses of different kinds of work contracted to be 
 done pursuant to a resolution of intention and order, order- 
 ing several kinds of work to be done, these assessments may 
 be severed and separate demands made, and in such case 
 the contractor is entitled to recover the amount of the valid 
 assessment. [Parker v. Reay, 76 Gal. 103; Ede v. Knight, 
 93 Gal. 159, 165.] 
 
 In Frick v. Morford, 87 Gal. 576, an excess of work was 
 done outside of the limits fixed by the resolution of inten- 
 tion. That is, the plans and specifications required eight 
 feet more of sewer to be laid, than was authorized by the 
 resolution of intention. These faulty plans and specifica- 
 tions were a part of the contract, and the contractor laid 
 this extra eight feet of sewer, being an excess of eight'feet 
 outside of the limits fixed by the resolution of intention. 
 Held: (1.) That the work done outside of the limits fixed by 
 the resolution was unauthorized, and the contractor was not 
 entitled to an assessment for the work in excess. (2.) That 
 if the lot assessed wholly fronts upon the work done in 
 excess of authorit}^, it cannot be held liable for any assess- 
 ment. (3.) That if it fronts in whole or in part upon the 
 work authorized by the resolution of intention, the assess- 
 ment against it will not necessarily be rendered void by the 
 fact that the entire assessment purports to make a charge 
 upon lots not within the limits fixed by the resolution of 
 intention. (4-) That if it is in part within the excess, the 
 contractor is not entitled to an assessment against that part 
 
/<-rwr\r DT>T VPTnT T?C Fee 7. Sub. 1. as amended 70 
 GENERAL PRINCIPLES M.,,-,-1, :;i is<n v 
 
 March 31, IM'l. 
 
 of the lot not fronting upon the work authorized by the 
 resolution. (5.) That an excess of work done outside the 
 limits fixed by the lesolutionof intention, will not invalidate 
 an assessment against lots within those limits for that part 
 of the work which was authorized by the resolution, if the 
 cost of the work was estimated by the linear foot, so that the 
 cost of excess can be easily segregated from the cost of the 
 remainder, since in that case the assessment being severable 
 the void part may be segregated from the valid part. (6.) 
 That if the lot was wholly within the excess beyond the 
 limits authorized by the resolution of intention, the owner 
 was not a party "aggrieved/' since in such case his lot could 
 not be made liable, and therefore he was not required to 
 appeal to the council. (7.) If his lot was partly within such 
 cxecss, and he felt aggrieved because the assessment in- 
 cluded the expense of laying the sewer in the eight feet 
 outside of the limits h'xed by the resolution of intention, his 
 only remedy was by appeal to the council. [See Blair v. 
 tuning, 76 Gal. i:M; Dyer v. Scalmanini, 69 Cal. 637; Him- 
 melmann r. Iloadlev, 44 Cal. 270; Baudry v. Valdez, 32 
 Cal. 
 
 (I.) }\ T Jirn the Assessment is not Severable, if Part is Void it 
 Vitiate* tlir \\ r j/olt\ When an assessment is made in gross 
 for the work of curbing and macadamizing a street, and the 
 >ment is invalid as to the macadamizing, and the 
 amount due for curbing cannot be segregated from the total 
 amount assessed against the lot, the invalidity of the assess- 
 ment as to the macadamizing vitiates it as to the curbing, 
 and the whole is void. [Dorland v. Bergson, 78 Cal. 637. 
 Partridge v. Lucas, decided Sept. 11, 1893; See also 
 Ferine v. Forbush, 97 Cal, 305]. 
 
 (nt.) Each Lot is Independently Liable. Each Iot 3 or portion 
 of a lot, is separately liable for its proportion of the cost of 
 the improvement, and the liability of each is independent 
 of any other, and constitutes a separate liability, upon which 
 a separate cause of action may be based. And therefore a 
 recovery of the amount assessed against one lot is not a bar 
 to an action to recover the amount assessed against another 
 lot, although between the same parties. The expense of the 
 improvement is a charge upon the property benefited, or 
 supposed to be benefited, and is not a charge against the 
 owner personally, and in furtherance of this end, the iden- 
 tity of the lot assessed, and not the person who may be the 
 owner, is made the essential requirement of the statute; the 
 first must be specifically described, while the latter may be 
 designated as "unknown." [Gillis v. Cleveland, 87 Cal. 214.] 
 
80 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 SUBDIVISION 2 OF SECTION SEVEN. 
 
 Subdivision 2. As stated supra in the notes to sub- 
 division 1 of this section, the front-foot mode of assess- 
 ment is the general rule, and the only exceptions thereto 
 are such as are "specifically" provided in other parts 
 of the act. Subdivision 2 provides that as to all improve- 
 ments except the work of repairing and reconstructing 
 provided for by section thirteen of the act the expense 
 shall be assessed as provided in this section section seven 
 according to the nature and character of the work, until 
 acceptance of the streets, alleys, lanes, etc., by the council. 
 So that except as to the work of repairing and reconstruct- 
 ing provided for by section thirteen of the act section 
 seven is the section, and the only section, which can be 
 looked to for the purpose of ascertaining what property is 
 liable to be assessed to pay for the expenses. That is, the 
 expenses incurred for any work authorized by the act 
 except the work of repairing and reconstructing provided 
 for by section thirteen of the act shall be assessed upon 
 the lots and lands fronting on the work, each lot or portion 
 of a lot being separately assessed in proportion to the front- 
 age, at a rate per front foot sufficient to cover the total 
 expense of the work, as provided in sub-division 1 except 
 where a different mode is specifically provided in this same 
 section of the act section seven. Section seven provides 
 a different mode of assessment where the resolution of in- 
 tention declares that the costs and expenses of the work and 
 improvement are to be assessed upon a district. [See sub- 
 division 12 of section 7] subdivision 1 of the section de- 
 clares the general rule of assessment to be the "front-foot 
 plan" But, where the resolution of intention declare that 
 the costs and expenses shall be assessed upon a district, the 
 assessments are made according to the "benefits" received. 
 Subdivision 1 of section 7 lays down the general rule, and 
 subdivision 2 states that the exceptions to this general rule 
 must be found in this same section section 7 and not 
 elsewhere, except as to work of repairing and reconstruct- 
 ing done pursuant to the provisions of section 13 of the act. 
 
 The work provided for by section 13 of the act is the 
 work of repairing and reconstructing any portion of any 
 improved street, lane, etc., out of repair or needing recon- 
 struction, and in condition to endanger persons or property 
 passing thereon, or in a condition to interfere with the 
 public convenience in the use thereof. For example, if a 
 street has been paved with asphaltum and subsequently a 
 portion of the pavement in front of some lot becomes loose, 
 
SUBDIVISION THREE OF SECTION SEVEN Mar/svi&L amen<led 81 
 
 and a hole is made, so as to leave this portion in a condition 
 to interfere with the public convenience in the use of the 
 street, in such case the street does not need repaying, but 
 this particular spot needs to be filled up with asphaltum and 
 repaiied, and section 13 purports to impose the duty of 
 doing this, and of paying the expense thereof, upon the 
 owner of the lot fronting on this portion of the street. [See 
 infra notes to section 13.] 
 
 SUBDIVISION 3 OF SECTION SEVEN. 
 
 Subdivision 3. [See sec. 34, subdivisions 7 and 12 for 
 definitions of the words "street," "main street," " blocks" 
 and "quarter block."] 
 
 In Parker v. Reay, 76 Gal. 103, it was held that under the 
 act of 1872, whore an assessment is made for work done on 
 a main street crossing, if a lot is partly within and partly 
 without one of the quarter blocks cornering upon the cross- 
 ing, only such portion of the lot must be assessed as lies 
 within the quarter block. Subdivision 3 of section eight of 
 the act of 1872, corresponds with subdivision 3 of section 
 seven supra. The language of subdivision 3 section 7 of the 
 present street work act, seems to be capable of the same con- 
 struction as that placed upon the corresponding provision of 
 the act of 1872 by the Supreme Court in Parker v. Reay, 
 supra. 
 
 Subdivision 3 of section seven of the act is divisible into 
 two parts. The first part declares what the rate per front 
 foot shall be and how it shall be obtained. The second 
 part declares what property shall be subjected to the assess- 
 ment lien. (1.) The first part or clause of subdivision 3 of 
 section seven, provides that the expense of the work done 
 on street crossings, " shall be assessed at a uniform rate per 
 front foot of the quarter and irregular blocks adjoining and 
 cornering upon the crossings." That is, the property made 
 subject to the lien of the assessment, whatever it is, shall 
 be assessed at a certain rate per front foot. This rate 
 is to be found by dividing the total amount of the expense 
 by the number of front feet in the four quarter or irregular 
 blocks cornering upon the crossing, and the quotient thus 
 obtained is the rate of assessment per front foot to be 
 assessed upon the property made subject to the lien of the 
 assessment by the second clause of this subdivision accord- 
 ing to the frontage of such property. The first part or 
 first clause of subdivision 3 provides the mode for measur- 
 ing the amount per front foot which is to be assessed upon the 
 land made subject to the lien of the assessment. (#.) The sec- 
 
82 
 
 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 ond part or second clause of subdivision 3 of section 7, declares 
 what property shall bear the lien of the assessment, ond that 
 it shall be assessed according to its frontage in said quar- 
 ter blocks and irregular blocks. The property upon 
 which this part of the section declares the assessment shall 
 be made, is the following, viz.: "The whole of each lot or 
 portion of a lot, having any frontage in the said (quarter or 
 irregular) blocks fronting on said main (intersecting) 
 streets, half way to the next main street crossing, and all the 
 way on said blocks to a boundary line of the city where no 
 such crossing intervenes." If, therefore, the property 
 upon which the assessment is to be made, where there 
 is such a next main street crossing, is the* property 
 which consists of each lot or portion of a lot to a 
 point "half way to the next main street crossing," 
 it would seem to follow that the property beyond this 
 point, is not subject to the lien of the assessment, and 
 therefore, as held in Parker v. Reay, supra, where 
 there is a lot in the middle of a block, portion of which is 
 on one side of this halfway point and portion on the other 
 side, only that portion of the lot is liable to the assessment 
 which lies on that side of the point nearest the crossing 
 upon which the improvement was made. 
 
 SUBDIVISION 4 OF SECTION SEVEN. 
 
 Subdivision 4- The meaning of subdivision 4 can be most 
 clearly explained by means of a diagram as follows: 
 
 X Y 
 
 A b 
 
 Main Street D C on which the work is done. 
 
 E F 
 
 The quarter blocks of block X are 1, 2, 3 and 4; and 5, 
 6, 7 and 8 are the quarter blocks of block Y. E F is the line 
 of termination and has frontage on the main street of the 
 work at such termination. A B C D is one-half of the 
 
SUBDIVISION EIGHT OF SECTION SEVEN S^"^; as amended 83 
 
 width of the main street on which the work is done, and is 
 the half ''opposite" the termination. The expense of the 
 work done on this half must be assessed upon the lots in 
 each of the two quarter blocks adjoining and cornering 
 upon this half of the street, namely, the lots in the quarter 
 blocks 4 and 7, according to the frontage of such lots in 
 each of the two main streets. C D E F is the other half 
 of the width of the main street upon which the work is 
 done, and the expense of improving this half is assessed 
 upon the lot or lots fronting on this half of the street at 
 said termination, namely, the lot or lots of which the line 
 E F forms part or all of the frontage. 
 
 The word "termination" a? used in this part of the act 
 in connection with street work does not seem to have any 
 well defined meaning of its own independent of its context. 
 It seems from its context in this part of the act that the 
 word is used to mean the line E F in the diagram. But in 
 the act of March 18, 1861, (Statutes of 1861, page 545,) 
 amendatory of the San Francisco Consolidation Act, it is evi- 
 dent from the context that the word "termination" is used 
 to designate the line A B in the diagram. In section 3 of 
 this act of March 18, 1861, it is provided that "where a 
 main street terminates at right angles in another main 
 street the expense of the construction of one-half of the 
 width of the street, at the termination, shall be assessed 
 upon the lots in each of the two quarter blocks adjoining and 
 cornering on the same, according to the frontage of such 
 lots on said main streets, and the other half upon the lots 
 fronting on the street opposite such termination." 
 
 SUBDIVISION 8 OF SECTION SEVEN. 
 
 Subdivision 8. Subdivision 10 of section 8 of the San 
 Francisco street work act of 1872 is the subdivision 
 which corresponds with subdivision 8 of section 7, supra, 
 although the two are not identical in language. In 
 Diggins v. Brown, 76 Cal. 318, this subdivision of section 8 
 of the act of 1872 was construed, and it was held that it 
 did not provide that each lot should pay for the work done 
 in front of it, but that the cost of the work done on one 
 side of a street should be apportioned to all the lots on that 
 side fronting on the work; that, therefore, when the board 
 of supervisors order "that plank sidewalks be constructed on 
 Olive avenue, between Lagunaand Buchanan streets, where 
 not already constructed, and that the roadway be macada- 
 mized where not already done." the lots to be assessed are 
 all the lots on each side of the street in the block between 
 Laguna and Buchanan streets, and the cost of the work on 
 
84 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 one side of the street must be distributed against all of the 
 lots on that side of the street in said block, even though no 
 work be done in front of some one or more of them, and 
 if any lot be omitted because no work was done in front 
 of it, the assessment is void. However, the language of 
 subdivision 8 of section seven of the present street work act 
 differs so much from the language of subdivision 10 of sec- 
 tion 8 of the act of 1872, that Diggins v. Brown can hardly 
 be regarded as an authority in the construction of the 
 present act. Still, if the legislature did, by subdivision 8 of 
 section seven of the present act, intend to impose upon each 
 lot the whole cost of doing the particular portion of the 
 work upon which each lot fronts, then as stated in Diggins 
 v. Brown, "the method of assessing each lot for the work 
 done in front of it has been condemned by high authority," 
 and consequently, such an intention is not to be imputed to 
 the legislature, if the subdivision is capable of a construc- 
 tion consonant with the requirements of the constitution. 
 
 SUBDIVISION 9 OF SECTION SEVEN. 
 
 Subdivision 9. Why this provision was inserted in 
 the act is inexplicable, save upon the theory that the 
 act was, in a great measure, copied from former San 
 Francisco street work acts, and copyists sometimes blindly 
 copy without any other reason than that the provision is in 
 the statute from which the copy is taken. The legislature 
 of 1857 passed a general revenue act, entitled "An act to 
 provide revenue for the support of the government of this 
 state," [Statutes of 1857, page 325,] and the legislature of 
 1859 passed an act to amend this general revenue act, 
 entitled "An act amendatory of and supplementary to an act 
 to provide revenue for the support of the government, of 
 this state, approved April twenty-ninth, eighteen hundred 
 and fifty-seven." [Statutes 1859, page 343.] The pro- 
 visions of this latter act are expressly confined to the 
 city and county of San Francisco. Subdivision 12 of the San 
 Francisco street work act of 1863 [Statutes 1863, pages 396-7,] 
 is the same as subdivision 9 of section 7 of the present 
 general street work act, and it seems to have been need- 
 lessly copied into the present street \vork act. 
 
 SECTION 8. After the contractor of any street work has fulfilled his con- 
 tract to the satisfaction of the street superintendent of said city, or city 
 council on appeal, the street superintendent shall make an assessment to 
 cover the sum due for the work performed and specified in said contract 
 (including any incidental expenses), in conformity with the provisions of 
 the preceding section according to the character of the work done ; or, if 
 any direction and decision be given by said council on appeal, then in 
 
SECTION EIGHT OP THE ACT ** 85 
 
 conformity with such direction and decision, which assessment shall briefly 
 refer to the contract, the work contracted for and performed, and shall 
 show the amount to be paid therefor, together with ary incidental 
 expenses, the rate per front foot assessed, if the assessment be made per 
 front foot, the amount of each assessment, the name of the owner of each 
 lot, or portion of a lot (if known to the street superintendent) ; if unknown 
 the word "unknown" shall be written opposite the number of the lot, and 
 the amount assessed thereon, the number of each lot or portion or portions 
 of a lot assessed, and shall have attached thereto a diagram exhibiting 
 each street or street crossing, lane, alley, place, or court, on which any 
 work has been done, and showing the relative location of each district, lot 
 or portion of lot to the work done, numbered to correspond with the num- 
 bers in the assessments, and showing the number of feet fronting, or 
 number of lots assessed, for said work contracted for and performed. 
 [Ainemlim-nf nppi-nml .'\r<i l -rh //,, 1889. Statutes 1889, p. 166.] 
 [Section 8 was amended in 1889 by act of March 14, 1889, statutes 1889, 
 
 p. n>(5.] 
 
 Section 8 of the act prescribes the/orw of the assessment. 
 This section provides: (1.) That the assessment shall be made 
 by the superintendent of streets only after the contractor has 
 fulfilled his contract to the satisfaction of the street super- 
 intendent. (#.) That it shall be made in conformity with 
 the provisions of the preceding section [Sec. 7] according 
 to the character of the work done, i.e. the assessment shall 
 be made against the particular property which is made 
 liable by section 7 of the act, and it shall be made by the 
 street superintendent alone, unless any direction or decis- 
 ion be given b} the council on appeal, in which case the street 
 superintendent shall make the assessment in conformity 
 with such direction and decision, and (3.) That the assess- 
 ment shall contain eight provisions, viz, (a.) a brief refer- 
 ence to the contract; (b.) a brief reference to the work 
 contracted for and performed; (c.) it shall show the amount 
 to be paid for the work, together with any incidental 
 expenses; (d.) the rate per front foot assessed if the 
 assessment be made per front foot; (e.) the amount of each 
 assessment; (/.) the name of the owner of each lot, or por- 
 tion of lot if known to the street superintendent or, if 
 unknown, the word "unknown" shall be written opposite 
 the number of the lot; (g.) the amount assessed upon each 
 such lot or portion of a lot, and (h.) the number of each 
 lot or portion or portions of a lot assessed. (4-) The 
 section likewise provides for a diagram to be attached 
 to the assessment. This diagram shall show (a.) each 
 street or street crossing, lane, alley, place, or court, 
 on which any work has been done; (6.) the relative loca- 
 tion of each district, lot or portion of lot to the work done: 
 (c.) the lots and portions of lots shall be numbered on the 
 
86 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 diagram to correspond with the numbers in the assessment; 
 (d,) the diagram shall show the number of feet fronting, 
 or number of lots assessed, for the work contracted for and 
 performed. 
 
 The section provides that "the assessment shall cover the 
 sum due for the work performed and specified in said con- 
 tract (including any incidental expenses)." See subdi- 
 vision 3 of section 34 and section 35 for a definition or 
 enumeration of the things embraced by the term "incidental 
 expenses." 
 
 I. Contract Fulfilled to Satisfaction of Superintendent. 
 The superintendent of streets is only authorized to make 
 an assessment after the contractor has fulfilled his con- 
 tract "to the satisfaction of the street superintendent," so 
 that when the superintendent makes an assessment he, in 
 so doing, necessarily determines that the contract has been 
 performed to his satisfaction. His dbtermination in this 
 respect is final and conclusive, except upon an appeal to 
 the council. An error by the superintendent in determining 
 whether the contractor has properly fulfilled his contract 
 is not a jurisdictional defect, and therefore, the only remedy 
 of a lot owner, dissatisfied with the decision of the super- 
 intendent of streets that the contractor has fulfilled his 
 contract, is an appeal from such decision to the council, as 
 provided for by section 11 of the act. [Emery v. Bradford, 
 29 Cal. 75; Shepard v. McNeil, 38 Cal. 72; Fanning v. 
 Leviston, 93 Cal. 186; Jennings v. LeBreton, 80 Cal. 8, 11.] 
 
 "The law does not prescribe any particular mode or form 
 in which the superintendent shall manifest his approval or 
 acceptance of the work done under a street contract, nor 
 does it require the approval to be expressed in writing. As 
 the assessment and warrant attached thereto are not to be 
 made or given until 'after the contractor of any street work 
 has fulfilled his contract to the satisfaction of the superin- 
 tendent,' the assessment and warrant in due form are cer- 
 tainly prima facie evidence that the work was completed to 
 the satisfaction of the superintendent, and that he approved 
 and accepted the same." [Jenning v. LeBreton, 80 Cal. 8.] 
 
 The superintendent may approve the work without per- 
 sonal inspection, and proof of lack of personal inspection 
 by him does not overcome the proof of acceptance from 
 certificates showing that the work was completed according 
 to contract, taken in connection with the personal making 
 and signing of the assessment diagram and warrant by the 
 superintendent. [Jennings v. Le Breton, supra. See Brady 
 v. Bartlett, 56 Cal. 350.J 
 
ASSESSMENT AFTER WORK BONE h'** 1 87 
 
 II. Assessment Made after Fulfillment of Contract. Sec- 
 tion 19 of article 11 of the new constitution, as originally 
 adopted, provided that no contract should be let for do- 
 ing any street work until after an assessment, in proportion 
 to the benefits on the property to be affected or benefited, 
 should have been levied, collected and paid into the city 
 treasury. Prior to this constitutional provision, most of the 
 street work acts provided, as does 'the present street work 
 act, section 8, supra, that the assessment should be made 
 by the superintendent of streets after the contract had been 
 fulfilled to his satisfaction. Thus the act of 1872, providing 
 for street improvements in Sun Francisco, authorized the 
 superintendent of streets to execute contracts for such 
 improvements in advance of the levy and collection of the 
 assessment, instead of afterwards, as required by section 19 
 of acticle 11 of the new constitution, prior to its amend- 
 ment in 1884, just as section 8 of the present street work 
 act, act of March 18, 1885, requires the contract to 
 be let and the work to be done in advance of the levy and 
 collection of the assessment. 
 
 In McDonald ". Patterson, 54 Cal. 245, it was held that 
 section 19 of acticle 11 of the new constitution, as it then 
 stood, was not a provision which required legislation to 
 enforce it, and that the provisions of the act of April 1, 
 1872, relating to street improvements in San Francisco, 
 which authorize the superintendent of streets to execute 
 contracts for such improvements in advance of the levy 
 and collection of the assessment were inconsistent with 
 said section of the constitution, and ceased to be operative 
 on the 1st day of January, 1880, when the new constitution 
 went into effect. This ruling was followed in Donahue v. 
 (irnham, 61 Cal. 276. 
 
 The legislature, at its regular session in 1883, proposed 
 an amendment to said section 19 of article 11 of the constitu- 
 tion, wiping out all of that portion of the section relating to 
 assessments to pay for street improvements. This amend- 
 ment was ratified by the people at the general election in 
 1884, so that, if this amendment of 1884 to section 19 of arti- 
 cle 11 of the constitution was properly submitted, and ratified 
 by the people, street work acts, since then, may provide for 
 assessments after the letting of the contract and the perform- 
 ance of the work, or in advance thereof. 
 
 The legislature, at its regular session in 1883, for the pur- 
 pose of enacting a statute which should conform to the pro- 
 visions of said section 19 of article 11 of the constitution, as it 
 then stood, passed the act known as the Vrooman act, en- 
 titled "An act to provide for the improvement of streets, 
 
88 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 lanes, alleys, courts, places and sidewalks, and the construc- 
 tion of sewers within municipalities," approved March 6, 
 1883. [Statutes. 1883, p. 32.] This act provided for the levy 
 and collection of the assessment hefore the letting of any 
 contract. 
 
 In 1 885, the legislature at its regular session in that year, 
 passed the general street work act the act of March 18, 
 1885 which, with the subsequent amendatory acts, is the 
 statute now in force. This act was passed after the adoption 
 and ratification of the said amendment to the constitution, 
 eliminating said restriction upon the right of assessment. 
 
 In People v. Strother, 67 Gal. 624, it was held that the said 
 amendment of 1884 to said section 19 of article 11 of the con- 
 stitution was properly adopted. Subsequently, in the case 
 of Oakland Paving Company v. Hilton, 69 Cal. 479, an 
 opinion was rendered by Mr. Justice Thornton, concurred 
 in by Mr. Justice McKee, holding that the said proposed con- 
 stitutional amendment was never properly submitted to the 
 people for ratification and adoption, because it was not 
 entered at large in the journals of the two houses of the 
 legislature, and that therefore the provision of section 1 of 
 article 18 of the constitution, prescribing the mode by which 
 the constitution shall be amended, was not complied with. 
 
 In Oakland Paving Company v. Tompkins, 72 Cal. 5, it 
 was held, Mr. Justice Thornton only dissenting that the 
 said proposed amendment to the constitution was properly 
 entered in the journals of the two houses of the legislature 
 and that the amendment to the constitution was properly 
 adopted. 
 
 In Thomason v. Ashworth, 73 Cal. 73, the ruling of the 
 court in Oakland Paving Company v. Tompkins, was 
 affirmed. 
 
 It has, therefore, now become a settled proposition that 
 under the constitution as it now stands, the superintendent 
 of streets may make an assessment after the contract has 
 been fulfilled to his satisfaction. In the case of Thomason 
 v. Ashworth, supra, it was likewise held, (1.) That the act 
 of 1872, providing for the improvement of streets in San 
 Francisco, in so far as it authorized a contract to be entered 
 into in advance of the assessment and collection of the 
 money to be paid for the work done under it, was repealed 
 by said section 19 of acticle XI of the constitution of 1879; 
 (I?.) that it was afterwards entirely repealed by the said act of 
 March 6, 1883, and (3.) that this latter act was repealed by 
 the act of March 18, 1885 the act now in force. 
 
 III. Street Superintendent to Make Assessment in Conformity 
 with the Provisions of Section 7. Section 8 of the act provides 
 
SMKNT TO CONFORM WITH SETION SEVEN SSSr4*14,^8W Ml8d 89 
 
 that the assessment shall be made in conformity with the 
 provisions of the preceding section section 7 according 
 to the character of the work done, unless any direction or 
 decision be given by the council on appeal, in which case 
 the street superintendent shall make the assessment in con- 
 formity with such direction and decision. 
 
 Therefore the assessment, is, in the first instance, to be 
 made by the superintendent acting upon his own judgment, 
 and, unless the council, in its resolution of intention, lias 
 declared that the costs and expenses of the work are to be 
 assessed upon a district, the superintendent shall make 
 the? assessment upon the lots and lands according to 
 the front-foot plan of assessing, the expense being 
 assessed at a uniform rate per front-foot, .as provided in 
 section seven. If the resolution of intention declares that 
 the cost and expenses are to be assessed upon a district, the 
 superintendent of streets, after the contractor has fulfilled 
 his contract to the satisfaction of the superintendent or of 
 the council on appeal, must proceed to estimate upon the 
 lands, lots, or portions of lots within the assessment district, 
 the benefits arising from the work, and must assess upon 
 all pieces, parcels, lots or portions of lots in said district, 
 the total amount of the cost and expense assessing upon 
 each piece, parcel, lot or portion of a lot, such proportion 
 of the total amount of the expenses and cost as is propor- 
 tionate to the estimated benefits received by it. 
 
 In either of the above cases, that is, whether the front- 
 foot plan or the district assessment plan be the mode adopt- 
 ed, the assessment must, in the first instance, be made by 
 the street superintendent acting upon his own judgment. 
 In the one case he determines the rate of assessment per 
 front foot to be assessed upon the lots according to the front- 
 foot plan, in the other case he estimates the benefits to be 
 received by the lots and parcels of land within the assess- 
 ment district, and assesses against each lot and parcel of 
 land such an amount of the total cost and expenses as is 
 proportionate to the benefit received by it. In either case 
 hia decision is final and conclusive, except upon appeal to 
 the council. If a property owner appeal to the council, as 
 provided for by section 11 of the act, the council may 
 change the assessment, and in such case the street superin- 
 tendent must make the assessment in conformity with the 
 council's direction and decision. For example, a property 
 owner may deem the benefit actually received by his land, 
 when the district assessment plan has been adopted by the 
 
90 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 council in its resolution of intention, to be less than the 
 amount estimated by the street superintendent. In such 
 case the owner may appeal to the council, and the council 
 may, if it agree with the property owner's contention, decide 
 that the benefit received by the lot is less than that esti- 
 mated by the superintendent of streets. In such case the 
 superintendent must make the assessment in conformity 
 with the direction and decision of the council. 
 
 IV. Form of Assessment Roll and How Made. Section 
 8 requires the assessment to contain eight provisions, 
 enumerated, supra, page 85, and likewise a diagram 
 showing four things. Some, at least, of these requirements, 
 i. e. the things which the assessment and diagram must show, 
 affect substantial rights, and, therefore, must be complied 
 with as required by the act; [Smith v. Cofran, 34 Gal. 
 316.] For example, the requirement that the assess- 
 ment shall show the name of the owner, if known to the 
 superintendent, or, if unknown, the word "unknown" 
 written oppoeite the number of the lot. And, as the prop- 
 erty owner has a constitutional right to receive notice that 
 his property has been assessed, and as the assessment ma} 7 
 be 'made against him by the words "owner unknown," it 
 follows also that the assessment should contain a description 
 of the property sufficient to impart notice to the owner. 
 [See Blackwell on Tax Titles, section 223, et seq.; Desty on 
 Taxation, Vol. II, page 1329; Sharpe v. Johnson, 4 Hill, 92.] 
 "The identity of the lot assessed, and not the person who 
 may be the owner, is made the essential requirement of 
 the statute, the first must be specifically described, while the 
 latter may be designated as 'unknown.' ' [Gillis v. Cleve- 
 land, 87 Cal. 217.] 
 
 (a.) Name of Owner if Known, if not to Owner Unknown. 
 The assessment must be made against the true owner 
 either by name or by the designation of "unknown," as pro- 
 vided in the statute. If not made against the true owner by 
 name or by the designation "unknown," it creates no liabil- 
 ity against the land or against the true owner or against 
 the person in whose name it is erroneously made. The 
 assessment must be made against the true owner, if known 
 to the superintendent of streets, and if not known the 
 word "unknown" must be written opposite the number of 
 the lot and the amount of the assessment. Therefore, if 
 the assessment be against a deceased person, it is void. 
 [Smith v Davis, 30 Cal. 537; see Taylor v. Donner, 31 CaL 
 481; Mayo v. Ah Loy, 32 Cal. 477.] And no person can be 
 made to pay an assessment, even if he is the owner of a lot 
 in the assessment district, unless the assessment has been 
 
FORM OF ASSESSMENT S^^iSS" 1 " 1 * 1 91 
 
 Mar. 14, 1881). 
 
 against him by name or by the designation "unknown. " 
 [Blatner v. Davis, 32 Cal. 328.] It is the duty of the 
 superintendent of streets, if, upon reasonable inquiry, he 
 entertains doubts about the ownership of property to 
 be affected by the assessment, to assess it to "owners 
 unknown" [Himmelmann v. Steiner, 38 Cal. 175], and an 
 assessment to "unknown owners," made by the superin- 
 tendent of streets, amounts to an official certificate by the 
 proper officer, that the owner of the particular lot desig- 
 nated was unknown to him. The certificate is conclusive 
 of the truth of the fact certified, and cannot be called in 
 question in an action brought upon the assessment. 
 [Chambers v. Satterlee, 40 Cal. 498, 518.] Section 8 of the 
 act prescribes what an assessment shall show T , and, among 
 other things, that it "shall show * * * the name of the 
 owner of each lot, or portion of a lot (if known to the 
 street superintendent); if unknown the word 'unknown' 
 shall be written opposite the number of the lot," etc. And 
 in Smith r. Cofran, 34 Cal. 316-317,it was said: "There is no 
 authority for making an assessment that does not embrace 
 these essentials. There is no authority to make an assessment 
 strictly in rem without reference to owners, either known or 
 unknown, or an assessment that shall effect the interest of any 
 party, unless designated in -the assessment by name, or, if 
 unknown, it be so expressly stated." In Himmelmann v. 
 Steiner, supra, it was held that the assessment by the 
 superintendent of streets to the defendant as an "owner 
 unknown" was conclusive of the fact that the owner was 
 unknown to the superintendent, even though the premises 
 stood of record in the name of the defendant all the time, 
 and was substantially enclosed, with a dwelling house 
 thereon, occupied by defendant. [See also Hewes v. Reis, 
 40 Cal. 2,",.] 
 
 In Himmelmann r. Hoadley, 44 Cal. 227, it was said: 
 "According to the repeated constructions of the statute, the 
 superintendent, unless he is satisfied beyond all doubt as to 
 the ownership of a lot, may assess it to 'unknown' owner; 
 and it is almost, if not quite, impossible to show r that he 
 did not know the owner." Consequently the safest course is 
 to assess all lots to owners "unknown." For, if assessed to 
 the owner in his name, it must be assessed to the true 
 owner, and as this is almost always a matter of doubt the 
 only safe course is for the superintendent to avail himself 
 of the alternative allowed by the statute arid assess to 
 "owner unknown." 
 
 It will be a great advantage to the contractor if the 
 assessment is in every case assessed to unknown owners, 
 
92 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 since, in that case, under the provisions of section 10 of the 
 act, the "demand" need not be made upon the owner in per- 
 son or his agent, but may be made upon the premises. 
 
 An assessment to "Shubal Dunham and unknown" is void, 
 likewise an assessment to "S. Dunham or unknown." 
 [City of Stockton v. Dunham, 59 Cal. 608; Same v. Same, 
 59 Cal. 609.] The assessment must be against the owner in 
 his true name alone, or against him simply as an "owner 
 unknown." 
 
 If the property belongs to tenants in common, it should 
 be assessed to them jointly. [Blatner v. Davis, 32 Cal. 331.] 
 
 (b.) The assessment may be made upon a gold basis and 
 collected in gold coin. [Baudry f.Valdez, 32 Cal. 270.] 
 
 (c.) Attestation of Assessment. The assessment when made 
 must he attested by the official signature of the street super- 
 intendent. Without such signature it is not an official 
 document, and this, even thougli the statute does not 
 expressly require the assessment to be thus attested, and it 
 cannot be helped out by the signature to the warrant and 
 diagram. [Dougherty v. Hitchcock, 35 Cal. 512.] 
 
 (d.) Time Within which to make Assessment and Re-assess- 
 ment. No time is limited within which the assessment 
 must be made, although it is the duty of the street superin- 
 tendent to make it immediately after the fulfilment of the 
 of the contract to his satisfaction. Nor is the fact that a 
 void assessment has been already made, any excuse for not 
 making a valid one and he may be compelled by mandamus 
 to do so. [Himmelmann v. Cofran, 36 Cal. 411.] And if 
 the first assessment is invalid for failure to authenticate his 
 record by his official signature, it is his duty afterward to 
 make a valid assessment. [Shepard v. McNeil, 38 Cal. 73.] 
 See also section 9 of the act, infra, where provision is 
 expressly made for a second assessment in case the first be 
 adjudged invalid. But if the first assessment is valid the 
 contractor cannot compel a second one to be made. 
 [Frick v. Morford, 87 Cal. 576.] Where, in an action to 
 recover the amount of the assessment, the property owners 
 set up that the assessment is void and it is not, but the court 
 erroneously holds that it is, the property owners are 
 estopped to deny the authority of the street superintendent 
 to make a second assessment. [Dyer v. Scalmanini, 69 Cal. 
 637.] 
 
 (e.) Description of Property. An assessment giving the 
 number and frontage of lots, arid referring to the diagram 
 for further description, sufficiently describes the property to 
 be assessed. [Hewes v. Reis, 40 Cal. 255; Ede v. Knight, 93 
 Cal. 159, 163.] 
 
DESCRIPTION OF PROPERTY ASSESSED SS&VffiS?^ 4 93 
 
 March 14, 1889. 
 
 But the assessment and diagram when taken together 
 must intelligibly describe the property. And, if the dia- 
 gram is referred to for a description, it must contain 
 such a description or such references as will enable the 
 description of the premises to be understood. If the 
 description is confined to the diagram, it will be insufficient 
 if there be nothing on the diagram to show the points of 
 the compass and locality of the streets. [Himmelmann v. 
 Calm, 49 Oal. 285; San Francisco v. Quackenbush, 53 Cal. 
 52.] However, it is not necessary that the letters N and S, 
 to indicate the points of the compass, north and south 
 respectively, should be used. If an arrow is used, its barb 
 alone is competent without the letter N to denote north on 
 the diagram, and the point of a scroll is as competent, as the 
 barb of an arrow to denote north on a map or diagram. 
 [Whiting v. Quackenbush, 54 Cal. 306; Williams v. McDon- 
 ald, 58 Oal. 527.] The assessment is void if it does not 
 show the dimensions of the lot. [Himmelmann v.Bateman, 
 50 Cal. 11.] 
 
 But it will be sufficient if the dimensions of two of the 
 side lines only are shown, if the map show that the figure is 
 a rectangle, so that the dimensions of the lot may be 
 ascertained from a knowledge of the dimensions of the two 
 side lines. [Whiting v. Quackenbush, supra."] The assess- 
 ment is insufficient if it fail to show on what side of the 
 street the lot is. [San Francisco v. Quackenbush, 53 Cal. 
 52.] 
 
 If the assessment describe the lot by metes and bounds, it 
 will be sufficient even if the diagram does not indicate the 
 course of the streets by an arrow or a scroll, as the courts 
 will take judicial notice of the streets and of their relation 
 to each other, and of the directions in which they run. 
 [Brady v. Page, 59 Cal. 52, 301; Williams v. Savings & 
 L. Soc., 97 Cal. 122.] 
 
 The venue in the caption of the assessment is sufficient 
 to show that the property sought to be charged is within 
 the city within which the improvement was made, and that 
 the street superintendent of such city has jurisdiction to 
 make the assessment. [Whiting v. Quackenbush, supra.] 
 
 If the assessment number a small stieet running at right 
 angles to the street upon which the work was done and 
 terminating therein, also designating such small, terminat- 
 ing street by its name, referring to it as a lot having a 
 frontage upon the main street equal to its width, and 
 charging it with a certain amount as its proportion of the 
 cost of the work, this will not invalidate the assessment. 
 It will be considered merely as a mode of distributing the 
 
94 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 cost of the work as between the lots liable therefor. [Dyer 
 v. Martinovich, 63 Cal. 353. 
 
 The assessment and diagram, as recorded, must contain a 
 sufficient description of the lot, and must not vary 
 materially from the diagram attached to the original assess- 
 ment. [Norton v. Courtney, 53 Cal. 691.] 
 
 V. Rem.edy for Irregularities in Assessment. 
 
 (a.) Appeal by Lot Owner. According to the require- 
 ments of section 8 of the act, the assessment must show and 
 contain certain things. It might be difficult to draw the 
 line of demarkation in particular cases so as to clearly 
 determine when a failure of the assessment roll to show 
 these things, or an irregularity in showing them, operates to 
 render the assessment wholly void, and when it is merely 
 an irregularity to be corrected on appeal. One of the ques- 
 tions in each particular case is: Does the alleged irregu- 
 larity affect substantial rights? If substantial rights 
 are not affected, then such appeal is probably the only 
 remedy of the aggrieved property owner. In Dehail v. 
 Morford, 95 Cal. 460, Mr. Justice Harrison said: "After the 
 jurisdiction has once been acquired, subsequent proceedings 
 can be attacked for only such irregularities as affect sub- 
 stantial rights." It has been decided that a failure 
 to make the assessment against the true owner, either 
 by his name or by the designation " unknown," is a failure 
 in respect to a " substantial right/' and that therefore the 
 owner need not appeal to the council, but may attack the 
 assessment in an action against him. Or rather, it has been 
 decided that in such case the owner is not a party to the 
 assessment at all, and one not a party to the assessment in 
 one of the modes designated by the statute, i. e. either as 
 owner in his true name, or by the designation, "unknown," 
 is not affected by it; he is a stranger to it, and not "aggriev- 
 ed," and those only can be concluded by the decision of the 
 council, on appeal, who have been made parties to the 
 assessment in one of said modes. [Smith v. Cofran,34 Cal. 
 316; opinion of Mr. Justice Sawyer on petition for rehearing.] 
 The same result might also follow where the assessment 
 is to "owner unknown," and fails to describe the 
 land so as to give sufficient notice to the owner 
 that his lot had been assessed. [See authorities supra 
 on " description of property."] A description suf- 
 ficient to give notice to the taxpayer that his 
 land is assessed is an essential which the legislature cannot 
 dispense with, nor work a cure upon any proceedings defec- 
 tive in that regard. [Blackwell on Tax Titles, section 223 
 
APPEAL BY LOT OWNER SSi^/iS?* * 95 
 
 March 14, 1889. 
 
 et seq.; Desty on Taxation, Vol. II, p. 1329; Sharpe v. John- 
 son, 4 Hill 92.] 
 
 We have said that one of the questions in each particular 
 case is: Does the alleged irregularity affect substantial 
 rights? But this we believe is not decisive of the question 
 as to whether the irregularity is one which may be cor- 
 rected on appeal or not. For, while it is probable that if 
 substantial rights are not affected bv the alleged irregularity, 
 an appeal to the council is the only remedy of the aggrieved 
 property owner, [See language of Mr. Justice Harrison in 
 Dehail v. Morford, quoted supra,"] it does not therefore fol- 
 low that an appeal to the council is not the sole remedy, if 
 substantial rights are affected by irregularities in the 
 assessment. Thus, if a lot, liable to assessment, be omitted 
 from the assessment roll, the substantial rights of those 
 whose property is assessed, are certainly affected thereby. 
 [People v. Lynch, 51 Cal. 19; Diggins v. Brown, 76Cal. 318; 
 Davies v. Los Angeles, 86 Cal. IT: Moulton v. Parks, 64 Cal. 
 LSI; Dyer v. Harrison, 03 Cal. 447.] Nevertheless, it seems 
 that, if the error or irregularity complained of is capable of 
 correction by the council on appeal, an appeal to the coun- 
 cil is the only reined)'. [See opinion of Temple J. in 
 Chambers v. Satterlee, 40 Cal. .Vj-1. On page 526, Mr. 
 Justice Temple said: <; I have no doubt but that this right 
 [right to appeal] is exclusive of any other remedy as to all 
 matters which can be revised and corrected on such appeal." 
 See also notes to section 11 post.] Accordingly it was held 
 in Dowling- Vm Altschul, 33 Pac. Rep. 495, that, where an 
 assessment for paving a cul-de-sac failed to assess the land 
 at the end of the same, a question is presented which the 
 city council has power to determine on appeal under the 
 provisions of section 11 of the act of March 18, 1885 the 
 Vrooman act and that, therefore, its decision is conclusive, 
 although Mr. Justice Harrison, in his concurring opinion 
 in this case, hesitates to affirm that the act of the board of 
 supervisors of San Francisco confirming an assessment 
 which is made in manifest violation of the provisions of the 
 statute, concludes the owner from making such defense in 
 an action to enforce the assessment. If, however, the pre- 
 vailing opinion in this case of Dowling v. Altschul be cor- 
 rect, then it seems that, to enable a property owner to suc- 
 cessfully attack the assessment in an action to enforce it, 
 not only must some "substantial right" of the property 
 owner be affected by the alleged error or irregularity, but 
 the error or irregularity complained of must be one which 
 cannot be corrected by the council on appeal the mischief 
 must be past remedy. Now it is difficult to conceive of an 
 
96 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 error or irregularity in the assessment itself which is past 
 remedy, where the work has been properly done under a 
 valid contract for the same, since, iinder the decisions cited 
 supra, no time is limited within which an assessment may 
 be made, and, if the first assessment be invalid for any 
 reason, the superintendent of streets may make another. 
 (supra page 9 '2.) 
 
 However, if the prevailing opinion in Dowling v. Altschul 
 be correct, then it seems that, to determine whether or not 
 an appeal to the council was the. property owner's exclusive 
 remedy for an omission of, or irregularity in, any one of the 
 things which section 8 of the act requires to be shown by 
 or contained in the assessment, two questions are involved, 
 viz: (1.) Does the alleged omission or irregularity affect 
 any substantial right of the property owner? and (2) If it 
 does affect a substantial right of the property owner, can 
 the error complained of be corrected b}^ the council on 
 appeal, so as to restore or preserve the substantial rights of 
 the ''aggrieved" property owner? i.e.,\s the error or irreg- 
 ularity complained of past remedy or not? 
 
 But, even if the error complained of might have 
 been corrected by the council on appeal, the prop- 
 erty owner is not an "aggrieved" party, and there- 
 fore is not concluded by a failure to appeal, 
 or by the decision of the council on appeal, if one be taken, 
 unless he is a party to the assessment. [Smith r. Cofran, 34 
 Cal. 316, opinion of Mr. Justice Sawyer on petition for 
 rehearing.] And he is not a party to the assessment unless 
 he is assessed in his true name, or by the designation, 
 "unknown." [Smith v. Cofran, supraJ] The same reason- 
 ing would seem likewise to be applicable where neither the 
 assessment nor the diagram contains a sufficient description 
 of the land. For, since "the identity of the lot assessed, and 
 not the person who may be the owner, is made the essential 
 requirement of the statute, "[Gillis v. Cleveland, 87 Cal. 217] 
 it would seem to follow that, if the lot be not sufficiently 
 described, the lot owner is not a party to the assessment, 
 and therefore not a party "aggrieved," and need not appeal 
 to the council especially if the assessment be not made 
 against him in his true name. [See authorities cited supra 
 page 93, under the caption, "Description of Property."] 
 So also, where a lot is not liable to be assessed at all, the 
 owner is not a party directly interested in the contract, 
 work or. assessment; he is not a party to the assessment, 
 and therefore need not appeal. [Bassett v. Enwright, 19 
 Cal. 636.] See also Frick v. Morford, 87 Cal. 576, where it 
 was held that if the lot assessed is wholly outside of the 
 
(UNI 
 
 FORNl*^ 
 
 APPEAL BY LOT OWNER A^'l 11 ?, a l ^ ded 97 
 
 limits of the work as fixed by the resolution of intention, it 
 cannot be held liable for any assessment, or if only part is 
 within the limits as fixed by the resolution, the contractor 
 is not entitled to an assessment against that part of the lot 
 not fronting upon the work authorized by the resolution, 
 and if the lot is wholly outside of the limits as fixed by the 
 resolution of intention, the owner is not a party "aggrieved," 
 since in such case his lot could not be held liable at all, and 
 therefore he is not required to appeal to the city council. 
 
 Therefore, where all the proceedings leading up to the 
 execution of the contract have been regular and proper, and 
 the contract is valid and the work done thereunder has been 
 properly performed and within the proper time, and the 
 only irregularity complained of is one inhering in and 
 directly appertaining to the assessment itself, then it seems 
 that, for the purpose of ascertaining whether an appeal to 
 the council is the property owner's only remedy, the follow- 
 ing rules arc determinative; 
 
 1. Was the property owner alleging the irregularity a 
 party to the assessment? If he was not a party to the assess- 
 ment he is not a party "aggrieved* 4 and therefore need not 
 appeal to the council. If the assessment is not made against 
 him in his true name or under the designation "unknown/' 
 he is not a party to the assessment. And it seems that if the 
 lot be not sufficiently described, or if the lot is not liable to 
 be assessed at all, he is not a party to the assessment. 
 
 2. If the property owner complain ing of the irregularity 
 was a party to the assessment, did the alleged omission or 
 irregularity in making the assessment affect any of his sub- 
 stantial rights? If it did not, then it seems" that an appeal 
 was his only remedy. 
 
 -/. If the property owner complaining of the irregularity 
 or omission, was a party to the assessment, and if the irregu- 
 larity or omission complained of did affect a substantial 
 right, was the mischief past remedy, or was it possible for 
 the council on appeal to have corrected the assessment so 
 as to have restored or preserved all the substantial rights of 
 the aggrieved property owner? If the council might so 
 have corrected the assessment, then it seems that an appeal 
 to the council was the only remedy of the complaining 
 property owner. [See notes to section 11 of the act.] 
 
 The rule that " after the jurisdiction has once been 
 acquired, subsequent proceedings can be attacked for only 
 such irregularities as affect substantial rights," is plain and 
 simple, but to apply the rule, hoc opus est. 
 
 (b.) Appeal by Contractor. The contractor, under section 
 11 of the act, has the right to appeal to the council, as well 
 
98 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 as a lot owner. If there be some irregularity in the assess- 
 ment, which, however, does not render it void. does not 
 affect a substantial right of the property owner, the contract- 
 or, if the property owner fails to have the irregularity cor- 
 rected by appealing to the council, will doubtless lose noth- 
 ing by himself failing to appeal, but if the irregularity in 
 the assessment be one which renders it nugatory, the con- 
 tractor's only remedy is by appeal to the council where the 
 irregularity may be corrected. [Smith v. Cofran, 34 Cal. 
 310; Frick v. Morford, 87 Cal. 576, 580; See notes to sec- 
 tion 11 of the act.J 
 
 VI. Diagram. Section 8 likewise requires a "diagram" 
 to be attached to the assessment. This diagram is required 
 to exhibit "each street or street crossing, lane, alley, place, 
 or court on which any work has been done, and showing 
 the relative location of each district, lot, or portion of lot to 
 the work done, numbered to correspond with the numbers 
 in the assessment, and showing the number of feet fronting, 
 or number of lots assessed, for said work contracted for and 
 performed;" and in McDonald v. Conniff, No. 15,085, 
 decided Aug. 30, 1893, the Supreme Court, per Harrison, J., 
 said: " There is no requirement in the statute that the 
 'work' shall be shown or even designated upon the diagram; 
 but if it [the objection] be construed as an objection that the 
 diagram does not show upon what portion of Tenth street 
 the work was done, it may also be said that the statute does 
 not make this requirement. * * * The diagram is only 
 auxiliary to the assessment, and is intended to be merely a 
 map exhibiting 'each street' upon which the work was done. 
 The requirement that it shall show 'the relative location of 
 each lot assessed to the work done,' is satisfied if it shows 
 their location in relation to the 'exhibited' street upon 
 which the work was done. Taken in connection with the 
 description of the work for which the assessment was made, 
 it can then be seen from an inspection whether any of the 
 lots assessed are so located as to be liable for any part of 
 the expense of the work, and if for any reason a particular 
 lot ought not to have been assessed for that work, the error 
 can be corrected upon application to the proper tribunal. 
 The diagram is not intrinsically invalid unless the lots 
 shown thereon are so located that they could not under any 
 circumstances be made liable for a portion of the expense 
 of the work. It is not essential to the validity of an assess- 
 ment that the lots assessed should front upon the entire 
 portion of the street exhibited upon the diagram. In the 
 case of an assessment fc-r work done upon main street cross- 
 ings, or at the termination of one street in another, the 
 
SECTION NIXE OF THE ACT 
 
 street crossing or the termination id required to be exhibited 
 on the diagram, while the lots to be assessed front upon 
 portions of the streets on which none of the work was done, 
 and the diagram is to show their relative location to the 
 work done by showing that they are within the quarter 
 blocks or territory liable to be assessed. The diagram in 
 the present case sufficiently complies with the statute. It 
 exhibits Tenth street as the street upon which the work was 
 done, and it also delineates the several lots assessed and 
 shows that each of the lots assessed fronts upon Tenth 
 street, and that its- location is within the territory liable to 
 be assessed for work done upon Tenth street." 
 
 SKCTION 9. To said assessment shall be attached a warrant, which shall 
 be signed by the superintendent of streets, and countersigned by the mayor 
 of said city. The said warrant shall be substantially in the following form : 
 
 l-'OK.M OF THK W A KUAN I'. 
 
 By virtue hereof, I (name of the superintendent of streets), of the city 
 of , county of (or city and county of ), and state of Cali- 
 fornia, by virtue of the authority vested in me as said superintendent of 
 streets, do authorize and empower (name of contractor), (his or their) 
 agents or assigns, to demand and receive the several assessments upon 
 the assessment and diagram hereto attached, and this shall be (his or 
 their) warrant for tin- same. 
 
 (Date.) (name of superintendent of streets). 
 
 Countersigned by (name of mayor). 
 
 Said warrant, assessment and diagram, together with the certificate of 
 the city engineer, shall be recorded in the office of said superintendent of 
 street*. When BO recorded the several amounts assessed shall be a lien 
 upon the lands, lots, or portions of lots assessed, respectively, for the 
 period of two years from the date of said recording, unless sooner dis- 
 charged; and from and after the date of said recording of any warrant, 
 assessment, diagram and certificate, all persons mentioned in section 
 eleven of this act shall be deemed to have notice of the cont2nts of the 
 record thereof. After said warrants-assessment, diagram and certificate 
 are recorded the same shall be delivered to the contractor, or his 
 agent or assigns, on demand, but not until after the payment to the said 
 superintendent of streets of the incidental expenses not previously paid by 
 the contractor, or his assigns ; and by virtue of said warrant said contractor, 
 or his agent or assigns, shall be authorized to demand and receive the amount 
 of the several assessments made to cover the sum due for the work speci- 
 fied in such contracts and assessments. Whenever it shall appear by any 
 final judgment of any court of this state that any suit brought to fore- 
 close the lien of any sum of money assessed to cover the expense of said 
 street work done under the provisions of this act has been defeated by 
 reason of any defect, error, informality, omission, irregularity or illegality 
 in any assessment hereafter to be made and issued, or in the recording 
 thereof, or in the return thereof made to or recorded by said superintend- 
 ent of streets, any person interested therein may, at any time within three 
 months after the entry of, said final judgment, apply to said superintend- 
 ent of streets who issued the same, or to any superintendent of streets in 
 
100 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 office at the time of said application, for another assessment to be 
 issued in conformity to law; and said superintendent shall, within fifteen 
 days after the date of said application, .make and deliver to said applicant 
 a new assessment, diagram and warrant in accordance with law; and the 
 acting mayor shall countersign the same as now provided by law, which 
 assessment shall be a lien for the period of two years from the date of said 
 assessment, and be enforced as provided in section seven of this act. 
 [Amendment approved March 31, 1891, statutes 1891, page 205.] 
 
 [Section 9 was amended in 1889, by act of March 14, 1889, statutes 1889, 
 page 167; and again in 1891 by act of March 31, 1891, statutes 1891, page 
 205.] 
 
 The proceedings necessary to the existence of a valid 
 lien, terminate with the recording of the warrant, assess- 
 ment and diagram, together with the certificate of the city 
 engineer, as provided for by section 9 of the act. Hitherto 
 the lien has been inchoate, commencing with the first 
 acquisition and exercise of jurisdiction by the council, 
 which was operative only so far as to prevent owners from 
 affecting the assessment by changing the area and bounda- 
 ries of the land as it stood when jurisdiction over the sub- 
 ject matter first attached. The Supreme Court has held 
 that the sale of a thin frontage for the purpose of confining 
 the assessment to this comparatively valueless strip is una- 
 vailing. [Dougherty v. Miller, 36 Gal. 87.] But, under the 
 provisions of section 9 of the act, the lien, for the first time, 
 becomes perfected by the recordation of the warrant, assess- 
 ment, diagram, etc, unless upon appeal to the council, as 
 provided for by section 11, the assessment shall be amended, 
 or set aside and a new one issued. In such case the lien is 
 perfected according to and by the final recordation. 
 
 There are, therefore, at least fourteen acts necessary to 
 the existence of a valid lien and, where the proceedings are 
 inaugurated by a petition as provided for by section 4 of 
 the act, or where grading is to be done after a change of 
 grade, and the petition required by section 2 of the act, as 
 amended in 1893, is filed, there are, including such petition, 
 fifteen necessary acts to the existence of a valid lien. In 
 other cases, the fourteen necessary acts to the existence of 
 a valid lien are: (1.) Passage of resolution of intention; (2.) 
 posting and publication of resolution; (3.) posting and pub- 
 lication of notices of passage of resolution; (4-) passage of 
 order for the work to be done; (5.) publication of order for 
 the work to be done; (these first five requisites are provided 
 for by section 3 of the act,) (6.} posting and publication of 
 notices inviting sealed proposals; (7.) consideration of bids; 
 (8.) award of contract; (9.) posting and publication of 
 notice of award of contract; (10.) execution of written con- 
 tract by superintendent of streets; (these requisites from 
 
nr A T?T> \ x-T> s '' r - '' !ts "'Bonded. 1 A1 
 
 \\AKIvAM AInrr.i Ml 1S')1 1U1 
 
 March 31, 
 
 6 to 10 inclusive are provided for by section 5 of the act,) 
 (11.) making an assessment, as provided by section 8 of the 
 act; (12.) attaching to the assessment a diagram as provided 
 by said section 8; (13.) making, signing and countersigning 
 a warrant for the collection of the assessment and attaching 
 the same to the assessment as provided by section 9 of the 
 act; and (14-) recording said warrant, assessment and dia- 
 gram, together with the certificate of the city engineer, as 
 provided by said section 9 of the act. 
 
 When these fourteen acts, terminating with the recorda- 
 tion of the \varrant, assessment and diagram, together with 
 the certificate of the city engineer, have been performed as 
 required by the statute, "the several amounts assessed shall 
 be a lien upon the lands, lots or portions of lots assessed, 
 respectively, for the period of two years from the date of 
 said recording, unless sooner discharged." 
 
 Section 9 provides for: (1.) A warrant for the collec- 
 tion of the assessment, the form of which is given, to be 
 signed by the superintendent of streets and countersigned 
 by the mayor. (2.) Etecordation of the warrant, assessment 
 and diagram, together with the certificate of the city engineer. 
 (3.) Effect of such recordation. (4-) Delivery of warrant, 
 assessment, diagram and certificate to the contractor, his 
 agents or assigns, and effect of such delivery. (5.) Re-as- 
 sessment in case the original assessment be adjudged invalid 
 by reason of any defect, error, informality, omission or 
 irregularity, or illegality in the original assessment itself. 
 
 I. Warrant, Signing and Counter -signing. The form of 
 the warrant is given in the act (Sec. 9) and, as a part of that 
 form, provision is made for filling in the date of the warrant. 
 Therefore it is a part of the statutory requirement that the 
 warrant be dated. It was accordingly held in Shipman v. 
 Forbes, 97 Cal. 572 that if the warrant be not dated 
 so as to show the day of the month and year, it can 
 not serve as the foundation of proceedings for the 
 collection of the assessment. The court by Mr. Justice 
 Harrison, said: "The form prescribed by the statute, 
 makes the date as much a part of the warrant as it 
 does the signature of the officer, and in matters of this 
 character, in which the property of a citizen is to be taken 
 in inritum, it cannot be said that any requirement of the 
 statute is to be disregarded. Every requisite having the 
 semblance of benefit to the ow r ner must be complied with; 
 and when the form of a statutory proceeding is prescribed, its 
 observance becomes essential to the validity of the pro- 
 ceedings." 
 
 The fact that the mayor, before his election, had become 
 
102 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 the assignee of a contract for the improvement of a street, 
 as security for a debt due him by the contractor, does not 
 affect the validity of the contract or the assessment for the 
 work, nor incapacitate him from countersigning the warrant 
 for the collection of the assessment. [Baudry v. Yalde/, '32 
 Cal. 269.] The act of the mayor in countersigning the war- 
 rant, is purely ministerial, and if there were any irregularity 
 in countersigning the warrant under such circumstances, 
 such irregularity is waived by a failure to appeal to the 
 council as provided for by section 11 of the act. [Id.] 
 
 The mayor's function in countersigning the warrant, is 
 limited merely to approval, and whatever is essential to the 
 issuance and validity of the warrant, must be done before it 
 reaches the mayor; and no act of his can supply any defect, 
 o ' cure any irregularity in the prior proceedings. [Shipman 
 v. Forbes, supra.] 
 
 While the warrant must be countersigned by the mayor, 
 it has been held, nevertheless, that an omission of his 
 name arid the designation of his office from the recorded 
 warrant, as recorded in the record book of the street super- 
 intendent, does not render the recording ineffectual. [Gillis 
 v. Cleveland, 87 Cal. 215; see also S. F. v. Certain Real 
 Estate, 50 Cal. 188.] 
 
 II. Recording Warrant, Assessment, etc. The warrant, 
 as we have seen, must be substantially in the form 
 provided by the act, without the omission of anything pre- 
 scribed by that form, and must be signed by the superin- 
 tendent and countersigned by the mayor, and attached to 
 the assessment, as provided by section 9 of the act. After 
 this, and as an essential to the existence of a valid assess- 
 ment lien, "said" warrant, that is, the warrant in the form 
 prescribed and signed and countersigned as required by 
 the act, together with the assessment, diagram and certifi- 
 cate of the city engineer, must be recorded in the office of 
 the superintendent of streets. These documents must be 
 recorded by the street superintendent at full length, in a 
 book to be kept for that purpose in his office. Section 10 
 provides that, after the contractor has made return of the 
 warrant, "the superintendent of streets shall record the 
 return so made, in the margin of the record of the warrant 
 and assessment, and also the original contract referred to 
 therein, if it has not already been recorded, at full length 
 in a book to be kept for that purpose in his office, and shall 
 sign the record." From which it appears that the warrant, 
 assessment, diagram and certificates of the city engineer 
 are to be recorded in a book kept for that purpose in the 
 office of the superintendent. Section 21 provides that the 
 
RECORDING WARRANT, ASSESSMENT, ETC. jS^afS^SS 
 
 superintendent shall keep "such records as may be required 
 by the provision of this act." And by section 18 it is pro- 
 vided that such record "shall have Jthe same force and effect 
 as other public records, and copies therefrom, duly certified, 
 may be used in evidence with the same effect as the origi- 
 nals." The certificate of the city engineer must be recorded 
 together with the warrant, assessment and diagram. Its 
 character is described in the first subdivision of section 34 
 of the act. [See Jennings v. Le Breton, 80 Cal. 8, 14, for 
 remarks upon a provision in the act of 1872 similar to 
 sections 18 and 34 of present street work act.] 
 
 Until the assessment, diagram, warrant and certificate 
 of the city engineer arc "recorded" in the record-book kept 
 in the office of the street superintendent, the contractor 
 does not acquire a lien for the work done. The warrant 
 must be so recorded before it is delivered to the contractor 
 or his assigns. [Ilimmelmaii r. Danos, 35 Cal. 441; Gillis 
 b. Cleveland, S7 Cal. 214, 21D.J 
 
 \Yhat constitutes a "record"? This question was con- 
 sidered in Ilimmelinan r. Danos, supra, in Dougherty 
 jfr. Hitchcock, 35 Cal. 512, and in Hiintnelmann v. Hoad- 
 ley, 44 Cal. 213, and the conclusion to be deduced 
 fioni these decisions is: There is no "record" until 
 the official character of the entry or copy of the war- 
 rant, assessment, diagram and certificate in the record 
 book has been made to appear upon its face by adding a 
 certificate signed by the superintendent of streets or by a dep- 
 uty in his name. In Himmelnian v. Danos, supra, 35 Cal. 
 451, it is said, "The making of the record is an official act, 
 and its official character must be made to appear upon its 
 face, which can be done only by adding a certificate signed by 
 the office r authorized to make the record. Until certified and 
 signed by the proper officer, it is but waste paper, of which 
 no one need take notice. To become a record, it must be 
 the official act of the officer authorized to make it; to 
 become his act it must have his signature. Until signed 
 it is the act of no one, and is as valueless for any purpose as 
 an unsigned deed or sheriff's return. The only difference 
 between that which is record and that which is not, is the 
 official stamp or authenticity which the former bears upon 
 its face. The former proves itself; the latter does not. The 
 former proves itself because it bears the stamp of an officer 
 of the law, acting under the solemnities of an oath, or at 
 least of official duty, and it is the official stamp, and noth- 
 ing else, which makes it record." In Dougherty v. Hitch- 
 cock, 35 Cal. 521-2, it was said, "In Himmelman v. Danos, 
 it is held that the copies of the assessment, warrant, and 
 
104 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 diagram found in the superintendent's book could not be 
 considered as a record until signed by the superintendent, 
 because the making of the record was an official act, and 
 its official character must be made to appear on its face." 
 
 In Himmelmann v. Hoadley, 44 Gal. 225, it was said: "In 
 Himmelman v. Danos, 35 Gal. 441, the question whether the 
 record of the assessment should be separately signed was 
 reserved. The usual, and, in our opinion, proper mode for 
 the authentication of such a record, is by appending the 
 official certificate of the officer whose duty it is to make the 
 record. He need not specify in his certificate the pages of 
 the record upon which the assessment, etc., are copied; 
 but when he does certify *in that form, the certificate 
 will be limited to the pages specified, unless the record 
 itself shows that the reference to the pages is a clerical 
 error." 
 
 Therefore, while in the case of Himmelman v. Danos, 
 the question, whether the record of the assessment should 
 be separately signed, was reserved, it is established that 
 copies of the assessment, warrant, diagram and certificate, 
 found in the record book in the superintendent's office, can 
 not be be considered as "recorded" until there is added to it 
 a certificate signed by the superintendent himself, or by a 
 duly authorized deputy in his name, or at least there must 
 be added the signature of the superintendent or his deputy, 
 even if no certificate is added; and, while, according to the 
 provisions of section 10 of the act, it is expressly required 
 that the record, when completed, by the addition of the con- 
 tract and the return, shall be signed by the superintendent, 
 nevertheless, it seems to be imperatively necessary that the 
 copy of the warrant, assessment, diagram and certificate in 
 the*record-book, should be followed by the signature of the 
 superintendent or his deputy, and that the same be done 
 prior to the entry of the contract and return, or, at least, 
 prior to the return, and likewise prior to the demand by the 
 contractor. For the contractor is not authorized to make a 
 demand until there is a lien, a charge against the land, and 
 there is no lien, according to the express provisions of the 
 act, until the warrant, assessment, etc., are recorded, and, 
 according to the decisions cited above, the warrant, assess- 
 ment; etc., are not recorded until they are copied into the 
 record-book kept in the superintendent's office, and signed 
 by him or his deputy in his name. A separate certificate 
 and signature of the officer need not follow each of the 
 documents recorded, i. e. need not follow, separately, the 
 warrant, and the assessment, and the diagram and the 
 certificate of the city engineer, but one certificate signed by 
 
DELIVERY OF WARRANT KIS 1 * 1 105 
 
 the authorized officer, appended to the copy of the war- 
 rant, assessment, diagram and certificate of the city engineer 
 is sufficient. [Himraelmann v. Hoadley, 44 Cal. 213.] 
 
 III. Effect of Recording Warrant, Assessment, etc. 
 
 The effects of recording the warrant, assessment, diagram 
 etc., are: (1.) To create a lien for the several amounts 
 assessed upon the lands, lots or portions of lots assessed, 
 for the period of two years from the date of recording, unless 
 sooner discharged. This lien, by virtue of the provisions 
 of section 10 of the act, is liable to be lost if the contractor 
 does not make due return of the warrant within thirty days 
 after its date. Section 10 provides, that "if any contractor 
 shall fail to return his warrant within the time and in the 
 form provided in this section he shall thenceforth have no 
 lien upon the property assessed." If an action upon the 
 assessment lien is commenced within two years from the 
 recording of the warrant, assessment, etc., the lien will not 
 lapse, though judgment is rendered after the two years 
 expire. [Dougherty r. Henaire, 47 Cal. 9; Randolph v. 
 Bay ue, 44 Cal. 366.] A street assessment lein is a creature 
 of the statute, and if it is allowed to expire by lapse of time, 
 it cannot be enforced upon any grounds of equitable con- 
 sideration. [Brady v. Burke, 90 Cal. 2.] (2.) From and after 
 the date of said recording of any warrant, assessment, dia- 
 gram and certificate, all persons mentioned in section 11 of 
 the act shall be deemed to have notice of the contents of the 
 record thereof. Said persons, by virtue of the provisions of 
 said section 11, have thirty days after the date of the war- 
 rant within which to appeal to the city council. 
 
 The contractor, if he finds the assessment to be incorrect 
 or illegal in a particular which may be remedied by the 
 council on appeal, should appeal to the council within 
 thirty days from the date of the warrant, and have the 
 assessment corrected and made legal. [See Smith v. Cofran, 
 34 Cal. 315; Frick v. Morford, 87 Cal 580.] 
 
 IV. Delivery of Warrant, Assessment, etc., to the Contractor. 
 After the warrant, assessment, diagram and certificate 
 
 have been recorded, i. e., copied into the record-book, and 
 authenticated by the signature of the superintendent or his 
 deputy, they must be delivered to the contractor, or his 
 agent or assigns, on demand, after the payment to the 
 superintendent of all incidental expenses, not previously 
 paid by the contractor or his assigns. By virtue of said 
 warrant, the contractor, his agent or assigns are authorized 
 to demand and receive the amount of the several assessments 
 made to cover the sum due for the work specified in the 
 contract and assessment. 
 
106 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 If the original contractor has assigned his contract, the 
 warrant may, nevertheless, be delivered to him as the 
 agent of his assignee, and, as agent of his assignee, he may 
 make the demand, Taylor v. Palmer, 31 Cal. 241, where it is 
 said, page 249, "The form of the warrant is the same in all 
 cases, [i. e. it is always issued running to the original con- 
 tractor, his agent or assignees] and in the absence of any 
 notice of an assignment of the contract, and perhaps in any 
 event, the superintendent delivers it, as a matter of course, 
 to the original contractor if applied for by him; if not, to 
 any other person authorized by him to receive it either as 
 agent or assignee. Likewise the demand for payment may 
 be made by the original contractor, his authorized agent or 
 assignee. When an assignment has been made, and the 
 demand is by the original contractor, he acts as the agent 
 of his assignee. The property owner may safely pay to 
 anyone who, on the face of the w r arrantis entitled to receive 
 the money, especially in the absence of any notice to the 
 contrary." [See also Foley v. Bullard, No. 15,305, decided 
 September 11, 1893.] 
 
 V. Re-assessment after Judgment adjudging an Assess- 
 ment Illegal. The re-assessment provided for by section 9 
 of the act must be made after a "final" judgment of a court 
 of this state. The judgment must be final. And it must 
 appear from such final judgment that the suit in which it 
 was rendered has been defeated by reason of some " defect, 
 error, informality, omission, irregularity, or illegality" in 
 (1.) the assessment itself , or ($.) in the recording thereof, or 
 (3.) in the return thereof made to the superintendent of 
 streets, as provided for by section 10, or (4.) in the return 
 recorded by the street superintendent, as provided for by 
 said section 10. 
 
 This merciful provision of the act only applies to errors, 
 etc., in the assessment itself, or in its record, or in the con- 
 tractor's return, or in the record thereof. It is not appli- 
 cable to errors in the council's proceedings, or in the con- 
 tract. But independently of this provision of the statute, if 
 the council has properly acquired jurisdiction to order the 
 work to be done, and a contract therefor has been properly 
 made, and fulfilled to the satisfaction of the street superin- 
 tendent, and all the proceedings up to this point have been 
 regular, it seems that, under the decision in Himmelmann 
 v. Cofran, 36 Cal. 411, and Wood v. Strother, 76 Cal. 545, 
 the superintendent may make a new assessment, and pro- 
 ceedings subsequent thereto, where the first assessment is 
 void by reason of any defect, error, informality, omission, 
 irregularity or illegality. And if, independently of any 
 
SECTION TEN OF THE ACT S5rohltti 
 
 statutory provision therefor, the superintendent may make 
 a new assessment when the first one is void by reason of 
 some error or omission in making it, it does not appear 
 why, for the same reason he may not issue a new warrant, 
 for example, when for any reason the first warrant is void. 
 [See Elliott on Roads and Streets, pp. 435-6.] 
 
 In Wood v. Strother, 76 Cal. 545, it was held that if an 
 assessment has been adjudged to be void for causes affecting 
 the assessment itself, and not the proceedings upon which 
 it rests, a new assessment may be made within a reasonable 
 time, and that wha't is a reasonable time is to be determined 
 upon a consideration of all the circumstances, also that .the 
 fact that some of the owners have paid what was charged 
 against their property by the void assessment, is not of 
 itself a reason why a valid assessment should not be made 
 and that a court of equity will treat the payments made as 
 payments in advance, and compel the contractor to credit 
 them on the second assessment; also that mandamus will lie 
 to compel the auditor to countersign the warrant on the 
 second assessment, notwithstanding that the act requiring 
 him to countersign the warrant [San Francisco street work 
 act of 1872] provided that "befrtre countersigning it, [he] 
 shall examine the contract, the steps taken previous thereto, 
 and the record of assessments, and must be satisfied that the 
 proceedings have been legal and j air." 
 
 SKCTIOX 10. The contractor, or his assigns, or some person in his or their 
 behalf, shall call upon the persons assessed, or their agents, if they can 
 conveniently be found, and demand payment of the amount assessed to 
 each. If any payment be made the contractor, his assigns, or some person in 
 his or their behalf, shall receipt the same upon the assessment in presence 
 of the person making such payment, and shall also give a separate receipt if 
 demanded. Whenever the person so assessed or their agents, cannot con- 
 veniently be found, or whenever the name of the owner of the lot is stated as 
 "unknown" on the assessment, then the said contractor, or his assigns, or 
 some person in his or their behalf, shall publicly demand payment on the 
 premises assessed. The warrant shall be returned to the superintendent 
 of streets within thirty days after its date, with a return indorsed thereon, 
 signed by the contractor, or his assigns, or some person in his or their 
 behalf, verified upon oath, stating the nature and character of the demand, 
 and whether any of the assessments remain unpaid, in whole or in part, 
 and the amount thereof. Thereupon the superintendent of streets shall 
 record the return so made, in the margin of the record of the warrant and 
 assessment, and also the original contract referred to therein, if it has not 
 already been recorded at full length in a book to be kept for that purpose 
 in his office, and shall sign the record. The said superintendent of streets 
 is authorized at any time to receive the amount due upon any assessment 
 list and warrant issued by him, and give a good and sufficient discharge 
 therefor; provided, tiiat no such payment so made after suit has been 
 
108 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 commenced, without the consent of the plaintiff in the action, shall operate 
 as a complete discharge of the lien until the costs in the action shall be 
 refunded to the plaintiff; and he may release any assessment upon the 
 books of his office, on the payment to him of the amount of the assessment 
 against any lot with interest, or on the production to him of the receipt of 
 the party or his assigns to whom the assessment and warrant were issued ; 
 and if any contractor shall fail to return his warrant within the time and in 
 the form provided in this section, he shall thenceforth have no lien upon the 
 property assessed ; provided, however, that in case any warrant is lost, upon 
 proof of such loss a duplicate can be issued, Upon which a return may be 
 made, with the same effect as if the original had been so returned. After 
 the return of the assessment and warrant as aforesa*d, all amounts remain- 
 ing due thereon shall draw interest at the rate of ten per cent, per annum 
 until paid. [Statutes 1885, p. 155]. 
 Section 10 of the act of March 18, 1885, never has been amended. 
 
 In the notes to section 9 it is stated that the proceedings 
 necessary to the existence of a valid lien terminate with the 
 recording of the warrant, assessment, diagram and certificate 
 of the city engineer, as provided for by said section 9, and 
 that there are at least fourteen acts necessary to the exist- 
 ence of a valid lien commencing with the passage of the 
 resolution of intention. Section 10 provides for three more 
 acts necessary to the existence of the right to successfully 
 maintain a suit against the lot owners, as provided for by 
 section 12 of the act. The three things required by section 
 10 as necessary prerequisites to the right to successfully 
 maintain a suit against the lot owners, are: (1.) Demand 
 upon the persons assessed or their agents, or on the premises 
 assessed. (#.) Return of warrant, with a return indorsed 
 thereon, signed and verified, and (3.) Recording of the return 
 and also the original contract referred to in the warrant and 
 assessment, if it has not already been recorded. These three 
 things, therefore, required by section 10 as necessary pre- 
 requisites to the existence of a valid right of action, together 
 with the other fourteen acts mentioned in the notes to sec- 
 tion 9 of the act, as necessary to the existence of a valid 
 assessment lien, making in all seventeen necessary acts, are 
 the seventeen prerequisites to the existence of a valid right 
 of action in any case; and in some cases there may be more, 
 as when it is necessary to inaugurate proceedings to grade 
 by a petition, as provided for by section 2 of the act, for 
 example. Section 10 likewise provides for interest upon 
 the amounts due on the assessment. 
 
 I. Demand. There are three modes provided by the 
 statute (section 10) in which demand may be made by the 
 contractor for street assessments, to wit: (1.) of the person 
 assessed; (#.) of his agents; and (3.) a demand, publicly 
 made, on the premises assessed. And there are three per- 
 
PERSONAL DEMAND Kchlt.^ 109 
 
 sons or classes of persons, by whom the demand may be 
 made, to wit: (1.) The contractor himself; (2.) the assignee 
 of the contractor, or (3.) some person on behalf of the con- 
 tractor or his assignee. 
 
 (a.) Demand upon the Persons Assessed or their Agents. 
 The section provides that the contractor or person making 
 the demand " shall call upon the persons assessed or their 
 agents, if they can conveniently be found, and demand pay- 
 ment of the amount assessed to each." The section like- 
 wise provides that the demand "shall" be made on the 
 premises in two cases, viz: (1.) whenever the persons 
 assessed, or their agents, cannot conveniently be found, or 
 (2.) whenever the name of the owner of the lot is stated as 
 " unknown " on the assessment. When, therefore, the 
 assessment is made against the owner by name, demand 
 must be made upon him or his agent, with but one excep- 
 tion, viz., where "they cannot conveniently be found" But it 
 is not sufficient to excuse personal demand when the 
 assessment is against the owner by name that the persons 
 assessed, or their agents, cannot conveniently be found by 
 the contractor or his agent. The. fact that the contractor, 
 or his agent or assignee, cannot conveniently find the per- 
 sons assessed or their agents, does not excuse personal 
 demand. Guerin v. Reese, 33 Cal. 293, where it was held 
 that the legal purpose of the demand is to give to the owner, 
 as far as practicable, actual notice of the existence of the 
 lien created by the assessment and resting upon his prop- 
 erty, so as to enable him to take the proper steps for its 
 discharge. Also, that the warrant is a process in the hands 
 of the contractor, which he is required to serve, and he will 
 be held to the same measure of diligence in its service as is 
 an officer holding legal process for service; that, in making 
 the service, it is the duty of the contractor (1.) to make a 
 reasonable effort to find and serve the person assessed; (2.) 
 failing in this, it is next his duty to make a like effort to 
 find and serve the agent of the person assessed, and (3.) only 
 when such first and second efforts have failed, is he author- 
 ized to make service by a public demand for the assessments 
 upon the premises assessed. Also, that the contractor's 
 return should show a personal demand upon the person 
 assessed, or a satisfactory reason why it was not done, before 
 resorting to the other modes of making the demand, i. e., if 
 the demand was not made upon the person assessed because 
 he could not conveniently be found, the returns should 
 show why he could not conveniently be found, as, that he is 
 a non-resident of the city or state, or is temporarily absent, 
 
110 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 or has absconded or else should state that " lie cannot be 
 found." 
 
 To the same effect is the decision in McBean v. Martin, 
 96 Cal. 188, where the work was done, p,nd the proceedings 
 had, under the present street work act. The court followed 
 the ruling in Guerin v. Reese. 
 
 In Himmelmann v. Townsend, 49 Cal. 151, Mr. Justice 
 McKinstry gave it as his opinion that if the owner cannot 
 conveniently be found, and the assessment is made against 
 him by name, if there is a tenant occupying the premises, 
 demand -should be made of such occupant personally. In 
 such case the requirements of the statute would not be 
 satisfied by a demand made by the contractor standing 
 upon one corner of the lot and speaking in a tone of voice 
 which, while it might be said to be audible, would not be 
 audible to a person upon the opposite corner of the lot, or 
 within a dwelling house on the lot. 
 
 (b.) Demand on the Premises. According to repeated 
 decisions of the Supreme Court, the superintendent may 
 assess the lot to "unknown" owners, and his assessment to 
 an unknown owner is conclusive evidence, in all collateral 
 proceedings suits upon the assessment for example that 
 the name of the true owner was unknown to him; and, 
 when the assessment is made to an unknown owner, the 
 contractor is only required to "publicly demand payment 
 on the premises assessed" in fact where the assessment is 
 made to an unknown owner the demand must be made 
 publicly upon the premises assessed; a personal demand 
 upon the owner made elsewhere will not suffice. And, as 
 it is a simple matter to publicly make a demand upon the 
 premises assessed, and as it might frequently be inconven- 
 ient to the contractor to find the true owner, without its 
 being a fact that the true owner "can not conveniently be 
 found," within the meaning of that phrase as construed 
 by the Supreme Court in said case of Guerin v. Reese, 33 Cal. 
 293 it follows that it is greatly to the advantage of the con- 
 tractor to, in all cases, make the assessments to owners 
 "unknown." Besides which when the assessment is 
 attempted to be made to the true owner by name the super- 
 intendent takes the risk of being mistaken in his supposi- 
 tion as to who the true owner is and in a new country 
 where titles are unsettled it is seldom that any one can 
 know who the true owner is without a laborious search 
 of the records and not always even then. And, as 
 has been frequently held since the case of Smith v. Davis, 
 30 Cal. 536, if the assessment purports to be made to the 
 owner by name it is void unless the name given is the 
 
DEMAND ON THE PREMISES 
 
 name of the true owner. Therefore, by making all assess- 
 ments to unknown owners, the superintendent avoids the 
 risk of assessing the property to a person not in fact the 
 true owner, and likewise enables the contractor to make 
 simply a demand on the premises, thus saving him the 
 trouble of ascertaining whether the owner can conveniently 
 be found or not. 
 
 In Himmelmann v. Hoadley, 44 Cal. 214, it was held that 
 the superintendent, unless he is satisfied beyond all doubt 
 as to the ownership of a lot, may assess it to "unknown 
 owner," and when the assessment is made to "unknown 
 owner," payment may be demanded publicly upon the 
 premises. 
 
 In Whiting v. Townsend, 57 Cal. 515, it was held that 
 where the property is assessed to unknown owners no per- 
 sonal demand is required. And in Macadamizing Co. v 
 Williams, 70 Cal. 534, it was held that where the assess- 
 ment is made to "unknown owners," the demand must be 
 made upon the premises. Mr. Commissioner Searls, in 
 that case, page 541, said: "The statute provides but one 
 mode of making a demand in cases where, as in the present 
 case, the property is assessed to 'unknown owners/ and 
 that is by a demand upon the premises. It matters not 
 that other methods may be as efficacious as the one pro- 
 vided. The lawmakers have prescribed a method, and the 
 courts are riot at liberty to adopt a substitute therefor." In 
 this case a personal demand was made, and also a demand 
 by a person standing on the sidewalk in front of and close 
 to the fence bordering the lots, but was not actually made 
 upon them (unless such lots extended to the middle of the 
 street). The person making the demand stood on the side- 
 walk and there made a demand in an audible voice. The 
 point was raised that under section 831 of the Civil Code 
 the lots must be presumed to extend to the middle of the 
 street, and that, therefore, a demand made by a person 
 standing on the sidewalk was a demand "on the premises," 
 but as the complaint described the land assessed as 
 bounded by the side line of the adjoining street, this pre- 
 sumption was not permissible, under the allegations of 
 the complaint. It was held that the statute requires 
 the demand to be made on the premises, and that 
 this requirement was not met by a demand made by a per- 
 son standing on the sidewalk the lot being held to be 
 bounded by a side line of the street and not its center line 
 even though the voice of the person making the demand 
 could be heard on the lot. Mr. Commissioner Searls, page 
 543, said: "The land is charged with the payment of the 
 
112 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 assessment, and where the owner is designated as 
 'unknown,' the statute is imperative in requiring the 
 demand to be made publicly on the premises] and a demand 
 made near to, in the neighborhood of or within hearing of 
 the premises does riot satisfy the requirements of the 
 statute." The court must determine whether the demand 
 was made in a sufficiently audible tone of voicp, and upon 
 this the decision of the trial court is necessarily con- 
 clusive. [Himmelman v. Booth, 53 Cal. 50.] 
 
 (c.) By Whom Demand to be Made. When more than 
 one person, either by the original contract or by assignment 
 from the contractor, is interested in a contract for improving 
 a street, the demand is sufficient if made by one alone of 
 the parties interested in the contract. Thus in Gaffney v. 
 Donohue, 36 Cal. 104, Gaffney, the contractor, assigned one- 
 half interest in the contract to Donohue. Held, Gaffney, 
 after the assignment, could make a legal demand. He, as 
 contractor, is one of the persons designated by the statute 
 to make the demand. In Himmelmann v. Woolrich, 45 Cal. 
 249, it was objected that the demand was made by one 
 who was the agent of the assignee and not the agent of the 
 contractor, but it was held that the agent of the assignee 
 might make the demand and return as well as an agent of 
 the contractor. The statute (section 10) now expressly 
 provides that the demand might be made by "the con- 
 tractor, or his assigns, or some person in his or their behalf." 
 And in Foley v. Bullard, No. 15,305, decided Sept. 11, 1893. 
 it was held that the demand was made on behalf of the 
 assignees of the original contract, and was in all respects suf- 
 ficient, although the person making the demand was shown 
 to be the agent of 'persons to whom the assignees had 
 assigned the contract as security. This case arose under 
 the street work act now in force the Vrooman act and 
 the court cited, with approval, the case of Godfrey v. 
 Donohue, supra. 
 
 (d.) Amount of Demand. The demand must be made 
 for the exact amount lawfully chargeable against each lot, or, 
 at any rate, it must not be for an amount greater than is 
 lawfully chargeable against each lot. A demand for the 
 aggregate sum due on two lots is insufficient. The demand 
 should be on each lot for the amount assessed thereon. 
 [Schirmer v. Hoyt, 54 Cal. 280.] 
 
 If the resolution of intention calls for the macadamizing 
 of a street and curbing the same, and the contract is let 
 for macadamizing the sidewalks as well as the roadway, 
 then, as held in Himmelman v. Satterlee, 50 Cal. 68, and 
 Baudry v. Valdez, 32 Cal. 269, the resolution does not 
 
AMOUNT OF DEMAND 
 
 include work on the sidewalks, but is limited to that done 
 on the roadway, as the word "street," as used in section 2 
 of the act, in connection with macadamizing, is limited to 
 the roadway, and the assessment for work done on the side- 
 walks in such case is void. And if the demand made by 
 the contractor, in such case, is for the whole assessment, 
 and not for the portion thereof which would be chargeable 
 for the work on the roadway, the contractor cannot recover, 
 even though the court should find the cost of the work on 
 the roadway and that on the sidewalk separately, and even 
 though, as held in Baudry v. Valdez, 32 Cal. 209, the con- 
 tractor may recover if the whole assessment is severable 
 so as to permit of a segregation of the valid part from the 
 invalid part. The demand must be for the amount legally 
 due and chargeable against the lot. [Dyer v. Chase, 52 Cal. 
 4 !(>; Donnelly r. Howard, GO Cal. 291; .Dorland v. Bergson, 
 78 Oal.n.-rT; see Partridge v. Lucase, 33 Pac. Rep. 1082.] 
 
 If, however, the assessment is severable and demand is 
 duly made for the amount properly due and chargea-ble 
 against the land, or, if separate assessments have been made 
 for different portions of the work, and separate demands are 
 made for the payment of each assessment, the invalidity of 
 one of the assessments does not render the other invalid, 
 and the contract may recover the amount of the valid assess- 
 ment. [Parker v. Ueay. 7(> Cal. 103; Ede v. Knight, 93 
 Cal. 160.] In Parker v. Reay, the work consisted in con- 
 structing basalt block gutter-ways, in macadamizing the 
 roadway, and in laying granite crosswalks. The assessment 
 for gutter- ways and macadam were levied separately from 
 the assessment for the crossings. The assessment against 
 defendant's lot for crossings was void because not made 
 against that part only of the lot contained in the quarter 
 block subject to assessments for crossings. The court said: 
 "This portion of the assessment, [i. e., assessment for cross- 
 ings] was void, and the demand therefor was invalid; but 
 the assessment for macadam and gutter-ways having been 
 made separately, and for the proper amount, and the proper 
 demand having been made, as shown by the return, the 
 motion for a non-suit was properly denied, notwithstanding 
 the invalidity of the assessment for work on the crossing." 
 
 II. Contractor's Return. Section 10 provides that "the 
 warrant shall be returned to the superintendent of streets 
 within 30 days after its date, with a return endorsed 
 thereon, signed by the contractor or his assigns, or some 
 person in his or their behalf, verified upon oath, stating 
 the nature and character of the demaiidand_wjiether any of 
 the assessments remain unpaid, h^^SSi^Or in part, and 
 
114 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 the amount thereof." It is absolutely essential that such 
 return should be made within thirty days after the date of 
 the warrant and also in the form prescribed by the statute, 
 as the section (section 10) likewise provides that "if any 
 contractor shall fail to return his warrant within the time 
 and in the form provided in this section he shall thenceforth 
 have no lien upon the property assessed." 
 
 III. Return as Evidence of Demand. The affidavit of 
 demand, indorsed upon the warrant, is prima facie evidence 
 of such demand. In Dyer v. Brogan, 57 Gal. 234, it was 
 held that such affidavit is prima facie evidence of demand 
 under section 11 of the act of 1872 [Statutes 1871-2, pages 
 814, 815,] and as section 11 of the act of 1872 is substan- 
 tially identical with section 10 of the act of March 18, 
 1885, except with respect to the time within which the 
 return is to be made and the rate of interest, it follows 
 that if that decision be correct the return is, under the 
 present street law, prima facie evidence of demand likewise. 
 [See also Himmelmann v. Hoadley, 44 Cal. 214.] In Deady 
 v. Townsend, 57 Cal. 298, it was held that the affidavit of 
 demand, indorsed on the return, is prima facie evidence of 
 such demand, though made by an agent of the contractor. 
 In Whiting v. Townsend, 57 Cal. 515, it was held that 
 the statement by affiant in his affidavit that he was the 
 agent of the contractor is prima facie evidence that he was 
 such agent. [See Himmelmann v. Woolrich, 45 Cal. 249.] 
 In Ede v. Knight, 93 Cal. 160, it was held that the verified 
 return of the contractor, stating that he went upon each of 
 the lots exhibited in the diagram, and publicly demanded 
 on each lot payment of the sum assessed to each is prima 
 facie evidence of the facts stated, and, if not disputed, 
 shows a proper demand. See section 12 of the act, where 
 it is said: "The said warrant, assessment, certificate and 
 diagram, with the affidavit of demand and non-payment, 
 shall be held prima facie evidence of the regularity and 
 correctness of the assessment, etc., * * * and like evi- 
 dence of the right of the plaintiff to recover in the action." 
 
 IV. Recording the Return. The last act necessary to the 
 existence of a valid right in the contractor to successfully 
 maintain suit against the lot owner to recover the amount 
 of the assessment lien, is the recordation of the return, and 
 also of the original contract, if it has not already been 
 recorded. The act (section 10) provides, that, upon return of 
 the warrant being made to the superintendent of streets, he 
 "shall record the return so made, in the margin of the record 
 of the warrant and assessment, and also the original con- 
 tract referred to therein, if it has not already been recorded, 
 
TA.T*PTJM-> vrp Sec 10, Act of 1 1 fX 
 
 INTEREST \1nrfh IP 1SK* 1JLO 
 
 Marcfc 18, 1885. 
 
 at full length in a book to be kept for that purpose in his 
 office, and shall sign the record." 
 
 In the notes to section 9, it is stated that it is essential to 
 the existence of a valid assessment lien that the warrant, 
 assessment, diagram and certificate of the engineer should, 
 before delivery to the contractor or his assigns, be recorded 
 by the superintendent in a book kept by him for that pur- 
 pose in his office, and also that it is essential to the record- 
 ing of these documents that they should not only be copied 
 in full into the record book, but that such copy should be 
 authenticated by the signature of the superintendent or of a 
 duly authorized deputy, as, without such signature, authen- 
 ticating such copy, there is no record. Section 10 of the 
 act provides for a completion of this record by the record- 
 ing of the contractor's "return" in the margin of the record 
 of the warrant and assessment, and likewise the original 
 contract, if not already recorded. The proper recording of 
 the warrant, assessment, diagram and certificate of the city 
 engineer, as provided for by section 9, is necessary to the 
 existence of a valid lien, and the recording of the return 
 and the original contract, after the contractor has returned 
 the warrant to the superintendent of streets, with a return 
 endorsed thereon, is essential to the existence. of a right to 
 maintain a suit on the lien. 
 
 When the sworn return and the original contract are 
 recorded in the office of the street superintendent, a certifi- 
 cate of their recording should be attached to the same, 
 signed by the superintendent or an authorized deputy. 
 Without such authentication they cannot be deemed to be 
 recorded. [Himmelman v. Danos, 35 Gal. 441; Hirnmel- 
 mruin v. Hoadley, 44 Cal. 213; Shepard v. McNeil, 38 Gal. 
 73. See supra, pages 102-105.J 
 
 The statute does not prescribe any time within which the 
 return or affidavit of demand shall be recorded by the street 
 superintendent, and if it is not recorded until two months 
 after the return is made, it will not vitiate the proceedings, 
 [llimmelmann v. Reay, 38 Cal. 163. J 
 
 V. Interest. Section 10 likewise provides that ''after 
 the return of the assessment and warrant as aforesaid, all 
 amounts remaining due thereon shall draw interest at the 
 rate of ten per cent, per annum until paid." 
 
 In the absence of a provision in the statute allowing 
 interest on street assessments, the city council can not 
 impose interest as a penalty for non-payment. [Weber v. 
 City of S. F., 1 Cal. 455; see also Bucknall v. Story, 36 Cal. 
 67.] Although a judgment for street assessments may draw 
 interest from the time of its rendition. [Sec. 1920 Civil 
 
116 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 Code; Himmelman v. Oliver, 34 Cal. 246; Randolph v. 
 Bayue, 44 Cal. 366.] If street work is done under an act 
 which does not make any provision for interest upon the 
 assessments, and subsequently an act is passed providing 
 that after the return of the assessment and warrant, all 
 amounts remaining due thereon shall draw interest at a 
 certain rate, and the assessment for such work is made 
 after the passage of this latter act, the contractor will be 
 entitled to interest upon the assessment as provided by such 
 latter act. The reason for this rule is that there is no con- 
 tract between the contractor and the property owners, 
 and therefore no obligation of any contract is im- 
 paired. The property owner has the opportunity, and 
 it is his duty to pay before the return of the warrant, and 
 if he does not do so the legislature may enact *that if he 
 neglects this duty, the amount due shall thereafter bear 
 interest. [Dougherty v. Henaire, 47 Cal. 9.] Section 12 
 of the act expressly provides that in any suit upon the 
 assessment the contractor may "recover the amount of any 
 assessment remaining unpaid, with interest thereon at the 
 rate of ten per cent, per annum until paid." 
 
 SECTION 11. The owners, whether named in the assessment or not, the 
 contractor, or his assigns, and all other persons directly interested in any 
 work provided for in this act, or in the assessment, feeling aggrieved by 
 any act or determination of the superintendent of streets in relation 
 thereto, or who claim that tne work has not been performed according to 
 the contract in a good and substantial manner, or having or making any 
 objection to the correctness or legality of the assessment or other act 
 determination, or proceedings of the superintendent of streets, shall, 
 within thirty days after the date of the warrant, appeal to the city council, 
 as provided in this section, by briefly stating their objections in writing, 
 and filing the same with the clerk of said city council. Notice of the time 
 and place of the hearing, briefly referring to the wcrk contracted to be 
 done, or other subject of appeal, and to the acts, determinations, or pro- 
 ceedings objected to or complained of, shall be published for five days. 
 Upon such appeal, the said city council may remedy and correct any error 
 or informality in the proceedings, and revise and correct any of the acts 
 or determinations of the superintendent of streets relative to said work ; 
 may confirm, amend, set aside, alter, modify, or correct the assessment in 
 such manner as to them shall seem just, and require the work to be completed 
 according to the directions of the city council; and may instruct and 
 direct the superintendent of streets to correct the warrant, assessment, or 
 diagram in any particular, or to make and issue a new warrant, assessment 
 and diagram, to conform to the decisions of said city council in relation 
 thereto, at their option. All the decisions and determinations of said city 
 council, upon notice and hearing as aforesaid, shall be final and conclusive 
 upon all persons entitled to appeal under the provisions of this section, as 
 to all errors, informalities, and irregularities which said city council might 
 
APPEAL PROVIDED BY SECTION ELEVEN 
 
 have remedied and avoided; and no assessment shall be held invalid, 
 except upon appeal to the city council, as provided in this section, for any 
 error, informality, or other defect in any of the proceedings prior to the 
 assessment, or in the assessment itseli, where notice of the intention of 
 the city council to order the work to be done, for which the assessment is 
 made, has been actually published in any designated newspaper of said 
 city for the length of time prescribed by law, before the passage of the 
 resolution ordering the work to be done. [Statutes 1885, p. 156.] 
 [Section 11 of the act of March 18, 1885, never has been amended.] 
 
 I. Differences Between the "Appeal" Provided for by Sec- 
 tion Eleven and the "Petition of Remonstrance" Provided for 
 by Section Three. Section 11 of the act provides for an 
 appeal to the city council, and as tHere is no other remedy 
 when tin appeal lies [Dorland v. McGlynn, 47 Cal. 48, 51], 
 it follows that it is very important to ascertain when an 
 appeal should be taken. The section provides that an 
 appeal may be taken by three classes of persons, viz: (1.) 
 the owners, whether named in the assessment or not; (#.) 
 the contractor or his assigns, and (#.) all other persons 
 directly interested in any work provided for in the act, or 
 in the assessment. 
 
 The "petition of remonstrance," provided for in section 3 
 of the act, differs in at least three important respects from 
 the "appeal" provided for by section 11, viz: (1.) as to the 
 classes of persons by whom they may be taken or prosecuted; 
 (2.) as to the time within which they must be taken or 
 prosecuted; and (3.) as to the persons whose acts may be 
 complained of. 
 
 (a.) Classes of persons by whom a remonstrance may be 
 filed or an appeal be taken. An appeal under section 11 
 may be taken by (1.) the owners, whether named in the 
 assessment or not; (2.) the contractor or his assigns, or, (3.) 
 all other persons directly interested in any work or in the 
 assessment; whereas, section 3 only makes provision for a 
 petition of remonstrance by owners whose lots are liable to 
 assessment. 
 
 (b.) Time within which an appeal may be taken or a 
 remonstrance filed. Section 11 provides that an appeal may 
 be taken at any time within thirty days after the date of 
 the ivarrant. Section 3 provides that "at anytime before the 
 issuance of the assessment roll, all owners of lots or lands 
 liable to assessment therein who * * * * may feel 
 aggrieved * * * shall file with the clerk a petition of 
 remonstrance." 
 
 (c.) Persons whose acts may be complained of on appeal and on 
 petition of remonstrance. Section 1 1 provides that the persons 
 entitled to appeal under that section, "feeling aggrieved by 
 
118 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 an act or determination of the superintendent of streets in 
 relation thereto, or who may clai m that the work has not been 
 performed according to the contract in a good and substan- 
 tial manner, or having or making any objection to the cor- 
 rectness or legality of the assessment, or other act, deter- 
 mination or proceedings of the superintendent of streets, shall 
 * * * appeal;" etc. Section 3 provides that "all owners 
 of lots or lands liable to assessment, * * * who, after 
 the first publication of said resolution of intention, may feel 
 aggrieved, or who may have objections to any of the subse- 
 quent proceedings of said council, * * * shall file with 
 the clerk a petition of remonstrance/' etc. Section 11 
 allows objections to be presented to any act or determina- 
 tion of the superintendent of streets, or to the failure of the 
 contractor to execute his contract faithfully. Section 3 con- 
 fines the objections which may be made on petition of 
 remonstrance to the proceedings of the council. 
 
 It was in view of these distinguishing characteristics 
 between the "petition of remonstrance," provided for by 
 section 3 of the act, and the "appeal," provided for by sec- 
 tion 11, that Mr. Justice Shafter used the following lan- 
 guage in Nolan v. Reese, 32 Cal. 487, in determining 
 whether a fraudulent side agreement was fatal to the 
 assessment or whether an appeal to the council was the 
 only remedy. [See such fraudulent side agreements con- 
 sidered supra, page 55.] Said the learned justice in Nolan v. 
 Reese, page 487: "Should the fraud with vvhich the con- 
 tractor was charged be considered as affecting the 'award 
 of the work' to him by the board of supervisors [Section 6 
 of the act of 1862; section 5 of the Vrooman act], then, 
 under the fourth section of the act [Section 3 of the Vroo- 
 man act], it should have been brought to the notice of 
 the board of supervisors by a remonstrance coming from 
 one or more of the lot owners. If, on the other hand, the 
 fraud is considered as affecting the 'legality of the 
 assessment,' then any person having objections to make 
 should have appealed to the board of supervisors within 
 thirty-five days subsequent to the date of the assessment. 
 [Section 12 of the act of 1862; section 11 of the Vrooman 
 act.] Such are the methods pointed out by the act for 
 reviewing the decisions of the board and the acts of the 
 superintendent, and they exclude all others by positive pro- 
 vision." 
 
 II. Other Provisions of Section Eleven. Section 11 
 also provides: (1.) How the appeal shall be taken; (2.) the 
 powers of the council upon the appeal and that its decis- 
 ion shall be final and conclusive, and (3.} the effect of 
 
APPEALS UNDER PRIOR ACTS SS'iJL?MK 119 
 
 not appealing. Under the third head, the section provides 
 that "no assessment shall he held invalid except upon 
 appeal to the city council, as provided in this section, for 
 anv error, informality or other defect in any of the pro- 
 ceedings prior to the assessment, or in the assessment 
 itself, where notice of the intention of the city council to 
 order the work to be done for which the assess- 
 ment is made, has been actually published in any desig- 
 nated newspaper of said city for the length of time pre- 
 scribed by law, before the passage of the resolution 
 ordering the work to be done." According to the letter 
 of this part of the section, no error, informality or defect, 
 even though jurisdictional in its character, and of vital 
 importance to the property owners, can operate to defeat 
 an assessment, provided notice of intention has been 
 published as provided in the act, unless upon appeal 
 to the council. This provision is not found in the prior acts. 
 But, according to recent authorities, construing this part 
 of the act, and cited infra, such a literal interpretation of 
 the section is not the correct construction. [See supra, 
 pages 16-17, under the caption "Jurisdiction"] If, sub- 
 sequent to the publication of the notice of intention, 
 i. e.j if, after a resolution of intention in due form 
 has been passed, posted and published and notice 
 thereof posted and published as provided for by sec- 
 tion 3 of the act, there is any jurisdictional error, 
 which is past correction by the council upon appeal, 
 e. g., if the contract be void because let for less 
 work than is described in the resolution and order, and the 
 assessment is, therefore, illegal, the owner is not required 
 to appeal; and, notwithstanding such failure to appeal, he 
 may defeat all actions upon such illegal assessment. The 
 important question, therefore, is, in what cases is an appeal 
 the exclusive remedy? 
 
 III. Principles Governing Appeal Under Prior Street 
 Improvement Acts. In Emery v. Bradford, 29 Gal. 75, the court 
 held that, under the San Francisco street work act of 1862, if 
 an owner is dissatisfied with the decision of the superintend- 
 ent of streets that the contractor has fulfilled his contract, his 
 only remedy is an appeal from such decision to the board 
 of supervisors of the city and county of San Francisco. 
 And on page 86, the court, per Sawyer, J., said: " An error 
 of the superintendent in the respect complained of can be 
 corrected on appeal. * * * This conclusive determina- 
 tion on appeal doubtless refers to those matters upon which 
 the superintendent is required in the discharge of his 
 duties to exercise his judgment those matters in which his 
 
120 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 errors are to be revised and corrected. There are acts to be 
 performed of a jurisdiction al character essential to the 
 validity of any assessment. It is not to be supposed that 
 the conclusiveness of the decision of the board of super- 
 visors is to extend to that class of acts. The provisions in 
 section twelve [section 12 of the act of 1862 is the section 
 corresponding with section 11 of the present street work act] 
 indicate the kind of errors upon which the decisions of the 
 board are to be final. It is that 'all the decisions and 
 determinations of said board, upon notice and hearing afore- 
 said, shall be final and conclusive upon all persons entitled 
 to an appeal under the provisions of this section, as to all 
 errors and irregularities which said board could have 
 avoided.' Now, this would not include jurisdictional acts, 
 which it would be too late to remedy after the time for 
 appeal had arrived." The court further, considering the 
 question immediately before it, said: " But an error in 
 determining whether the contract has been in all respects 
 performed, is not, one of the jurisdictional defects that could 
 not be remedied. The power to direct the improvement of 
 streets, and to make or authorize the making of contracts 
 therefor^, is properly vested in the board of supervisors, 
 and it would seem to follow necessarily, that the authority 
 to ultimately determine whether or not the contract has 
 been fulfilled, should be vested in the same body that has 
 the power to order and make the contracts." 
 
 In Dougherty v. Hitchcock, 35 Gal. 512, the contract was 
 for less work than that described in the resolution of inten- 
 tion and order for the work to be done. It was, therefore, 
 unauthorized and void, [see supra pages 5354] and it was 
 held that in such case under the act of 1862, the act under 
 which the proceedings were had, this defect was not cured 
 by a failure to appeal. On page 524 Mr. Justice Rhodes said: 
 "A contract authorized and executed in the mode prescribed 
 by the act is indispensable to the validity of the assessment. 
 This defect is not cured by the failure of the lot holders to ap- 
 peal to the board, because had an appeal been taken, the 
 defect could not have been remedied by the board." And 
 on page 526, Sawyer, J., said: "The contract sued on 
 was, therefore, unauthorized. The defect is not one that 
 could be cured by appeal, for ivhen the time Jor appeal came 
 the work was done and the mischief past remedy. The con- 
 tract made, did not pursue the authority, and was, there- 
 fore, wholly unauthorized. By the course pursued, the 
 property holders were deprived of an opportunity to avail 
 themselves of important rights, which the statute secures to 
 
RULES OF APPEAL UNDER PRIOR ACTS MarJh I^ISS? 
 
 them as a condition precedent to the levy of a valid assess- 
 ment upon their property." 
 
 In Burke v. Turney, 54 Gal. 486, the superintendent 
 entered into the contract prematurely, and the contract was 
 therefore void. [See supra page 51.] Upon this part of the 
 case, the court, per McKinstry, J., said: "The superintend- 
 ent had no power to enter into the contract until after the 
 expiration of the five days." Plaintiff urged, however, that 
 the defendant's failure to appeal cut off this defense. On this 
 branch of the case, Mr. Justice McKinstry said: "The pre- 
 mature action of the superintendent was one which affected 
 his power or jurisdiction. His action was void, and that which 
 W&6 void does not become valid by reason of a failure to ap- 
 peal. The property owners were not aggrieved find the failure 
 of the contractor to appeal did not operate, 1st, to create a 
 grievance on the part, of the defendants, and 2nd, to estop 
 them from complaining of it." 
 
 In Chambers v. Saiterlee,40 Gal. 497, Mh Justice Wallace, 
 pa<2y frJO, said: " \Ye think that while the statute intended 
 to leave open for judicial inquiry all questions which can 
 In- >aid to be of a jurisdictional character, its purpose was 
 to submit all other questions to the decision of the board 
 itself." And on page i~y!4, Mr. Justice Temple said, in ref- 
 erence to the decision in Dougherty v. Hitchcock, 35 Gal. 
 512: "In that case it is said, in reference to an objection 
 somewhat similar, that when the appeal came, the work was 
 done and the mischief past remedy. It is, hoivever, impli- 
 ed I y admitted that if the mischief could have been reme- 
 died,, the answer to the objection would have been good." 
 And on page 526, the same justice said: "I have no doubt 
 but that this right [the right of appeal] is exclusive of any 
 other remedy as to all matters which can be revised and cor- 
 rected on such an appeal." 
 
 The foregoing cases were decided under statutes similar 
 in many respects to the present street work act; and the 
 principles which seem to be deducible from these cases, by 
 which to determine whether an appeal is the exclusive 
 remedy or not, are as follows: 
 
 1. The right of appeal refers to those matters upon 
 which the superintendent of streets is required in the dis- 
 charge of his duties to exercise his judgment as, for exam- 
 ple, whether the work has been properly done or not and 
 all matters not of a jurisdictional character. 
 
 2. The right of appeal does not refer to those matters of 
 a jurisdictional character essential to the validity of the 
 contract, which it would be too late to remedy after the 
 time for appeal had arrived as, for example, the require- 
 
122 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 ment that the contract shall be authorized by the resolution 
 of intention and order of award. 
 
 If the irregularity or omission affect the power or 
 jurisdiction of the superintendent, so that his act is void, 
 and the mischief past remedy, it cannot be waived by a 
 failure to appeal. 
 
 3. The failure to appeal cannot operate as a waiver of 
 the right to object to an assessment when the omission or 
 irregularity is one affecting the substantial rights of the 
 property owners, if the omission, error or irregularity 
 occurs at such a stage of the proceedings that it could not 
 be remedied after the time for appeal had arrived. As, for 
 example, if the contract should be for less work than that 
 described in the resolution of intention and order awarding 
 the contract. In such case the contract would be void; the 
 work would be done under a void contract, and when the 
 time for appeal had arrived within thirty days after the 
 date of the warrant the work would be done and the mis- 
 chief past remedy. 
 
 4- If, however, the error or irregularity complained of 
 has occurred in such a stage of the proceedings that it 
 might have been remedied or avoided by the city council 
 on appeal, then it seems that an appeal to the city council 
 is the exclusive remedy of the "aggrieved" property 
 owner, even though the alleged error or irregularity be one 
 which might be considered as affecting his substan- 
 tial rights. As, for example, if all the j'irisdictional 
 prerequisites to the existence of a valid contract 
 have been regularly complied with, and the work has 
 been properly done within the time allowed by law and 
 the contract, but the assessment is irregular by reason of 
 some omission or defect therein, provided the property 
 assessed is liable to assessment, is sufficiently described 
 and the owner thereof is assessed in his true name or 
 under the designation "unknown." [See supra, pp. 94-97.] 
 
 In short, the question as to whether or not an appeal to 
 the council is the exclusive remedy in any case, involves 
 and includes two other subordinate questions, viz.: (1.) Is 
 the error or irregularity complained of jurisdictional, i. e., 
 does it affect the power of the council to award the contract, 
 or of the superintendent to make an assessment? and (2.) 
 is the error or irregularity complained of pust remedy? If 
 the error or irregularity complained of is jurisdictional, 
 and if it would be too late to remedy it, after the time for 
 appeal has arrived, then a failure to appeal is not a waiver 
 of the right of the property owner to resist payment of 
 the alleged assessment. 
 
RULES OF APPEAL UNDER PRIOR ACTS u*r' it^ss*. 123 
 
 In Dehail v. Morford, 95 Gal. 460, Mr. Justice Harrison 
 said: "For the purpose of acquiring jurisdiction every 
 requirement [of the statute] must be regarded as of equal 
 necessity." This language was used in connection with 
 the street opening act of March 6, 1889. [Statutes 1889, page 
 70.] But in so far as it serves to show what are the neces- 
 sary jurisdictionaJ requirements it is as applicable to the 
 Vrooman, or street impiovement act, the act of March 18, 
 1885, as to the street opening act. In Nicolson Pave- 
 ment Co. v. Painter, 35 Cal. 705, Mr. Justice Sanderson 
 said: "In the matter of street improvements the board of 
 supervisors have whatever power the statutes upon that sub- 
 ject have conferred upon them, and no other; the power 
 which they possess must be exercised in the mode pre- 
 scribed by the statute, and in no other; the mode in such 
 cases constitutes the measure of poiuer." And in Shipman v. 
 Forbes, 97 Cal. 572, Mr. Justice Harrison says: "In matters 
 of this character in which the property of a citizen is to be 
 taken in invitum it cannot be said that any requirement of 
 the statute is to be disregarded. Every requisite having 
 the semblance of benefit to the owner must be complied 
 with; and when the form of a statutory proceeding is pre- 
 scribed, its observance becomes essential to the validity of 
 the proceedings." 
 
 As stated above, the question whether or not an 
 appeal to the council is the exclusive remedy in any 
 case, involves two subordinate questions, viz: (1.) Is the 
 error, omission or irregularity complained of jurisdictional? 
 and (2.) Is it past remedy? And these quotations 
 from Dehail v. Morford, Nicolson Pavement Co. v. Painter, 
 and Shipman v. Forbes, have been given for the purpose of 
 showing what requirements are jurisdictional. According 
 to the language of Mr. Justice Harrison in Shipman v. 
 Forbes, " every requisite having the semblance of benefit 
 to the owner" is jurisdictional. 
 
 But, though every requirement of the statute having the 
 semblance of benefit to the owner may be jurisdictional, 
 and of equal necessity, as stated by Mr. Justice Harrison 
 in Dehail v. Morford and Shipman v. Forbes still it does 
 not necessarily follow therefrom that such irregularity may 
 not be waived by a failure to appeal. Since it seems 
 that a failure to appeal is a waiver of the irregularity, 
 if it was possible for the council to have remedied and cor- 
 rected it when the time for appeal arrived, so as to restore 
 or preserve to the property owner all the rights or bene- 
 fits secured to him by the statute. The council on appeal 
 is, it seems, the proper and exclusive tribunal for the liti- 
 
124 STREET WORK LAW -STREET IMPROVEMENT ACT 
 
 gation of all such questions, and the correction of all such 
 errors as occur at such a stage of the proceedings that they 
 are capable of correction by the council on appeal when the 
 time for appeal arrives. When the mischief is past remedy, 
 and the error or irregularity complained of affects substan- 
 tial rights, or consists in the omission of some requirement 
 of the act which has the semblance of benefit to the owner, 
 then and only then is the error, irregularity or omission 
 fatal, and not waived by a failure on the part of the prop- 
 erty owner to appeal to the council. 
 
 It would seem, therefore, that if any of the requirements 
 necessary to the existence of a valid contract has been omit- 
 ted, the property owner may defeat an action upon the 
 assessment, even though he has taken no appeal to the 
 council, since in such case the mischief, it would seem, 
 would be past all possibility of remedy. [See supra pages 
 18, 19 and 44, for an enumeration of the jurisdictional pre- 
 requisites to a valid contract.] In fact, section 11 of the 
 present street improvement act seems to contemplate an 
 "appeal" only where the act or omission complained of is 
 the "act, determination or proceedings of the superintend- 
 ent of streets," and, prior to the execution of the written 
 contract, all proceedings are done by or under the direction 
 of the city council not the superintendent of streets. 
 
 In Emery v. Bradford, 29 Cal. 75, Mr. Justice Sawyer, on 
 page 86,s f iid: "An error of the superintendent in the respect 
 complained of can be corrected on appeal. * * * This 
 conclusive determination on appeal doubtless refers to 
 those matters upon which the superintendent is required in 
 the discharge of his duties to exercise his judgment those 
 matters in which his errors are to be revised and corrected." 
 
 Property owners who may have objections to any of the 
 proceedings of the council between the first publication of 
 the resolution of intention and the issuance of the assess- 
 ment roll, may file with the clerk the "petition of remon- 
 strance," provided for by section 3 of the act. Such objec- 
 tions are reached by a " petition of remonstrance," and not 
 by "appeal." [See supra pp. 117-118.] 
 
 On the other hand, if all the requirements leading up to 
 the execution of a valid contract have been properly com- 
 plied with, if the counciL had jurisdiction to award the 
 contract, and if after due publication, etc., the superintend- 
 ent has executed a valid contract following the award, and 
 if the work has been properly done under the contract, an 
 appeal would seem to be the sole remedy for an omission of 
 any of the requirements provided for by section 8 of the act 
 as essentials to the existence of a valid assessment, provided 
 
RULES OF APPEAL UNDER PRIOR ACTS 
 
 the omission might have been remedied or corrected by the 
 council when the time to appeal arrived, and provided, also, 
 that the property owner was a party to the assessment. 
 [See the subject of "Appeal by Lot Owners" for irregulari- 
 ties in the assessment, pages 94-97, in the notes to section 8 
 of the act.] 
 
 On page 123 x>//>/v7, the language of Mr; Justice Harrison 
 in the case of Shipman v. Forbes, 97 Cal. 572, is quoted 
 for the purpose of showing what requirements are 
 deemed to be jurisdictions]. As the decision in that case 
 might seem to conflict with the statement made above, to 
 the effect that even some jurisdictional requirements, i. e., 
 requirements having the semblance of benefit to the 
 owner, may be waived by the property owner's failure to 
 appeal, if it was possible for the omission, error or irregu- 
 larity complained of to be remedied cr corrected by 
 the council on appeal, when the time for appeal 
 arrived, so as to restore or preserve to the property 
 owner every requirement of the statute having the semb- 
 lance of benefit to him, it is deemed proper, in this con- 
 nection, to give a little further consideration to this case 
 of Shipman r. Forbes. In that case the work had been 
 done under a contract made pursuant to the provisions of 
 the San Francisco street improvement act of 1872. [Stat- 
 utes 1872, p. 804.] A warrant had been issued by 
 the superintendent of streets after the assessment 
 roll had been made up. This warrant was not dated. It 
 was lield that if the warrant be not dated so as to show the 
 day of the month and the year, it cannot serve as the foun- 
 dation of proceedings for the collection of the assessment. 
 Mr. Justice Harrison, rendering the opinion for the court, 
 held that the omission of such date from the warrant was 
 a jurisdictional defect. Still, if the deductions from the 
 opinions given in the decisions cited supra, upon the 
 various street improvement acts, be correct, even the omis- 
 sion of a jurisdictional requirement is not fatal, if the 
 property owner was a party to the assessment and the mis- 
 chief might have been remedied by the council on appeal. 
 And, while a failure to date the warrant may be a jurisdic- 
 tional defect, as held by Mr. Justice Harrison, still the ^ase 
 of Shipman v. Forbes does not seem to be determinative 
 of the question as to whether, under the present street 
 improvement act, the Vrooman act of March 18, 1885, 
 an appeal to the council is the property owner's exclusive 
 remedy for any jurisdictional defect in the warrant. 
 Because, (1.) the decision in that case was under a different 
 act, the San Francisco street improvement act of April 1, 
 
126 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 1872; and (#.) the question as to whether or not an 
 appeal to the council was the exclusive remedy does not 
 seem to have been raised in Shipman v. Forbes, or, if it 
 was, it was not considered by the court in its opinion. 
 
 The present street work .net, in section 11, expressly 
 authorizes the council, on appeal, to ''instruct and direct 
 the superintendent of streets to correct the warrant, * * 
 in any particular, or to make and issue a new warrant." 
 The act of April 1, 1872, under which Shipman v. Forbes 
 was decided, did not contain such express provisions in 
 relation to the correction of the warrant or the issuance of 
 a new one, although it did authorize the council on appeal 
 to "make any order or decision * * * in relation to 
 any of the acts of * * * the said superintendent of 
 public streets," etc. [Sec. 12 of act of April 1, 1872, statutes 
 1872, p. 815.] This clause of the act of 1872 seems to be 
 broad enough to include any correction in the warrant. 
 However, under the said act of 1872, the appeal had to be 
 taken "within fifteen days after the issuance of said assess- 
 ment." It is possible that under that act the warrant need 
 not have been issued until more than fifteen days after the 
 issuance of the assessment, and, if the act be capable of such 
 a construction, then the provisions for an appeal would not 
 seem to contemplate jurisdictional defects in the warrant, 
 since such defects might occur after the time to appeal had 
 expired; and if such construction of the act be correct, the 
 decision in Shipman v. Forbes must have remained 
 unchanged even if the question had been raised as to 
 whether or not an appeal to the board of supervisors was 
 the property owner's exclusive remedy for a failure to date 
 the warrant. 
 
 But, under the present street improvement act, the 
 Vrooman act of March 18, 1885, the appeal need not be 
 taken until "within thirty days after the date of the war- 
 rant," and on such appeal the council "may instruct and 
 direct the superintendent of streets to correct the warrant, 
 * * * in any particular, or to make and issue a new 
 warrant." And therefore it is possible that, as to some defects 
 in the warrant,an appeal to the council is the property owners' 
 exclusive remedy, even though the defect be of a jurisdic- 
 tional character, i. e., even though the defect complained of 
 consists in the omission of some requirement of the 
 statute having the semblance of benefit to the property 
 owner. But it is probable that an appeal is the exclusive 
 remedy only as to "some" jurisdictional defects of the warrant, 
 because there is one jurisdictional defect, at least, which 
 even under the present street improvement act, 
 
RULES OF APPEAL UNDER PRIOR ACTS M^lt'wS 127 
 
 would not be waived by a failure to appeal, and that is 
 the very defect which existed in Shipman v. Forbes, viz., 
 an omission to date the warrant. Because, under the pres- 
 ent street improvement act, the right of appeal does not 
 spring into existence until the warrant is dated. The 
 appeal ni:iy be taken at any time "within thirty days after 
 the date of the- warrant," and, therefore, until the warrant 
 is dated no appeal need be taken. The expression "date of 
 an instrument," as commonly used, does not mean the time 
 when the instrument was actually executed, but the time of 
 its execution as given or stated in the instrument itself, 
 [lament v. Trenton L. & M. Co., 32 N. J., L. 515.] 
 
 The conclusion deducible from the above is, therefore, 
 that as to some defects in the warrant an appeal is the 
 exclusive remedy, even though they be jurisdictiorial, i. e., 
 consist in the omission of some requirement of the statute 
 having the semblance of benefit to the property owner, 
 provided the property owner was a party to the 
 assessment, and the error or irregularity com- 
 plained of is capable of correction upon appeal so as 
 to restore or preserve to the propert}' owner all benefits 
 secured to him by the statute. But these remediable 
 defects do not include a failure to date the warrant, as the 
 right to appeal does not spring into being until the warrant 
 is dated, and Shipman r. Forbes does not, in any respect, 
 militate against those cases cited supra, which hold that 
 an appeal is the exclusive remedy where the error or irreg- 
 ularity complained of is capable of correction on appeal, 
 and it will be seen infra, under the caption: "Cases in which 
 it has been held that an appeal is the only remedy," that 
 the Supreme Court in the later case of Dowling v. Altschul, 
 33 Pac. Rep. 495, has fully sustained the proposition that 
 an appeal is the exclusive remedy in all such cases. [See 
 supra, pages 94-97, "Appeal by lot owners for errors in the 
 assessment."] 
 
 The term "jurisdictional requirements," as used in the 
 statement of the foregoing conclusions, is used synony- 
 mously with the expression "requirements of the statute 
 having the semblance of benefit to the owner." As thus used 
 there can be no doubt that there are some jurisdictional 
 requirements, the omission of which is waived, if an appeal 
 to the council be not taken by the property owner. In other 
 words, an appeal to the council is the exclusive remedy for 
 some of said defects, and the test in each case seems to be: 
 Was the property owner a party to the assessment? and, if 
 he was, was the omission or irregularity complained of cap- 
 able of correction by the council on appeal so as to preserve 
 
128 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 or restore to the property owner all the rights and benefits 
 secured to him by the statute? As to those jurisdictional 
 defects which occur prior to the award of the contract, 
 an appeal does not seem to afford any remedy; the prop- 
 erty owner is, therefore, not a party "aggrieved," and may 
 avail himself of such defects to defeat an action upon the 
 assessment. Nor would a " petition of remonstrance" afford 
 a remedy in such case. The provision authoriizng "a peti- 
 tion of remonstrance" against the acts and proceedings of 
 the city council was intended to be applicable only to acts 
 and proceedings within the power of the council. [Capron v. 
 Hitchcock 33 Pac. Rep. 43L.J As to what constitutes a 
 property owner a stranger to the assessment roll, so as to 
 exempt him from the provisions relative to "appeal," see 
 supra pp. 94-97. 
 
 The decisions cited above were cited for the purpose of 
 exemplifying the principles which were held to govern the 
 right of appeal, and the extent of the remedy thereby 
 afforded, under street improvement acts passed prior to the 
 passage of the present street improvement act, the Vroo- 
 man act of March 18, 1885. Those statutes were, in most 
 respects, similar to the present street improvement act, 
 except that the last clause of the present act adds a pro- 
 vision to the effect that if notice of intention has been 
 duly published, "no assessment shall be held invalid, 
 exceot upon appeal," etc. However, the recent decisions 
 under the present act do not seem to have altered the prin- 
 ciples declared in the decisions under the former street 
 improvement acts, and these principles remain the same 
 now as under the former acts. [See supra pp. 16-17.] 
 
 IV. Principles Governing Appeal under Present Street 
 Improvement Act. 
 
 In Manning v. Den, 90 Cal. 610, the contract was void, 
 because entered into by the superintendent prematurely. 
 The proceedings were had, and the work done, under the 
 present street work act act of March 18, 1885. It was held 
 that a failure to appeal did not cure the defect, nor would 
 the owner be estopped if he had taken an appeal, and the 
 appeal had been decided by the council against him. The 
 court, per Harrison J., pages 615-616, said: "Any objections 
 to the correctness of the proceedings by reason of the fore- 
 going defects were not waived by the defendant by his 
 failure to appeal to the city council. Section 11 of the statute 
 in question provides for an appeal to the city council by 
 those who feel aggrieved or have any objection to any act, 
 determination, or proceeding of the superintendent of 
 streets, and after authorizing the city council to remedy and 
 
RULES OF APPEAL UNDER PRESENT ACT f' 129 
 
 correct any error or informality in the proceedings, declares 
 that the decisions and determinations of said city council 
 upon such appeal shall be final and conclusive, 'as to all 
 errors, informalities and irregularities which said city coun- 
 cil might have remedied and avoided.' It is evident, how- 
 ever, that the foregoing defects in the proceedings could not 
 have been remedied or avoided by the city council upon 
 any appeal from the assessment. At that time the work had 
 been done, and there was no occasion for any contract to be 
 entered into, and any direction from the city council to the 
 superintendence! streets to enter into a contract would have 
 been nugatory as to anything that had taken place prior 
 thereto. A contract entered into by the superintendent at 
 that date would not validate an assessment for work that had 
 been done prior thereto. Unless the superintendent had 
 entered into a contract in pursuance of the award at a time 
 when by the provisions of the statute, he was authorized to 
 do so, there was no foundation for any of the subsequent 
 proceedings, and the person who did the work acquired no 
 rights thereby against the owner. ' A contract authorized 
 and executed in the mode prescribed by the act is indispens- 
 able to the validity of the assessment. This defect is not 
 cured by the failure of the lot holders to appeal to the board, 
 because, had an appeal been taken, the defect could not 
 have been remedied by the board.' [Dougherty v. Hitch- 
 cock, 35 Cal. 524.] 'The premature action of the superin- 
 tendent was one which affected his power or jurisdiction. 
 His action was ro/W, and that which was void does not 
 become valid by reason of a failure to appeal. The prop- 
 erty owners were not aggrieved, and the failure of the con- 
 tractor to appeal did not operate, (1.) To create a 
 yriccance 0:1 the part of defendants, and (2.) to estop 
 them from complaining of it.' [Burke v. Turney, 54 
 Cal. 487.] The provision, in the latter part of section 
 11, that 'no assessment shall be held invalid except 
 upon appeal to the city council,' etc., has no application to a 
 case in which an appeal is not authorized, or in which, even 
 if taken, the city council could not have remedied the defect. 
 The legislature did not intend to declare that the owner 
 should be deprived of his defense to any claim upon an 
 assessment, where the assessment was void by reason of 
 incurable defects, because he had failed to invoke the aid of 
 a tribunal which was powerless to grant him any relief. 
 Nor would the owner be estopped from presenting any such 
 defects because he had appealed to the city council, and 
 that body had denied him relief. Their denial of relief 
 may have been based upon the express ground that the 
 
130 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 matter appealed from was not such as they could remedy, 
 and therefore they would decline to take any action.' 7 [See 
 also Dowling v. Altschul, 33 Pac. Rep. 495; Ferine v. For- 
 bush, 97 Cal. 305; also McBeaii v. Redick, 9G Gal. 191; 
 Frick v. Morford, 87 Cal. 576.] 
 
 As stated supra, the provisions of section 3 relative to a 
 "petition of remonstrance" are applicable only to the acts 
 and decisions of the council, while the provisions of section 
 11 relative to "appeal" seem to contemplate only the acts 
 and decisions of the superintendent of streets, and we have 
 seen from the above that an appeal is not the exclusive 
 remedy where the assessment is void and incurable by rea- 
 son of some act of the superintendent of streets in excess of 
 his powers. The same principle seems to be applicable to 
 the provisions relative to the petition of remonstrance. In 
 C apron v. Hitchcock, 33 Pac. Rep. 431, the court, per Vanclief , 
 commissioner, said: "The provision authorizing f a petition 
 of remonstrance' against the acts and proceedings of the 
 cit}' council was intended to be applicable only to acts and 
 proceedings within the power of the council." 
 
 V. Cases in which it has been Held that an Appeal is the 
 only Remedy. 
 
 1. If a property owner feels aggrieved by the action of 
 the superintendent of streets in extending the time for 
 completion of the work, his only remedy is by appeal. 
 [Conlin v. Seaman, 22 Cal. 546.] 
 
 2. If a property owner is dissatisfied with the decision 
 of the superintendent that the contract has been properly 
 fulfilled, his only remedy is by appeal. [Emery v. Bradford, 
 29 Cal. 75; Cochran v. Collins, 29 Cal. 130; Shepard v. Me- 
 Neil, 38 Cal. 72; Jennings v. Le Breton, 80 Cal. 8; Fanning 
 v. Leviston, 93 Cal. 186.] 
 
 3. If the assessment is made to one of several joint 
 owners instead of to all, the only remedy of the single joint 
 owner to whom it is made is by appeal. [Taylor v. Palmer, 
 31 Cal. 242.] ID this case, page 257, Mr. Justice Sanderson 
 said: "If, for the reason suggested, the assessment was not 
 properly made, the appellant's remedy was by appeal to the 
 board of supervisors, as provided in the twelfth section of 
 the act. [Act of 1862.] He is named in the assessment, 
 and was therefore put upon his appeal, if he had any fault 
 to find. If he owned in common with others, or if he owned 
 only a part of the premises, he could have appealed to the 
 board of supervisors, and had the assessment corrected to 
 suit the facts. Not having done so, he cannot now question 
 the validity of .the assessment upon the ground suggested.' 7 
 
 4- The fact that the mayor of Oakland, before his 
 
CASKS IX WHICH APPEAL ONLY REMEDY M^'iffi 131 
 
 election, had become the assignee of a contract, as security 
 for a debt due him by the contractor, does not affect the 
 validity of the assessment under the Oakland street law of 
 April 4, 1864; and if a property owner is dissatisfied with 
 the act of the mayor in countersigning the warrant under 
 these circumstances, his only remedy is by appeal. [Bau- 
 dry v. Valdez, 32 Cal. 270.] 
 
 . If there be a fraudulent side agreement between 
 (he contractor and some of the lot owners, whereby the 
 contractor, for the purpose of inducing some of the lot 
 owners to sign a petition for the work, agrees with them to 
 do the work at a specified rate in lieu of and less than the 
 rate to be awarded in the contract, while this side agree- 
 ment is a fraud upon the other owners, and impregnates 
 the assessment with the fraud, nevertheless an appeal to 
 the council is the only remedy of the defrauded property 
 owners, unless the statute expressly allows the fraud to be 
 set up in defense of an action brought upon the assessment. 
 Thus in Xolan r. Reese, 32 Cal. 486, the work was done and 
 the proceedings had, under the San Francisco street work 
 act of 1862. In that case it was held that "if the person 
 who contracts with the street superintendent to improve a 
 street, before the contract is made makes a private contract 
 with a part of the owners of the lots liable to be assessed 
 for the improvement, to do their work for less than the price 
 allowed by the contract, this private contract is in fraud of 
 the law under which the streets are improved; but the fraud 
 is no defense in an action by the contractor to recover 
 the assessment, and must be taken advantage of by a 
 remonstrance to or appeal to the board of supervisors." 
 [Statutes of 1862, page 391, 6, 12.] Mr. Justice Shafter, 
 delivering the opinion of the court, says, page 487: 
 "Should the fraud with which the contractor was charged 
 be considered as affecting the 'award of the work' to him by 
 the board of supervisors [section 6 of act of 1862; section 
 5~ of the act of March 18, 1885], then under the fourth 
 section of the act [section 3 of the act of March 18, 1885], 
 it should have been brought to the notice of the board of 
 supervisors by a remonstrance coming from one or more of 
 the lot owners. If, on the other hand, the fraud is con- 
 sidered as affecting the 'legality of the assessment/ then 
 any person having objections to make should have appealed 
 to the board of supervisors within thirty-five days subse- 
 quent to the date of the assessment. [Section 12 of the 
 act of 1862; section 11 of the act of 1885.] Such are the 
 methods pointed out by the act for reviewing the decisions 
 of the board and the acts of the superintendent, and they 
 
132 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 exclude all others by positive provision. The reason for 
 this narrowness in the remedies provided for by the act is 
 found in the fact that the legislature, in framing it, was 
 providing for a matter of public concern through an exer- 
 cise of the sovereign power of taxation. The meagerness 
 averted to has its origin in the necessities of the power.' 7 
 To the same effect is the decision in Himmelmann v. 
 Hoadley, 44 Cal. 214, 227, decided under the same statute. 
 In Brady v. Bartlett, 56 Cal. 350, however, it was held that 
 where there had been such a fraudulent side contract, the 
 fraud could be set up in defense to an action upon the 
 assessment, and that if proven it would defeat all recovery 
 by the contractor. But this was because the act under 
 which the work was done expressly allowed such a defense. 
 In this case the work was done and the proceedings had 
 under the San Francisco street work act of 1872, by the 
 the 13th section of which such defense was expressly 
 allowed. That section provided that "in suits brought to 
 recover street assessments * * * no defense shall be 
 interposed except * * * . Third. Fraud in the assess- 
 ment, or in any of the acts or proceedings prior thereto." 
 Unless there be some equivalent provision in the present 
 street work act it is altogether probable that in any future 
 case arising out of proceedings had under the present act, 
 the Supreme Court will follow the rule laid down in Nolan 
 v. Reese, and Himmelmann v. Hoadley, and hold 
 that where there is such a fraudulent side agree- 
 ment the property owner's only remedy is by appeal to the 
 council, there to make a direct attack upon the proceed- 
 ings. If there is any provision in the present street work 
 act similar to or the equivalent of the provision of the 13th 
 section of the act of 1872, relied upon in Brady v. 
 Bartlett, supra, it has escaped the author's notice. 
 
 In Chambers v. Satterlee, 40 Cal. 520, it is said: "While 
 the statute intended to leave open for judicial inquiry all 
 questions which can be said to be of a jurisdictional character, 
 its purpose was to submit all other questions to the decision 
 of the board itself." [See also Emery v. Bradford, 29 Cal. 
 page 86, cited supra p. 119.] Therefore, if the line which di- 
 vides those matters, over which the decision of the council on 
 appeal is final and conclusive, from those matters over 
 which its decision is not thus final and conclusive, mat- 
 ters as to which the provisions for appeal are not referable 
 be that line which' likewise divides matters of a jurisdic- 
 tional character from matters of a non-jurisdictional char- 
 acter, and this seems to be the rule Reducible from the 
 authorities, provided the defect be both jurisdictional, and 
 
(UNIVERSITY. 
 
 ^S^CAL ^ 
 
 MEANING OF "JURISDICTIONAL REQUIREMENTS" ^ 133 
 
 past remedy or appeal, it follows that in answer to the 
 question in any case, Is an appeal the sole remedy of the 
 property owner? we must first answer the question, Is the 
 matter complained of jurisdictional in character or non- 
 jurisdictional? If jurisdictional it may be availed of 
 in defense to an action upon the assessment, and 
 is not waived even if the property owner has prose- 
 cuted an unsuccessful appeal to the council, pro- 
 vided the error or irregularity complained of was past 
 remedy at the time the appeal was taken. That is to say, 
 even if the alleged irregularity or error be jurisdictional in 
 character, in the sense that it is an essential requirement, 
 or requirement having the semblance of benefit to the 
 owner, still under the provisions of section 11 of the act, 
 an appeal to the council is the sole and exclusive rem- 
 edy of the property owner, if the alleged error or irregu- 
 larity might have been avoided or remedied by the council 
 on appeal. The remedy by appeal is exclusive of any 
 other remedy as to all matters which can be revised and 
 corrected on such appeal. For example, if the error or 
 irregularity complained of be one inhering in and directly 
 appertaining to the assessment only all the proceedings 
 up to the assessment having been regular and proper 
 then, if the error be capable of correction on appeal, such 
 appeal is the only remedy of the "aggrieved" property 
 owner. [Bowling 'v. Altschul, 33 Pac. Rep. 495.] If the 
 alleged error or irregularity is non-jurisdictional, an appeal 
 to the council is the only remedy. But those matters are 
 of a jurisdictional character which are essential to the 
 validity of the assessment. So that, ultimately, the import- 
 ant question in determining whether the matter complained 
 of is jurisdictional or not, is, Is the matter essential to the 
 Validity of the assessment or to the right to recover in an 
 action upon the assessment? If it is, then an appeal is not 
 the exclusive remedy, if the error is incapable of cor- 
 rection upon appeal. As to the rules by which to 
 determine what requirements of a statute are essential and 
 what are non-essential, see the opinion of Mr. Justice 
 Thornton, and authorities cited, in the above case of Brady v. 
 Bartlett, 56 Cal. pages 357, 358. But, as is well said by the 
 learned judge, in that case, the rule by which to determine 
 what provisions in a statute are mandatory and what not, 
 and, therefore, what is essential and what non-essential, 
 is plain and simple; but to apply them, "hoc opus est." 
 
 Throughout the notes to this section of the act [Sec. 11] 
 the expression "jurisdictional requirements," has been used 
 synonymously with the expression, "requirements of the 
 
134 STREET WORK LAW STREET -IMPROVEMENT ACT 
 
 statute having the semblance of benefit to the property 
 owner." As thus used it has been stated that, notwith- 
 standing some one of such requirements may be omitted, 
 the omission is nevertheless not necessarily fatal in an 
 action upon the assessment, unless the omission was inca- 
 pable of correction on an appeal to the council, so as to pre- 
 serve or restore to the property owner the right or benefit 
 thus omitted. But, the term "jurisdictional requirements" 
 might have been used in a more limited and restricted 
 sense. It might have been restricted to those requirements 
 which not only have the semblance of benefit to the owner, 
 but which are to be performed at such a stage of the pro- 
 ceedings that if any of them be omitted or irregularly per- 
 formed, the omission or irregularity is incapable of correc- 
 tion on appeal the mischief is past remedy when 
 the time to appeal has arrived, e. g., all such 
 requirements of the statute as are necessary to give the 
 council jurisdiction to order the work to be done. As thus 
 used every jurisdictional requirement is essential to the 
 validity of the assessment and to a recovery thereon, since 
 if any such requirement be omitted, the mischief is past 
 remedy by the council on appeal, when the time for appeal 
 has arrived, no correction can possibly be made so as to 
 restore to the property owner the benefit secured to him 
 by the statute. It is therefore important that the reader 
 should bear in mind the meaning which has been placed 
 upon the word " jurisdictional," as used throughout the 
 notes to this section, and remember that it is used in the 
 broader of the two possible significations given above, 
 namely, synonomously with the expression "every require- 
 ment of the statute having the semblance of benefit to the 
 owner." 
 
 When Mr. Justice Wallace, in Chambers v. Satterlee, 40 
 Gal. 520, said that, "While the statute intended to leave 
 open for judicial inquiry all questions which can be said 
 to be of a jurisdictional character, its purpose was to sub- 
 mit all other questions to the decision of the board itself," 
 he undoubtedly used the term "jurisdictional" in the more 
 restricted of the two significations given above. That is, 
 he used the term "jurisdictional" to designate those require- 
 ments which not only have the semblance of benefit to the 
 property owners, but which are provided for at such a 
 stage of the proceedings that, if omitted, it is, in the 
 nature of things, too late to remedy the evil when the time 
 for an appeal to the council has arrived; and this is doubt- 
 less a more accurate use of the expression; although the term 
 "jurisdictional" does not seem to be appropriate in this con- 
 
MEANING OF JURISDICTION 'ifStf 135 
 
 nection at all, since it is used- not to express the power of a 
 judicial body to hear and determine, but rather the power 
 of certain officials to do certain acts, most of which are of 
 a ministerial character; and, since the term seems to be 
 wholly inappropriate in this connection, it really matters 
 little in what sense it is here used, provided the mean- 
 ing to be attached to it in this connection be accurately 
 defined pro hac vice. 
 
 It is to be regretted that the word "jurisdictional" should 
 ever have been used at all in this connection, as some other 
 and more appropriate word would have avoided much con- 
 fusion of thought and expression. It is not an appro- 
 priate word to use in this connection, for, as stated by Mr. 
 Justice Temple, in Chambers v. Satterlee, 40 Cal. 525, 
 "The word 'jurisdiction' [as here used] means power, 
 for there is nothing of a judicial nature in that portion of 
 the proceedings which relates to ordering the work and let- 
 ting the contract." The word is more appropriately u?ed 
 in connection with judicial proceedings, in which connec- 
 tion it has recently been defined to mean the power to hear 
 and determine a cause, and to render the particular judg- 
 ment or order entered in the particular case. But there is 
 perhaps no word in the English language that has been 
 more frequently defined than this word ''jurisdiction," and 
 the decisions are still far from being in accord with each 
 other. [See Am. and Eng. Encyclopa3dia of Law, Vol. 12, 
 l>. - 14, et seq.} The term may be appropriately used in 
 connection with the power of the council to hear and deter- 
 mine the questions presented to it on an appeal by a 
 property owner, or on a petition of remonstrance. In such 
 a case the council exercises judicial functions. But it is 
 not correctly used when employed to express the power or 
 authority of the superintendent of streets, for example, 
 to make any particular assessment, or to issue any particu- 
 lar warrant. 
 
 However, following what seems to be a general custom, 
 the expression "jurisdictional requirements" has been used 
 in the notes to this section as including "every require- 
 ment having the semblance of benefit to the property 
 owner," including those things which the statute requires 
 to be done by the superintendent of streets after the execu- 
 tion of the contract and after the performance of the work 
 as well as those requirements necessary to give the council 
 jurisdiction to order the work done. Although it would 
 doubtless have been more accurate if the expression had 
 been used to express merely those requirements of the stat- 
 ute which are absolutely essential to any recovery upon 
 
136 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 the assessment those requirements which not only affect 
 substantial rights, but which are incapable of being rem- 
 edied by the council on appeal. 
 
 6. If the street superintendent includes in the assess- 
 ment any sum which he ought not to have included, an 
 appeal to the council is the only remedy, if there be any 
 part of the assessment which is legal and Droper, and if the 
 lots charged with the assessment are lawfully chargeable 
 with some part of the total amount assessed to pay the cost 
 of the work, provided the part which is lawfully assessable 
 against the property, is severable from the part which is 
 not lawfully assessable. Thus in Himmelmann v. Hoadley, 
 44 Cal. 276, the contract was awarded for macadamizing and 
 curbing California street from Gough street west to Cemetery 
 avenue in San Francisco. Subsequent to the award, the line 
 of Cemetery avenue was extended to the west so that the dis- 
 tance from Gough street to Cemetery avenue was increased 
 about 200 feet. The contractor macadamized and curbed this 
 additional 200 feet, and the superintendent included the cost 
 of the additional work in the assessment. The lots sought to 
 be charged with the lien, lie to the east of- the former line of 
 Cemetery avenue, i. e., they lie within the limits of Cali- 
 fornia street included in the award of the contract made by 
 the board, and were properly chargeable with the cost of the 
 work if no additional work had been done. The court, per 
 Rhodes, J., said: "It is very clear that the superintendent 
 had no authority to make an assessment for the w r ork on the 
 additional two hundred feet of the street. * * * The 
 plaintiff maintains, that as the superintendent had jurisdic- 
 tion to make an assessment for the expense of the work per- 
 formed on the street, up to the former line of Cemetery 
 avenue, if he included in the assessment any sum which, 
 for any reason, ought not to have been included, then the 
 property holder should have appealed to the board of super- 
 visors. This position is sustained by Emery v. Bradford, 
 29 Cal. 88; Smith v. Davis, 30 Cal. 536; Nolan v. Reese, 32 
 Cal. 484; Smith v. Cofran, 34 Cal. 314, and many other 
 cases in this court. The question would be different had 
 the action been brought to enforce a lien upon property front- 
 ing on the street lying west of the former line of Cemetery 
 avenue, [i.e., the property not on that part of California street, 
 lying within the lines of intersection described in the award 
 of the contract,] a question of jurisdiction would have been 
 presented. But when the contract is valid, if the superin- 
 tendent includes in the assessment the expense of work not 
 provided for in the contract, or not performed under it, it 
 
CASES IX WHICH APPEAL IS ONLY REMEDY ??= ,11 Act of 
 
 March 18. 1885. 
 
 is an error on his part, which may be corrected on appeal 
 to the board, as provided for in the statute." 
 
 To the same effect are the following cases : Bo} T le v. 
 Hitchcock, 66 Gal. 129, where incidental expenses for 
 engineering and printing were objected to; Frick v. 
 Morford, 87 Gal. 577; McVerry v. Boyd, 89 Cal. 304J 
 309; Fanning v. Leviston, 93 Cal. " 188; Ferine v. 
 Forbash, 97 Cal. 305. In this latter case the superin- 
 tendent included in the assessment the cost of certain 
 bulkheads, though they were not provided for in the con- 
 tract. In this case it was said, per De Haven, J.: "It is 
 true that, as the contract did not provide for constructing 
 these bulkheads, the superintendent of streets ought not 
 to have included their cost in the assessment which he made, 
 but for such erroneous action on his part the only remedy 
 was an appeal to the city council, as provided for in section 
 11 of the act. * * * Such an objection to the assess- 
 ment could have been made to the city council, and the 
 defendant waived his right to now make it by not appealing 
 to that body for its correction. When, however, an assess- 
 ment includes the cost of work not falling within the general 
 description of that which is referred to in the resolution of 
 intention, or when such work bears no relation whatever to 
 that which is described in the contract, this rule would not 
 apply. But this is not such a case. The construction of 
 the bulkheads u-as not, so far as appears here, an entire 
 departure from the general plan or scope of the improve- 
 ments described in the resolution of intention, although 
 mention of them is omitted in the plans and specifications 
 attached to the contract. In such a case the determination 
 of the superintendent of streets that their construction was 
 necessary in order to fully complete the work called for by 
 the contract, was only an error of judgment, and his action 
 in making an assessment to cover their cost was only a 
 mere error, which it is too late now to correct, and which 
 does not render the assessment wholly void." 
 
 7. If it is objected that the contract was made with a 
 corporation acting through its president, who was not 
 authorized to enter into the contract, the objection must be 
 raised on appeal to the council. [Oakland Pvg. Co., v. Rier, 
 52 Cal. 270.J 
 
 8. If there is a purely technical omission in the dia- 
 gram not amounting to an omission in respect to something 
 made essential by the act, or affecting substantial rights, 
 the only remedy is by appeal. [Dyer v. Parrott, 60 Cal. 551.] 
 
 9. Appeal is the only remedy where a second contract 
 
138 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 is awarded during the existence of a previous contract for 
 the same work. [Spaulding v. Homestead Ass'n, 87 Cal. 41.] 
 
 10. Appeal is the only remedy where a lot, properly 
 assessable under section 7 of the act and chargeable with 
 a portion of the expenses is omitted from the assessment. 
 Dowling v. Altschul, decided June 13, 1893, 33 Pac. Rep. 
 495, decision of department, opinion by Commissioner 
 Vanclief, Mr. Justice Harrison concurring in the judg- 
 ment but not in the opinion. This is a most important 
 decision, and if in such case an appeal is the only remedy 
 where the front-foot plan of assessment is adopted, there 
 does not seem to be any reason why it should not be the 
 only remedy, where the council has declared an assess- 
 ment district to be benefited by the work or improvement, as 
 provided for by section 3 of the act, and the superin- 
 tendent, in assessing the lots within such district, as pro- 
 vided for by subdivision 12 of section 7 has omitted some 
 lot from assessment. There is an assessment district in 
 the one case just as much as in the other. In the one case 
 the council fixes the boundaries of the district and declares 
 it the district to be benefited, in the other case, i. e. where 
 the front-foot plan is adopted, the statute establishes the 
 district. [See Diggins v. Brown, 76 Cal. 318; Davis v. City 
 of Los Angeles, 86 Cal. 49; Dyer v. Harrison, 63 Cal. 448; 
 People v. Lynch, 51 Cal. 15.] 
 
 VI. Cases in which it has been held that Appeal is not a 
 Remedy. 
 
 1. Where a lot is not liable to be assessed at all, the 
 owner is not a party directly interested in the contract, 
 work, or assessment, within the meaning of the act, and is 
 not bound to appeal from the assessment. Although 
 assessed, and in that sense he might be said to be interested 
 in the assessment, the section does not mean that a mere 
 stranger to the locality, and who might have no suspicion 
 that he ,had been assessed until too late to appeal, should 
 be cut off from his defense. [Bassett v. Enwright, 19 Cal. 
 636.] 
 
 2. If the lot is not assessed to "unknown owner" or 
 to the true owner by his true name, the owner need not 
 appeal. [Smith v. Cofran, 34 Cal. 316.] On page 317 it 
 is said: "Nobody, except the person named as owner, is a 
 party to the assessment at all, unless the owner is stated as 
 unknown, and one not a party to the assessment in one of 
 the modes designated, is in no way affected by it." He is 
 a stranger to the assessment, and a stranger to the assess- 
 ment need not appeal. "On the other hand, if a lot owner 
 is assessed by name or by designation 'unknown owner/ 
 
CASES IX WHICH APPEAL IS NOT REMEDY M^'llflSS? 139 
 
 and is a party to and bound by the proceedings, he can not 
 attack them for mere error, in a collateral action. In 
 respect to such error, his remedy is by appeal." [Bucknall 
 v. Story, 46 Cal. 589, 601.] 
 
 S. If tha contract made by the superintendent calls 
 for less work than is described in the resolution of intention 
 and the award, the contract is void, and no appeal need be 
 taken. "A contract authorized and executed in the mode 
 prescribed by the act is indispensable to the validity of the 
 assessment. This defect is not cured by the failure of the 
 lot holders to appeal to the board, because had an appeal 
 been taken, the defect could not have been remedied by 
 the board." [Dougherty v. Hitchcock, 35 Cal. 512, 524, 
 526.] In this case the resolution of intention described 
 the work to be done as being work on a certain street 
 Clay street in San Francisco for several blocks in length, 
 from Taylor to Leavenworth streets, and the board of super- 
 visors awarded a contract for the whole work. The only 
 contract entered into by the superintendent was for the 
 grading of one block only that from Jones to Leavenworth 
 streets. To the same effect is McBean v. Redick, 96 Cal. 
 I'.U, decided under the present street improvement act. 
 
 In Chambers r. Satterlee, 40 Cal. 498, the contract made 
 by the street superintendent included more work than that 
 called for by the resolution of intention and the award. In 
 that case the board ordered the street to be graded which 
 of course means to the ol\icial grade but the contract pro- 
 vided that the street should be ''graded to the official height 
 and line," and then, instead of stopping here, went on to 
 say, " except the roadway, which is to be graded twelve 
 inches below the official grade and when completed is to 
 have a crown to the center eighteen inches from the bottom 
 of the gutter-ways." Chambers v. Satterlee differs from 
 Dougherty v. Hitchcock in this, that while in the latter case 
 the contract made by the superintendent called for less 
 work than the award, in the former case the contract called 
 for more. In Chambers v. Satterlee it was held that an 
 appeal to the board of supervisors was the only remedy of a 
 property owner dissatisfied with the contract made by the 
 superintendent, because it called for more work than that 
 described in the resolution of intention, and the concurring 
 opinion of Mr. Justice Crockett seems to present the clear- 
 est reasoning on this branch of the case. He says, page 
 531: " In embracing in the contract additional work, not 
 ordered to be done, the superintendent committed an irreg- 
 ularity which, by the express terms of the statute, could be 
 corrected on an appeal to the board from the assessment." 
 
140 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 Whereas, in Dougherty v. Hitchcock, the written contract was 
 for less work than that called for by the award, the contract 
 was void, and the defect jurisdictional, but where the writ- 
 ten contract calls for more work than the award, the contract 
 is not void if the excess can be segregated from that prop- 
 erly called for by the award and the defect is not jurisdic- 
 tional. [See also Ferine v. Forbush, 97 Cal. 305.] 
 
 4- Where the written contract executed by the street 
 superintendent gives more time for completion than that 
 allowed by the award, it is void, and no appeal is necessary. 
 [Brock v. Luning, 89 Cal. 316.] 
 
 5. The demand, required by section 10 of the act to be 
 made by the contractor or his assigns, or some person on 
 his or their behalf, must be for the amount properly charge- 
 able against the lot. If demand is made for more than is 
 properly chargeable, the contractor or his assigns can not 
 recover, and the defense is not affected by the failure of the 
 parties aggrieved to appeal. [Donnelly v. Howard, 60 Cal. 
 292.] 
 
 6. If the contract is executed by the superintendent pre- 
 maturely, it is void, and the defect is not waived by a fail- 
 ure to appeal. [Burke v. Turney, 54 Cal. 486; Manning v. 
 Den, 90 Cal. 610; Ferine v. Forbush, 97 Cal. 305. J 
 
 VII. Appeal by Contractor. An assessment which, 
 for any reason, is void and incurable, does not create 
 any lien upon the land assessed, and the owner 
 thereof is not required to appeal to the city coun- 
 cil, because he is not a person "aggrieved," within the 
 meaning of that term as used in the statute. The con- 
 tractor, however, may appeal, and, on appeal, 
 may have curable errors corrected. [Frick v. Morford, 87 
 CaL 576, 580; Smith v. Cofran, 34 Cal. 310.] Under the 
 provisions of the statute, the assessment and warrant, after 
 having been iccorded, are put into the hands of the con- 
 tractor, and he has thirty days from the date of the warrant 
 within which to examine it, and if found in any respect to 
 be incorrect or illegal, to apply to the council by appeal to 
 have it corrected and made legal. In Smith v. Cofran, 34 
 Cal. page 315, Mr. Justice Sawyer said: " All the means 
 open to the superintendent for determining the correctness 
 and legality of the assessment and warrant are equally open 
 to the contractor, and an opportunity is aftorded to examine 
 the proceedings and apply for correction if found to be 
 incorrect or illegal. Moreover, as we have said, it is pro- 
 vided that the 'contractor * * * having or making any 
 objection to the correctness or legality of the assessment * 
 * * shall * * * appeal to the board of supervisors/ 
 
SECTION TWELVE OF THE ACT 82^i?ig a ^ WI 141 
 
 etc. Thus, if he has objections of the kind in question, he 
 not only has an opportunity, but it is made his duty, to 
 have them obviated in the mode prescribed. If he fails to 
 avail himself of the means of protection afforded by the 
 law, the loss in consequence of defects of the kind under 
 consideration results as much from his own negligence as 
 from that of the superintendent." 
 
 VIII. Unsuccessful Appeal no Estoppel in Action onAssess- 
 ni< nt. If an assessment is, for any reason, illegal, and a prop- 
 erty owner takes an appeal to the council and the council 
 denies him relief, the fact that he has taken this unsuccess- 
 ful appeal will not estop him from relying upon the defects 
 in the assessment in any action brought thereon. The 
 jurisdiction of the council being limited and special, it 
 may be shown that the facts conferring jurisdiction upon 
 them did not exist. [Mannings. Den, 90 Cal. 611; Dehail 
 r. Morford, <)^ Cal. 4.17. | 
 
 IX. Council Cannot Dismiss Appeal. If an appeal to 
 the council be taken by a property owner in time 
 and regularly, the council has no power to dismiss 
 it; and even if an order is made dismissing it, the 
 appeal is regarded as still pending, the assessment 
 does not become a finality, and an action can not be 
 maintained on it. [People v. O'Neil, 51 Cal. 91.] If, 
 however, it does not appear that any testimony was offered 
 by the person taking the appeal, as this fact is consistent 
 with the fact that the only mutter urged on the appeal was 
 a question of law, the appeal will not be regarded as 
 still pending, and an action might be maintained on the 
 assessment. [Mahoney v. Braverman, 54 Cal. 565, 570.] 
 
 X. Practice on Appeal. On appeal the same strictness 
 which would be required in a pleading at common law is 
 not exacted from persons objecting to an assessment in 
 stating their objections. [Barber v. San Francisco, 42 Cal. 
 630.] 
 
 SECTION 12. At any time after~the period of thirty-five days from the 
 day of the date of the warrants, as herein provided, or if an appeal is 
 taken to the city council, as provided in section eleven of this act, at any 
 time after live days from the decision of said council, or after the return 
 of the warrant or assessment, after the same may have heen corrected, 
 altered or modified, as provided in said section eleven (but not less than 
 thirty-five days from the date of the warrant), the contractor or his assignee 
 may sue, in his own name, the owner of the land, lots or portions of lots, 
 assessed on the day of the date of the recording of the warrant, 
 assessment and diagram, or any day thereafter during the con- 
 tinuance of the lien of said assessment, and recover the amount of any 
 assessment remaining unpaid, with interest thereon at the rate of ten per 
 
142 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 cent, per annum until paid. And in all cases of recovery under the pro- 
 visions of this act the plaintiff shall recover the sum of fifteen dollars in 
 addition to the taxable cost, as attorney's fees, but not any percentage 
 upon said recovery. And when suit has been brought, after a personal 
 demand has been made and a refusal to pay such assessment so demanded, 
 the plaintiff shall also be entitled to have and recover said sum of fifteen 
 dollars as attorney's fees in addition to all taxable costs, notwithstanding 
 that the suit may be settled or a tender may be made before a recovery in 
 said action, and he may have judgment therefor. Suit may be brought in 
 the Superior Court within w r hose jurisdiction the city is in which said 
 work has been done, and in case any of the assessments are made against 
 lots, portions of lots, or lands the owners thereof cannot, with due dili- 
 gence, be found, the service in each of such actions may be had in such 
 manner as is prescribed in the codes and laws of this state. The said war- 
 rant, assessment, certificate and diagram, with the affidavit of demand 
 and non-payment, shall be held prima facie evidence of the regularity and 
 correctness of the assessment and of the prior proceedings and acts of the 
 suparintendent of streets and city council upon which said warrant, 
 assessment and diagram are based, and like evidence of the right of the 
 plaintiff to recover in tiie action. The court in which said suit shall be 
 commenced shall have power to adjudge and decree a lien against the 
 premises assessed, and to order such premises to be sold on execution, as 
 in other cases of the sale of real estate by the process of said courts ; and 
 on appeal the appellate courts shall be vested with the same power to 
 adjudge and decree a lien and to order such premises to be sold on execu- 
 tion or decree as is conferred on the court from which an appeal is taken. 
 Such premises, if sold, may be redeemed as in other cases. In all suits 
 now pending, or hereafter brought to recover street assessments, the pro- 
 ceedings therein shall be governed and regulated by the provisions of this 
 act. and also, when not in conflict herwith, by the codes of this state. 
 This act shall be liberally construed to effect the ends of justice. [Amend- 
 ment approved March 14, 1889, statutes 1889, page 168.] 
 
 [Section 12 was amended in 1889 by act of March 14, 1889, statutes '89, 
 page 168.] 
 
 Section 12 of the act contains the provisions relating to 
 suits to enforce the assessment lien. It provides that at 
 any time after the period of 35 days from the date of the 
 warrant, or at any time after 5 days from the decision of 
 the council on appeal, if an appeal has been taken as pro- 
 vided in section 11, or after the return of the warrant or 
 assessment, after the same have been corrected, altered or 
 modified on appeal, as provided in section 11, (but not less 
 than 35 days from the date of the warrant) the contractor 
 or liis assignee, may sue in the Superior Court within 
 whose jurisdiction the city is in which the work was done, 
 and recover the amount of any assessment remaining 
 unpaid, with interest thereon at the rate of ten per cent, per 
 annum until paid, etc. The section provides that the pro- 
 ceedings "shall be governed and regulated by the provisions 
 
GENERAL PRINCIPLES OF PROCEDURE 'i"jj5?* d ** 143 
 
 of this act, and also, when not in conflict herewith, by the 
 codes of this state." 
 
 I. Procedure-, (rcneral Principles. When the assessment 
 is invalid, but the property owner has, nevertheless, 
 allowed the contractor to proceed with the work to comple- 
 tion without objection so that his property has thereby 
 received the benefit of the improvement, he cannot, by 
 injunction, enjoin the sale of the land for the purpose of 
 avoiding the payment of his assessment. Injunction pro- 
 ceedings, if desired, must be instituted before the work is 
 done. This is upon the principle that he who seeks equity 
 must do equity. If the proceedings are irregular the prop- 
 erty owner will be left to his strict legal rights, if he has any; 
 and in an action by ulie contractor or his assigns to enforce 
 the assessment lien, the property owner may set up the 
 irregularities by way of a defense to the action. But he 
 can not seek the aid of equity unless he is prepared to do 
 equity, and therefore can not, by injunction, prevent a sale 
 of the property, unless he is prepared to pay at least the 
 reasonable value of the improvement to his property or the 
 amount which in equity and good conscience he ought to 
 pay. [Weber r. San Francisco. 1 Cal. 455.] The rule is the 
 same whether the acts complained of are mere irregularities 
 or such as render the assessment illegal and void. [Ester- 
 brook v. O'Brien, decided July 13, 1893, 33 Pac. Rep' 765.] 
 In this case the court said: "Courts of equity do not 
 review the proceedings of officers entrusted with the assess- 
 ment of the property. If proceedings taken by them are 
 void, no title will pass by a sale of the real estate, and the 
 party claiming to be injured must litigate his rights in an 
 action at law for the possession of the premises. Of course 
 there are exceptions to the rule, as where it is shown that the 
 la mis are not at all subject to taxation, or that there is no law 
 authorizing any proceedings therefor. So 
 
 long as the moral obligation to pay any portion of the tax 
 exists, a court of equity will not lend its aid to prevent a 
 cloud upon the title, but will leave the party to his remedy 
 at law." [See also Bucknall v. Story, 36 Cal. 67; Lent v. 
 Tillson, 72 Cal. 433.] 
 
 According to the express provision of the contract, neither 
 the city nor the city authorities are to be held liable in any 
 event. Only the property assessed can be held liable. [See 
 section 6.] Nor can the legislature appropriate money to 
 pay the claim of a contractor who has failed to obtain com- 
 pensation for the work done by him, by reason of any errors, 
 omissions or irregularities of the municipal officers, which 
 prevented them from having jurisdiction to order the work 
 
144 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 done, or rendered the contract or assessment invalid, nor can 
 the legislature empower the municipal authorities of a city 
 to appropriate or pay any money for any such purpose. An 
 act of the legislature appropriating public monevs to pay 
 any portion of the claim of a contractor who failed to recover 
 from thft property owner, because of ii regularities in the 
 proceedings committed by the municipal authorities, or an 
 act to empower the city authorities of a city to pay city 
 moneys to such contractor, under such circumstances, would 
 be a "gift" within the meaning of section 31 of article IV of 
 the constitution, and such legislative act would, therefore, 
 be unconstitutional and void. The contractor must look to 
 the property of the property owners, as provided by section 
 12 of the act; and, to entitle him to recover against them, 
 the proceedings must be regular and valid or capable 
 of correction by the council on appeal. [Conlin v. Board of 
 Supervisors of San Francisco, decided July 21, 1893, 33 
 Pac. Rep. 753.] 
 
 The statute under which the contract is. made becomes a 
 part of the contract, and the provisions of the statute in 
 reference to the enforcement of the assessment lien and the 
 remedies of the contractor are not affected by a subsequent 
 repealing act, so far as such contract is concerned, [Creigh- 
 ton v. Pragg, 21 Gal. 115; Dyer v. Pixley, 44 Cal. 153; Dyer 
 v. North, 44 Cal. 157-160; Dyer v. Barstow, 53 Cal. 81.] " 
 
 The action is not upon the contract. If it were, it is prob- 
 able that the assignee of a contractor could not sue his 
 assignor when the latter is also a property owner, since the 
 assignee would stand in the shoes of his assignor, the con- 
 tractor, and the contract would create no right in the con- 
 tractor against himself. The action is in reality an action 
 to collect a tax. The city government and the contractor 
 are the only parties to the proceeding, so far as making the 
 improvement is concerned; that being done, the city govern- 
 ment acts alone in its political capacity in apportioning and 
 levying the tax upon the property of the property owner or 
 taxpayer; but when provision is made for the collection of 
 the tax, the city government steps out of the triangular rela- 
 tion existing between the contractor, the city government 
 and the property owner or taxpayer, and the contractor is 
 thrust into her place and made her agent for the purpose of 
 collecting the tax. "Independent of the statute, the tax 
 would be due from the taxpayer to the city, and the city 
 would have to demand and sue for it, if necessary; but the 
 statute provides that the city shall not be responsible for 
 the collection of the tax, or subject to the risk, trouble and 
 annoyance, but shall virtually assign her right of action for 
 
GENERAL PRINCIPLES OF PROCEDURE f&Jiuf is8o end0d 145 
 
 the tax to the contractor, in full payment for his work and 
 labor under her contract with him, and authorize him to 
 sue in his own name to recover it, if necessary. This being 
 done, his relation of contractor is at an end. * * * The 
 thing sued for is not the contract price, or a part of it, but 
 the tax specified in the assessment, or warrant, for which he 
 sues, not as contractor, but as assignee of the city, and he is 
 compelled to make the same averments and the" same proof 
 which the city would have had to make had she undertaken 
 to collect the tax; in other words, he has to show that the 
 entire proceedings which terminated in imposing upon the 
 property-holder a liability to pay the tux in suit have been in 
 conformity with the provisions of the statute by which the 
 tax was authorized. Without doing this, the city could not 
 Imvo recovered under the more ordinary mode adopted in 
 such case, nor can he." [Hendrick v. Crowley, 31 Gal 
 472.] 
 
 The title to a lot, if put in issue by the pleadings, may be 
 litigated in an action on the assessment. All the owners 
 of the lot must be made defendants, and if any defendant 
 denies his ownership this is a material issue and may be 
 litigated. [Taylor v. Donner, 31 Cal. 481; Robinson v. 
 Merrill, 87 Oaf. 11.] 
 
 The relief sought in actions on street assessments is equit- 
 able, and the action an action in equity, and consequently 
 must bo brought in the Superior Courts, without reference 
 to the amount claimed. [Mahlstadt v. Blanc, 34 Gal. 577.] 
 
 The contractor does not lose his lien by the mere lapse 
 of two years before the entry of judgment, provided his 
 action be commenced within that time. [Randolph v. 
 Bayue, 44 Cal. 367; Dougherty v. Henarie, 47 Cal. 9; Him- 
 melmanii v. Carpentier, 47 Cal. 42; Borland v. McGlynn, 
 47 Cal. 48.] 
 
 An action can not be maintained to enforce a lien for a street 
 improvement, unless the lien exists at the time the action 
 is commenced, and therefore, even if it be admitted that 
 the legislature lias the constitutional right to validate an 
 assessment for improving a street, the validating act, if of 
 any effect, makes the assessment valid only from the time 
 of its passage. So that pending suits brought to enforce the 
 lien are not affected by the act, and there can be no recov- 
 ery in such suits by reason of such act. [Reis v. Graff, 51 
 Cal. 86; People v. O'Neil, 51 Cal. 91; People v. Kinsman, 
 51 Cal. 92; see People v. Lynch, 51 Cal. 15.] 
 
 While there can be no personal judgment against the 
 owner of the property [Taylor v. Palmer, 31 Cal. 241; Man- 
 ning v. Den, 90 Cah 610], still the action to enforce the 
 
140 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 lien is not a suit in rem against the real estate only. On 
 the contrary the statute provides that the action must he 
 against the owner to enforce the lien. [City of Santa Bar- 
 bara v. Huse, 51 Cal. 217.] 
 
 II. Parties. 
 
 (a.) Plaintiffs. The act expressly provides that the con- 
 tractor or his assignee may sue in his own name; likewise, 
 that the proceedings shall be governed and regulated by 
 the codes of this stute, when not in conflict with the pro- 
 visions of the act. 
 
 (b.) Defendants. The act provides that the contractor 
 or his assignee may sue the owner of the land, lots or por- 
 tion of lots assessed, on the day when the amounts assessed 
 became a lien thereon, viz., on. the day when the warrant, 
 assessment, diagram and certificate of the city engineer 
 were recorded or any day thereafter during the continu- 
 ance of the lien of the assessment. 
 
 All the owners of the property must be made defend- 
 ants and they must all be served with summons, 
 and if all the owners are not made parties defendant 
 the defendant may set up this fact in his answer, and urge 
 it as a reason why judgment should not be entered against 
 him until all the owners are brought into court. The lien 
 can not be enforced against any of the owners in the 
 absence of another owner who is not joined as a defendant. 
 [Hancock v. Bowman, 49 Cal. 413; Clark v. Porter, 53 Cal. 
 409; Diggins v. Reay, 54 Cal. 525; Harney v. Appelgate, 57 
 Cal.' 205; Robinson v. Merrill, 87 Cal. 11.] 
 
 See section 16 of the act for a definition, description or 
 enumeration of the persons who are declared by the act 
 "shall be regarded, treated and deemed to be the 'owner' 
 [for the purpose of this law] according to the intent and 
 meaning of that word as used in this act." 
 
 It was hel.l in Parker v. Bernal, 66 Cal. 113, that, under 
 the San Francisco street work act of 1872, an action on a 
 street assessment may be maintained against the executor 
 of an estate, although the heirs of the decedent are in fact 
 the owners of the land assessed; that the heirs are not nec- 
 essary parties, and if originally joined as defendants the 
 action may be dismissed as to chem and judgment rendered 
 against the executor. 
 
 But in Phelan v. Dunne, 72 Cal. 229, it was held that 
 where the owner dies prior to the assessment his heirs or 
 devisees are the only necessary parties, and the executors 
 need not be joined. 
 
 In this case of Phelan v. Dunne the work had been done 
 under the San Francisco street improvement act of April 
 
PARTIES, WHO NECESSARY DEFENDANTS fS^" f 8 9 en<led 147 
 
 1, 1872. The defendant was the devisee of James Dunne. 
 The contract \vas let prior to the death of James Dunne, 
 who was the owner of the land at that time, but the assess- 
 ment was not made until after his death. It was claimed 
 by defendant that the administration of the estate of James 
 Dunne, deceased, being still open, and no decree of distri- 
 bution having been made, the executors of the will should 
 be made parties defendant. In this connection the court 
 said: "By an act approved April 1, 1872, and apparently to 
 avoid the necessity of making all parties having an inter- 
 est in the property defendants in the action, it was provided 
 [section 13] that the action might be brought against the 
 owner of the land; and section 17 of the act provides that 'the 
 person owing the fee or the person in the possession of the 
 lands, lots, or portions of lots or buildings under the claim 
 of ownership, or exercising acts of ownership over the same 
 for himself or as the administrator or guardian of the 
 owner, or the person in whom, on the day the action was 
 commenced, appears the legal title to the lands by deeds 
 recorded in the recorder's office in the city and county of 
 San Francisco, shall be regarded, treated and deemed to be 
 the owner [for the purpose of this law], according to the 
 meaning and intent of that word as used in this 
 act.' It may be that under these provisions persons 
 other than the heirs and devisees are proper parties 
 to the action; and that their rights cannot be fore- 
 closed unless they are made defendants; but as to 
 that we express no opinion. It is sufficient to say that 
 the defendant is the owner in fee, that he is the only 
 necessary party, and that plaintiff is entitled, under this 
 act, to a decree of foreclosure, whatever may be the rights 
 of other parties interested who are not joined as defend- 
 ants." Section 12 of the Vrooman act is substantially the 
 same as section 13 of the said act of April 1, 1872; and likewise 
 section 16 of the Vrooman act is substantially the same as 
 section 17 of the said act of April 1, 1872, except that the 
 former is a general act, while the provisions of the latter 
 were confined to the city and county of San Francisco, and 
 the former expressly includes "executors" in the same 
 category with administrators and guardians of the owner, 
 so that the present street improvement act (section 16) pro- 
 vides that "the person * * * exercising acts of owner- 
 ship over [the lands, lots, etc.,] * * * as the executor 
 * * of the owner shall be regarded, treated and deemed 
 to be the 'owner,' " etc. But whether this provision is 
 sufficient to make the executor a necessary party may be 
 open to question, since, under the decision in Phelan v. 
 
148 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 Dunne, supra, the fee is vested in the devisee, and if he be 
 made a party defendant the suit is brought against the 
 "owner." And the present street improvement act (section 
 12) like the said act of April 1, 1872, only requires the 
 action to be brought against the "owner," and not against 
 all persons interested in the land. 
 
 In Brady v. Burke, 90 Cal. 1, it was held that the statute 
 under which the work was done and proceedings had. in 
 that case, contemplated that the legal owner at the time of 
 the rendition of the judgment should be a party $ unless he 
 is a purchaser pendente lite affected with notice of the action; 
 and that one who has acquired title to the land, under the 
 foreclosure of a prior street-assessment lien, pending a suit 
 for the foreclosure of later assessment liens, but without 
 notice of such suit, should be made a party thereto before 
 judgment, and he is not bound by the judgment if not so 
 made a party defendant. 
 
 It does not appear from the opinion in this case what act 
 it was under which the street work in question was done, so 
 that, when the court says that the act contemplated that the 
 legal owner at the time of the rendition of the judgment 
 should be a party, it cannot be known from the opinion 
 which street improvement act was referred to; but it was 
 one of the San Francisco street improvement acts, and in 
 this respect there does not seem to bo any material difference 
 between any one of the former San Francisco street 
 improvement acts and the present street improvement act; 
 so that it is probable that the present street improvement 
 act likewise contemplates that the legalowner at the time 
 of the rendition of the judgment shall be a party. In fact; 
 this conclusion seems to be deducible from the provisions 
 of the present street improvement act itself, from internal 
 evidences, and seems to require no authority to support it. 
 
 III. Pleadings. 
 
 1. What Statute Governs. Under the old constitution r 
 it was held that the legislature, in actions to recover upon 
 street assessments, might prescribe the requirements of the 
 complaint, and prescribe for such actions special rules of 
 pleading and practice. [Richardson v. Tobin, 45 Cal. 30; 
 Whiting v. Townsend,57 Cal. 515.] But, under the present 
 constitution, the legislature is prohibited from passing any 
 special or local laws regulating the practice of courts of just- 
 ice. "The legislature shall not pass local or special laws in 
 any of the following enumerated cases, that is to say: * * 
 Third. Regulating the practice of courts of justice. * * 
 Thirty-third. In all other cases where a general law 
 can be made applicable." [Const. Art. IV, 25, subdivi- 
 
'PLEADINGS, WHAT STATUTE GOVERNS. Marchu s iS ended 149 
 
 sions 3 and 33.] The Code of Civil Procedure of this state 
 is a general law, and as such must have a uniform operation. 
 [Const, article I, section 11.] And section 421 of the Code 
 of Civil Procedure provides that "the forms of pleadings in 
 civil actions, and the rules by which the sufficiency of the 
 pleadings is to be determined, are those prescribed in this 
 code." Accordingly, the question presents itself: Can the 
 legislature, without contravening the above quoted provi- 
 sions of the constitution, make any rules of pleading or of 
 evidence, or of practice generally, whose application shall 
 be limited and confined to cases arising under this street 
 improvement act? And if it can, how far may it proceed in 
 that direction? ' 
 
 In People v. Central Pac. R. R. Co., 83 Cal. 393, it was 
 held that the provisions of the Political Code (section 3665 
 to 3670) relating to the assessment and collection of taxes 
 levied upon railroads operated in two or more counties, are 
 in conflict with said section 25 of article IV of the consti- 
 tution. It was held in that case that section 3670 of the 
 Political Code, which purported to provide the form of 
 complaint in suits to recover taxes levied upon railroads 
 operated in two or more counties, was special legislation 
 and therefore unconstitutional; that the sufficiency of the 
 complaint in an action to recover delinquent taxes must be 
 tested by the rules of pleadings in civil actions prescribed 
 by the Code of Civil Procedure, and not by section 3670 of 
 the Political Code; and that thus tested the complaint in 
 that case was insufficient. Mr. Chief Justice Beatty dis- 
 sented, and in his dissenting opinion said: "In my opinion, 
 the legislation referred to is neither local nor special; it is 
 not local, because it operates throughout the state; and it 
 is not special, because it applies to all railroads of a class 
 created and defined by the constitution itself." 
 
 The decision in this case might leave the question as to 
 the power of the legislature to enact rules of practice appli- 
 cable only to street assessment cases, somewhat in doubt. 
 But a recent decision of the Supreme Court, bearing 
 directly upon street assessment suits [McDonald v. Conniff, 
 No. 15,085, decided Aug. 30, 1893], does much to remove 
 this question from the realm of doubt, and the case seems 
 to be ample authority for the proposition that the legisla- 
 ture may prescribe different rules of procedure, as well of 
 pleading as of evidence, for different classes of action, e. g., 
 for action brought to foreclose street assessment liens. All 
 of such actions constitute a class by themselves. Mr. Jus- 
 tice Harrison, delivering the opinion of the court, said: 
 
 "The statute makes the assessment, with, the other docu- 
 
150 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 ments offered by the plaintiff, prim a facie evidence of the 
 regularity and correctness of the assessment and of the prior 
 proceedings and acts of the superintendent of streets and 
 city council upon which it is based, and it was therefore 
 not necessary to offer any evidence of these prior proceed- 
 ings as the foundation for introducing these documents. 
 It is competent for the legislature to prescribe rules of 
 evidence for the trial of actions, and statutes which make a 
 document prima facie evidence of the regularity of official 
 proceedings in reference thereto, or which cast the burden 
 of proof in an issue upon either party to the action, are 
 within the constitutional power of the legislature. [Cooley 
 Const. Lira., 450.] Neither does this provision of the statute 
 contravene the provision of the constitution prohibiting 
 the legislature from passing special or local laws 'regulat- 
 ing the practice of courts of justice.' It is not necessary 
 that a law shall affect all the people of the state in order 
 that it may be general, or that a statute concerning pro- 
 cedure shall be applicable to every action that may be 
 brought in the courts of the state. A statute which affects 
 all the individuals of a class is a general law, while one 
 which relates to particular persons or things of a class is 
 special. A statute regulating the rights of married women, 
 or which affect all mining corporations, or confers rights 
 upon municipal corporations of a certain class, or places 
 restrictions upon all foreign corporations, is a general law. 
 [City of Pasadena v. Stimson, 91 Cal. 238; In re Madera 
 Irrigation District, 92 Cal. 316; Wheeler v. Philadelphia, 
 77 Penn. 348; Iowa R. R. Co. v. Soper, 39 Iowa, 112; Mat- 
 ter of N. Y. Elevated R. R. Co., 70 N. Y. 350.] The provi- 
 sion under consideration is neither a local nor a special 
 law. It is applicable to all actions for the foreclosure of 
 street assessment liens, and is in force in all parts of the 
 state. That the legislature may prescribe different rules of 
 procedure, as well of pleading as of evidence, for different 
 actions, is illustrated by what it has done in defining the 
 form of pleading upon judgments and in other special 
 actions, in requiring the pleadings in forcible entry and 
 detainer to be verified, in denying a divorce upon the mere 
 default of the defendant, in making a tax deed prima facie 
 evidence of the regularity of the proceedings prior to its 
 issuance, and in requiring a different form of proof for the 
 execution of a will from that of any other written instru- 
 ment as well as in numerous other instances." 
 
 And in City and County of San Francisco v. Kiernan, 33 
 Pac. 721, decided June 13, 1893, it was held that section 
 18 of the Street Opening act of March 6, 1889, [statutes 
 
PLEADINGS - GENERAL PRINCIPLES M^'i^gg 60 * 6 * 1 151 
 
 1889, p. 75] providing that "the complaint (in an action to 
 condemn) may aver that it is necessary for the city to take 
 or damage and condemn the said land^ * * * "without 
 setting forth the proceedings herein provided for," is con- 
 stitutional. 
 
 2. Complaint, What Must Allege. 
 
 (a.) General Principles. A complaint to recover the 
 amount of an assessment for street improvements should 
 show by general or special averments a compliance by 
 the council and city authorities with all the steps prescribed 
 by law to confer jurisdiction on the council and to vest a 
 right of action in the plaintiff. [Himmelinau v. Danos, 
 35 Gal. 441; People v. Clark, 47 Gal. 456.] An action to 
 recover the amount of a street assessment is, in reality, an 
 action to recover a tax. As stated by Sanderson, J., in Hend- 
 rick r. Cruwley, 31 Gal. 471, "The thing sued for is not the 
 contract price or a part of it, but the tax specified in the 
 assessment or warrant, for which he sues, not as contractor 
 or as assignee of somebody else who was the contractor, 
 but as assignee of the city, and he is compelled to make 
 the same averments and the same proof which the city 
 would have had to make had she undertaken to collect the 
 tax." And in People v. Central Pac. R. R. Co., 83 Gal. 
 400, it is said: ''Tax proceedings are in invitum, and, to 
 be valid, must be stricti juris. If not valid they constitute 
 no cause of action. It therefore becomes necessary that 
 a complaint in an action for the collection of a tax should 
 show upon its face facts sufficient to make out a prima facie 
 case of valid tax, and that it is delinquent." 
 
 In Himmelman r. Danos, supra, 35 Gal. 441, the com- 
 plaint contained an averment that on a certain day the 
 board of supervisors of San Francisco awarded the con- 
 tract, under which the street work in question was done, 
 to plaintiff's assignor, but none of the precedent steps 
 which the statute prescribed were generally or specifically 
 alleged. In other words, the facts conferring jurisdiction 
 upon the board were not stated. The complaint was silent 
 as to the notice of intention, and as to all steps which, 
 following the course of the statute, precede the awarding 
 of the contract. The several steps, however, which follow 
 the award were alleged either specifically or generally. It 
 was held that the complaint failed to state a cause of 
 action, and in this connection the court, pages 447-9, per 
 Sanderson, J., said: "If, admitting all the facts stated to 
 be true, the liability of the defendant does not follow as a 
 legal conclusion, the complaint is bad. This is true of 
 every complaint, regardless of the subject matter. The 
 
152 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 performance of all conditions which are precedent to the 
 liability of the defendant, whether founded upon a con- 
 tract or a statute, must be alleged in some form, either 
 general or special. * * * In the present case the 
 liability of the defendant depends upon the performance 
 of the several steps enumerated in the statute by the 
 officers of the city government. The complaint must show 
 by either special or general averments of the character 
 permitted by our statute that the various provisions of the 
 statute under which it is sought to charge the defendant 
 were complied with, for, unless they have been complied 
 with, the defendant is not liable. According to the mode 
 of procedure prescribed by the statute, the award of the 
 contract is not the first step to be taken by the board of 
 supervisors, yet the complaint is entirely silent as to all 
 previous steps. In relation to them there is no allegation 
 either special or general. If they were not taken the 
 board had no power to award the contract, and hence no 
 liability was cast by it or the subsequent steps, however 
 regular they may have been, upon the defendant. In short, 
 the liability of the defendant cannot be affirmed in view of 
 the facts stated, and for that reason the complaint is 
 defective. The alleged sufficiency of the complaint is 
 grounded, however, by the respondent, upon a provision 
 found in the thirteenth section of the statute in relation to 
 street improvements [Statutes 1863, page 531,] which is to 
 the effect that the assessment, warrant and diagram, with 
 the affidavit of demand and non-payment, shall be prima 
 facie evidence of defendant's indebtedness, and of the 
 right of the plaintiff to recover. [Section 12 of the pres- 
 ent act the Vrooman act of March 18, 1885.] Upon that 
 head it is sufficient to say that the provision in question 
 does not establish a rule of pleading, but a rule of evidence 
 only." In this same case it is said, page 448, that in 
 actions upon contracts a general allegation of performance 
 of conditions precedent is sufficient under our statute, but 
 that a general allegation of the performance of conditions 
 prescribed by a statute is not sufficient. It is likewise 
 stated' that the same rule prevails as to judgments and 
 determinations of courts, tribunals, boards and officers of 
 inferior or special jurisdiction, that, in favor of such, the 
 law intends nothing, and hence, if the liability of the 
 defendant depends upon them, the facts conferring juris- 
 diction must be specially alleged at common law. But our 
 Code of Civil Procedure [section 456] changes the common 
 law rule that, in counting upon the judgment of an 
 inferior tribunal, it is necessary to state the facts conferring 
 
MUST ALLEGE 
 
 jurisdiction, and expressly provides that "in pleading a 
 judgment, or other determination of a court, officer, or 
 board, it is not necessary to state the facts conferring juris- 
 diction, but such judgment or determination may be stated 
 to have been duly given or made. If such allegation be 
 controverted, the party pleading must establish on the 
 trial the facts conferring jurisdiction." Accordingly it 
 was held by the Supreme Court in Pacific Paving Co. v. 
 Bolton, 97 Gal. 8, that an order of the council ordering 
 certain work to be done is the judgment or determination 
 of a court, officer or board, within the meaning of said sec- 
 tion 450 of the C. C. P., and that, therefore, although it is 
 necessary that the council should pass a resolution of inten- 
 tion, and that the superintendent of streets should post and 
 publish the notice required by section 3 of the act before 
 the council has jurisdiction to order the work to be done, 
 nevertheless, if the complaint alleges that on a certain day 
 the city council, "deeming it necessary, duly gave and 
 made its determination to order the work done," there is 
 a sufficient averment of the action of the council, and the 
 allegation that the order was duly given is under the special 
 provision of said section 456 of the C. C. P., equivalent to 
 the statement that everything necessary to be done to give 
 the order validity had been done, or, rather it is equivalent 
 to the specific allegation of each of the steps necessary to 
 give this order validity. 
 
 In Bituminous Lime Rock Pvg. Co. v. Fulton, 33 Pac. 
 Rep. 1117, it was held that in an action to enforce the lien of 
 a street assessment an averment "that all the several acts 
 required to be done by said city council, said superintend- 
 ent of streets and this plaintiff, have been duly done, made 
 and performed by it and them, in the manner, and at the 
 times and in the form required by law," is sufficient on 
 general demurrer. 
 
 Therefore, in an action upon a street assessment, the 
 pleader must (1.) either follow the rule of the common law 
 and allege specifically all the facts necessary to give the 
 council jurisdiction to order the work to be done, allege 
 specifically all the steps preceding the award of the con- 
 tract, and likewise allege specifically all the steps following 
 the award up to the final step necessary to vest a valid 
 right of action in the contractor or his assigns, or (#.).he 
 may avail himself of the provisions of section 456 of the 
 Code of Civil Procedure, and, as to all judgments or deter- 
 minations of the council or of an officer, may allege gener- 
 ally that such judgment or determination was duly given 
 or made, and this allegation, as to such judgment or deter- 
 
154 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 ruination, will be equivalent to an allegation of the several 
 facts and steps necessary to confer jurisdiction to give or 
 make the judgment or determination. When the pleader 
 adopts the course permitted by section 456 of the Code of 
 Civil Procedure, he must allege generally the facts neces- 
 sary to confer jurisdiction to give or make such judgment 
 or determination by alleging generally such judgment 
 or determination, with the allegation that it \vas duly 
 given or made, and must also specifically allege every 
 other necessary prerequisite to the existence of a valid right 
 of action which does not enter into or become a part of the 
 facts necessary to confer jurisdiction to give or make a 
 judgment or determination. That is to say, while the 
 pleader need not allege specifically the passage of the 
 resolution of intention, its publication, etc., and all the other 
 steps necessary to confer jurisdiction upon the council to 
 order the work to be done, but may allege these facts gener- 
 alty by the equivalent allegation that the order to do the 
 work was duly given or made by the council, still, he 
 must, for example, allege specifically that the superinten- 
 dent of streets recorded the return in the margin of the 
 record of the warrant and assessment, as this is one of the 
 acts necessary to the existence of a valid right of action, 
 and yet is not an act conferring jurisdiction upon the coun- 
 cil or any officer to give or make any judgment or deter- 
 mination. [See notes to section 10 of the act for a 
 statement of the necessary prerequisites to the existence of 
 a valid right of action in the contractor.] 
 
 (b.) Some Special Rules Applicable to Complaints. 
 
 1. It is necessary to the validity of the proceedings that 
 the council should order the notice of the award to be pub- 
 lished; a publication without such order is void. [Donnelly v. 
 Tillrnan, 47 Cal. 40.] Therefore it is necessary that the com- 
 plaint should show that notice of the award of the contract was 
 published by order of the council. [Hirnmelmann v. Town- 
 send, 49 Cal. 150; Contra, Himmelmann v. Haskell, 46 Cal. 
 67; Dyer v. North, 44 Cal. 157.] 
 
 #. The complaint must allege that the defendants are 
 owners 0r have an interest in the land sought to be 
 charged. [San Francisco v. Doe, 48 Cal. 560.] 
 
 3. Two causes of action for enforcing liens for two street 
 assessments, on the same lot, at different times and on 
 different contracts, and for improving the same street, can 
 not be joined in the same suit. In such case the claims of 
 the plaintiff do not "arise out of contracts" within the 
 meaning of section 427 of the Code of Civil Procedure. 
 The contracts there spoken of are contracts to which the 
 
COMPLAINTS, SOME SPECIAL PaiLES Si^SSS^^ 155 
 
 person sued was a party, an'd it, is settled that the owners 
 of property adjacent to a street improvement are not in any 
 sense parties to the contract between the contractor arid the 
 superintendent of streets. The action is an action to 
 recover the amount of a tax. The thing sued for is not the 
 contract price, or a part of it, but the tax specified in the 
 assessment. [Dyer v. Barstow, 50 Cal. 652.] 
 
 4. The complaint must allege that the assessment was 
 made as prescribed by the statute, and a complaint alleging 
 that the assessment was made "upon the property benefited 
 by said street improvement" is not sufficient, as it does not 
 show a compliance with the statutory provision that the 
 expenses incurred "shall be assessed upon the lots and lands 
 fronting thereon, each lot or portion of a lot being separ- 
 ately assessed in proportion to the frontage." [Miller v. 
 Mayo, 88 Cal. 568.] 
 
 5. The complaint must show that the contract was made 
 with the plaintiff or his assignor. [Bays v. Lapidge, 52 
 Cal. 481.] 
 
 6. The complaint must show that the contract was 
 entered into and executed within the time prescribed by 
 the statute, viz., within 15 days after the posting of the 
 notice of the award, but not earlier than 10 days after the 
 first posting and publication of said notice of award, as 
 provided by section 5 of the act. [Ferine v. Forbush, 
 97 Cal. 305; Manning v. Den, 90 Cal. 610; Burke v. 
 Turney, 54 Cal. 486.] 
 
 7. The complaint must show that the contract fixed the 
 time for the commencement and completion of the work 
 as provided by section 6 of the act. [Libbey v. Elsworth, 
 07 Cal. 316; Washburn v. Lyons, 97 Cal. 314] 
 
 IV. Answer] Defenses. Want of jurisdictional facts not 
 curable by the council on appeal may be shown in 
 defense. [Emery v. Bradford, 29 Cal. 87.] An allegation 
 in the answer that the council had no authority or juris- 
 diction to order the work done, is a mere conclusion of law, 
 and a finding responsive to such allegation is insufficient. The 
 facts should be alleged and specifically found. [Spaulding 
 v. Wesson, 84 Cal. 141.] But the facts necessary to confer 
 jurisdiction upon the council to order the work to be done, 
 and the facts necessary to the existence of a valid right of 
 action in the plaintiff, must be alleged in the complaint, 
 either generally or specifically, [Himmelman v. Danos, 35 Cal. 
 441, cited supra. See supra, page 151, etseq.] and the defend- 
 ant may deny any material allegation of the complaint: 
 And the fact that a street improvement act, such as the San 
 Francisco street work act of 1870, prohibits all but certain 
 
156 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 defenses, does not prevent the defendant from denying any 
 material averment of the complaint. Such provisions of 
 the statute are merely intended to restrict the affirmative 
 defenses to those enumerated. [People v. Eaton, 46 Cal. 
 100.] 
 
 The lot owner may show and rely on as a defense any 
 substantial error in the proceedings which could not have 
 been remedied by an appeal to the council. [City of Stock- 
 ton v. Creanor, 45 Cal. 644.] 
 
 A promise to pay can not be implied from the fact that 
 the defendant, a property owner, saw the work done without 
 objection, and even made suggestions to the workman as to 
 the proper way of doing it. [Nagle v. McMurray, 84 Cal. 
 539.] 
 
 One made a party defendant by reason of some claim or 
 interest, and not as owner, must show his claim or interest 
 before he can be heard to defend upon the merits. [Him- 
 melmann v. Spanagel, 39 Cal. 389.] And allegations of the 
 complaint are not proof of such interest. [Id.] A fraudu- 
 lent side agreement between the contractor and some of the 
 property owners can not be set up in defense unless the 
 statute, like the San Francisco street work act of 1872, 
 expressly allows fraud to be set up in defense to the action. 
 [Nolan v. Reese, 32 Cal. 486; Chambers v. Satterlee, 40 Cal. 
 513; Himmelmann v. Hoadley, 44 Cal. 214,227; Brady v. 
 Bartlett, 56 Cal. 350. See notes under section 11, supra, 
 page 131 et seq.] "That the work was more than half done 
 under a private contract, to which defendant was not a 
 party, before any steps were taken to let a public contract, 
 and that the plaintiff went on and completed the work, and 
 after its completion the party who had taken the public 
 contract, assigned it to plaintiff, does not constitute fraud 
 per se." [Conniff v. Kahn, 51 Cal. 284.] If the superin- 
 tendent enters into the contract before the expiration of the 
 time provided by section 5 of the act, within which the 
 property owners may elect to take the contract, this premature 
 action is one that affects the jurisdiction or power of the 
 superintendent, and the contract is void; and a failure to 
 appeal does not validate it. The defendant may, therefore, 
 rely upon this premature action of the superintendent as a 
 defense, and as the complaint must show that the contract 
 was made in the proper time, this defense is not an affirma- 
 tive defense of new matter, and consequently could be 
 availed of, even if the statute prohibited all but certain 
 affirmative defenses, as did the San Francisco street work 
 act of 1870. [Burke v. Turney, 54 Cal. 486; see also Ferine 
 v. Forbush, 97 Cal. 305: Mannings Den, 90 Cal. 610.] 
 
ANSWER DEFENSES EVIDENCE SSJf'i? l ^ ended 157 
 
 March 14. 1889. 
 
 When a complaint is amended by striking out the names 
 of certain defendants, the answer may be amended by aver- 
 ring that such defendants were owners of the lot. [Harney 
 v. Appelgate, 57 Cal. 205.] To sustain the action it is suffi- 
 cient to show that the defendants are owners in fee of the 
 land, without regard to the amount of interest claimed by 
 any defendant in his answer, and if the court finds him to 
 be a part owner of the land, this is sufficient without find- 
 ing his interest to be such as is alleged by him in his answer. 
 [Whiting v. Townsend, 57 Cal. 515.] The defendant may set 
 up in his answer that the assessment included a sum for work 
 not authorized by the resolution of intention, or the award, 
 and that the demand was for the total sum, including the 
 part not legally a charge against the land. [Donnelly v. 
 Howard, 60 Cal. 291.] If defendants in their original answer 
 admit their ownership, and afterwards ask leave to amend 
 by denying ownership, it is not an abuse of discretion for 
 the court to deny the motion to amend. [Harney v. Corco- 
 ran, GO Cal. 314.] Denial by defendant of his own owner- 
 ship, for want of information or belief, will raise an issue if 
 no motion is made to strike out. [Harney v. McLeran, 66 
 Cal. 35.] And if plaintiff in such case introduces no evi- 
 dence in support of his allegation of defendant's ownership, 
 a non-suit should be granted. \Id.] 
 
 V. Evidence. The plaintiff must prove every material 
 averment alleged in the complaint and denied by the 
 answer, as, that " notice of the award of the contract was 
 published in a newspaper, pursuant to the order of 
 the board of supervisors." [Shepard v. Colton, 44 Cal. 628; 
 Donnelly v. Tillman, 47 Cal. 40.J Also the fact that "an 
 assessment for the work was made and issued." [People v. 
 Eaton, 46 Cal. 100.] Also that " defendant owns the lot." 
 [City of Santa Barbara v. Huse, 51 Cal. 217; Harney v. Mc- 
 Leran, 66 Cal. 34.] 
 
 Section 12 of the act provides that "the said warrant, 
 assessment, certificate and diagram, with the affidavit of 
 demand and non-payment, shall be held prima facie evidence 
 of the regularity and correctness of the assessment, and of 
 the prior proceedings and acts of the superintendent of 
 streets and city council, upon which said warrant, assess- 
 ment and diagram are based, and like evidence of the right 
 of the plaintiff to recover in the action." 
 
 Under this provision of the statute, the warrant, assess- 
 ment, certificate and diagram, with the affidavit of demand 
 and non-payment, are prima facie evidence that everything 
 has been done which may be necessary to entitle the plaintiff 
 to recover in the action, prima facie evidence, for example, 
 
158 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 that a valid contract was entered into for the street improve- 
 ment for which the assessment was made. But, it is only 
 made prima facie evidence, and it is competent for the 
 defendant, if he denies any material allegation of the com- 
 plaint, to overcome the prima facie evidence resulting from 
 the production of said documents. Thus, if the defendant 
 denies the contract, he may overcome the evidence of the 
 contract which the production of said documents affords. 
 Accordingly it was held in Manning v. Den, 90 Cal. 610, that 
 documentary proof from the office of the superintendent of 
 streets, showing that the original contract on file therein 
 was prepared for execution by both parties, and was not 
 signed by the superintendent, and that the bond on tile was 
 in blank, without specifying the names of the obligors or 
 the penalty, or any contract for specific work, and without 
 date, is admissible for the defendant, as tending to show 
 that 110 contract for doing the work had been entered into 
 by the superintendent. While the defendant, if he has 
 denied any of the material allegations of the complaint, may, 
 by the introduction of evidence to the contrary, overcome 
 plaintiff's prima facie case resulting from the introduction 
 of the warrant, assessment, diagram, etc., still, if he does not 
 introduce any evidence, the court must find all the facts in 
 plaintiff's favor, if he has introduced the warrant, assess- 
 ment, diagram, etc., as these documents are made prima 
 facie evidence of his right to recover. [Jennings i?.Le Roy, 
 63 Cal. 397.] 
 
 If it be a fatal error to include in the assessment any 
 portion of the expense of improving that portion of the 
 street occupied by the tracks of a railroad company, and 
 which is made the duty of the railroad company to improve, 
 the burden of proof is upon the property owner who con- 
 tests the validity of the assessment to show that the expense 
 of improving such portion of the street was included in the 
 assessment, as the production by the plaintiff of the war- 
 rant, assessment, etc., makes out a prima facie case. [Mc- 
 Verry v. Boyd, 89 Cal. 305.] 
 
 The warrant, assessment, etc., are prima facie evidence 
 that the work was done to the satisfaction of the street 
 superintendent. [Jennings v. LeBreton, 80 Cal. 8.] In 
 that case it was held that under the act under which the 
 work in that case was done, the superintendent, without 
 personal inspection might approve the work upon the cer- 
 tificates of the city surveyor or city engineer that the work 
 has been duly performed, and proof of lack of personal 
 inspection by him does not overcome the proof of accept- 
 ance from those certificates showing that the work was 
 
EVIDENCE GRADE PAROL $&^**** 159 
 
 completed according to contract, taken in connection with 
 the personal making and signing of the assessment, dia- 
 gram and warrant by the superintendent. 
 
 Under the San Francisco street work act of 1872, a 
 block of a street might be graded, without a petition 
 therefore by the property owners, whenever two or 
 more adjacent blocks had been graded on each side 
 of the ungraded block. In Fanning v. Bohme, 76 Cal. 
 149, the work was done under this act. The grad- 
 ing of a certain block was ordered to be done, upon 
 the determination by the city officials that an adja- 
 cent block had been graded about twenty years previously. 
 The defendant set up that such adjacent block never had, 
 in fact, been graded. The evidence showed that the pres- 
 ent grade of such adjacent block varied in places from the 
 oflicial grade from a few inches to a foot and three-quar- 
 ters. Held, that the evidence was insufficient to overcome 
 the prima facie presumption that all proceedings were 
 regular, including the proper grading of the block twenty 
 yeara previously. [See also Ede v. Knight, 93 Cal. 159; 
 Fanning v. Leviston, ( J:> Cal. 186; Himmelman v. Carpentier, 
 47 Cal. 43; Borland v. McGlynn, 47 Gal. 47; Macadamizing 
 Co. v. Williams, 70 Cal. 534; City of Stockton v. Creanor, 
 
 -ir, Cal. <M:;.] 
 
 Parol evidence is admissible to prove that the record 
 made by the superintendent of streets of the completion of 
 a contract was made after the assessment issued, although 
 it is dated before the assessment issued. Such evidence 
 does not contradict the record. It only goes to prove when 
 tho record was made. [Gately v. Irvine, 51 Cal. 172.] 
 
 The records of the council concerning the publication 
 of notices of the award of the contract can not be contra- 
 dict od by parol evidence. So that, if those records show 
 that the council ordered the clerk to advertise the awards, 
 they cannot be contradicted by parol. [Borland v. 
 McGlynn, 47 Cal. 47.] 
 
 Parol evidence is, however, admissible to show that a 
 certain document, offered by the plaintiff as the record of 
 the council ordering the work to be done, was not in fact a 
 record of the council, and that the true record did not 
 authorize the work. [Dyer v. Brogan, 70 Cal. 136.] Parol 
 evidence is always admissible to prove which of two puta- 
 tive records is the true one, as such evidence does not con- 
 tradict the record but establishes it. [Id.] The defendant 
 must be proved to be the owner of the lot, if he denies it. 
 [City of Santa Barbara v. Huse, 51 Cal. 217; Harney v. 
 McLaren, 66 Cal. 34; Robinson v. Merrill, 87 Cal. 11.] 
 
100 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 The affidavit of demand endorsed upon the contractor's 
 return is competent evidence to prove the demand. [Dyer 
 v. Brogan, 57 Gal. 234; Himmelmann v. Hoadley, 44 Cal. 214; 
 Deady v. Townsend, 57 Cal. 298; Ede v. Knight, 93 Cal. 
 160;] and it is also prima facie evidence of the agency of 
 the person making a demand on behalf of the contractor, 
 if the affiant in his affidavit states that he was such agent. 
 [Whiting v. Townsend, 57 Cal. 515; see Himmelmann v. 
 Woolrich, 45 Cal. 249.] In fact the statute [section 12] 
 expressly states that the affidavit of demand and non-pay- 
 ment, together with the warrant, assessment, etc., shall be 
 prima facie evidence "of the right of the plaintiff to recover 
 in the action." 
 
 If it be proved that a petition for grading has been filed 
 in the office of the clerk of the city council, and that it has 
 been, lost and cannot be found, secondary evidence of its 
 contents is admissible. But while secondary evidence of 
 the contents of the petition is in such case admissible, a 
 writing copied by a short hand reporter from his notes of 
 the evidence taken in another case in which a certified copy 
 of such petition was read in evidence is not admissible, even 
 though the case be one in which secondary evidence of the 
 contents of the original petition is admissible. A copy of a 
 certified copy of an original instrument which has been lost, 
 is not competent evidence and is not admissible in any case, 
 to prove the contents of the original, unless shown to have 
 been compared with the original. [Dyer V.Hudson, 65 Cal. 
 372.] 
 
 As to what constitutes evidence of the grade of a street, 
 see Gafney v. San Francisco. 72 Cal. 146; Dorland v. Berg- 
 son, 78 Cal. 637; City of Napa v. Easterby, 61 Cal. 510; 
 Chambers v. Satterlee, 40 Cal. 497; Himmelmann v. Hoadley, 
 44 Cal. 213; Williams v. Savings & L. Soc., 97 Cal. 
 122. In Gafney v. San Francisco, supra, it was held 
 that a statute fixing the grades of certain streets in the city 
 and county of San Francisco at their points of intersection, 
 fixes the grade at all intermediate points by connecting the 
 named points by a straight line. But the points of inter- 
 section must not be more than one block apart. Thus in 
 Dorland v. Bergson, supra, it was held that the establish- 
 ment of the official grade of two crossings of the same 
 street, which are two blocks apart, does not establish the 
 official grade of the intervening portion of the street. 
 
 VI. Decree. The statute [section 12] expressly provides 
 that "the court in which said suit shall be commenced shall 
 have power to adjudge and decree a lien against the premi- 
 ses-assessed, and to order such premises to be sold on exe- 
 
DECREE PERSONAL JUDGMENT VOID 
 
 cution, as in other cases of the sale of real estate by the pro- 
 cess of said courts." The statute does not provide for nor 
 does it contemplate any personal judgment against the 
 defendant. The expense of the improvement is a charge 
 upon the property supposed to be benefited, i. e., the prop- 
 erty subject to assessment under the act, and is not a charge 
 against the owner personally. It was held at an early day 
 that a statute making the owner personally liable for a defi- 
 ciency was, in this respect, unconstitutional and void. [Tay- 
 lor i>/Palmer, 31 Cal. 241; Baudry v. Valdez, 32 Cal. 270; 
 Guerin v. Reese, 33 Cal. 292; Gafney v. Donohue, 36 Cal'. 
 104; Coniff v. Hastings, 36 Cal. 292; Himmelinami v. 
 Steiner, 38 Cal. 176; Randolph v. Bayue, 44 Cal. 366.] "In 
 furtherance of this end [i. e., that the expense of the improve- 
 ment is a charge upon the property assessed, and not a charge 
 upon the owner personally] the identity of the lot assessed, 
 and not the person who may be the owner, is made the 
 essential requirement of the statute, the first must be spe- 
 cifically described, while the latter may be designated as 
 'unknown.' ' [Gillis v. Cleveland, 87 Cal. 217.] 
 
 If a judgment provide for a personal judgment against 
 the defendant for any deficiency that may remain after a 
 sale of the lot assessed, it is unauthorized and erroneous. 
 [Manning v. Den, 90 Cal. 610, decided under the present 
 street improvement act the Vrooman act of March 18, 
 1885.] 
 
 If a lot is assessed to one person, the contractor can not 
 recover judgment against another. [Blatner v. Davis, 32 
 Cal. 328.] 
 
 A decree enforcing the lien cannot be entered until all 
 the owners are made parties and served with process. 
 [Hancock v. Bowman, 49 Cal. 413; Diggius v. Reay, 54 Cal. 
 525.] 
 
 When two or more lots are separately assessed each lot 
 is chargeable only with the amount assessed upon it, and 
 the judgment should state the amount for which each lot 
 is liable, and should order a sale of each lot, or so much 
 thereof as may be necessary to satisfy the amount assessed 
 against it, and costs. [Brady v. Kelly, 52 Cal. 371.] The 
 liability of each lot is independent of any other lot, and 
 constitutes a separate demand, upon which a separate 
 cause of action may be based. And, therefore, a recovery 
 upon lot "A" in a former action, although between the same 
 parties, is a different cause of action, and, consequently, 
 not a good plea in bar of an action upon lot "B." [Gillis 
 i'. Cleveland, 87 Cal. 214, 218.] 
 
 When several defendants are owners of a lot, judgment 
 
1G2 STREET WORK LAW - STREET IMPROVEMENT ACT 
 
 can not be ordered against only one of the defendants. 
 [Clark v. Porter, 53 Cal. 409.] 
 
 When the court finds generally that the council had not 
 acquired jurisdiction to order the work, but also finds par- 
 ticular facts sufficient to show that it did have jurisdiction, 
 judgment should be rendered for plaintiff. [Dyer v. Chase, 
 57 Cal. 284.] 
 
 Judgment may be enforced against the property assessed 
 even though it be defendant's homestead. [Ferine v. For- 
 bush, 97 Cal. 305.] 
 
 In Kreling v. Muller, 86 Cal. 465, it was held that under 
 the Vrooman act of March 18, 1885, .prior to the amend- 
 ment of sections 3 and 7 by the act of March 31, 1891, :i 
 judgment charging upon a lot a sum greater than one-half 
 the value of such lot, as borne upon the preceding assess- 
 ment roll for municipal purposes, is erroneous, and that it 
 makes no difference that the work called for by the reso- 
 lution and order is split up into separate contracts and 
 assessments. But this decision was based upon provisions 
 of sections 3 and 7 of the act as it originally stood, by 
 which it was provided that a lot could not be charged for 
 work called for by one resolution of intention and order in 
 a greater sum than one-half the value of such lot as it was 
 last assessed for municipal taxation. These provisions 
 of sections 3 and 7 were eliminated bv the amendment of 
 March 14, 1889. [Statutes 1889, pages" 158-160, 163.] And 
 in this respect the amendment of March 31, 1891, [statutes 
 1891, pages 196-199, 201,] follows the amendment of 1889; 
 so that, as sections 3 and 7 now stand, i. e., as amended by 
 the act of March 31, 1891, the last amendment of these 
 sections no part of the property assessed is exempt from 
 the amount of the assessment, but the lot is chargeable 
 with the whole amount assessed against it regardless of its 
 value, even though the amount assessed may far exceed 
 the value of the lot. 
 
 SECTION 12>. The city council, instead of waiting until the completion 
 of the improvement, may, in its discretion, and not otherwise, upon the 
 completion of two blocks or more of any improvement, order the street 
 superintendent to make an assessment for the proportionate amount of 
 the contract completed, and thereupon proceedings and rights of collection 
 of such proportionate amount shall be had as in sections eight, nine, ten, 
 eleven and twelve of the act of which this is amendatory is provided. 
 [Amendment approved March 14, 1889, statutes 1889, page 169.} 
 
 [Section 12% was added to the act in 1889 by the act of March 14, 1889, 
 statutes 1889, page 169.] 
 
 SECTION 13. When any portion of any street, avenue, lane, alley, court 
 or place in said city improved, or any sidewalk constructed thereon shall 
 
SECTION THIRTEEN OF THE ACT Mare^? f^ 9 en<led 163 
 
 be out of repair, or needing reconstruction, and in condition to endanger 
 persons or property passing thereon, or in condition to interfere with the 
 public convenience in the use thereof, it shall be the duty of said superin- 
 tendent of streets to require, by notice in writing, to be delivered to them 
 or their agents personally, or left on the premises, the owners or occupants 
 of lots or portions of lots fronting on said portion of said street, avenue, 
 alley, lane, court, or place, or of said portion of said sidewalk so out of 
 repair or needing reconstruction as aforesaid, to repair or reconstruct, or 
 to do both, forthwith, said portion of said street, avenue, lane, alley, 
 court, or place, to the center line of said street in front of the property of 
 which he is the owner, or tenant, or occupant, and said superintendent of 
 streets shall particularly specify in said notice what work is required to be 
 done, and how the same is to be done, and what material shall be used in 
 s:ii<l riM>:iirs, or reconstructions, or both. If said repairs or reconstructions, 
 or both, be not commenced within three days after notice given as afore- 
 said, and diligently and without interruption prosecuted to completion, 
 the said superintendent of streets may, under authority from said city 
 council, make such repairs, reconstruction, or both, or enter into a contract 
 with any suitable person, at the expense of the owner, tenant or occupant, 
 after the specification for the doing of said work shall have been conspic- 
 uously posted by him in his office for two days, inviting bids for the doing 
 of said work, which bids shall lie delivered to him at his office on or before 
 the second day' of said posting, and opened by him on the next day follow- 
 intr the expiration of sa'nl two days of posting, and the contract by him be 
 awarded to the lowest bidder, if such lowest bid, in the judgment of said 
 street superintendent, shall be reasonable. All of said bids shall be pre- 
 served in his oiiice and open at all times after the letting of the contract 
 to the inspection of all persons, and such owner, tenant or occupant shall 
 be liable to pay said contract price. Such work shall be commenced 
 within twenty-lour hours after the contract shall have been signed, and 
 completed without delay to the satisfaction of said street superintendent. 
 Upon the completion of said repairs, or reconstruction, or both, by said 
 contractors as aforesaid to the satisfaction of said superintendent of streets, 
 said superintendent of streets shall make and deliver to said contractor a 
 certificate to the effect that said repairs, or reconstruction, or both, have 
 been properly made by said contractor to the grade, and that the charges 
 for the same are reasonable and just, and that he, said superintendent, 
 has accepted the same. [Amendment approved March 14, 1889, statutes 1889, 
 p. 169.} 
 
 [Section 13 was amended in 1889 by act of March 14, 1889, statutes 1889, 
 p. 169.] 
 
 I. Scope of SectionThirteen. Sections 13, 14 and 15 are 
 intimately correlated. Together they provide the machin- 
 ery for repairing and reconstructing to the center line, at 
 the expense of the owner of the abutting property, any 
 portion of any unaccepted street/ avenue, lane, alley, court 
 >r place improved, or any sidewalk out of repair and need- 
 ing reconstruction. The superintendent of streets may 
 himself do the repairing or reconstructing or may let a 
 contract therefore to some suitable person, at the expense 
 
 o 
 
164 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 of the owner, tenant or occupant of the adjoining property, 
 if the owner, tenant or occupant does not himself do the 
 work of repairing or reconstructing after being notified so 
 to do in writing, provided, that the street has not been 
 "accepted" by the city council, by ordinance, as provided 
 for by section 20 of the act, as by said section 20, after 
 such acceptance, the street must thereafter be kept in repair 
 and improved by the municipality, the expenses being paid 
 out of a fund to be provided by the council for that pur- 
 pose. And this provision of section 20 applies to the side- 
 walk as well as to the roadway. [Bonnet v. San Francisco, 
 65 Gal. 230; see also section 25 of the act.] 
 
 II. Prerequisites to Imposition of Cost of Repair upon the 
 Lot Owner. There are several prerequisites to the imposi- 
 tion of this expense upon the abutting property owner, 
 namely: (1.) The property owner can only be required to 
 "repair" or "reconstruct" the street, alley, etc., or sidewalk. 
 The term "repair" means to restore to a sound or good 
 state, after decay, injury, delapidation or partial destruc- 
 tion. It does not mean to make a new thing, but to refit, 
 make good or restore an existing thing. The repairs 
 spoken of in street laws have been held to include the sub- 
 stitution of new curb-stones arid gutters for old ones, 
 [People v. Brooklyn, 21 Barb. (N. Y.) 484;] but does not 
 include the substitution of a new and different kind of pave- 
 ment from that already existing. [In re Fulton Street, 29 
 How. Pr. (N. Y.) 429; Blount v. Janesville, 31 Wis. 648.] 
 "By the term 'repairs' is meant whatever is necessary to 
 keep the road in a proper condition for the traffic, having 
 regard for the character and original manufacture of the 
 road, but nothing further; it does not include converting a 
 macadamized road into a paved road." [Leek, etc., Commis- 
 sioners v. Justices of Stafford, 20 Q. B. Div. 797.] It means, 
 in short, restoration to orginal condition. (2.) The street, 
 alley, etc., or sidewalk must not only be out of repair, or 
 needing reconstruction, but it must be, (a.) "in condition to 
 endanger persons or property passing thereon," or (b.) 
 "in condition to interfere with the public convenience in 
 the use thereof." (3.) The superintendent of streets, 
 must, by notice in writing, notify the owners or occupants 
 of lots or portions of lots fronting on the portions 
 of the street, alley, etc., or sidewalk, so out of repair 
 or needing reconstruction, to forthwith repair or recon- 
 struct, or to both repair and reconstruct such portion of 
 such street, alley, etc., to the center line thereof, in front of 
 the property of which he is owner, or tenant or occupant. 
 Said notice must be delivered to the owners or occupants 
 
REPAIRS AND RECONSTRUCTIONS March'l^Tg 6 "^ 165 
 
 personally or to their agents,~or must be left on the prem- 
 ises. [See Guerin v. Reese, 33 Gal. 292, for rules determin- 
 ing when service other than personal service is sufficient 
 and justified by the statute.] The notice must specify what 
 work is required to be done, how it is to be done, and what 
 material shall be used. (^.) The superintendent must 
 obtain from the council, by a resolution, order, or ordinance 
 duly passed, authority to enter into a contract with some 
 suitable person to do the work at the expense of the owner, 
 tenant or occupant. (5.) The superintendent must post 
 conspicuously in his office for two days specifications for 
 doing said work inviting bids for doing the 
 work. The specifications must remain posted in the office 
 of the superintendent for two official days; i, e., it must be 
 posted before the commencement of the time on the first 
 day when, by statute, the office is required to be opened, 
 and must remain posted during the whole of the first and 
 second day and until the end of the hour of the second day 
 when by statute the office may be closed. [Himmelmann 
 v. Cabii, 49 Cal. 285.J (6.) The bids must be delivered 
 to him at his office on or before the second day of said 
 posting. (7.) On the next day following the expiration 
 of the said two days of posting, the bids must be opened by 
 the superintendent. (8.) The superintendent must award 
 the contract to the lowest bidder, if, in his judgment, the 
 lowest bid shall be reasonable, and a contract in writing 
 must be signed by him. (9.) The work must be com- 
 menced within twenty-four hours after the contract shall 
 have been signed, and must be completed without delay to 
 the satisfaction of the superintendent. (10.) The super- 
 intendent must make and deliver to the contractor, after 
 the completion of the work, a certificate, which certifi- 
 cate must state, in effect, that the repairs or the reconstruc- 
 tion, or both, if both were done, have been properly made 
 by the contractor, "to the grade," and that the charges for 
 the same are reasonable and just, and that he, the superin- 
 tendent, has accepted the same. 
 
 As the certificate must state that the repairs, etc., have 
 been made "to the grade," it is evident that the section con- 
 templates that owners shall only be required to repair or 
 reconstruct streets that have been graded to the official 
 grade. For a street cannot be graded except to the official 
 grade. [Emery v. S. F. Gas Go., 28 Cal. 377; Sec. 2 of the 
 act.J A street may be planked although it has not been 
 graded to the official grade. [Knowles v. Seale, 64 Cal. 
 377.] But in such a case, a property owner could not be 
 compelled to repair any portion of the planking if out of 
 
166 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 repair, as, until graded, it could not be repaired "to the 
 grade." 
 
 The foregoing, ending with the certificate of the super- 
 intendent are ten essentials, required by section 13 of the 
 act, as prerequisites to the right of the contractor to 
 recover from the owner the expenses of the work. Two 
 more essentials are required by section 14 as a prerequisite 
 to the right of the contractor or his assigns to maintain a 
 suit against the owner, namely, (1.) recordation of the cer- 
 tificate by the superintendent in a book kept by him in his 
 office for that purpose, properly indexed, and (#.) demand 
 upon the owner, tenant or occupant for the amount which 
 is a lien upon the land. The section [section 14j does not 
 state whether this "demand" may be other than personal, 
 when the owner, etc., cannot conveniently be found, or 
 how r it shall be made; but, as the proceedings are ininvitum, 
 it is possible that in the absence of express statutory pro- 
 vision for any other demand, demand must be made per- 
 sonally upon the owner, tenant or occupant, unless the pro- 
 vision of section 14 that "the sum contracted to be paid 
 shall be a lien, the same as provided in section 9 of the 
 act, and may be enforced in the same manner ," should be 
 construed to mean that the demand should be made in the 
 same manner. The demand may bs construed as one of 
 the steps necessary to the enforement of the lien. 
 
 III. No Primary Duty Resting upon the Owner to Repair 
 or Reconstruct. In Eustace v. Jahns, 38 Gal., 3, sec- 
 tions, 14, 15 and 16, of the San Francisco street work act 
 of 1862 [statutes 1862, pages 399-400] being the sections 
 of that act which correspond to sections 13, 14 and 15 of 
 the present general street improvement act, or Vrooman 
 act of March 18, 1885, came before the court for con- 
 struction. In that case the question was: Do these sec- 
 tions of the act impose upon the owner of a lot fronting 
 upon a public street the'duty to repair a defect in that 
 portion of that public street upon which his lot abuts or 
 fronts? It was held that the duty imposed by these sec- 
 tions of the act upon the property owner was not a primary 
 duty to repair, but only attached or became an existing 
 obligation or duty after the superintendent had served the 
 notice in writing required by section 14 of the act of 1862. 
 [Section 13 of the present general street improvement act 
 the Vrooman act of March 18, 1885.] The present gen- 
 eral street improvement act is, in the main, constructed 
 upon the same lines as the said San Francisco street work 
 actof!862. [Statutes 1862, page 391, etseq.] Bearing this fact 
 in mind, and, as tending to assist in correctly construing 
 
NO PRIMARY DUTY ON OWNER TO REPAIR March U. 8 l^89 ended 167 
 
 sections 13, 14 and 15 of tire present act, the following is 
 quoted from the opinion by Mr. Justice Sprague, in Eustace 
 v. Jahns, supra: "Upon a careful examination of these 
 several acts [San Francisco street work acts] and such por- 
 tions thereof as were in force in May, 1866, we find that 
 by those acts the entire supervision, control and manage- 
 ment of the public streets, highways, lanes, alleys, places 
 or courts within the corporate limits of the city and county 
 of San Francisco was and still continues vested in the 
 board of supervisors and superintendent of the public 
 streets and highways of said city and county, and we find 
 no authority delegated to, or duty imposed upon, the indi- 
 vidual owner of lands or lots in said city to improve or 
 repair any portions of such streets, lanes, alleys, highways, 
 places or courts, or in any manner interfere or meddle with 
 the same, in the way of improvement or repair thereof, of 
 his own volition, or upon his individual responsibility. 
 The only duty imposed upon the individual owner of such 
 lots or lands in said city is the payment of such assessments 
 as shall be lawfully made upon his lots or lands by the 
 superintendent of public streets and highways, to defray 
 the expenses of opening, constructing, improving or repair- 
 ing the streets, highways, etc., after the same shall have 
 been opened, constructed, improved or repaired by order of 
 the board of supervisors and to the satisfaction of the 
 superintendent of public streets and highways, except in 
 the case of special local repairs required by written notice 
 from the superintendent of public streets to be made or 
 commenced by the owner, tenant or occupant of a lot 
 within three days after the service of such notice, specify- 
 ing what improvement is required, as provided in sections 
 14, 15 and 16 of an act approved April 25, 1862, amenda- 
 tory of and supplementary to the act of 1856 heretofore 
 referred to; [sections 13, 14 and 15 of the present street 
 improvement act, the Vrooman act of March 18, 1885,] 
 and this, it will be observed by reference to the sections 
 named, is not a primary duty imposed by the statute, but is 
 left optional with the superintendent of public streets and 
 highways to impose the duty or not, in his discretion, and 
 does not attach to or become an existing obligation or duty 
 until after the superintendent has exercised his discretion 
 in the premises by service of the notice in writing, as 
 required by section 14; [section 13 of the present act.] 
 * * And for special local repairs or improvements con- 
 templated by the fourteenth section of the above act of 
 1862, and by the tenth subdivision of section 8 of the 
 same act as amended April 25, 1863, (statutes 1863, page 
 
168 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 528,) [subdivision 8 of section 7 of the present street 
 improvement act,] the lots fronting upon the street on the 
 side and at the point where such improvements or repairs 
 are required or made, are not even liable to assessment to 
 defray the expenses of such improvements or repairs, 
 without a notice, as required by section 14, "[section 13 of 
 the present act] has been previously served upon the owner 
 or occupant of the lot, as is manifest by subdivision 2 of 
 the same section 8, [subdivision 2 of section 7 of the pres- 
 ent street improvement act, the Vrooman act of March 
 18, 1885,] when read in connection with subdivision ten, 
 same section, and sections 14 and 15 above referred to, and 
 sections 21 and 22, same act, as amended in 1863, (statutes 
 1863, pages 531-2,) [subdivision 8 of section 7 and sections 
 13, 14, 20 and 21 of the present act], and section 23, and 
 subdivision 2 of section 25, same act (statutes 1863, page 
 402;) [Sec. 22 and sub. 2 of sec. 34 of the present act]. By 
 the said sections 22 and 23 [of the act of 1863] it is 
 made the duty of the superintendent of public streets and 
 highways to devote his entire trme and undivided attention 
 to the supervision and care of the public streets and high- 
 ways, public buildings, parks, etc., of said city and county; 
 and for that purpose the board of supervisors is authorized 
 to allow him deputies, not exceeding six in number; and 
 for the faithful performance of his duties he is required 
 to give bonds to the city and county in such sum as 
 may be fixed by the board of supervisors. And, 
 under said section 14, subdivisions 2 and 10 of said sec- 
 tion 8, and said section 21, [section 13, subdivisions 
 2 and 8 of section 7 and section 20, of the present act] the 
 superintendent of streets is manifestly authorized to con- 
 tract for simple repairs of street improvements already con- 
 structed and accepted by the proper authority, and cause 
 the same to be made, without reference to the adjoining 
 property, and the expense of such repairs would be properly 
 chargeable to the street department fund of the city arid 
 county. [See sections 25 and 26 of the Vrooman act of Mar. 
 18, 1885.] * * * From a most careful consideration of 
 all the statutes relating to the public streets and highways 
 of the city and county of San Francisco, we find no personal 
 duty primarily or inceptively cast upon the individual owners 
 of lots or lands therein, in respect to the care, management, 
 control, improvement or repair of the public streets or 
 highways; * * * and we are unable to comprehend by 
 what process of ratiocination the duty to repair a public 
 street or highway is devolved upon an individual, from the 
 fact that he is liable to be notified by the superintendent of 
 
I VERSITY) 
 
 CONSTITUTIONALITY OF SECTION THIRTEEN M^$SF*** 169 
 
 streets to make specific repairs, or owns or occupies a lot 
 liable to be assessed to defray the expenses of repairs, when 
 made by another at the instance of the superintendent." 
 [Eustace v. Jahns, 38 Gal. pp. 15-17, 17 and 19.] 
 
 Section 23 of the present general street work act is the 
 section which corresponds to section 24 of the act of 1862, 
 referred to in Eustace v. Jahns, 38 Cal. p. 18. [See section 
 23 infra.] 
 
 IV. Constitutionality of Section Thirteen. Sections 13 
 and 14 provide that the expense of repairing or reconstruct- 
 ing any street, avenue, lane, etc., or any sidewalk, out of 
 repair or needing reconstruction, shall be charged against 
 the owners or occupants of the lots or portions of lots 
 fronting such portion of said street, avenue, alley, etc., or 
 sidewalk, as is out of repair or needing reconstruction, and 
 shall be a lien, the same as provided in section 9 of the act, 
 and may be enforced in the same manner. 
 
 In the case of Hart v. Gaven, 12 Cal. 477, work had been 
 done by a contractor under sections 56, 57, 58 and 59 of the 
 San Francisco consolidation act, passed April 19, 1856. 
 These sections of the consolidation act correspond to sec- 
 tions 13,14 and 15 of the present street work act, and it was 
 held in this case of Hart v. Gaveii that "the legislature had 
 the right to provide, in the act known as the 'Consolidation 
 act for the government of the city and county of San Fran- 
 cisco; that the owners of lots in said city should keep the 
 streets in front of their lots in repair, and if an owner neg- 
 lects to do so for three days, after notice from the superin- 
 tendent of public streets, the superintendent has the right 
 to make a contract for that purpose; and an action will lie 
 in the name of the party performing the work against the 
 owner of the lot adjacent for that amount." The court, per 
 Baldwin, J., said: "Some provision being necessary for 
 repairing the streets, the mode by which this is done, if it 
 be uniform and equal in its operation, must be left to legis- 
 lative discretion. This duty of repairing the streets is in 
 the nature of a public burden or tax, and we do not see that 
 the rule adopted applying to all the streets of a municipality 
 is not as near an approximation to uniformity as could well 
 be attained. Absolute justice in the operation of human 
 laws is impossible; there is no rule, however just in its 
 general working, which has not its exceptional instances of 
 hardship; and especially in the results of the taxing power 
 is this incurable infirmity of laws to secure exact and equal 
 justice to all those upon whom they operate, apparent. No 
 tax law could ever stand if subjected to a rigid test on the 
 score of uniformity. All we can expect is a general equality 
 
170 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 of operation; and we think that this is secured by this act." 
 As, however, sections 13 and 14 seem to provide for a 
 personal judgment against the property owner in an action 
 to recover the costs of repairs; and, in view of the fact that, 
 as stated by Mr. Justice McKinstry in People v. Lynch, 51 
 Cal. 22, "It has been repeatedly held that an attempt by the 
 legislature to compel each lot upon a street to pay the whole 
 expense of grading and paving along its front, cannot be 
 maintained, because, while there is an apparent uniformity, 
 the measure of equality required by the constitution is 
 entirely wanting," it might be well, for these reasons, to 
 further consider the constitutionality of this part of the act 
 in respect to these two features, viz., (1.) the provision for a 
 "personal" judgment, and (2.) as to the equality or inequal- 
 ity of the assessment. 
 
 (A.) In the first place, section 13 might be construed as 
 imposing a personal liability upon the owner to pay the 
 expense of the repairs or reconstruction. An act imposing 
 a personal liability upon the owner for "improving" a street 
 in the first instance is unconstitutional. [Taylor v. Palmer, 
 31 Cal. 241; Manning v. Den, 90 Cal. 611.] As to whether 
 the same principle is applicable to the case of "repairs" or 
 "reconstruction" provided for by section 13 of the act, is at 
 least questionable in the absence of a decision by the 
 Supreme Court directly upon the point. It is possible, how- 
 ever, that a personal liability, and the personal penalties 
 provided by section 15 of the act, may, in the case of repairs 
 or reconstructions, be justified as an exercise of the police 
 powers of the state. 
 
 (B.) 1. Section 14 makes the expense of the work done 
 under section 13, a lien upon the property, the same as 
 provided in section 9 of the act. But there may be a 
 question as to the constitutionality of such provision, even 
 if there be no personal liability. This question arises out 
 of the standard of apportionment of the expense, or rather 
 it arises out of the want of a standard. Subdivisions 1 and 
 2 of section 7, make the expenses of all improvements, 
 " except such as are done by contractors under the provisions of 
 section thirteen of this act," assessable upon the lots and 
 lands fronting upon the work, "each lot or portion of a lot 
 being separately assessed, in proportion to the frontage, at a 
 rate per front foot sufficient to cover the total expense of the 
 work." But, as to the expenses of the work done by 
 contractors under the provisions of section 13, there is no 
 such apportionment. Each lot is made liable for the whole 
 cost of the work done in front of it upon the sidewalk, and 
 to the center line of the street, avenue, alley, etc. While 
 
-CONSTITUTIONALITY OF SECTION THIRTEEN Marcthl%S ended 171 
 
 the front-foot plan of assessment is constitutional, because, 
 it in effect, makes an assessment district of the street, and 
 apportions the expenses of the improvement upon the lots 
 in proportion* to their frontage, thus making some sort of 
 a rough approximation to equality of apportionment, still, 
 as is said hy Judge Cooley in his work on Constitutional 
 Limitations [page 508, 3rd edition], "A very different case 
 is presented where the legislature undertakes to provide 
 that each lot upon a street shall pay the whole expense of 
 grading and paving the street along its front. For, while 
 in such a case there would he something having the out- 
 ward appearance of apportionment, it requires but slight 
 examination to discover that it is a deceptive semblance 
 only, and that the measure of equality which the constitu- 
 tion requires is entirely wanting." See also People v. 
 Lynch, 51 Gal. 22-23, where Mr. Justice McKinstry says: 
 "It has been repeatedly held, that an attempt by the legis- 
 lature to compel each lot upon a street to pay the whole 
 expense of grading and paving along its front cannot be 
 maintained, because while there is an apparent uniformity, 
 the measure of equality required by the constitution is 
 entirely wanting." 
 
 On the other hand, Judge Dillon in his work on Muni- 
 cipal Corporations { Vol. 2, 753, 3rd Ed.], says: "It may be 
 true that in some instances more hardships will be occa- 
 sioned by requiring each owner to make or pay for the 
 improvement in front of his own property than if the cost 
 were assessed on the basis of frontage or of supposed benefits 
 received; still, it seems to the author difficult to find satis- 
 factory and solid grounds on which to discriminate the 
 cases so as to hold that one is within the constitutional 
 power of the legislature and the other is not." 
 
 2. Again it was stated by Mr. Justice Sharswood in Ham- 
 rnett r. Philadelphia, 65 Penn. St. 155-6; s. c. 3 Am. Rep. 
 615, that the legislature has not power in any case to require 
 the owners to repair or reconstruct a street after it has once 
 been improved. The learned justice says: "The original 
 paving of a street brings the property bounding upon it into 
 the market as building lots. Before that it is a road, not a 
 street. It is therefore a local improvement, with benefits 
 almost exclusively peculiar to the adjoining properties. 
 Such a case is clearly within the principle of assessing the 
 cost on the lots lying upon it. Perhaps no fairer rule can 
 be adopted than the proportion of feet front, although there 
 must be some inequalities if the lots differ in situation and 
 depth. Appraising their market values and fixing the pro- 
 portion according to these, is a plan open to favoritism or 
 
172 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 corruption, and other objections. No system of taxation 
 which the wit of man ever devised has been found perfectly 
 equal. But where a street is once opened and paved, thus 
 assimilated with the rest of the city and made a part of it, 
 all the particular benefits to the locality derived from the 
 improvements have been received and enjoyed. Repairing 
 streets is as much a part of the ordinary duties of the muni- 
 cipality for the general good as cleaning, watching and 
 lighting. It would lead to monstrous injustice and inequality 
 should such general expenses be provided for by local assess- 
 ments." [See also Wistar v. Philadelphia, 80 Pa. St. 505; s. c. 
 21 Am. Rep. 112.] But these Pennsylvania cases seem to 
 be contrary to the weight of authority. Judge Dillon [Dil- 
 lon's Municipal Corporations, 780, 3rd ed.] says: "Not 
 only the power to tax, but the power to make local improve- 
 ments at the expense of the property benefited, is, like all 
 other legislative power of the municipality, a continuing one, 
 unless there be something to indicate the contrary; and 
 hence it is not exhausted by being once exercised. There- 
 fore, the power to compel property owners to pave, ordina- 
 rily extends to compelling them to repave when required by 
 the municipal authorities." [See McCormick v. Patchin,53 
 Mo. 33, s. c. 14 Am. Rep. 440, where Hammett v. Philadel- 
 phia is commented upon.] And if property owners may be 
 compelled to " repave," it would seem that they may like- 
 wise be compelled to "repair." 
 
 When the municipality itself takes up a pavement or dis- 
 turbs the surface of a street, for the purpose of laying gas 
 or water pipes, or for the purpose of constructing a sewer, 
 the cost of repairing the street or replacing the pavement 
 cannot be assessed against the property owners. [City of 
 Bloomington v. Palmer, 67 la. 681.] But see section 20 of 
 the act, where it is expressly provided that, after partial 
 acceptance of a street, prior to the construction of a sewer, 
 the lots liable to assessment for the cost of constructing a 
 sewer shall remain liable to be assessed " for the cost of 
 'repairs and restoration of the street damaged in the said 
 construction." 
 
 3. But, though it is possible that section 13 might be 
 open to the above constitutional objections, still it is quite 
 probable that the power to compel a property owner to 
 repair or reconstruct that portion of a street which lies in 
 front of his property, and to make his property chargeable 
 with the whole cost thereof, is a part of the police powers of 
 the state, and therefore constitutional. 
 
 In Reinken v. Fuehring, (Irid.) 30 N. E. Rep. 414, it was 
 held that the ciiy may, in the exercise of the police powers- 
 
CONSTITUTIONALITY OF SECTION THIRTEEN March'lfiS ended 173 
 
 conferred upon it by the state, order its streets to be swept, 
 and assess the abutting property owners to pay the expenses 
 of the sweeping opposite their property. In this case the 
 property owner was held liable for sweeping the street, i. e., 
 the roadway, as well as the sidewalk. [See also Village of 
 Carthage v. Frederick, (N. Y.)25 N. E. 430; In re Goddard, 
 16 Pick, 504; s. c. 28 Am. Dec. 259; Sands v. City of Rich- 
 mond, 31 Gratt, 571; s. c. 31 Am. Rep. 742.] In "this latter 
 case, Sands v. City of Richmond, it was held that "a city 
 ordinance, requiring the owners of lots on streets which have 
 been graded, paved and guttered, to pave the sidewalks 
 adjoining and in front of their lots, is valid, and if the own- 
 ers do not comply, the city may do the work and collect the 
 expenses from the owners." It was not decided whether the 
 power to compel the property owner to improve the side- 
 walk in front of his property is referable to the police power, 
 or whether it belongs to the taxing power. But, to sustain 
 its position, the court cited the case of Goddard, Petitioner, 
 1G Pick. 504, in which it was held that the city might, in 
 the exercise of its police powers, compel the property owner 
 to sweep the snow off of that portion of the sidewalk which 
 lies in front of his property, and in Reinken v. Fuehring, 
 supra, 30 N. E. 414, it was held that, in the exercise of its 
 police powers, the city might compel the property owner to 
 pay the expense of sweeping the street in front of his prop- 
 erty, thus holding that the power extends over roadways as 
 well as sidewalks. Therefore, if the decision in Goddard, 
 Petitioner, 16 Pick. 504, supports the decision in Sands v. 
 City of Richmond, 31 Gratt, 571, then, by a parity of reason- 
 ing, the decision in Reinken v. Fuehring supports the posi- 
 tion that, in the exercise of its police powers, the city may 
 compel a property owner to do any of the work mentioned 
 in section 13 of the act, and may assess the expenses thereof 
 against his property, as provided in said section 13 and 
 section 14. 
 
 As, however, it is the purpose of this book, not to discuss 
 general principles of street law, or questions of constitutional 
 law, but to consider only the machinery provided by our 
 street work acts for street improvements, and the decisions 
 of our own Supreme Court expounding and construing those 
 acts, the reader will be referred to other treatises for a 
 further consideration of the questions of constitutional law 
 arising under these sections of the act. The aim of this 
 book will be accomplished if it succeeds in suggesting the 
 questions of constitutionality that might possibly arise in 
 this connection. The author's own opinion is, that tho 
 provisions of sections 13, 14 and 15 of the act are referable 
 
174 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 to the police powers delegated to the municipalities by the 
 state; and, as an exercise of police powers, they are constitu- 
 tional, even to the extent of imposing a personal liability upon 
 the property owner to improve the street in front of his prop- 
 erty, after notice from the superintendent, or to pay the 
 expense thereof, if done by some one else under a contract 
 with the superintendent of streets. 
 
 SECTION 14. If the expenses of the work and material for such improve- 
 ments, after the completion thereof, and the delivery to said contractor of 
 said certificate, be not paid to the contractor so employed, or his agent or 
 assignee, on demand, the said contractor, or his assignee, shall have the 
 right to sue such owner, tenant, or occupant, for the amount contracted to 
 be paid ; and said certificate of the superintendent of streets shall be prima 
 facie evidence of the amount claimed for said work and materials, and of 
 the right of the contractor to recover for the same in such action. Said 
 certificate shall be recorded by the said superintendent of streets in a book 
 kept by him in his office for that purpose, properly indexed, and the sum 
 contracted to be paid shall be a lien, the same as provided in section nine 
 of this act, and may be enforced in the same manner. [Statutes 1885, page 
 158.] 
 
 [Section 14 never has been amended.] 
 
 SECTION 15. In addition, and as cumulative to the remedies above given, 
 the city council shall have power, by resolution or ordinance, to prescribe 
 the penalties that shall be incurred by any owner or person liable, or neg- 
 lecting, or refusing to make repairs when required, as provided in section 
 (13) thirteen of this act, which fines and penalties shall be recovered for 
 the use of the city by prosecution in the name of the people of the state of 
 California, in the court having jurisdiction thereof, and may be applied, if 
 deemed expedient by the said council, in the payment of the expenses of 
 any such repairs not otherwise provided for. [Statutes 1885, page 158.} 
 
 [Section 15 never has been amended.] 
 
 SECTION 16. The person owning the fee, or the person in whom, on the 
 day the action is commenced, appears the legal title to the lots and lands, 
 by deeds duly recorded in the county recorder's office of each county, or 
 the person in possession of lands, lots or portions of lots or buildings under 
 claim, or exercising acts of ownership over the same for himself, or as the 
 executor, administrator or guardian of the owner, shall be regarded, 
 treated and deemed to be the "owner" (for the purpose of this law), 
 according to the intent and meaning of that word as used in this act. And 
 in case of property leased, the possession of the tenant or lessee holding 
 and occupying under such persons shall be deemed to be the possession of 
 such owner. [Statutes 1885, page 159.} 
 
 [Section 16 never has been amended.] 
 
 Section 17 of the San Francisco street work act of 1872 
 [statutes 1872, page 818,] is similar to section 16 of the 
 present general street improvement act. Section 17 of the 
 act of 1872 came before the Supreme Court in Phelan v. 
 
SECTION SIXTEEN OWNER March 'isf 1885* f 175 
 
 Dunne, 72Cal. 229, and in Parker v. Bernal, 66 Cal. 113. In 
 the latter case, an action to recover on a street assessment, 
 it was held that this provision of the statute made an 
 executrix an osvner for all the purposes of the action, and 
 that therefore the action might be brought against the 
 executrix, even though the heirs of the deceased former 
 owner should be in fact the owners. On the other hand, 
 in Phelan v. Dunne, 72 Cal. 229, it was held that the heirs 
 or devisees of a deceased person are in fact the owners of 
 the property, subject to the liens of the creditors, etc., and 
 that, since they are in fact such owners, they alone need be 
 made parties defendant, even though under this section of 
 the act the executors are, for the purposes of the act, to be 
 deemed owners. It was held that while the executors might 
 be proper parties they were not necessary parties, and there- 
 fore the plaintiff need not make them parties unless he 
 so desires. Mr. Justice Patterson, delivering the opinion 
 said: "It may be that under these provisions [i. e., sections 
 13 and 17 of the act of April 1, 1872; sections 12 and 16 
 of the present street improvement act, the Vrooman act 
 of March 18, 1885,] persons other than the heirs and 
 devisees are proper parties to the action, and that their 
 rights cannot be foreclosed unless they are made defendants, 
 but as to that we express no opinion. It is sufficient to say. 
 that the defendant [the devisee under the will of the 
 deceased former owner] is the owner in fee, that he is the 
 only necessary party; and that plaintiff is entitled, under 
 this act, to a decree of foreclosure, whatever may be the 
 rights of other parties interested, who are not joined by 
 defendants." [See supra, pages 146-8.] Of course the care- 
 ful practitioner will not fail to make parties to the action 
 those who are proper parties defendant, merely because 
 they may not be necessary parties. The conclusion deduci- 
 ble from these decisions is that the executor or administra- 
 tor of an estate might be made the sole party defendant, 
 as was done in Parker v. Bernal, 66 Cal. 113, since the act 
 makes him for all purposes of the act an "owner." By a 
 fiction he is made the owner for the purposes of the act. 
 Or the heirs or devisees, in whom the title is in fact vested, 
 may alone be made parties defendant, as was the case in 
 Phelan v. Dunne, 72 Cal. 229, since in such case the 
 "owners" in fact are made defendants. 
 
 In the absence of provisions such as those contained in 
 section 16 of the act, declaring that executors, administra- 
 tors and others shall, for all the purposes of the act, be 
 regarded, treated and deemed to be the "owner" according 
 to the intent and meaning of that word, such persons could 
 
176 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 not be treated as owners for any of the purposes of the act. 
 [Mulligan v. Smith, 59 Gal. 206, 225; Kahn v. Board of 
 Supervisors, 79 Cal. 388.] 
 
 SECTION 17. Any tenant or lessee of the lands or lots liable may pay 
 the amount assessed against the property of which he is the tenant or 
 lessee under the provisions of this act, or he may pay the price agreed on 
 to be paid under the provision of section thirteen of this act, either before 
 or after suit brought, together with coste, to the contractor, or his assigns, 
 or he may redeem the property, if sold on execution or decree for the 
 benefit of the owner, within the time prescribed by law, and deduct the 
 amount so paid from the rents due and to become due from him, and 
 for any sums so paid beyond the rents due from him, he shall 
 have a lien upon and may retain possession of the said land and lots until 
 the amount so paid and advanced be satisfied, with legal interest, from 
 accruing rents, or by payment by the owner. [Statutes 1885, page 159.} 
 
 [Section 17 never has been amended.] 
 
 SECTION 18. The records kept by the superintendent of streets of said 
 city, in conformity with the provisions of this act, and signed by him, 
 shall have the same force arid effect as other public records, and copies 
 therefrom, duly certified, may be used in evidence with the same effect as 
 the originals. The said records shall, during all office hours, be open to 
 the inspection of any citizen wishing to examine them, free of charge 
 [Statutes 1885, page 159.} 
 
 [Section 18 never has been amended.] 
 
 SECTION 19. Notices in writing which are required to be given by the 
 superintendent of streets under the provisions of this act, may be served 
 by any person with the permission of the superintendent of streets, and 
 the fact of such service shall be verified by the oath of the person making 
 it, taken before the superintendent of streets, who for that purpose and for 
 all other purposes, and in all cases where a verification is required under 
 the provisions of this act is hereby authorized to administer oaths, or 
 other person authorized to administer oaths, or such notices may be deliv- 
 ered to the superintendent of streets himself, who must also verify the 
 service thereof, and who shall keep a record of the fact of giving such 
 notices, when delivered by himself personally, and also of the notices and 
 proof of service when delivered by any other person. [Amendment approved 
 March U, 1889. Statutes 1889, p. 170.} 
 
 [Section 19 was amended by the act of March 14, 1889. Statutes 1889, 
 p. 170.] 
 
 SECTION 20. Whenever any street, or portion of a street has been or 
 shall hereafter be fully constructed to the satisfaction of the superintend- 
 ent of streets and of the city council, and is in good condition throughout, 
 and a sewer, gas pipes, and water pipes are laid therein, under such regu- 
 lations as the city council shall adopt, the same shall be accepted by the 
 city council, by ordinance, and thereafter shall be kept in repair and 
 improved by the said municipality; the expense thereof, together with 
 the assessment for street work done in front of city property, to be paid 
 out of a fund to be provided by said council for that purpose ; provided, 
 that the city council shall not accept of any portion of the street less than 
 the entire width of the roadway (including the curbing), and one block in 
 
SECTIONS TWENTY-TWENTY-THREE Schl^isl' 23 ' ACt f 177 
 
 len-th, or one entire crossing; and provided further, that the city council 
 may partially or conditionally accept any street, or portion of a street 
 without a sewer, or gas pipes, or water pipes, therein, if the ordinance of 
 acceptance expressly states that the council deems such sewer, or gas 
 pipes, or water pipes, to be then unnecessary, but the lots of land pre- 
 viously or at any time assessable for the cost of constructing a sewer, shall 
 remain and be assessable for such cost and for the cost of repairs and restor- 
 ation of the street damaged in the said construction, whenever said council 
 shall deem a sewer to be necessary, and shall order it to be constructed, 
 the same as if no partial or conditional acceptance had ever been made. 
 The superintendent of streets shall keep in his office a register of all streets 
 accepted by the city council under this section, which register shall be 
 indexed for easy reference thereto. [Statutes 1885, p. 160.] 
 [Section 20 never has been amended.] 
 
 When a street has been accepted by the city council, the 
 expense of constructing and repairing the sidewalks must 
 be paid by the municipality. The provisions of section 20 
 apply to "sidewalks" as well as to "roadways." [Bonnet 
 v. San Francisco, 65 Gal. 230.] 
 
 x- 21. The superintendent of streets shall keep a public office in 
 some convenient place within the municipality, and such records as may 
 be required by the provisions of this act. He shall superintend and direct 
 the cleaning of all sewers, and the expense of the same shall be paid out 
 of the street or sewer fund of said city. [Statutes 1885, p. 160.] 
 
 [Section 21 never has been amended.] 
 
 SECTION 22. It shall be the duty of the superintendent of streets to see 
 that the laws, ordinances, orders, and regulations relating to the public 
 streets and highways be fully carried into execution, and that the penal- 
 ties thereof are rigidly enforced. He shall keep himself informed of the 
 condition of all the public streets and highways, and also of all public 
 buildings, parks, lots, and grounds of said city, as may be prescribed by 
 the city council. He shall, before entering upon the duties of his office, 
 give bonds to the municipality, with such sureties and for such sums as 
 may be required by the city council ; and should he fail to see the laws, 
 ordinances, orders and regulations relative to the public streets or high- 
 ways carried into execution, after notice from any citizen of a violation 
 thereof, he and his sureties shall be liable upon his official bond to any 
 person injured in his person or property in consequence of said official neg- 
 lect. [Statutes 1885, p. 160.] 
 
 [Section 22 never has been amended.] 
 
 SECTION 23. If, in consequence of any graded street or public highway 
 improved under the provisions of this act, being out of repair and in con- 
 dition to endanger persons or property passing thereon, any person while 
 carefully using said street or public highway, and exercising ordinary care 
 to avoid the danger, suffer damage to his person or property, through any 
 such defect therein, no recourse for damages thus suffered shall be had 
 against such city ; but if such defect in the street or public highway shall 
 have existed for the period of twenty-four hours or more after notice 
 thereof to the said superintendent of streets, then the person or persons on 
 
178 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 whom the law may have imposed the obligations to repair such defect in the 
 street or public highway, and also the officer or officers through whose official 
 negligence such defect remains unrepaired, sb? 11 be jointly and severally 
 liable to the party injured for the damage sustained ; pr <vided, that said 
 superintendent has the authority to make said repairs, under the direction 
 of the city council, at the expense of the city. [Statutes 1885, p. 161.} 
 [Section 23 of the act never has been amended.] 
 
 Section 24 of the San Francisco street work act of 1862, 
 as amended in 1863 [statutes 1863, p. 532], is the section of 
 that act corresponding to section 23 of the present street 
 improvement act, and in Eustaces. Jahns,38 Gal. pp. 18-I9 r 
 Mr. Justice Sprague spoke of this section of the act of 1862, as 
 follows: "This is the section containing the law which 
 seems to be especially relied upon by respondent as fixing 
 the liability. of defendant in this case. But we cannot dis- 
 cover that, with respect to private citizens or individuals, 
 it creates any new liability or imposes any duty. The 
 manifest design and only effect of the section is to exempt 
 the city and county, in its corporate capacity, from the 
 liability which, at common law, would otherwise attach, 
 by reason of the absolute and exclusive control of the streets 
 and public highways delegated to the corporation by the 
 provisions of its charter, and transfer such responsibility 
 to individual officers, agents and employes of the corpora- 
 tion whose personal neglect or malfeasance may have occa- 
 sioned the injury. These streets and public highways are 
 public property, opened, constructed, controlled, improved 
 and repaired for public use and benefit, by the city and 
 county government, and no private individual possesses 
 any exclusive right to occupy, use or control any portion 
 thereof, by reason of his ownership or occupancy of adja- 
 cent lots and premises, by virtue of any statute of the state, 
 and we are unable to comprehend by what process of rati- 
 ocination the duty to repair a public street or highway is 
 devolved upon an individual from the fact that he is liable 
 to be notified by the superintendent of streets to make 
 specific repairs, or owns or occupies a lot liable to be 
 assessed to defray the expenses of repairs, when made by 
 another at the instance of the superintendent/' 
 
 SECTION 24. The city council of such city shall have full power and 
 authority to construct sewers, gutters, and manholes, and provide for the 
 cleaning of the same, and culverts or cesspools, or crosswalks or sidewalks, 
 or any portion of any side walk, upon or in any street, avenue, lane, alley, court 
 or place in such city ; and also for drainage purposes, over or through any 
 right of way obtained or granted for such purposes, with necessary and 
 proper outlet or outlets to the same, of such materials, in such a manner, 
 and upon such terms as it may be deemed proper. None of the work or 
 improvements described in this section shall be stayed or prevented by 
 
SECTIONS TWENTY-FOUR-TWENTY-SEVEN of the^t ' 26 and 27 179 
 
 any written or any other remonstrance or objection, unless such council 
 deems proper. [Amendment approved March 11, 1893, statutes 1893, p. 173.} 
 
 [Section 24 was amended by the act of March 14, 1889, statutes 1889, p. 
 170; again by act of March 31, 1891, statutes 1891, p. 203; and again'by 
 the art of March 11, 1893, statutes 1893, p. 173. 
 
 SEonox 25. Taj city council may, in its discretion, repair and water 
 streets that shall have been graded, curbed and planked, paved or macada- 
 mized, and may build, repair and clean sewers, and shall provide a street 
 contingent fund at the same time and in the same manner as other funds 
 are provided, out of which to pay the costs and expenses of making said 
 repairs and watering said streets and building, repairing and cleaning said 
 sewers ; but whenever any unaccepted street or part of a street requires 
 regrailing, recurbing, repiling, repaying, replanking, regraveling or 
 remacadamizing or requires new culverts or new crosswalks or new side- 
 walks or new stivers., the work shall be advertised and let out by contract, 
 and the costs and expenses thereof shall be assessed upon the property 
 affected or benefited thereby, the same as in the first instance. [Statutes 
 t886 } page 161.] 
 
 [Section 25 of the act has never been amended. See notes to section 13 
 of this act, xitpru, page 102 et seq. See supra, pages 6 and 7, notes to section 2, 
 of the act upon "regrading," "replanking," etc. 
 
 Si:< TION 26. The city council may, in its discretion, order, by resolution, 
 that the whole or any part of the cost and expenses of any of the work 
 mentioned in this act be paid out of the treasury of the municipality from 
 such fund as the council may designate. Whenever a part of such cost 
 and expenses is so ordered to be paid the superintendent of streets, in 
 making up the assessment heretofore provided for such cost and expenses, 
 shall first deduct from the whole cost and expenses such part thereof as has 
 been so ordered to be paid out of the mu.iicipal treasury, and shall assess the 
 remainder of said cost and expanses proportionately upon the lots, parts 
 of lots and lands fronting on the streets where said work was done, or 
 liable to be assessed for such work, and in the manner heretofore pro- 
 vided. [Amendment approved March 31, 1891, statutes 1891, page 206.} 
 
 [Section 20 was amended by act of March 14, 1889, statutes 18S9, page 
 170, and again by the act of March 31, 1891, statutes 1891, page 206.] 
 
 PART II. 
 
 SECTION 27. Whenever the city council deem it necessary to construct a 
 sewer, then the said council may, in its discretion, determine to construct 
 sni I sewer, and assess the cost and expenses thereof upon the property to 
 be affected or benefited thereby, in such manner and within such assess- 
 ment district as it shall prescribe, and the lien therefor upon said property 
 shall be the same as is provided in section nine of this act, or said council 
 may determine to construct said sewer and pay therefor out of the street 
 contingent fund. [Statutes 1885, page 162.} 
 
 [Section 27 of the act never has been amended.] 
 
 The sections embraced in Part II of the act, sections 27 
 to 33, inclusive, in addition to the ordinary method for pay- 
 ing the expenses of the work authorized by the act, 
 which ordinary method is by assessment according to the 
 
180 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 front-foot plan, provide three extraordinary methods for 
 paying the expenses of sewer construction, viz: (1.) By 
 assessing the cost and expenses of sewer construction upon 
 the property to be.affected or benefited thereby, and in such 
 manner and within such assessment district as the council 
 shall prescribe; or (2.) by paying the cost of constructing 
 the sewer out of the street contingent fund; or (3.} by 
 incurring an indebtedness, created by the issuance of 
 bonds, or by-such other mode as the council shall, by ordi- 
 nance provide. 
 
 The first of said methods for paying the cost of sewer 
 construction is provided for by section 27 of the act. The 
 second is controlled by the provisions of sections 27 and 
 33. And the third method of paying the cost of sewer con- 
 struction namely, by the incurring of an indebtedness is 
 controlled by sections 28 to 33, inclusive. 
 
 The practical utility of these provisions of Part II of the 
 act does not seem to be very apparent. It would seem at 
 first blush to be a specially enabling provision applicable to 
 sewers only. But all three modes provided by Part II for 
 meeting the expenses of sewer construction seem to be pro- 
 vided either by other parts of the act or by an independent 
 act. Thus, as to the two modes provided for by section 27, 
 assessing the cost and expenses upon the property lying 
 within an assessment district, or paying out of the street- 
 contingent fund, the first mode (district assessment plan) 
 is amply provided for by section 3 of the act, where it is 
 provided that, for the work of constructing sewers, specifi- 
 cations shall always be furnished to the council b^ the city 
 engineer, and whenever the contemplated work or improve- 
 ment is, in the opinion of the city council, of more than 
 local or ordinary public benefit, etc., the city council may 
 make the expense of such work or improvement chargeable 
 upon a district, which the council shall, in its resolution of 
 intention, declare to be the district benefited by said work 
 or improvement, and to be assessed to pay the costs and 
 expenses thereof. As to the second mode provided for by 
 section 27, paying the costs and expenses of sewer con- 
 struction out of the street contingent fund section 26 
 expressly empowers the city council to order the whole or 
 any part of the cost and expenses of any of the work men- 
 tioned in the act to be paid out of the treasury of the munici- 
 pality from such fund as the council may designate. 
 
 So that the two modes of meeting the expenses which are 
 provided for by section 27 of the act, and made specially appli- 
 cable to sewer construction, seem to be amply provided for 
 by other parts of the act, unless it be held that it was the 
 
SEWER ASSESSMENTS BScW itS o 181 
 
 intention of the legislature that the modes provided by Part 
 
 1 of the act, for meeting the expense of any work, do not 
 include the cost of sewer construction, and that, as to sewer 
 construction, the modes provided by Part II of the act for 
 paying the expenses of the work are exclusive of all others; 
 that is to say, that by Part II of the act the legislature 
 intended to limit the modes for paying the costs and expenses 
 of sewer constiuction to the three modes provided for by 
 Part II, and that therefore, as to sewer construction, the 
 ordinary, or front-foot mode of assessment, is not applica- 
 ble. But, tli is cannot have been the intention of the legis- 
 lature, for the following reasons: 
 
 First: Subdivision one of section 7 provides that the 
 expenses incurred for any work authorized by this act 
 (except the cost of any work which shall have been declared 
 in the resolution of intention to be assessed on a district 
 benefited) shall be assessed upon the lots and lands accord- 
 ing to the front-foot plan of assessment, except as therein- 
 after specifically provided; and subdivision 2 of said section 
 7 provides that the expense of all improvements (except 
 such as are done by contractors under the provisions of sec- 
 tion 13 of this act, i. e., ''repairing" or "reconstructing" 
 streets out of repair or needing reconstruction) "shall be 
 assessed upon the lots and lands, as provided in this section, 
 [Sec. 7] according to the nature and character of the work." 
 But, aside from the work done by contractors under the 
 provisions of section 13 of the act, the only exception to the 
 front-foot plan of assessment recognized by section 7 is that 
 provided for by subdivision 12 of the section, where, carry- 
 ing out the provisions of section 3, which authorize the 
 council to declare an assessment district wherever the con- 
 templated work or improvement is, in the opinion of the 
 council, of more than local or ordinary public benefit, it is 
 provided that "whenever the resolution of intention declares 
 that the costs and expenses of the work and improvement 
 are to be assessed upon a district, the city council shall 
 direct the city engineer to make a diagram of the property 
 affected or benefited," etc. But, while subdivision 12 of 
 section 7 recognizes the fact that there might be a case 
 where the expenses shall be raised by assessing the property 
 within an assessment district, and supplies the appropriate 
 machinery for levying the assessment, when that mode is 
 adopted, still it does not state when or in what cases the 
 district assessment plan shall be adopted, while subdivision 
 
 2 of section 7 provides that, with the exception of such work 
 as is done bj contractors under the provisions of section 13, 
 "the expense of all improvements shall be assessed upon the 
 
182 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 lots and lands, as provided in this section, according to the 
 nature and character of the work," and subdivision 1 pro- 
 vides that "the expenses incurred for any work authorized 
 by this act * * * shall be assessed upon the lots and 
 lands fronting thereon, except as hereinafter specifically pro- 
 vided; each lot or portion of a lot being separately assessed, 
 in proportion to the frontage, at a rate per front foot suffi- 
 cient to cover the total expense of the work." 
 
 The only exceptions recognized by subdivision one, section 
 seven, to the ordinary, or front-foot mode of assessment, 
 are: (1.) Where the work is done in. such portion of any 
 street as is required by law to be kept in order or repair by 
 any person or company having railroad tracks thereon; 
 (see supra pp. 67-69); (2.) where the cost of the work has 
 been declared in the resolution of intention to be assessed on a 
 district benefited as provided for by section 3 of the act: 
 and (3.) where any exception to the front-foot mode of 
 assessment is elsewhere in section seven " specifically pro- 
 vided." The phrase "except as hereinafter specifically pro- 
 vided," as used in subdivision 1 of section 7, must mean 
 "except as hereinafter in this section (section 7) specifically 
 provided," since subdivision 2 of section 7 provides that 
 "the expense of all improvements, except such as are 
 done by contractors under the provisions of section 13 of 
 this act * * * shall be assessed upon the lots and 
 lands as provided in this section, according to the nature and 
 character of the work." 
 
 Second: Section 3 and subdivision 8 of section 7, at 
 least countenance the adoption of the front-foot mode of 
 assessment in connection with sewer construction, and 
 thus show that the act contemplates that the expenses of 
 sewer construction may be provided for according to the 
 front-foot, or ordinary and usual plan provided by the act 
 for all street work, as well as by either of the extraordinary 
 modes provided by Part II of the act. Section 3 provides 
 that the owners of a majority of the frontage of the prop- 
 erty fronting on any proposed work or improvement, where 
 the same is for one block or more, may make a written 
 objection to the same within ten days after the expiration 
 of the time of the publication and posting of the notice of 
 the passage of the resolution of intention, arid that such 
 objections except as to sewers and other expressly 
 excepted work shall be a bar for six months to any 
 further proceedings in relation to the doing of said work or 
 making such improvements. But as to sewers it is provided 
 tint "when the work or improvement proposed to be 
 done is the constructions of sewers * * * and the 
 
SEWER ASSESSMENTS Maroh'is 15* f 183 
 
 objection thereto is signed by. the owners of a majority of 
 the frontage liable to be assessed for the expense of said 
 work, as aforesaid, the city council shall at its next meeting, 
 fix a time for hearing said objections, etc., and its decision 
 shall be final and conclusive, and the said bar for six 
 months to any further proceedings shall not be applicable 
 thereto." [See also section 24.] And, by subdivision 8 of 
 section 7, it is provided that when sewering or resewering 
 is ordered to be done under the sidewalk on only one side 
 of a street for any length thereof, the assessment for its 
 expenses shall be made only upon the lots and lands 
 fm/itriHj nearest upon that side ," etc. 
 
 As to the third mode provided by Part II for raising the 
 money necessary to pay the cost of sewer construction incur- 
 ring an indebtedness by the issuance of bonds or otherwise 
 as provided by the council this mode seems to be fully 
 covered by the municipal indebtedness act of March 19, 
 1880 (statutes 1SS<), p. :J99) entitled "An act authorizing the 
 incurring of indebtedness by cities, towns and municipal 
 corporations, incorporated under the laws of this state, for 
 the construction of waterworks, sewers and all necessary 
 public improvements, or for any purpose whatever, and to 
 repeal an act approved March 9, 1885," etc., and the several 
 acts amendatory thereof. See infra for the provisions of 
 tli is act of March 19, 1889, as amended by subsequent 
 amendatory acts. This municipal indebtedness act pro- 
 vides that whenever the cost of any sewers will be too great 
 to be paid out of the ordinary annual income and revenue 
 of the municipality, the city council may, after an election 
 authorizing the same, issue bonds to pay the cost of such 
 work, etc. 
 
 In view of the foregoing, and especially in view of the 
 fact that section 27 of the act empowers the city council 
 to adopt the district assessment plan in all cases of sewer con- 
 struction, notwithstanding the fact that section 3 also confers 
 upon the council the option to adopt the district assessment 
 plan if it deems the contemplated work or improvement to 
 be of more than local or ordinary public benefit, the 
 question might very pertinently be asked: If the three 
 extraordinary modes especially provided by Part II of the 
 Vrooman act for defraying the cost and expenses of sewer 
 construction, are likewise provided by other parts of the 
 act in conjunction with the said municipal indebtedness act 
 of March 19, 1889, and if, therefore, Part II of the Vrooman 
 act is of no practical utility, what object did the legislature 
 have in view when it enacted this part of the statute? This 
 question may be answered as follows: 
 
184 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 1st. As to the provision of section 27 to the effect that 
 the council may pay for the sewer out of the street con- 
 tingent fund, it is difficult to perceive what object the legis- 
 lature had in mind when enacting this provision, since it 
 seems to be amply covered by section 26 of the act. 
 
 2nd. As to the provision of section 27 empowering the 
 city council to assess the cost and expense of constructing 
 a sewer upon an assessment district, notwithstanding the 
 fact that section 3 empowers the council to do the same 
 thing whenever, "in its opinion, the contemplated work or 
 improvement is of more than local or ordinary public 
 benefit." If this provision of section 27 be not regarded as 
 affording an exclusive mode of assessment for the payment 
 of the costs of sewer construction a mode exclusive of 
 the ordinary or front-foot mode of assessment it might 
 appear that there is no reason for this provision of section 
 27, and this apparent absence of all reason for this provis- 
 ion of section 27 might lead to the conclusion that it was 
 the intention of the legislature that the modes provided 
 by section 27 for paying the expenses of sewer construction 
 should exclude all other modes, as held by the Superior 
 Court of Los Angeles county in White v. Harris. [See 
 supra, page 35, et seq.] But the reason for this conclusion 
 disappears, and the apparent absence of a reason for the pro- 
 visions of section 27 relative to assessment districts for 
 sewer work, in view of the provisions of section 3 for 
 assessment districts for all kinds of work, "whenever the 
 contemplated work or improvement, in the opinion of the 
 city council, is of more than local or ordinary public 
 benefit," is easily explained, when we trace the history of 
 the amendments to the act as it originally stood when 
 approved March 18, 1885. As the act originally stood there 
 was no provision empowering the city council to adopt the 
 district assessment plan whenever, in its opinion, the con- 
 templated work or improvement was of more than local or 
 ordinary public benefit. [See statutes of 1885, page 147, et 
 seq.] And, as a sewer is very frequently a work or improve- 
 ment of more than local or ordinary public benefit, it 
 was advisable to insert in the act as it originally stood 
 before the amendments of 1889 and 1891 some provision, such 
 as that contained in Part II, enabling the council to adopt the 
 district assessment plan in the case of sewer construction, 
 if, in its discretion, it deemed it best to do so. Hence the 
 necessity for some such provision as that contained in sec- 
 tion 27, although that necessity has been removed by the 
 amendments to section 3 made by the amendatory acts of 
 March 14, 1889 [statutes 1889, page 158J and March 31, 
 
SEWER ASSESSMENTS Marches "list ACt f 185 
 
 1891, [statutes 1891, page 1 ( J6,1 which amendments expressly 
 empower the council to impose the burdens upon an assess- 
 ment district, whenever, in its opinion, the contemplated 
 work or improvement is of more than local or ordinary public 
 beneiit. In short, since the Vrooinan act of March 18, 1885, 
 was originally enacted, section 3 has been so amended that 
 not only has the council become invested with all the 
 powers originally conferred upon it by Part II of the act, 
 relative to sewer construction, but these powers have 
 been extended to the kinds of work, and, as the whole is 
 greater than a part, so may the provisions of section 27, 
 relative to sewer construction assessment districts, be said to 
 have been included in and superseded by the provisions 
 of other parts of the act, notably by section 3, by which 
 larger powers have been vested in the council relative to 
 asst's-nicnt districts. 
 
 3rd. As to the provisions of Part II relative to incurring 
 an indebtedness for the construction of sewers. These pro- 
 visions were inserted in the act when it was first passed, and 
 have rein lino. I there ever since. At that time there was no 
 general act authorizing municipalities to incur an indebted- 
 ness to pay the cost of any municipal improvement when 
 such improvements required a greater expenditure than the 
 amount allowed therefor by the annual tax levy. And as 
 it is but just to pay the cost of sewer construction out of the 
 funds of the city, with money raised by a general tax levy 
 upon all the property within the city, whenever the sewer 
 to be constructed is a whole system directly benefiting all 
 parts of the city, it is obvious that the provisions of Part II 
 of the Vrooinan act, in this respect, were necessary to the 
 attainment of justice at the time when the act became a 
 law, March 18, 1885. But this necessity for. these provi- 
 sions of Part II has been removed by the adoption of said 
 general municipal indebtedness act of March 19, 1889, 
 authorizing cities and towns to incur indebtedness to pay 
 the cost of any municipal improvement requiring an expen- 
 diture greater than the amount allowed for such improve- 
 ment by the annual tax levy. [Statutes 1889, p. 399,] 
 This act of March 19, 1889, expressly repeals all general 
 acts or special acts, or parts of acts, conflicting with it. 
 
 SECTION 28. If, at any time, the city council shall deem it necessary to 
 incur any indebtedness for the construction of sewers, in excess oi' the 
 money in the street contingent fund applicable to the construction of such 
 sewers, they shall give notice of a special election by the qualified electors 
 of the city, to be held to determine whether such indebtedness shall be 
 incurred. Such notice shall specify the amount of indebtedness proposed 
 to be incurred, the route arid general character of the sewer or sewers to 
 
186 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 be constructed, and the amount of money necessary to be raised annual 1 y 
 by taxation for an interest and sinking fund as hereinafter provided. 
 Such notice shall be published for at least three weeks in some newspaper 
 published in such city, and no other question or matter shall be submitted 
 to the electors at such election. If, upon a canvass of the votes cast at 
 such election, it appear that not less than two-thirds of all the qualified 
 electors voting at such election shall have voted in favor of incurring such 
 indebtedness, it shall be the duty of the city council to pass an ordinance 
 providing for the mode of creating such indebtedness, and of paying the 
 same; and in such ordinance provision shall be made for the levy and 
 collection of an annual tax upon all the real and personal property subject 
 to taxation, within such city, sufficient to pay the interest on such indebt- 
 edness as it falls due, and also to constitute a sinking fund for the payment 
 of the principal thereof, within a period of not more than twenty jears 
 from the time of contracting the same. It shall be the duty of the city 
 council in each year thereafter, at the time when other taxes are levied, 
 to levy a tax sufficient for such purpose, in addition to the taxes author- 
 ized to be levied for city purposes. Such tax, when collected, shall be 
 kept in the treasury as a separate fund, to be inviolably appropriated to 
 the payment of the principal and interest of such indebtedness. [Statutes 
 1885, page 162.} 
 
 [Section 28 has never been amended.] 
 
 See notes to act of March 19, 1889, [statutes 1889, p. 399J 
 as amended, infra. 
 
 SECTION 29. If bonds are issued under the provisions of the last section, 
 said bonds shall be in sums of not less than one hundred dollars nor more 
 than one thousand dollars, shall be signed by the mayor and treasurer of 
 the city, and the seal of the city shall be affixed thereto. Coupons for the 
 interest shall be attached to each bond, signed by the mayor and treasurer. 
 Said bonds shall bear interest, to be fixed by the city council, at the rate 
 of not to exceed five per cent, per annum. [Statutes 1885, page 163.] 
 
 [Section 29 has never been amended.] 
 
 See notes to section 27, supra. See also infra act of 
 March 19, 1889, [statutes 1889, p. 399] as amended. This 
 act of March 19, 1889 r expressly repeals all general acts or 
 special acts, or parts of acts conflicting with it. 
 
 SECTION 30. Before the sale of said bonds, the council shall, at a regular 
 meeting by resolution, declare its intention to sell a specified amount of 
 said bonds, and the day and hour of such sale, and shall cause such resolu- 
 tion to be entered in the minutes, and shall cause notice of such sale to be 
 published for fifteen days in at least one newspaper published in the city 
 in which the bonds are issued and one published in the city and 
 county of San Francisco, and in any other newspaper in the state, at 
 their discretion. The notice shall state that sealed proposals will be 
 received by the council for the purchase of the bonds on the day and hour 
 named in the resolution. The council, at the time appointed, shall open 
 the proposals and award thje purchase of the bonds to the highest bidder, 
 but may reject all bids. [Statutes 1885, page 163.} 
 
 [Section 30 has never been amended.] 
 
SECTIONS THIUTY-ONE-THIRTY-THREE RhV^sg 1 33 ' A t0f 187 
 
 See notes to section 27, bupra. See also infra act of 
 March 19, 1889, [statutes 1889, p. 399] as amended. This 
 act of March 19, 1889, expressly repeals all general acts or 
 special acts, or parts of acts, conflicting with it. 
 
 SECTION' 31. The council may sell said bonds, at not less than par value, 
 without the notice provided for in the preceding section. [Statutes 1885, 
 page 163. \ 
 
 [Section 31 has never been amended.] 
 
 See notes to section 27, supra. See also infra act of 
 March 19, 1889, [statutes 1889, p. 399] as amended. This 
 act of March 19, 1889, expressly repeals all general acts or 
 special acts, or parts of acts, conflicting with it. 
 
 SECTION 32. The proceeds of the sale of the bonds shall be deposited in 
 the city treasury, to the account of the sewer fund, but no payment there- 
 from shall be made, except to pay for the construction of the sewer or 
 SI-WITS for the construction of which the bonds were issued, and upon the 
 ccrtiticate of the superintendent of streets and the city engineer, that the 
 work has been done according to the contract ; provided, that after the 
 completion of the sewers, for the construction of which said bonds were 
 issued, if there be any money of said fund left in the treasury, the same 
 may be transferred to the general fund, for general purposes. [Statutes 
 1887, page 148.} 
 
 [Section 32 was amended by act of March 15, 1887, statutes 1887, p. 148. J 
 
 See notes to section 27, supra. See also infra act of 
 
 March 19, 1889, [statutes 1889, p. 399] as amended. This 
 
 act of March 19, 1889, expressly repeals all general ucts or 
 
 special acts, or parts of acts, conflicting with it. 
 
 SECTION 33. Whenever said council shall determine to construct any 
 sewer, and pay therefor out of the street contingent fund, or by the 
 issuance of bonds, as above provided, then said council shall cause to be 
 prepared plans and specifications of said work in sections, and shall adver- 
 tise for twenty days in at least one newspaper published in the city in 
 which the sewer is to be constructed, and one in the city and county of San 
 Francisco, for sealed proposals for constructing said sewer. The work 
 may be let in sections, and must be awarded to the lowest responsible 
 bidder, the council having the right to reject any and all bids. The work 
 shall be done and the materials furnished under the supervision and to 
 the satisfaction of the superintendent of streets and the city engineer. 
 [Statutes 1885, page 163.] 
 
 [Section 33 has never been amended.] 
 
 See notes to section 27, surpa. See also infra act of 
 March 19, 1889, [statutes 1889, p. 399] as amended. This 
 act of March 19, 1889, expressly repeals all general acts or 
 special acts, or parts of acts, conflicting with it. 
 
188 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 PART ITT. 
 
 SECTION 34. First The city engineer, or where there is no city engineer, 
 the county, or city and county surveyor, shall be the proper officer to 
 do the surveying and other engineering work necessary to be done 
 under this act, and to survey and measure the work to be done under 
 contracts for grading and macadamizing streets, and to estimate the costs 
 and expenses thereof; and every certificate signed by him in his official 
 character shall be prima facie evidence in all courts in this state of the 
 truth of its contents. He shall also keep a record of all surveys made 
 under the provisions of this act, as in other cases. In all those cities where 
 there is no city engineer, the city council thereof is hereby authorized and 
 empowered to appoint a suitable person to discharge the duties herein laid 
 down as those of city engineer, and all the provisions hereof applicable to 
 the city engineer shall apply to such person so appointed. Said city 
 council is hereby empowered to fix his compensation for such services. 
 
 Second The words "work," "improve," "improved," and "improve- 
 ment," as used in this act, shall include all work mentioned in this act, 
 and also the construction, reconstruction, and repairs of all or any portion 
 of said work. 
 
 Third The term "incidental expenses," as used in this act, shall include 
 the compensation of the city engineer for work done by him ; also, the cost 
 of printing and advertising as provided in this act, and not otherwise; also, 
 the compensation of the person appointed by the superintendent of streets 
 to take charge of and superintend any of the work mentioned in section 
 thirty-five of this act. All demands for incidental expenses mentioned in 
 this sub-division shall be presented to the street superintendent by 
 itemized bill, duly verified by oath of the demandant. 
 
 Fourth The notices, resolutions, orders, or other matter, required to b e 
 published by the provisions of this act, and of the act of which this is 
 amendatory, shall be published in a daily newspaper, in cities where such 
 there is, and where there is no daily newspaper, in a semi-weekly or weekly 
 newspaper, to be designated by the council of such city, as often as the 
 same is issued, and no other statute shall govern or be applicable to the 
 publications herein provided for; provided, however, that only in case 
 there is no daily, semi-weekly or weekly newspaper printed or circu- 
 lated in any such city, then such notices, resolutions, orders, or other 
 matters, as are herein required to be published in a newspaper, shall be 
 posted and kept posted for the same length of time as required herein for 
 the publication of the same in a daily, semi-weekly, or weekly newspaper, 
 in three of the most public places in such city. Proof of the publication 
 or posting of any notice provided for herein shall be made by affidavit of 
 the owner, publisher, or clerk of the newspaper, or of the poster of the 
 notice. No publication or notice, other than that provided for in this act, 
 shall be necessary to give validity to any of the proceedings provided for 
 therein. 
 
 Fifth The word "municipality," and the word "city," as used in this 
 act, shall be understood and so construed as to include, and is herebj' 
 declared to include, all corporations heretofore organized and now existing, 
 and those hereafter organized, for municipal purposes. 
 
 Sixth The words "paved," or "repaved," as used in this act, shall be 
 
SECTION THIRTY-FOUR OF THE ACT March sf S nded 189 
 
 held to mean and include pavement of stone, whether paving blocks or 
 macadamizing, or of bituminous rock or asphalt, or of iron, wood, or other 
 material, whether patented or not, which the city council shall by ordi- 
 nance adopt. 
 
 SerenthTiw word ''street," as used in this act, shall be deemed to, and 
 is hereby de -hired to include avenues, highways, lanes, alley, crossings, or 
 intersections, courts, and places, and the term "main street" means such 
 actually opened street or streets as hound a block; the word "blocks," 
 whether regular or irregular, shall mean such blocks as are bounded by 
 main streets, or partially by a boundary line of the city. 
 
 /<:/7 ////> -The terms "street superintendent," and "superintendent of 
 streets. 1 ' MS used in this act, shall be understood, and so construed as to 
 taclud!^ and are hereby declared to include any person or officer whose 
 duty it is, under the law, to have the care or charge of the streets, or the 
 Improvement thereof in any city. In all those cities where there is no 
 street superintendent or superintendent of streets, the city coun.nl thereof 
 is hereby authorized and empowered to appoint a suitable person to dis- 
 charge the duties herein laid down, as those of street superintendent or 
 superintendent of streets; and all provisions hereof applicable to the street 
 superintendent or superintendent of streets, shall apply to such person so 
 appointed. 
 
 XinlJi The term "city council" is hereby declared to include any body 
 or board which, under the law, is the legislative department of the govern- 
 ment of any city. 
 
 Truth In municipalities in which there is no mayor, then the duties 
 imposed upon said officer by the provisions of this act shall be performed 
 by the president of the board of trustees, or other chief executive officer 
 of the municipality. 
 
 Fh'i-fiillt The term "clerk" and "city clerk," as used in this act, is 
 hnvby declared to include any person or officer who shall be clerk of the 
 said city council. 
 
 Tirt'lfth The term "quarter block," as used in this act as to irregular 
 blocks, shall be deemed to include all lots or portions of lots having any 
 frontage on -either intersecting street half way from such intersection to the 
 next main street, or when no main street intervenes, all the way to a 
 boundary line of the city. 
 
 Thirty nth The term "one year," as used in this act, shall be deemed to 
 include the time beginning with January first and ending with the thirty- 
 first day of December of the same year. 
 
 Fourteenth References in certain sections, by number, to certain other 
 sections of "this act" refer to the number of the sections of the original 
 act as heretofore amended, unless it appears from the context that the ref- 
 erence is to the section of this amendatory act, when it shall be construed 
 according to the context. [Amendment approved March 31, 1X91. Statutes 
 1891, page 206.} 
 
 [Section 34 was amended by act of March 14, 1889, statutes 1889, page 157 
 also by the act of March 31, 1891, statutes 1891, page 206.] 
 
 SECTION 35. The superintendent of streets shall, when in his judgment 
 it is necessary, appoint a suitable person to take charge of and superintend 
 the construction and improvement of each and every sewer constructed or 
 improved under the provisions of this act, and of piling and capping, side- 
 
190 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 walking, or of the paving of whatever character heretofore mentioned, in 
 whole or in part, of one block or more, whose duty it shall be to see that 
 the contract made for the doing of said work is strictly fulfilled in every 
 respect, and in case of any departure therefrom to report the same to the 
 superintendent of streets. Such person shall be allowed for his time actu- 
 ally employed in the discharge of his duties such compensation as shall be 
 just, but not to exceed four dollars per day. The sum to which the party 
 so employed shall be entitled shall be deemed to be incidental expenses, 
 within the meaning of those words as defined by this act. [Amendment 
 approved March 31, 1891, statutes 1891, page 208.] 
 
 [The act of March 14, 1889, stacutes '89, p. 157, attempted to amend sec- 
 tion 35, and section 35 as amended is embraced in the body of the act, 
 [statutes '89, p. 173,] but the title of the act does not mention this section. 
 The section was amended in 1891 by the act of March 31, 1891, statutes '91, 
 p. 208.] 
 
 SECTION 36. The act entitled "An act to provide for the improvement of 
 streets, lanes, alleys, courts, places, and sidewalks, and the construction of 
 sewers within municipalities," approved March sixth, eighteen hundred 
 and eighty-three, is hereby repealed ; provided, that any work or proceed- 
 ings commenced thereunder prior to the passage of this act shall in nowist' 
 be affected hereby, but shall in all respects be finished and- completed 
 under said act of March sixth, eighteen hundred and eighty-three, and said 
 repeal shall in nowise affect said work or proceedings. [Statutes '85, p. 165.] 
 
 [Section 36 has never been amended.] 
 
 SECTION 37. That said act shall take effect and be in force immediately 
 upon its passage, and all acts and parts of acts in conflict with this act are 
 hereby repealed ; and provided, however, that any work or proceeding of the 
 city council commenced under the act of which this is amendatory shall in 
 nowise be affected thereby, but shall in all respects be finished and com- 
 pleted thereunder. [Amendment approved March 11, 1893, statutes 1893, page 
 173.] 
 
 [Section 37 was amended in 1889 by the act of March 14, 1889, statutes 
 '89, p. 173; again in 1891 by the act of March 31, 1891, statutes '91, p. 209; 
 and again in 1893 by the act of March 11, 1893, statutes '93, p 173.] 
 
 These three amendments to section 37 are all substan- 
 tially the same. Section 3 of the said act of March 11, 1893, 
 [statutes '93, p. 173] is as follows: 
 
 "SEC. 3. That section thirty-seven of said act [i. e., the act 
 of March 18, 1885] is hereby amended to read as follows: 
 
 "SECTION 37. That said act, [i. e., the act of March 18, 
 1885, entitled "An act to provide for work upon streets, 
 lanes, alleys, courts, places and sidewalks, and for the con- 
 struction of sewers within municipalities"] shall take effect 
 and be in force immediately upon its passage, and all acts 
 and parts of acts in conflict with this act are hereby 
 repealed; and provided, however, that any work or proceed- 
 ing of the city council commenced under the act of which 
 this is amendatory shall in nowise be affected thereby, but 
 
SECTIONS THIRTY-SEVEN-THIRTY-ETGHT Sees. 36. 37 38, 
 
 OI tnc Act, 
 
 shall in all respects be finished and completed thereun- 
 der." 
 
 This is a palpable absurdity. It is evident that it was 
 the intention of the legislature to provide by section 3 of 
 the said amendatory act of March 11, 1893, amending cer- 
 tain sections of the act of March 18, 1885, that it the 
 amendatory act of March 11, 1893 should take effect and 
 be in force from and after its passage, etc., and not that the 
 original act of March 18, 1885, should take effect and be in 
 force from and after its passage, since the original section 
 37 of the act of Mrrch 18,1885, [statutes '85, p. 165] already- 
 provided that said act of March 18, 1885, should take effect 
 and be in force from and after its passage. Further- 
 more, the original act the act of March 18, 1885 was not 
 amendatory of any act. It expressly repealed the first 
 Vrooman act the Vrooman act of March 6,1883 and pro- 
 vided that any work or proceedings commenced under said 
 act of March 0, 1883, prior to its own passage, shall in 
 nowise be affected, etc. [See section 36 of the act of March 
 IS, !SSf> section 36, supra.] Section 3 of the act of March 
 11, 1893, should have read, "This act shall take effect," etc., 
 instead of incorporating these provisions into section 37 of 
 tin- act of March 18,1885. But this is only one of the many 
 stupid blunders that have been made in amending this 
 street improvement act of March 18, 1885. The amenda- 
 tory acts, next to be considered, by which certain sections 
 were added to the act of March 18, 1885, are still more preg- 
 nant with blunders; and, while it is possible that the courts, 
 by a process of construction, will so construe the act, with 
 its amendments, as to give effect to w r hat was obviously the 
 legislative intent, yet in doing so .they \vill have to give to 
 the language of these amendatory acts a meaning that they 
 do not bear when read literally. [See the notes to next sec- 
 tion section 38. J 
 
 SECTION 38. The city council is hereby empowered to change or modify 
 tne grade of any public street, lane, alley, place, or court, and to regrade or 
 rcpavi- the same, so as to conlorm to such modified grade, in the manner as 
 hereinafter provided. Before any change of grade is ordered the city coun- 
 cil shall pass an ordinance or resolution of intention to make such change 
 or modification of grade, and it shall have power at the same time and in 
 the same ordinance or resolution to provide for the actual cost of perform- 
 ing the work of regrading, repaying, sewering, sidewalking, or curbing of 
 Baid street or portion of street, with the same or other material with w r hich 
 it was formerly graded, paved, sewered, sidewalked or curbed ; and that the 
 cost of the same shall also be assessed upon the same district which is 
 declared to be benefited by such changed or modified grade. One or more 
 streets or blocks of streets may be embraced in the same ordinance or reso- 
 
192 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 lution. Such ordinance or resolution shall be published in the newspaper 
 in which the official notices of the city council are usually printed and pub- 
 lished; and such newspaper is to be designated in such ordinance or reso- 
 lution. Such publication shall be made in every regular issue of such paper 
 for not less than ten days, and shall describe the proposed change or mod- 
 ification of grade or regrading, and shall designate and establish the district 
 to be benefited by such change or modification of grade or regrading, and 
 to be assessed for the cost of the same. Within five days after the first 
 publication of the ordinance or resolution of intention, the superintendent 
 of streets shall cause to be conspicuously posted within the district desig* 
 nated in the ordinance or resolution, notice of the passage of said resolution . 
 Said notices shall be the same in all requirements of contents and posting 
 as the "notices of street work" provided for in section three of the original 
 act to which this is amendatory. If no objection to said proposed change 
 or changes, or modifications of grade, shall be filed with the clerk of the 
 council within thirty days from the first publication of the ordinance or 
 resolution of intention hereinbefore mentioned, the city council shall have 
 power to declare such grades to be changed and established in conformity 
 to said ordinance or resolution, provided, that no change of an established 
 grade shall be ordered except on petition of the owners of a majority of the 
 property affected by the proposed change of grade. [Amendment approved 
 March 9, 1893, statutes '93, p. 89.] 
 
 The remaining sections of the act, sixteen in number 
 sections 38 to 53 inclusive were added by the act of March 
 31,1891. [Statutes '91, p. 461.1 In 1893, by an act approved 
 March 9,1893, the legislature amended each of these sixteen 
 new sections [statutes '93, p. 89] by an act entitled, "An act 
 to amend sections thirty-eight to fifty three, inclusive, of an 
 act approved March 31, 1891, adding those sections to 'An 
 act to provide for work upon streets, alleys, lanes, courts, 
 places, and sidewalks, and for the construction of sewers 
 within municipalities/ approved March 18, 1885." 
 
 These sixteen new sections, thus added to the original 
 act, the act of March 18, 1885, are intended to provide the 
 machinery for changing the grades of streets in all cases 
 where the official grade has once been established. They 
 also make provision for performing the work of grading to 
 the newly established grade in the same proceedings in 
 which the grade is changed or newly established. The lirst 
 sentence of section 38 proclaims the scope and object of the 
 act. It is: "The city council is hereby empowered to change 
 or modify the grade of any public street, lane, alley, place or 
 court, and to regrade or repave the same, so as to conform 
 to such modified grade, in the manner as hereinafter pro- 
 vided." 
 
 The act of March 31, 1891, by which these sections were 
 first added to the original act of March 18, 1885, did not 
 make provision for performing the work of grading or 
 regrading to the grade as established by the proceedings to 
 
THE SIXTEEN NEW SECTIONS Jg^J gfi 8 ^ en< 193 
 
 change the grade, but simply made provision for changing 
 or modifying the grade of any street, leaving the subsequent 
 proceedings to grade to the newly established grade to be 
 regulated by the prior sections of the act. 
 
 By section 2 of the Vroornan act of March 18, 1885, as 
 amended in 1893 [statutes '93 p. 172,] it is provided that 
 "whenever the grade of a street, avenue, lane, alley, 
 court, or place shall hereafter be changed, the petition of 
 the owners of a majority of the feet fronting thereon, asking 
 for grading the same to the new grade, shall be a condition 
 precedent to the ordering of such grading to be done," 
 [supra p. 6] and by sections 38 et seq., as amended in 
 1893, provision is made for thus changing a grade 
 and establishing a new one, and it is provided, sec- 
 tion 38 that "no change of an established grade shall be 
 ordered except on petition of the owners of a majority of 
 the property affected by the proposed change of grade." 
 Section 2 provides for a petition to grade a street after a 
 new grade has been established. Section 38 provides for a 
 petition to establish a new grade changing or modifying 
 the old one. In Kepple v. City of Keokuk, 2 Am. Eng. 
 Corp. Cases 446, it is said: "The establishment of a grade 
 means the passing of an ordinance or other legislative 
 action of the council of the city, prescribing and fixing 
 grade lines to which the surface shall be brought when the 
 streets shall be improved." Section 38 of the act pro- 
 vides that where a grade, once established, is to be changed 
 or modified, by refixing the grade lines, there shall first be 
 filed or presented "the petition of the owners of a majority 
 of the property affected by the proposed change of grade." 
 Section 2 provides that where the surface is to 
 be brought to the grade lines, as the same have 
 been changed and established under the provisions of 
 sections 38 et seq., unless in the proceedings to change 
 the grade, proceedings to grade the surface to the new 
 grade lines have also been included there shall first be 
 filed or presented "the petition of the owners of a majority 
 of the feet fronting thereon." In the former case, *'. e., in pro- 
 ceedings under section 38 to change an old grade and estab- 
 lish new grade lines, the petition is required to be by "the 
 owners of a majority of the property affected by the pro- 
 posed change of grade." In the latter case, i. e., in pro- 
 ceedings to grade a street after the official grade has been 
 changed or altered, the petition required by section 2 
 in such case is required to be by "the owners of a majority 
 of the feet fronting" on the street to be graded. The reason 
 for this difference is, that, in proceedings to change the 
 
 OP THE 
 / TT "NT T VERSITX j 
 
194 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 grade of a street, i. e., in proceedings under sections 38, 
 et seq., to establish new grade lines, to which the surface 
 shall be brought when the streets shall be graded to the 
 new grade, or otherwise improved the costs and expenses 
 are to be charged upon and assessed against the lands lying 
 within a district declared by the resolution of intention to be 
 the lands benefited by such changed or modified grade. 
 Whereas, in proceedings under prior sections of the act, 
 sections 3 to 10 to grade a street to a new grade line, 
 changed and established after the same has once been 
 established, the costs and expenses are ordinarily to be 
 charged against and assessed upon the lots -and lands 
 fronting thereon as provided by section 7 of the act. 
 
 Section 38 provides that, in proceedings thereunder, to 
 change or modify a grade, "no change of an established 
 grade shall be ordered, except on petition of the owners of 
 a majority of the property affected by the proposed change 
 of grade." This provision, if construed to mean that such 
 petition shall precede all action by the council, shall pre- 
 cede, for exam pie, the passage of the resolution or ordinance 
 of intention declaring the district to be benefited by the 
 changed or modified grade might defeat the whole of this 
 part of the act. For, until the ordinance or resolution of 
 intention is passed, declaring the district to be benefited, it 
 can not be known what lands will be affected by the pro- 
 posed change of grade, assuming that the word "affected" 
 applies to the lots which will be benefited by the proposed 
 change of grade, and therefore liable to be assessed to pay 
 the damages resulting from the change or modification of 
 the grade further than that all lots in the city, by being 
 liable to be included in the district, are, in this sense, 
 affected by any proposed change of the grade. Therefore, 
 if the petition required by section 38, be a condition pre- 
 requisite to jurisdiction in the council to pass an ordinance or 
 resolution of intention to change the grade, or to take any 
 steps to change the grade of a street, there would seem to be 
 such an element of uncertainty as to defeat any proceeding 
 under these new and added sections of the act. [See 
 Montgomery Avenue case, 54 Gal. 579.] 
 
 Section 38 provides that "before any change of grade is 
 ordered the city council shall pass an ordinance or resolu- 
 tion of intention to make such change or modification of 
 grade, * * * and that the cost of the same shall also 
 be assessed upon the same district which is declared to be 
 benefited by such changed or modified grade." This lan- 
 guage does not expressly empower the council to establish 
 or define the assessment district. However, it is followed 
 
THE SIXTEEN NEW SECTIONS 8^9*38*^ 195 
 
 by a provision that the ordinance or resolution shall be 
 published and that "such publication shall * * * des- 
 ignate and establish the district to be benefited by such 
 change or modification of grade or regradiiig, and to be 
 assessed for the cost of the same." Since it is the resolu- 
 tion or ordinance of intention that is to be published, and 
 since it is the publication that is to "establish" the district, 
 these provisions, taken together, may possibly be construed 
 as tantamount to a provision that the council, by and 
 through its resolution of intention and the publication 
 thereof, shall establish the district to be assessed. Nor 
 does there seem to be any provision in this or the succeed- 
 ing sections of the act directly providing for an opportunity 
 to property owners to object to the extent of the district, 
 after a notice, or for a hearing thereon. However, it seems 
 to have been the intention of the legislature to provide by 
 section 52 of the act that all the provisions contained in 
 the first thirty-seven sections of the act, as amended since 
 their original passage and approval, March 18, 1885, should 
 apply to all matters contained in sections 38 to 52, inclu- 
 sive, so far as they are not in conflict. If this be so, it is 
 probable that the provisions of section 3 of the act, pro- 
 viding for an opportunity for filing objections to the extent 
 of the district, etc., might be applicable. [See infra, sec- 
 tion 52; also see section 3, supra, page 10.] And it is pos- 
 sible that section 38 might be construed as providing that 
 the council shall, in the first instance, establish the district 
 to be benefited and assessed, and that the petition from the 
 owners of a majority of the property affected shall be filed 
 after the establishment of the district and before the 
 change of grade is ordered. If the section be capable of 
 this construction, it is possible that sections 38, et seq., may 
 be constitutional even though by the expression, "prop- 
 erty affected," is meant the property benefited by the pro- 
 posed change of grade, and, therefore, liable to be 
 assessed to pay the expenses of the change, as well as the 
 property fronting upon the street, and, therefore, directly 
 affected by the proposed change of grade. But, if the 
 phrase, "petition of the owners of a majority of the prop- 
 erty affected by the proposed change of grade," be con- 
 strued to mean a "petition of the owners of a majority of 
 the property benefited by the proposed change of grade, and, 
 therefore, liable to be assessed therefor, as well as the prop- 
 erty fronting on the proposed change of grade" and the 
 property benefited, and, therefore, liable to be assessed, is 
 "affected" by the proposed change of grade, as well as that 
 fronting thereon, then, if such petition must be filed 
 
196 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 before the council acquires jurisdiction to pass the ordi- 
 nance or resolution of intention, and if the council must 
 declare to be benefited the lands in the district described in 
 such petition, these sections of the act [sections 38 to 52, 
 inclusive,] would seem to be unconstitutional for the reason 
 stated in Moulton v. Parks, 64 Cal. 182-4. It was held in 
 this case of Moulton v. Parks that the act of March 25, 
 1868, [statutes 1867-8, page 316,] an act to provide for the 
 protection of certain lands in the county of Sutter from 
 overflow by the erection of levee districts, was unconsti- 
 tutional. "Section 21 of the act [statutes 1867-8, page 321,] 
 provided that "whenever a petition shall be received by 
 said board of supervisors from persons in possession of 
 more than one-half of the acres of any specified portion of 
 said county asking to be set apart and erected into a levee 
 district, said board shall at once erect such territory into a 
 levee district, and place it under the provisions of this act, 
 to be called Levee District No. 1, 2, 3, and so on, as the case 
 may be; provided, that it shall not be required to submit the 
 question of tax to a vote of the people of any district so 
 erected." It was held that this was an attempt to transfer 
 to persons in possession of more than one-half of the acres 
 of any portion of the county of Sutter which they may 
 specify, the power to declare that such portion of the county 
 will be benefited by works erected at the expense of all the 
 property, real and personal, within it, and to set in motion 
 machinery for the enforcement of a tax and assessment 
 against the owners of a minority of the acreage, and that 
 therefore the act was unconstitutional. The court, in this 
 connection, quoted from Mr. Justice Cooley on Taxation, 
 449, as follows: " The district within which the tax shall 
 be laid may be determined in either of two modes; (1.) the 
 legislative authority either of the state or, when properly 
 organized, of the municipality, may determine over what 
 territory the benefits are so far diffused as to render it 
 proper to make all lands contribute to the cost, or (2.) the 
 assessors or commissioners who, under the law, are to make 
 the assessment, may have the whole matter submitted to 
 their judgment, to assess such lands as in their opinion are 
 specially benefited, and ought therefore to contribute 
 to the cost of the work." It was held that as 
 the act in question did not provide for the crea- 
 tion of an assessment district, in either of the said 
 two modes pointed out by Mr. Justice Cooley, but imposed 
 upon the board of supervisors the duty to erect the territory 
 described in the petition into a levee district, without con- 
 ferring upon them any discretion to reject the petition, or 
 
THE SIXTEEN NEW SECTIONS ' end ed 
 
 to modify or change the boundaries of the district, or other- 
 wise to exercise any judgment with reference to the expedi- 
 ency of fixing the limits of the assessment district where 
 the petition fixes them, the act was, therefore, unconstitu- 
 tional and void. 
 
 It is stated supra that said sections 38 to 52, inclusive, of 
 the Vrooman act, providing the machinery for changing 
 grades that have been once established, might be unconsti- 
 tutional for the reasons given in the case of Moulton v. 
 Parks, but to bring the sections in question within the rea- 
 sons given in Moulton v. Parks, two postulates must be assum- 
 ed, viz: (1.) It must be assumed that it was the intention of 
 the legislature to provide by the last clause of section 38, 
 that the petition there referred to should precede any step 
 taken by the council, should precede the resolution of 
 intention; and (2.) It must be assumed that the phrase 
 "petition of the owners of a majority of the property affected 
 by the proposed change of grade," means a "petition of the 
 owners of a majority of the property liable to be assessed to 
 pay the expenses of changing the grade, as well as the 
 property fronting upon the proposed new or modified 
 grade." As to the first assumption, it would seem by 
 analogy to similar provisions in other acts, that it was the 
 intention of the legislation that the petition should be a 
 condition precedent to the passage of the ordinance or reso- 
 lution of intention. [See Turrill v. Grattan, 52 Gal. 97; 
 Dyer v. Miller, 58 Cal. 585; Gately v. Leviston, 63 Cal. 365.] 
 As to the second assumption, there can be no question but 
 that the property which will be benefited by the proposed 
 change of grade, and which will therefore become charge- 
 able with the expenses thereof, will be "affected" by the pro- 
 posed change of grade. It is affected in two respects, viz: (1.) 
 Because it will be benefited by the proposed change; and 
 (2.) Because it will have to bear a portion of the burden of 
 the expenses attending the change of grade. The property 
 owners whose property fronts on streets, the grade of which 
 it is proposed to change, are entitled to recover damages 
 resulting therefrom. These damages constitute apart of the 
 cost of the change, and lands not fronting upon such streets 
 may be benefited by the proposed change, and therefore liable 
 to be assessed to pay a portion of the costs, even though the 
 owners thereof are not entitled to any damages. Therefore 
 property may be "affected" by the proposed change of grade 
 in at least two ways: (1.) It may be directly "affected" 
 thereby because fronting on the streets, the grade of which 
 it is proposed to change, or (2.) It may be benefited by 
 the proposed change of grade, and therefore liable to be 
 
198 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 assessed to pay a portion of the expenses, and therefore, 
 indirectly affected by the proposed change of grade, even 
 though it does not front upon the street in question. It is 
 possible therefore, that, in order to uphold the constitu- 
 tionality of these sections of the act, the courts may hold 
 that the last clause of section 38 only requires a petition 
 from a majority of the owners of property fronting upon 
 the street or streets the grade or grades of which it is pro- 
 posed to change property which may be said to be directly 
 affected by the proposed change of grade, in the sense that 
 the change in the grade lines, and the subsequent grading 
 of the street to the new lines, will directly affect ingress 
 and egress to and from the property fronting upon the 
 street, the grade of which it is proposed to clumge. Such 
 a construction would make it certain who the owners are by 
 whom the petition should be filed and thus avoid the 
 defect which existed in the act held to be unconstitutional in 
 Montgomery A\enue Case, 54 Cal. 579, and would like- 
 wise leave the matter of fixing the extent of the assessment 
 district wholly to the council, and thus avoid the defect 
 which the Supreme Court in Moulton v. Parks held 
 rendered the act there in question unconstitutional and 
 void. Furthermore, in response to the objection which 
 existed in Moulton v. Parks, it may be said, that while in 
 that case the board of supervisors had no discretion to 
 reject the petition, it does not appear but that the council 
 may reject the petition required by section 38 of the 
 Vrooman act, and it is possible therefore that by proceed- 
 ing in accordance with the request of -the petitioners, this 
 may be tantamount to an exercise by the council of 
 its judgment upon the question as to whether or not 
 the lands will be affected which the petitioners in effect 
 declare will be affected by the change of grade, and 
 thus in this indirect manner, it is possible that the 
 council may determine over what territory the benefits are 
 so far diffused as to render it proper to make all lands 
 therein contribute to the cost. However, as has been 
 stated before, it is not the purpose of this book to 
 attempt to determine the questions of constitutional law 
 which may arise under the provisions of these street 
 improvement acts, nor even to go into an extended dis- 
 cussion of such question, but rather to suggest to the reader 
 such possible questions of the constitutionality of these 
 provisions as have suggested themselves to the author. 
 Until finally settled by the Supreme Court, it would be idle 
 to venture any postive opinions upon the constitutionality 
 of provisions which are so susceptible of construction as 
 
PURPOSE OF THE SIXTEEN NEW SECTIONS M^H* 9^1^ 199 
 
 those in question, especially where the constitutionality of 
 the provisions may depend upon the scope of the meaning 
 which should he given to one word; and the foregoing will 
 suilice to point out some of the possible constructions of 
 which these provisions of the act might be deemed capable. 
 
 Purpose of the Sections 38-52. The object of sections 38 
 et seq. is not only to provide means for changing the grade 
 of a street, but also to provide suitable machinery for rais- 
 in-- the money necessary to pay the damages suffered by 
 those whose property is damaged by the change of grade. 
 Two kinds of proceedings are contemplated by these sec- 
 tions of the act, one against the property to be con- 
 demned for the use of the street, property that will be 
 damaged by reason of the change in the grade, the other 
 to assess the property benefited by the change of grade. 
 
 Prior to the adoption of the constitution of 1879, adjoin- 
 ing property owners were not entitled, of legal right, in the 
 absence of a statute allowing the same, to any compensa- 
 tion for damages which might result from a change of 
 grade. [Sees. 989-990 Dillon's Municipal Corporations, 
 :ird ed. Shan v. (/rocker, 42 Gal. 435; Matter of Real Street, 
 39 Cal. 4 ( . >.">.] But tin 3 rule is altered by the new constitu- 
 tion which provides [Art. I, sec. 14] that "private property 
 shall not be taken or damaged for public use without just 
 compensation having been first made," etc. The old con- 
 stitution [Art. I, sec. 8,] simply provided that no "private 
 property shall be taken for public use without just compen- 
 sation." As a result of this change in the provisions of the 
 constitution, it is held that a municipal corporation is liable 
 for such special consequential damages as the adjoining 
 property receives over and above the common injury to the 
 other almtters on the street, or the general public. [Rear- 
 don v. City and County of San Francisco, 66 Cal. 492.J 
 
 In Kepple v. City of Keokuk, 2 Am. & Eng. Corp. Cases 
 44:], the statute in question provided that '"'when any 
 grade of any street or allpy shall have been established, 
 and any person shall have built or made improvements on 
 such streets or alleys according to the established grade 
 thereof, and such city shall alter such established grade in 
 such a manner as to injure or diminish the value of said 
 property, said city shall pay to the owner or owners of said 
 property so injured the amount of such damage or injury." 
 Held, that, under this statute, the property owner 
 could not recover for any changes in the surface of a 
 street if he had erected buildings or otherwise 
 improved his lots before the establishment of any official 
 grade lines by the city. But in this case the right of recov- 
 ery rested wholly upon the statute. The rule has been 
 
200 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 held to be otherwise in states where, as in California, the 
 constitution expressly provides that no property shall be 
 "damaged" without just compensation therefor. Thus in 
 Nebraska, where the constitutional provision is similar to 
 our own, it was held that a city is liable to a lot owner for 
 damages sustained by him by raising the grade of the street 
 even though he has erected improvements before any grade 
 was established. [Harmon v. Omaha, 17 Neb. 548; s. c. 52 
 Am. Rep. 420.] 
 
 "The change of grade is a permament matter, and all 
 resulting injury must be recovered in one action, for the 
 property owner cannot maintain successive actions as each 
 fresh annoyance or injury occurs. The reason for the rule 
 is not far to seek. What is done under color of legislative 
 authority and is of a permanent nature, works an injury as 
 soon as it is done, if not done as the statute requires, and 
 the injury which then accrues is, in legal contemplation, all 
 that can accrue, for the complainant is not confined to a 
 recovery for past or present damages but may, also, recover 
 prospective damages resulting from the wrong. It is evi- 
 dent that a different rule would lead to a multiplicity of 
 actions, and produce injustice and confusion. " [Elliott on 
 Roads and Streets, p. 345.] 
 
 In McCarthy v. City of St. Paul, 22 Minn. 527, the action 
 was brought pursuant to a provision of the charter of the 
 defendant corporation to the effect that if a grade established 
 pursuant to the order of the common council, should be at 
 any time thereafter altered, all damages, costs and charges 
 arising therefrom shall be paid by the city to the owner of 
 any lot, or parcel of land, or tenement, which may be 
 affected or injured in consequence of the alteration of such 
 grade. It was held (1.) that, under such provision of the 
 charter, the city became liable to the plaintiff for all dam- 
 age necessarily resulting to him, in respect to his property, 
 from the change in the established grade of the street; 
 (#.) that an action for the recovery of such damages accrued 
 to plaintiff, and might be maintained by him, whenever 
 and as soon as the alteration in the grade of the street 
 became legally arid finally determined and fixed. [By the 
 "grade" is meant the grade line to which the surface of the 
 street shall be brought whenever the street shall be graded 
 or improved.] (3.) That, though neither the street nor the 
 lots affected by the alteration of the grade have been actu- 
 ally graded to correspond therewith, the necessary cost of 
 conforming the latter thereto is a proper element of the 
 damages, and is not objectionable on the ground of its 
 being contingent or prospective so also as to the cost of 
 
DAMAGES FOR CHANGING GRADE Mare?'9 a * 8 9 ended 201 
 
 building a retaining wall to protect the property from 
 encroachments certain to occur by reason of the change of 
 the grade. Upon this branch of the case the court said: 
 "This statute clearly imposes upon the city, whenever it 
 alters an established grade, a liability in favor of the owner 
 of any lot, parcel of land, or tenement, affected or injured 
 thereby, for all such damages, costs and charges as may be 
 occasioned by reason of such alteration. The alteration here 
 referred to is not the change wrought in the surface of the street 
 by bringing it to the altered grade, but the legal change in the 
 grade line of the street affected by the final decision of the tri- 
 bunal which is charged with the power and duty of acting in 
 such matters. Whenever such decision takes effect as to 
 any street, the adjoining property is necessarily affected by 
 it. Its value thereafter for purposes of sale or occupancy, 
 is determined, in part, with reference to the new grade, 
 which it must be presumed the city, in the discharge of its 
 duty in the premises, will cause to be carried into effect as 
 soon as may be. The right to damages arising from any 
 such alteration accrues, therefore, to the property^ owner 
 injured by it, whenever and as soon as the same becomes 
 legally fixed and operative." 
 
 The same language is applicable to the added sections of 
 the Vrooman act sections 38-53. Their purpose is to ena- 
 ble the owner to recover from the city, whenever it alters 
 an established grade, all such damages, costs and charges 
 as may be occasioned by reason of such alteration. These 
 damages are such as affect the value of the property for 
 purposes of sale or occupancy, and are incurred as soon as 
 the decision of the council is made changing the grade line. 
 If the direct and necessary consequence of the act of alter- 
 ation is to depreciate the value of the lots by reason of such 
 change in the grade of the street, the expenses which must 
 necessarily be incurred, in order to re-adjust the grade of 
 the lots to conform to the changed condition of the street, 
 whenever the surface of the street shall be changed to con- 
 form to the new grade, are as proper elements of damage 
 as though the surface of the street had already been so 
 changed, and such expenses had been actually incurred. 
 The statute does not, however, contemplate a suit by the 
 owner to recover such damages, but that the city shall 
 itself assess the damages and offer the same, less the value 
 of the benefits, etc., to the owner, and, if the owner refuses 
 to accept the damages, as assessed by the city's commission- 
 ers, the city shall bring a condemnation suit, and in this 
 suit, the property owner, as a defendant, may recover a 
 judgment for the amount of his actual damages. 
 
202 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 In Elliott on Roads and Streets, pages 353-4 it is said: 
 "It is quite clear that the mere fact that a change has been 
 made [in the grade] will not authorize the inference that pri- 
 vate property is injured; on the contrary, the burden of 
 showing a substantial injury rests upon the property owner, 
 for the presumption is that the public officers, having no 
 private interests to subserve, have not done a wrongful act 
 to the injury of the citizen." 
 
 In their general features, the provisions of sections 38-53, 
 as amended by the act of March 9, 1893, are quite similar to 
 the provisions of an act approved March 28, 1868, entitled 
 "An act to authorize the board of supervisors of the city 
 and county of San Francisco to modify and change the 
 grade of streets in said city and county." [Statutes 1867-8, 
 page 463.] In fact it is not improbable that the person who 
 drafted the act adding sections 38-53 to the Vrooman act, 
 either copied from said act of March 28,1368, or from some 
 later act which had been modeled upon said act of 1868. 
 Subdivision 2 of section 2 of said act of March 28, 1868, [stat- 
 utes 1867-8, page 464] and section 39 of the Vrooman act, 
 are substantially similar in all respects, with the exception 
 of such differences as are necessitated by reason of the fact 
 that in the act of 1868 the interposition of the county court 
 is provided for, whereas no such provision is found in the 
 Vrooman act. Both acts, in substance, require that, within 
 a certain time after the first publication of the ordinance 
 or resolution of intention to change the grade, any person 
 entitled to recover damages, under the act, shall file a peti- 
 tion showing the fact of his or her ownership, the descrip- 
 tion and situation of the property claimed to be damaged, 
 its market value, and the estimated amount of damages, 
 over and above all benefits which the property would sus- 
 tain by reason of the proposed change of grade if com- 
 pleted, etc. This provision of the said act of March 28, 
 1868, came before the Supreme Court in a case entitled In 
 the Matter of Beal Street, etc., 39 Cal. 495, where it was 
 held that under this provision of the act of March 28, 1868, 
 it was the purpose of the legislature to confine the award of 
 damages to those who should file the petition provided for 
 in said subdivision 2 of section 2 of the act. The court, per 
 Wallace J., page 499, said: "We think that a careful exam- 
 ination of the various provisions of the act will show that it 
 was not its purpose to provide for the payment of damages 
 to those who, not claiming them, might fairly be supposed 
 to intentionally waive them; or who could not, upon their 
 consciences, state [under oath] that they thought themselves 
 entitled to receive them. Upon the filing of the required 
 
DAMAGES FOR CHANGING GRADE S* 1 ** 1 203 
 
 petition by a party supposing himself about tobe damaged, 
 all other property owners within the designated limits \i. e. 
 limits of the assessment district] who possibly might there- 
 after be assessed as beneficiaries, must be considered as 
 defendants denying the statements of the petitioner, inter- 
 ested, of course, in reducing the amount of damages claimed 
 by him, and they should be afforded an opportunity to pro- 
 duce witnesses to disprove his allegations. But if no claim 
 for damages be placed on file by the owner of a particular 
 lot, the defendants are without the notice to enable them to 
 prepare to resist it; and for much the same reason, we 
 think that the commissioners, in their award of damages to 
 any petitioner should not exceed the amount claimed by 
 him in the petition itself, since those adversely interested 
 may fairly be supposed to have acquiesced in the correct- 
 ness of the amount claimed in the petition itself." This 
 language seems to be just as applicable to the provisions of 
 sections 38-53 of the present street work act, as to said act 
 of March 28, 1868. The most important difference seems 
 to be that at the time when the said act of 1868 was passed 
 the property owners were not, in the absence of statutory 
 provisions therefor, entitled, of right, to recover any damages 
 suffered by reason of a change of grade, since such dam- 
 ages did not constitute a " taking of private property for 
 public use," within the meaning of that phrase as used in 
 the constitution. Whereas, under the provision of the 
 present constitution, " private property shall not be taken 
 or damaged for public use without just compensation," etc. 
 So that now every property owner is, under the express pro- 
 vision of the constitution, entitled to recover such special 
 consequential damages as he receives over and above the 
 common injury to the other abutters on the street, or the 
 general public by reason of the decision of the council 
 changing the grade of a street. [Reardon v. S. F., 66 Cal. 
 492; Harmon v. Omaha, 17 Neb. 548; s. c. 52 Am. Rep. 
 420.] But while under the constitution the property owner 
 has the legal right to recover such damages in such cases, 
 and could do so in the absence of any statute giving such 
 right, still the legislature may prescribe all reasonable reg- 
 ulations for the enforcement of the right, and may, there- 
 fore, provide that, to entitle a property owner to recover 
 damages he must first file the petition provided for by sec- 
 tion 39'of the act; and therefore, if under a similar provis- 
 ion of said act of March 28, 1868, it be held that the prop- 
 erty owner cannot recover damages unless he files a petition 
 therefor, the same reasoning should lead to a similar con- 
 struction of the provisions of section 38 et seq. of the Vroo- 
 
204 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 man act. The fact that the present constitution gives the 
 right to recover such damages, without any special statu- 
 tory provision therefor, cannot have any stronger bearing 
 upon the question than the argument presented by the 
 learned counsel for the respondents in said proceeding in the 
 Matter of Beale Street, 39 Cal. 497. Public policy seems to 
 demand that in this respect, the same construction be 
 placed upon the provisions of sections 38-53 of the present 
 act, as was placed upon said act of 1868, since those whose 
 property is liable to be assessed to pay the expenses of the 
 change of grade should be enabled to know how much will 
 have to be paid in damages, before they can intelligently 
 determine whether or not they will file objections to the 
 proposed change of grade. 
 
 In Elliott on Roads and Streets, page 353, it is said: 
 "Where the statute requires the municipality to pay or ten- 
 der the damages caused by a change of grade, it has no 
 right to proceed until this is done, and if it does an action 
 will lie. The authority delegated is to proceed with the 
 work in accordance with law, and if the municipal officers 
 attempt to proceed in any other mode, they act, in legal 
 contemplation, without authority and subject their principal 
 to an action as a wrong-doer who has invaded private rights. 
 The property owner who sustains and shows injury may, if 
 he elects, enjoin the prosecution of the work until the dam- 
 ages are assessed and tendered." 
 
 Constitutionality of the Act adding Sections 3853, and 
 of the Act amending the same. The manner in which 
 the Vrooman act of March 18, 1885, was amended by 
 the addition of sections 38-53, demands a few words 
 in respect to the constitutionality of the act adding these 
 sections to the original act. But before proceeding with 
 this question of constitutionality, it might be well to 
 consider some of the legislative absurdities in the enact- 
 ment of these amendatory acts. As stated, supra, these 
 sections sections 38-53 were first added by the act of 
 March 31, 1891 (statutes '91, p. 461), and in 1893, by the act 
 approved March 9, 1893, the legislature amended each of 
 these sixteen new sections. [Statutes '93, p. 89.] 
 
 On March 17, 1891, by an act approved on thatdate [stat- 
 utes '91, p. 116], there went into effect if constitutionally 
 enacted an act entitled " An act to amend an act entitled 
 1 An act to provide for work upon streets, lanes, alleys, 
 courts, places, and sidewalks, and for construction of sew- 
 ers within municipalities/ approved March 18, 1885, by 
 adding thereto an additional part numbered four, consist- 
 ing of sections thirty-eight, thirty-nine, forty, forty-one, 
 
CONSTITUTIONALITY OP NEW SECTIONS M^rch^isgT^^ 205 
 
 forty-two, forty-three, and forty-four, relative to a system of 
 street bonds." This act provided for a system of street 
 bonds to cover the cost of street improvements, and added 
 eight new sections, to the act of March 18, 1885, sections 
 38 to 45 inclusive. It was repealed in 1893 by the act of 
 February 27, 1893. [Statutes '93, p. 33]. 
 
 On March 31, 1891, by an act approved on that date [stat- 
 utes '91 p. 461], there went into effect if constitutionally 
 enacted an act entitled "An act to amend an act entitled 
 'An act to provide for work upon streets, lanes, alleys, courts, 
 places, and sidewalks, and for the construction of sewers 
 within municipalities, 'approved March 18, 1885, by adding 
 thereto certain new and additional sections, to provide for 
 the mode of carrying into effect certain provisions of said 
 act relative to changing grades." This act purported to 
 amend said act of March 18, 1885, by adding thereto 
 sixteen new sections numbered repectively 38 to 53, 
 inclusive. But it will be observed that the said act 
 approved March 17, 1891, the bond act likewise added 
 sections numbered 38 to 45 inclusive, so that there 
 was a conflict in the numbering of the sections. But, if 
 there be no more serious absurdity than this, it isaltog9ther 
 likely that the courts will disregard this conflict in the 
 numbers of the sections added by these two amendatory 
 acts. Both acts have been repealed; the said act of March 
 17, 1891 , by the act of Feb. 27, 1893 [statutes '93, p. 38], and 
 the said act of March 31, 1891, has been superseded by the 
 act of March 9, 1893. [Statutes '93, p. 89]. 
 
 But the said act of March 9, 1893 [statutes, '93, p. 89], intro- 
 duces another absurdity. It is entitled "An act to amend 
 sections thirty-eight to fifty-three, inclusive, of an act 
 approved March 31, 1891, adding these sections to 'An act 
 to provide for work upon streets, alleys, lanes, courts, places, 
 and sidewalks, and for the construction of sewers with- 
 in municipalities,' approved March 18, 1885." This 
 act, it will be noticed, purports to amend sections 38 to 53, 
 inclusive, of the act approved March 31, 1891. But, while 
 the act approved March 31, 1891, added sections 38 to 53, 
 inclusive, to the act of March 18, 1885, it, itself, contained 
 but one section, and that section was numbered number 1. 
 By section number 1 of the act of March 31, 1891, sections 
 38 to 53, inclusive, were added to the act of March 18, 1885. 
 
 The act of March 9, 1893, should have amended sections 
 38 to 53 of the act of March 18, 1885, as those sections were 
 added to the said act by the act of March 31, 1891, or it 
 should have amended section 1 of the act of March 31, 1891 
 
206 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 by providing that " Section 1 of the act of March 31, 1891, 
 is hereby amended so as to read as follows:' 7 etc. 
 
 But it is likely that a benignant court, merciful of such 
 legislative stupidities as must ever be unavoidable so long as 
 the people shall continue to compel their legislative ser- 
 vants to complete their bi-annual labors in a session of 
 sixty days, or continue work as " a labor of love" only, will 
 so far as possible, endeavor to reconcile with common sense 
 these apparent blunders in the enactment of these statutes. 
 But it is beyond comprehension that the draughtsman who 
 drew these acts should not see the anomalies above pointed 
 out. But aside from these absurdities in the enactment of 
 these amendatory acts, there is a more serious question in 
 connection with their enactment, one that affects their 
 constitutionality. Sections 3853 were amended by the 
 act of March 9, 1893. They were first added to the original 
 act the Vrooman act of March 18, 1885, by the act approved 
 March 31, 1891. The act of March 9, 18i3, is amendatory 
 of the act of March 31, 1891. If this latter act was unconsti- 
 tutional for any reason, sections 38-53 were never added to 
 the original act, and the act of March 9, 1893, had no such 
 sections to amend. It is possible that the act of March 31, 
 1891, is invalid and void, since it purports to amend the act 
 of March 18, 1885, by adding new sections thereto, but does 
 not re-enact and publish at length the act as amended. The 
 constitution [Sec. 24, Art. IV,] provides: " No law shall be 
 revised or amended by reference to its title; but in such 
 case the act revised or section amended shall be re-enacted 
 and published as revised or amended." 
 
 The act revised or section amended must be re-enacted and 
 published as revised or amended. If a section is amended 
 it must be re-enacted and published as amended. Must 
 every act which is amended be re-enacted and published as 
 .amended? Or does the constitution mean that the whole 
 act is only to be re-enacted and published when it is 
 revised? And what does the word "revised" mean? These 
 are questions which can only be authoritatively answered 
 by the Supreme Court. There can be no question but that 
 an act is "amended" when new sections are added to it, pro- 
 vided they are not so far in conflict with the provisions of 
 the original act as to operate as a repeal of portions of 
 the old act. In such case the provisions of the latter act, 
 which operate as a repeal of a portion of the older statute, 
 are not, properly speaking, amendments of the old la\v. 
 But, is the act in that case "revised?" An act is amended 
 when it is revised. But, is it necessarily revised when it 
 is amended? The only decision by our Supreme Court 
 
CONSTITUTIONALITY OF NEW SECTIONS gaA"!! 1 * 11 *** 207 
 
 which throws any light upon this question is the case of 
 Earl v. S. F. Board of Education, 55 Gal. 489. The question 
 in that case was as to the constitutionality of an act known 
 as the Traylor act, and entitled " An act to add a new sec- 
 tion to the Political Code, to be known as section 1618, 
 relating to salaries of school teachers in cities having 100,- 
 000 inhabitants or more." Judge Ross peems to think that 
 this act was not an amendment to the Political Code, 
 because in this case it was so far in conflict with portions 
 of the Political Code as to operate a repeal of those portions 
 of the code, and in such case the provisions of the new law 
 are not, properly speaking, amendments of the old law. [See 
 the concurring opinion of Mr. Justice McKinstry, page 493.] 
 
 But Mr. Justice Ross says, page 492, " If treated as an 
 amendment at all, it is in direct conflict with section 24 of 
 Art. IV, of the constitution, which declares that * * * 
 'no law shall be revised or amended by reference to its 
 title; but in such case, the act revised or section amended 
 shall be re-enacted, and published at length as revised or 
 amended.' There is no pretense here that the law, what- 
 ever it is, supposed to have been amended by the Traylor 
 act was re-enacted and published at length as amended, as is 
 expressly required by the constitution. If this law is to be 
 uphold as an amendment, it seems to us it would be open- 
 ing the doors to the accomplishment by indirection of many 
 of the evils it was manifestly intended by the framers of 
 the constitution to prevent, and thus wipe out some of its 
 most salutary provisions." [But see Baum v. Raphael, 57 
 Cal. 361; see also, Mok v. Detroit Ass'n, 30 Mich. 511.] 
 The Missouri courts hold that under the constitution of 
 Missouri if an act is amended merely by the addition of 
 new sections thereto, the whole act as thus amended need 
 not be re-enacted and published. It is held that the pro- 
 vision of the Missouri constitution corresponding to the 
 provisions of section 24 of Art. IV of the California consti- 
 tution, does not apply to such a case. [State v. Thurston, 
 (Mo.) 4 S. W. Rep. 930.] 
 
 In the absence of a direct decision by our Supreme Court 
 upon this question, in a case in which the question is fairly 
 and squarely presented, the question must remain, more or 
 less, in the realm of doubt, and the possible unconstitution- 
 ality of the act by which these new sections are added can 
 only be suggested, without venturing an unqualified opinion 
 thereon. It will be noticed that the Traylor act, under con- 
 sideration in the case of Earl v.S.F. Board of Education, 
 did not in terms purport to amend the Political Code, but 
 .merelv stated in its title that it was "An act to add a new 
 
208 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 section to the Political Code," etc. On the other hand, the 
 act of March 31, 1891, hy which the new sections sections 
 38-53 were added to the act of March 18, 1885, expressly 
 states in its title that it is "An act to amend an act entitled," 
 etc., and section 1 expressly states that the act of March 18, 
 1885, "is herehy amended by adding thereto sections, as 
 follows:" 
 
 SECTION 39. Within thirty days after the first publication of said notice, 
 any person owning property fronting upon said portions of the street or 
 streets where such change of grade is made, may file a petition with the 
 clerk of the city council showing the fact of such ownership, the descrip- 
 tion and situation of the property claimed to be damaged, its market value, 
 and the estimated amount of damages over and above all benefits 
 which the property would sustain by the proposed change if completed. 
 Such petition shall be verified by the oath of the petitioners or their 
 agents. [Amendment approved March 9, 1893, statutes 1893, page 90. 
 
 Compare section 39 with subdivision 2 of section 2 of an 
 act approved March 28, 1868 [statutes 1867-8, p. 464], and 
 see In re Beale Street, 39 Cal. 495. See notes under preced- 
 ing section, page et seq., supra. 
 
 SECTION 40. Whenever such petition or petitions have been filed, the 
 mayor, surveyor, and superintendent of streets, of the city, or city and 
 county, acting as a board of commissioners, shall assess the benefits, dam- 
 ages, and costs of the proposed change of grade upon each separate lot of 
 land situated within such assessment dsstrict, as said lot appears of record 
 upon the last city, or city and county assessment roll. [Amendment approved 
 March 9, 1893, statutes 1893, p. 90.] 
 
 SECTION 41. The commissioners shall be sworn to make the assessments 
 of benefits and damages to the best of their judgment and ability, without 
 fear or favor. [Amendment approved March 9, 1893, statutes 1893, p. 90.} 
 
 SECTION 42. The commissioners shall have power to subpoena witnesses 
 to appear before them to be examined under oath, which any one of said 
 commissioners is authorized to administer. [Amendment approved March 9, 
 1893, statutes 1893, p. 90.] 
 
 SECTION 43. The commissioners having determined the damage which 
 would be sustained by each petitioner, in excess of all benefits, shall pro- 
 ceed to assess the total amount thereof, together with the costs, charges, 
 and expenses of the proceedings, upon the several lots of land benefited 
 within the district of assessment; so that each of the lots shall be assessed 
 in accordance with its benefits caused by such work or improvement; and 
 during the progress of their work shall make a report to such city council 
 as often as it may be required. [Amendment approved March 9, 1893, stat- 
 utes 1893, p. 90.] 
 
 SECTION 44. The commissioners shall make their report, in writing, 
 and shall subscribe to the same and file with the city council. In their 
 said report they shall describe separately each piece of property which will 
 sustain damage, stating the amount of damages each will sustain over and 
 above all benefits. They shall also gfve a brief description of each lot ben- 
 efited within said assessment district, the name of the owner, if known, 
 and the amount of benefits in excess of damages assessed against the same. 
 
SECTIONS FORTY-FIVE AND FORTY- SIX M^rch^^f " S amended 209 
 
 In case the three commissioners do "not agree, the award agreed upon by 
 any two of them shall be sufficient. In designating the lots to be assessed, 
 reference may be had to a diagram of the property in the district affected ; 
 such diagram to be attached to and made a part of the report of the com- 
 missioners. [Amendment approved March 9, 1893, statutes 1893, p. 91.] 
 
 SECTION 45. If in any case the commissioners find that conflicting 
 claims of title exist, or shall be in ignorance or doubt of the ownership of 
 any lot or land, or any improvement thereon, or any interest therein, it 
 shall be set down as belonging to unknown owners. Error in the designa- 
 tion of the owner or owners of any land or improvements, or particulars of 
 their interest, shall not affect the validity of the assessment. On the filing 
 of said report, the clerk of said city council shall give notice of such filing 
 by the publication of at least ten days in one or more daily newspapers 
 published and circulated in said city; or if there be no daily newspaper, 
 by three successive issues in a weekly or semi-weekly newspaper so pub- 
 lished and circulated ; and said notice shall require all persons interested 
 to show cause, if any, why such report should not be confirmed, before the 
 city council, on a day to be fixed by the city council and stated in said 
 notice, which day shall not be less than twenty days from the first publi- 
 cation thereof. [Amendment approved March #, 1893, statutes 1893, page 91.] 
 
 SKCTIOX 40. All objections shall be in writing and filed with the clerk 
 Of the city council, who shall at the next meeting after the date fixed in 
 the notice to show cause, lay the said objections, if any, before the council, 
 which shall lix a time for hearing the same; of which time the clerk shall 
 notify the objectors in the same manner as are notified objectors to the 
 original resolution of intention. At the time set, or at such other time as 
 the hearing may hi- adjourned, the city council shall hear such objections 
 ami pass upon the same, and at such time shall proceed to pass upon such 
 report, and may confirm, correct, or modify the same, or may order the 
 commissioners to make a new assessment, repoit, and plat, which shall be 
 filed, notice given and had, as in the case of an original report. In ca?e 
 the ordinance or resolution of intention also provides for the assessing 
 upon the district the cost of regrading or repavirg such street or streets to 
 such changed or modified grade, after the report of the commissioners as 
 to the damages caused by such change of grade has been passed upon by 
 the city council, it shall then advertise for bids to perform the work of 
 re.irrading, repaying, sewering, sidewalking, or curbing such street cr 
 streets Avith the same or other material with which the same had been for- 
 merly graded, paved, sewered, sidewalked, or curbed; first causing a notice, 
 with specifications, to be posted conspicuously for five days on or near the 
 council chamber door, inviting sealed proposals for bids for doing such 
 work, and shall also cause notices of said work, inviting said proposals and 
 referring to the specifications posted or on file, to be published two days 
 in a daily, semi-weekly, or weekly newspaper published and circulated in 
 said city, and designated by the city council for that purpose, and in case 
 there is no newspaper published in the city, then it shall be posted as 
 provided in section three of the original act to which this is amendatory. 
 All proposals or bids offered shall be accompanied by a check, payable to 
 the order of the mayor of the city, and certified by a responsible bank for 
 that amount, which shall not be less than ten per cent, of the aggregate of 
 the proposals; or by a bond for said amount, signed by the bidder and two 
 
210 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 sureties, who shall justify under oath in double said amount over and 
 above all statutory exemptions. Said proposals or bids shall be delivered 
 to the clerk of the said city council, and said council shall, in open ses- 
 sion, examine and publicly declare the same; provided, however, that no 
 proposal or bid shall be considered unless accompanied by a check or a 
 bond satisfactory to the council. The city council may reject any and all 
 bids, and may award the contract to the lowest responsible bidder, which 
 award shall be approved by the mayor or the three-fourths vote of the city 
 council. If not approved by the mayor or the three-fourths vote of the 
 city council, the city council may re-advertise for proposals or bids for 
 the performance of the work, as in the first instance, and thereafter pro- 
 ceed in the manner in this section provided. All checks accompanying 
 bids 'shall be held by the clerk until the bearer has entered into a contract 
 as herein provided; and in case he refuses so to do, then the amount of his 
 certified check shall be declared forfeited to the city, and shall be collected 
 and paid into its general fund, and all bonds so forfeited shall be prose- 
 cuted and the amount thereon collected paid into such fund. Notice of the 
 awards of the contracts shall be published and posted in the same manner 
 as hereinbefore provided for the posting of proposals for said work. [Amend- 
 ment approved March 9, 1893, statutes 1893, p. 91.] 
 
 SECTION 47. After such contract has been awarded and entered into, the 
 clerk of the city council shall certify to the city council that fact, together 
 with the total amount of the cost of the same, whereupon the city council 
 shall cause to be forwarded to the commissioners a copy of such certificate; 
 whereupon such commissioners shall proceed to assess the cost of doing 
 such work upon all the lots and land lying within the district to be assessed, 
 distributing the same so that each lot will be assessed for its proportion of 
 the same, according to the benefits it receives from the work, and in the 
 same manner in which the damages caused by the change of grade were 
 assessed upon the same. Such commissioners, in making such assessment, 
 shall show the total amount for which each lot or tract is assessed, in 
 excess of all benefits, for the total cost of changing and modifying the 
 grade of the street, as well as the regrading, repaving, sewering, sidewalk- 
 ing, and curbing of the same, and costs or damages connected therewith. 
 The provisions of the act to which this is amendatory in regard to the 
 mode or manner of the assessment of the cost of such work shall not apply 
 to the work herein contemplated; neither shall the provisions of the same 
 in regard to the issuing of bonds to represent the cost of the same, nor the 
 provisions in regard to the right of protest against the work. (Amendment 
 approved March 9, 1893, statutes 1893, p. 92.} 
 
 Section 47 provides that " the provisions of the act to 
 which this is amendatory in regard to the mode or manner 
 of the assessment of the cost of such work shall not apply 
 to the work herein contemplated," etc. There is an ambi- 
 guity here. If this language means that " the provisions 
 of the act to which this act is amendatory * * * shall 
 not apply," etc. then the act referred to is the act of March 
 31, 1891, by which these new sections were first added to 
 the old and original act. If the language means that "the 
 provisions of the act to which this section is amendatory * 
 
SECTIONS FORTY-P:IGHT AND FORTY-NINE M\ c r 8 C h 7 9 to k f3 asamendd 211 
 
 * * shall not apply," etc. then the act referred to is, in 
 all probability, the original act itself the act of March 'l8, 
 1.SM5. This latter construction is undoubtedly the true 
 meaning of the section, as it is apparent that the 
 intention of the legislature was to declare that the 
 front-foot principle of assessment provided for by 
 section 7 of the original act the act of March 18, 
 1885, should not apply in these original proceedings to 
 change the grade, but that the district assessment plan 
 should prevail. Neither section 47 nor section 46 provides 
 who shall execute the written contract on behalf of the city. 
 But section 52 provides that "all other provisions contained 
 in the act to which this is amendatory, and which pro- 
 visions are not in conflict herewith, shall apply to all mat- 
 ters contained herein/' and as it was undoubtedly the inten- 
 tion of the legislature to declare by this language that the 
 provisions of sections 1 to 37, inclusive, of the original act 
 the act of March 18, 1885 as the same have been amend- 
 ed from time to time since, shall apply to all matters con- 
 tained in the new sections sections 38-53 when not in 
 conflict, it seems reasonably certain that the contract is to 
 be executed by the superintendent of streets in the same 
 manner ad the contracts for the work provided for in the 
 prior sections of the act. [See subdivision 14 of section 34, 
 supra, page 189.] 
 
 SECTION 48. The clerk of said city council shall forward to the street 
 superintendent of the city a certified copy of the report, assessment, and 
 plat, as finally confirmed and adopted by the city council. Such certified 
 copy shall thereupon be the assessment roll, the cost of which shall be 
 provided for by the commissioners, as a portion of the cost of the proceed- 
 ings therein. Immediately upon receipt thereof by the street superintend- 
 ent, the assessment therein contained shall become due and payable, and 
 shall be a Hen upon all the property contained or described therein. 
 [Amendment approved March 9, 1893, statutes 1893, p. 93.} 
 
 SECTION 49. The superintendent of streets shall therupon give notice, 
 by publication for ten days in one or more daily newspapers published and 
 circulated in said city, or city and county, or two successive insertions in a 
 weekly or semi-weekly newspaper so published and circulated, that he has 
 received said assessment roll, and that all sums levied and assessed in said 
 assessment roll are due and payable immediately, and that the payment 
 of said sums is to be made to him within thirty days from the date of 
 the first publication of said notice. Said notice shall also contain a state- 
 ment that all assessments not paid before the expiration of said thirty days 
 will be declared to be delinquent, and that thereafter the sum of five per 
 cent, upon the amount of such delinquent assessment, together with the cost 
 of advertising each delinquent assessment, will be added thereto. When pay- 
 ment of any assessment is made to said superintendent of streets, he shall 
 write the word "paid" and the date of payment opposite the respective 
 assessment so paid, and the name of the persons by or for whom said 
 
212 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 assessment is paid, and shall give a receipt therefor. On the expiration of 
 said thirty days, all assessments then unpaid shall he and become delin- 
 quent, and said superintendent of streets shall certify such fact at the foot 
 of said assessment roll, and shall add five per cent, to the amount of each 
 assessment so delinquent. The said superintendent of streets shall, within 
 five days from the date of such delinquency, proceed to advertise the 
 various surr.s delinquent, and the whole thereof, including the cost of 
 advertising, which last shall not exceed the sum of fifty cents for each lot, 
 piece, or parcel of land separately assessed, by the sale of the assessed 
 property in the same manner as is or may be provided for the collection of 
 state and county taxes ; and after the date of said delinquency, and before 
 the time of such sale herein provided for, no assessment shall be received, 
 unless at the same time the five per cent, added to as aforesaid, together 
 with the costs of advertising then already incurred, shall be paid there- 
 with. Said list of delinquent assessments, with a notice of the time and 
 place of sale of the property affected thereby, shall be published daily for 
 five days, in one or more daily newspapers published and circulated in 
 such city, or by at least two insertions in a weekly newspaper so published 
 and circulated before the day of sale for such delinquent assessment. Said 
 time of sale must not be less than seven days from the date of the first 
 publication of said delinquent assessment list, and the place must be in or 
 in front of the office of said superintendent of streets. All property sold 
 shall be subject to redemption for one year, and in the same manner as in 
 sales for delinquent state and county taxes; and the superintendent of 
 streets shall, if there is no redemption, make and deliver to the purchaser 
 at such sale a deed conveying the property sold, and may collect for each 
 certificate fifty cents, and for each deed one dollar. All provisions of the 
 law in reference to the sale and redemption of property, for delinquent 
 state and county taxes, in force at any given time, shall also then, as far as- 
 the same are not in conflict with the provisions of this act, be applicable 
 to the sale and redemption of property for delinquent assessments hereun- 
 der, including the issuance of certificates and execution of deeds. The 
 deed of the street superintendent, made after such sale, in case of failure 
 to redeem, shall be prima facie evidence of the regularity of all proceed- 
 ings hereunder, and of title in the grantee. The superintendent of streets 
 shall from time to time pay over to the city treasurer all moneys collected 
 by him on account of any such assessments. The city treasurer shall r 
 upon receipt thereof, place the same in a separate fund, designating each 
 fund by the name of the street, square, lane, alley, court, or place for the 
 change of grade for which the assessment was made. Payments shall be 
 made from said fund to the parties entitled thereto, upon warrants signed 
 by the commissioners or a majority of them. [Amendment approved March 
 9, 1893, statutes 1893, p. 93.} 
 
 When a street work act merely provides that the assess- 
 ment shall be collected in the manner prescribed by law 
 for the collection of general state and county taxes, the law 
 for the collection of taxes is referred to for the manner of 
 collecting, and not for what shall be collected, and in such 
 case the person collecting the assessment can not collect a 
 penalty for non-payment, as 5 per cent, for example, merely 
 
SECTIONS FIFTY AND FIFTY-ONE MarchVmf 1 &S amended 213 
 
 because the revenue law referred to for the manner of mak- 
 ing the collection, authorizes such a penalty. [Bucknall v. 
 Story, 36 Cal. 67.] It is otherwise, however, when the street 
 work act itself authorizes the collection of such penalty. 
 
 It will be noticed that section 49 provides that "all" pro- 
 visions of law in reference to the sale and redemption of 
 property for delinquent state and county taxes, in force at 
 any given time, shall also then, as far as the same are not 
 in conflict with this act, be applicable to the sale and 
 redemption of property for delinquent assessments here- 
 under." 
 
 SUCTION 50. When sufficient money is in the hands of the city treasurer, in 
 tin- fund voted for the proposed work or improvement, to pay the total cost 
 for damages, MS well as for the cost of doing the work, and all other expen- 
 ses connected therewith, ii shall be the duty of the commissioners to notify 
 tlie owner, possessor or occupant of the premises damaged, and to whom 
 damages have been awarded, that a warrant has been drawn for the pay- 
 ment of the same, which can be received at the office of such commission- 
 ers. Such notification may be made by depositing a notice, postage paid, 
 in the post office, addressed to his last known place of residence. If, after 
 the expiration of three days after the service or deposit of the notice in the 
 post office, lie shall not have applied for such warrant, the same shall be 
 drawn and deposited with the city treasurer, to be delivered to him upon 
 demand. [Amendment approved March 9, 1893, statutes '93, p. 94.] 
 
 SECTION 51. If the owner of any premises damaged neglects or refuses, 
 for ten days after the warrant has been placed in the hands of the city 
 treasurer, subject to his demand, to accept the same, the city council may 
 cause proceedings to be commenced, in the name of the city, to condemn 
 said premises, as provided by law under the right of eminent domain. The 
 ordinance or resolution of intention shall be conclusive evidence of the 
 necessity of the same. Such proceedings shall have precedence, so far as 
 the business of the court will permit, and any judgment for damages therein 
 rendered shall be payable out of the special fund in the treasury for that 
 purpose. At any time after the trial and judgment entered, or pending 
 appeal, the court may order the city treasurer to set apart in the city treas- 
 ury a sufficient sum from said fund to answer the judgment, and thereupon 
 may authorize or order the municipality to proceed with the proposed work 
 or improvements. In case of a deficiency in said fund to pay the whole 
 assessed judgment and damages, the city council may, in its discretion, 
 order the balance thereof to be paid out of the general fund of the treasury, 
 or to be distributed by the commissioners over the property assessed by a 
 supplementary assessment; but in the last named case, in order to avoid 
 delay, the city council may advance such balance out of any available fund 
 in the treasury, and reimburse the same from the collection of assessments. 
 The treasurer shall pay such warrants in the order of their presentation; 
 provided, that warrants for damages and for costs of performing the work 
 shall have priority over warrants for charges and expenses, and the treas- 
 urer shall see that sufficient money remains in the fund to pay all warrants 
 of the first class before paying any of the second. The provisions of section 
 
214 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 one thousand two hundred and fifty-one of the Code of Civil Procedure, 
 requiring the payment of damages within thirty days after the entry of 
 judgment, shall not apply to damages rendered in proceedings under this 
 act. [Amendment approved March 9, 1893, statutes '93, p. 95.} 
 
 Compensation must be made in advance, or a fund must 
 be provided, out of which compensation must be made so 
 soon as the amount can be determined. fColton v. Rossi, 9 
 Cal. 595.] 
 
 SECTION 52. All other provisions contained in the act to which this is 
 amendatory, and which provisions are not in conflict herewith, shall apply 
 to all matters herein contained. All proceedings in any work or improve- 
 ment, such as is provided for in this act, already commenced and now in 
 progress under another act now in force, or by virtue of an ordinance or 
 resolution of intention heretofore passed, may, from any stage of such pro- 
 ceedings already commenced and now in progress, be continued under this 
 act by resolution of the city council. The said work or improvement may 
 then be conducted under the provisions of this act, with full force and effect 
 in all respects from the stage of such proceedings at and from which such 
 resolution or ordinance shall declare the intention to have such work done 
 or improvement cease under such other acts or ordinances and continued 
 under this act; and from such election so made all proceedings theretofore 
 had are hereby ratified, confirmed and made valid, and it shall be unneces- 
 sary to renew or conduct over again any proceedings prior to the passage of 
 this act. [Amendment approved March 9, 1893, statutes '93, p. 95. \ 
 
 Section 52, like section 47, supra, is ambiguous in this, 
 that it does not clearly appear which act is referred to when 
 it is declared that "all other provisions contained in the act 
 to which this is amendatory * * * shall apply to all 
 matters herein contained." By the act of March 31, 1801, 
 (statutes '91, page 461,) section 52 was added to and made a 
 part of the act of March 18, 1885, and by the act of March 
 9, 1893, section 52 was amended, but it still remains a part 
 of the act of March 18, 1885, having been first imbedded 
 therein by the said act of March 31, 1891; and, from and 
 after the 31st day of March, 1891, the act of March 18, 1885, 
 is to be read as though section 52 as it stood prior to the 
 amendment of 1893 had always been a part thereof; and 
 from and after March 9, 1893, the said act of March 18, 
 1885, is to be read as though section 52 as amended by the 
 act of March 9, 1893 had always been a part thereof. "A 
 statute which is amended is thereafter, and as to all acts sub- 
 sequently done, to be construed as if the amendments had 
 always been there, and the amendment itself so thoroughly 
 becomes a part of the original statute that it must be con- 
 strued in view of the original statute as it stands after the 
 amendments are introduced, and the matters superseded by 
 the amendments eliminated." [Endlich on the Interpreta- 
 
SECTION FIFTY-TWO March^TsSf 
 
 tion of Statutes, 204.] This is undoubtedly the correct 
 rule of interpretation, but, by regarding section 52 as it now 
 stands as being a part of the act of March 18, 1885, from 
 and after the 9th day of March, 1893, the section speaks 
 from out of the said act of March 18, 1885 as the same has 
 been amended from time to time since and according to 
 the logical result of the application of the above rule of 
 interpretation, the act spoken of in section 52, *nd whose 
 provisions are continued in force by this section, must be 
 some net of which the act of March 18, 1885, is amendatory. 
 But, as the act of March 18, 1885, is not amendatory of any 
 act, the logical consequence of the application of said rule 
 of interpretation does not express the legislative intent, and 
 the act referred to, the provisions of which are, by section 
 52, made applicable to all matters contained therein, must 
 be either the act of March 18, 1885, itself, as it reads with- 
 out the added sections sections 38 to 53, inclusive or else 
 it must be the act of March 31, 1891, by which these new 
 sections were first added. The act of March 9, 1893, by 
 which sections 38-53 were amended, purports to be amend- 
 atory of the said act of March 31, 1891. But it cannot be 
 that the legislature intended by section 52 to declare that 
 "all provisions of the act of March 31, 1891, which are not 
 in conflict herewith, shall apply to all matters herein con- 
 tained," because the act of March 31, 1891, purports to add 
 to the act of March 18, 1885, sections 38-53, and the act of 
 March 9, 1893, purports to amend these added sections, 
 and does so in such a complete manner that the act 
 of March 9, 1893, must be regarded as superseding and, by 
 implication, repealing all of the act of March 31, 1891. It 
 seems to the author, therefore, that when section 52 declares 
 that "all other provisions contained in the act to which this 
 is amendatory * * * shall apply to all matters herein 
 contained," the legislature intended thereby to declare that 
 "all other provisions contained in the act of March 18th, 
 1885 to which act this is amendatory and which provi- 
 sions are not in conflict with sections 38 to 53, inclusive, 
 shall apply to all matters in sections 38 to 53 contained." 
 
 There is another ambiguity in this part of section 52. 
 The section declares that all other provisions contained in 
 the act to which this is amendatory, etc., shall apply to all 
 matters "herein contained." What does the phrase, " herein 
 contained," refer to? Does it refer to the matters contained 
 in this section, i.e., section 52; or to the matters contained in 
 the act of March 18, 1885, as amended up to March 9, 1893; or 
 does it refer to the matters contained in sections 38 to 53 
 only of the act of March 18, 1885 as these sections were 
 
216 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 added to the said act of March 18, 1885, and subsequently 
 amended? 
 
 It would seem too narrow a construction to limit the 
 phrase "all matters herein contained,' 7 to "all matters con- 
 tained in this section section 52." And, it is obviously 
 too broad a construction to construe the phrase as meaning 
 all matters contained in the act in which section 52 is 
 imbedded as a part thereof, because this act, according to 
 the cannon of interpretation, quoted supra, horn Endilich on 
 the Interpretation of Statutes, is the act of March 18, 1885, 
 itself, and it was obviously not the intent of the legislature 
 to declare that "all provisions contained in the act of March 
 18, 1885, * * * * shall apply to all matters contained 
 in the act of March 18, 1885." It is most probable therefore 
 that the legislature intended by this phrase to include all 
 matters contained in that portion of the act of March 18, 
 1885, which was added by the act of March 31, 1891, which 
 was amended by the act of March 9, 1893. So that the first 
 sentence of section 52 should be construed as reading as 
 follows: "All other provisions contained in the act of 
 March 18, 1885, and which are not in conflict with the 
 provisions of sections 38 to 53, inclusive, shall apply to all 
 matters contained in said sections 38 to 53, inclusive." 
 However, the section is so ambiguous and uncertain as to 
 almost defy interpretation. It is apparent that the 
 draughtsman who drew the act must have been deficient in 
 imagination. He could not have had clearly presented to 
 his mind the duality of the act which he was drafting, he 
 could not clearly have separated in his mental vision those 
 portions of the act which, when the act took effect, became 
 a part of the original act the act of March 18, 1885, and 
 spoke out from that act as parts thereof, from those por- 
 tions of the act which did not thus become imbedded in 
 the act of March 18, 1885, the last section, for example, 
 section 17 of the act of March 9, 1893, which declares that 
 "This act (the act of March 9, 1893) shall take effect and 
 be in force immediately after its passage." 
 
 SECTION 53. The provisions of this act shall be liberally construed to 
 permit the objects thereof. [Statutes 1893, page 96.} 
 [Section 53 was amended by the act of March 9, 1893, statutes 1893, p. 96.] 
 
OF THE 
 UNIVERSITY 
 
 OF 
 
 Improvement Bond tfct of 1893, 
 
 An Act to provide a system of Street Improvement Bonds to 
 represent certain assessments for the cost of street work and 
 improvement within municipalities, and also for the pay- 
 ment of such bonds. 
 
 [Approved February 27, 1893. j 
 
 The people of the state of California, represented in senate and assembly, 
 do enact as follows : 
 
 SECTION 1. Wherever in this act the phrase "Street Work Act" is used, 
 it means and shall be taken to mean the act entitled "An act to provide 
 for work upon streets, lanes, alleys, courts, places and sidewalks, and for 
 construction of sewers within municipalities," approved March eighteen, 
 eighteen hundred and eighty-five, and all acts amendatory thereof or sup- 
 plementary thereto; and wherever in this act the name of any municipal 
 body or officer is used, or any word or phrase is used which is not herein 
 expressly defined, it means and Khull be taken to mean such municipal 
 body or officer, or word or phrase as the same is expressly defined in said 
 street work act, and in all acts amendatory thereof or supplementary 
 thereto. [Statutes 1893, page 33.] 
 
 The object of the act is clearly declared by the first sen- 
 tence of section 2, namely: "Whenever the city council of 
 any municipality in this state shall find, upon estimates of 
 the city engineer, that the cost of any proposed work or 
 improvement authorized by said street work act, [the act of 
 March 18, 1885] will be greater than one dollar per front foot 
 along each line of the street so proposed to be improved, includ- 
 ing the cost of intersection work assessable upon said frontage, 
 it shall have the power, in its discretion, to determine that 
 serial bonds shall be issued to represent the cost of said work 
 or improvement in the manner and form hereinafter pro- 
 vided." Or, as more pithily stated in its title, the object of 
 the act is "to provide a system of street improvement bonds." 
 
 The act is, in effect, supplementary to the Vroomari 
 act of March 18, 1885. The latter act provides what 
 work may be done upon streets, and provides the 
 machinery for letting contracts for doing the work 
 and for meeting the expenses of the same. The machinery 
 for meeting these expenses, as provided for by the said 
 act of March 18, 1885, contemplates cash payments 
 after the assessment roll is made up, and r fter the proper 
 
218 STREET WORK LAW BOND ACT 
 
 proceedings prerequisite to the right to cash payments, 
 such .MS "demand," etc., have been had. The above act of 
 Feb'y 27, 1893, supplements this part of the machinery of 
 the act of March 18, 1885, and provides different machinery 
 for meeting the expenses of the improvements, machinery 
 that contemplates the issuance of serial bonds to pay for the 
 cost of the work. 
 
 Throughout the act, the provisions of the street improve- 
 ment act of March 18, 1885, and of all acts amendatory 
 thereof or supplemental thereto, are referred to, and, by 
 reference made a part of the act. These acts are referred 
 to under the general designation of the "Street Work Act," 
 which phrase is, by section 1 of the act, defined to be the 
 said act of March 18, 1885, and all acts amendatory thereof 
 or supplemental thereto, and, by section 6 of the said act of 
 Feb'y 27, 1893, it is provided that "all provisions of the 'Street 
 Work Act/ not inconsistent with the provisions hereof, shall 
 apply hereto." But whether said phrase "provisions hereof" 
 means "provisions of this section section six/ 7 or "provis- 
 ions of this act" may be open to question. 
 
 In 1891 , [statutes' 91, p. 116] by an act approved March 17, 
 1891, the legislature passed an act similar in its provisions 
 to the above act of Feb'y 27, 1893; only, while the latter 
 act, in a measure stands by itself, and only by reference, 
 incorporates within itself the provisions of the general 
 street improvement act of March 18, 1885, and the acts 
 amendatory, thereof or supplemental thereto, the said act of 
 March 17, 1891, on the other hand, tacked its provisions 
 on to the act of March 18.1885,by adding thereto an additional 
 part numbered Part IV, consisting of seven new sections 
 numbered 38 to 44, inclusive. (Statutes 1891, p. 116. J Sec- 
 tion 8 of the act of Feb'y 27, 1893, [statutes '93, p. 38] expressly 
 repeals said act of March 17, 1891, except as to proceedings 
 theretofore commenced thereunder. 
 
 It will be noticed from a perusal of the bond act the 
 act of February 27, 1893 that it does not provide for the 
 issuance of municipal bonds, backed by the resources of 
 the whole city, authorized by popular vote, and payable out 
 of general taxation. Such municipal bonds are provided 
 for by the municipal indebtedness act, the act of March 19, 
 1889 [statutes 1889, p. 399], entitled "An act authorizing 
 the incurring of indebtedness by cities, towns, and munici- 
 pal corporations, incorporated under the laws of this state, 
 for the construction of water works, sewers, and all neces- 
 sary public improvements, or for any purpose whatever," 
 etc., and the acts amendatory thereof. [See this munici- 
 pal indebtedness act, infra.} The street improvement bond 
 
PROVISIONS OF BOND ACT Sec. 1 of the Act of 
 
 February 27, 1893. & 
 
 act the act of Feb'y 27, 1893 on the other hand provides 
 that each bond issued under it shall be a lien upon a par- 
 ticular lot or parcel of land, each bond being issued to rep- 
 resent the assessment against each particular lot or parcel 
 of land, which is upon the list of unpaid assessments, men- 
 tioned in section [ of the act. Each bond stands by 
 itself; and if default be made in any payment, the bond 
 becomes wholly due at the option of the holder, who can 
 immediately collect ivithout suit. The provisions of the act 
 enabling the bond holder to collect without suit are most 
 
 important. Under the general street improvement act 
 
 the Vrooman act of March 18, 1885, the contractor or his 
 assignee, after the issuance of a warrant, etc., and after 
 demand, etc., brings suit against the lot owner as provided 
 for in section 12 of that act, and in this suit the lot owner 
 may set up in defense any facts which show that the assess- 
 ment is void. [See supra p. 141 et seq.] But, when 
 bonds are issued under this street bond act, the 
 bond holder does not sue the property owner. 
 He serves a written demand upon the city treasurer, who 
 then proceeds to collect the amount due on the bond by 
 sale of the lot in the same manner that unpaid state and 
 county taxes are collected, as provided for in section 5 of 
 the act. Furthermore, the bonds are, by section 4 of 
 the act, made conclusive evidence of the regularity of all pro- 
 ceedings previous to the making of the certified list of unpaid 
 assessments. [See notes under section 4 infra.~\ It is 
 vitally important therefore, that the owner who desires to con- 
 test the validity of the proceedings, should give written notice 
 to the city treasurer, as provided for by section 4, that he 
 desires no bond to be issued for the assessment upon his 
 lot or parcel of land. This notice will stop the issuance of 
 such bond, and the contractor or his assignee will be com- 
 pelled to bring suit as provided for by section 12 of the 
 general street improvement act, and in this suit the proper- 
 ty owner may set up in defense any facts showing the 
 assessment to be invalid. Se.e^supra Sec. 12 of the act of 
 March 18, 1885, p. 141 et seq.] But, if bonds are issued repre- 
 senting the assessment against his lot, and if the act be 
 constitutional, he is practically remediless, except that after 
 sale of his lot, he might have an action at law to recover 
 possession. For as the bond holder does not have to initi- 
 ate proceedings in court, but may collect without suit, the 
 property owner does not enjoy the advantages of a defend- 
 ant resisting the collection of an illegal assessment, but must 
 himself take the initiative. His only possible remedy is an 
 injunction to enjoin the sale of his lot. But even this rem- 
 
220 STKEET WORK LAW BOND ACT 
 
 edy is denied to him, if the act be constitutional. His 
 property having received the benefit of the work, he cannot 
 go into a court of equity and ask equitable relief. He who 
 seeks equity must do equity. And this he cannot do with- 
 out at least paying the reasonable value of the improvement 
 to his lot. 
 
 Courts of equity do not review the proceeding of officers 
 entrusted with the assessment of property. If proceedings 
 taken by them are void, no title will pass by a sale of the 
 real estate, and the party claiming to be injured must liti- 
 gate his rights in an action at law for the possession of the 
 premises. So long as a moral obligation to pay any por- 
 tion of the tax exists, a court of equity will not lend its aid 
 to prevent a cloud upon the title, but will leave the party to 
 his remedy at law. [Esterbrook v. O'Brien, decided July 
 13, 1893, 33 Pac. Rep. 765; Weber v. San Francisco, 1 Gal. 
 455; Bucknall v. Story, 36 Cal. 67; Lent v. Tillson, 72 Gal. 
 433; See supra p. 143.] And if after the sale of his lot 
 by the city treasurer the property owner commences eject- 
 ment to recover possession of his lot, he is confronted with 
 that provision of the act [section 4 of the bond act the act 
 of Feb'y 27, 1893,] which makes the issuance of the bonds 
 conclusive evidence of the regularity of all proceedings pre- 
 vious to the making of the certified list of unpaid assess- 
 ments provided for by section 4 of the act. So that the 
 owner who thinks he ought not to pay the sum assessed 
 against his lot, should see that no bond is issued, by pre- 
 senting to the city treasurer the affidavit and certificate of 
 title, and notice in writing, provided for by section 4 of 
 the act. 
 
 Constitutionality of the Act. The constitutionality of the 
 bond act of Feb'y 27, 1893, might be attackable upon, (1.) 
 grounds peculiar to acts of a similar nature, or (2.) upon 
 grounds to which any act might be subject, e. g,, that the 
 title is not sufficient, etc., or other defects respecting the 
 form of the act, or the manner of its passage. A brief con- 
 sideration may be given to the question as to whether the 
 act is open to objections embraced by either one of these 
 classes of constitutional grounds of attack, taking up first 
 the second or broader class, i. e., that class of defects which 
 appertain to the form of the act, or the manner of its pas- 
 sage or enactment. 
 
 (a.) It is possible that the act might be unconstitutional 
 upon the ground that it is violative of that provision of sec- 
 tion 24 of article IV of the constitution, which declares that 
 "no law shall be revised or amended by reference to its title; 
 but in such case the act revised or section amended shall 
 
CONSTITUTIONALITY OF BOND ACT ^riarVn ^ f 221 
 
 be re-enacted and published fit length as revised or amend- 
 ed." This provision of the constitution, and its possible 
 applicability to the act of March 31, 1891, statutes 1891, 
 page 461, by which sections 38-53 were added to the gen- 
 eral street improvement act of March 18, 1885, as well as to 
 the act of March 9, 1893, statutes 1893, page 89, by which 
 these added sections were amended, was considered in the 
 notes to section 38 of said general street improvement act 
 of March 18, 1885. [See supra, page 204e^seo r .]And if the said 
 act of March 31, 1891, by which said sections 38-53 were 
 added to the act of March 18, 1885, be violative of this pro- 
 vision of the constitution, then, for the same reason, the 
 said bond act of March 17, 1891, by which Part IV was 
 added to the- act of March 18, 1885, must be unconstitu- 
 tional. But the act of March 17, 1891, has been expressly 
 repealed by the bond act of Feb'y 27, 1893, and the question 
 is: Is this latter act constitutional? It is true this act the 
 act of Feb'y 27, 1893 does not, in terms, purport to be 
 amendatory of any other act, yet, for its own purposes, it does 
 make very important amendments to certain parts of the 
 general street improvement act, the Vrooman act of March 18, 
 1885. Thus, for the purpose of effecting the objects of this 
 act i. e., the bond act of Feb'y 27, 1893 the act declares that 
 "when the council shall determine that serial bonds shall be 
 issued to represent the expenses of any proposed work or 
 improvement under the street work act, [i. e., the act of 
 March 18, 1885] it shall so declare in the resolution of 
 intention to do said work, and shall specify the rate of 
 interest which they shall bear," etc. [Section 3 of act of 
 Feb'y 27, 1893.] Therefore, for the purpose of effecting the 
 object of the bond act the act of Feb'y 27, 1893 section 3 
 of the Vrooman act of March 18, 1885, is, in effect, amended. 
 For, section 3 of the act of March 18, 1885 the general 
 street improvement act provides what the resolution of 
 intention shall contain. But, when serial bonds are to be 
 issued to pay the expenses of the work, then section 3 of the 
 act of Feb'y 27, 1893 the bond act provides that the reso- 
 lution of intention shall contain certain other things; and, 
 therefore, for the purpose of effecting the purposes of this 
 act of Feb'y 27, 1893, section 3 thereof, in effect, amends 
 section 3 of the general street improvement act the Vroo- 
 man act of March 18, 1885 and, according to a decision of 
 the Supreme Court of Michigan, this seems to be in contra- 
 vention of the said provision of section 24, article IV of pur 
 constitution. The constitution of Michigan contains a sim- 
 ilar provision, and in the case Mok v. Detroit Ass'n, 30 
 Mich. 511, the Supreme Court of Michigan, per Cooley, J., 
 
222 STREET WORK LAW BOND ACT 
 
 held that an act to authorize proceedings under another act, 
 which simply refers for its rule of action to a third, the pro- 
 visions of the latter being left unchanged for their original 
 purposes, but modified by the act in question for its own 
 purpose, is unconstitutional and void. The act held to be 
 void in this case was one for the incorporation of buildings 
 and savings associations, passed in 1869. It provided that 
 such corporations should be organized under the provisions 
 of an act of 1855 for the incorporation of companies for 
 building and leasing houses, and this latter act, in turn, 
 provided that such latter corporations should be organized 
 under the provisions of an act of 1853, for the incorporation 
 of mining and manufacturing companies. Thus, the act of 
 1869 undertook, for the purposes of such corporations as it 
 itself attempted to provide for, to dispense with and change 
 some of the provisions and requirements of the act of 1853. 
 Held, that the act of 1853, thus indirectly referred to, became, 
 by construction, incorporated into and a part of the act of 
 1869, but with several changes and modifications; that the 
 act of 1869, therefore, for its own purposes, amended por- 
 tions of the act of 1853; and as these amendments were not 
 made by re-enactment of the sections changed or modified, 
 but only by indicating the extent of the changes, leaving 
 the parties concerned in the act to fit the new act to the old 
 as best they may, that, therefore, it was contrary to the con- 
 stitution and void. 
 
 If this be a correct application of the constitutional pro- 
 vision above quoted, section 24, act IV it is difficult to 
 differentiate this Michigan case from the case presented bv 
 the bond act, the act of Feb'y 27, 1893. It is true, that in 
 the Michigan case the act of 1869, held to be unconstitu- 
 tional, referred to the act of 1853, mediately and indirectly, 
 by referring to the act of 1855, which in turn, referred to 
 the act of 1853. But this is inconsequential. The act of 
 1869 was held unconstitutional because, by reference, it 
 made portions of the act of 1853 a part of itself, and, for its 
 own purposes, amended portions of the act of 1853. So with 
 the bond act the act of Feb'y 27, 3893 by reference it 
 makes the act of March 18, 1885, and the acts amendatory 
 thereof or supplementary thereto designated under the 
 general phrase of "Street Work Act" a part of itself, and, at 
 the same time, and for its own purposes, changes and 
 modifies some of the sections of the said act of March 18, 
 1885, section 3 thereof, for example, as above pointed 
 out, but none of these sections of the general street 
 improvement act, thus changed and modified for the pur- 
 poses of the bond act, are re-enacted or published. See also 
 
CONSTITUTIONALITY OF BOND ACT f-JbriJry* 27. 1&!* 223 
 
 in this connection the opinion of Mr. Justice McKinstry in 
 Earle v. S. F. Board of Education, 55 Cal. 493-4, where* he 
 says: "But if * * * the Traylor act can, for any pur- 
 pose, be treated as an intended amendment of any portion 
 of the Political Code, it is an amendment of the section 
 thereof with which it conflicts, to wit: 1617. * * * * 
 Section 24 of article IV of the constitution declares that 'no 
 law shall be amended by reference to its title, but in such 
 case, the section amended shall be re-enacted and published 
 at length. 7 The Traylor act is not a re-enactment of 1617 
 of the Political Code as amended." In that case Mr. Justice 
 McKinstry held that the Traylor act was not an amendment 
 of any section of the Political Code, because it was so far in 
 conflict with portions of the Political Code, as to operate a 
 repeal of these portions, instead of an amendment thereof, 
 and added that if it could, for any purpose, be treated as an 
 intended amendment of any portion of the Political Code, it 
 is the section thereof with which it conflicts, viz., 1617, 
 but if this be admitted, then it contravenes the said provision 
 of section 24 of acticle IV of the constitution. But it can- 
 not be said that the bond act the act of Feb'y 27, 1893 
 repeals any portions of the act of March 18, 1885. 
 
 For all the purposes of the Vrooman act the act of 
 March 18, 1885 all the provisions of the said Vrooman 
 act are left as they stood prior to the enactment of the bond 
 act; but, to effect its own purposes, the bond act changes or 
 modifies certain provisions of the said Vrooman act of 
 March 18, 1885, or adds certain requirements to them, 
 without repealing. However, it is the author's purpose to 
 merely suggest these possible constitutional objections, and 
 not to advance any opinion of his own, and such possible 
 constitutional objections as might be raised to an act of this 
 nature, regardless of its form or the manner of its enact- 
 ment, will next be considered. 
 
 (b.) It might be admitted that the legislature has the 
 power, in the exercise of its taxing power to compel 
 property owners to pay assessments to defray the expenses 
 of public street improvements, provided there is adopted 
 some principle of apportionment approximating equality 
 and uniformity, which can be referred to the general 
 sovereign right of taxation, and, nevertheless, it might be 
 urged that the legislature has not the power to issue bonds 
 to defray these expenses, and, b> making these bonds a lien 
 upon the land for any number of years, thus, in effect, 
 execute for the property owner, in proceedings in invitum, 
 that which might be tantamount to a mortgage upon his 
 property. 
 
224 STREET WORK LAW BOND ACT 
 
 The act provides, (section 4,) that a separate bond shall 
 be issued for each lot or parcel of land assessed, represent- 
 ing upon each lot or parcel of land upon the list of unpaid 
 addcssments, the total amount of the assessment for such 
 lot or parcel of land, as shown on such list. The same sec- 
 tion likewise provides that the assessment shall be a first 
 lien upon the property affected thereby, until the bond 
 issued for the payment of such assessment, and the accrued 
 interest thereon, shall be fully paid. 
 
 In answer to the constitutional objection above suggested, 
 the reply might be made that the act, (section 4) makes it 
 optional with each property owner as to whether he shall 
 elect to have a bond issued representing the assessment 
 upon his lot or elect to allow the assessment to be 
 collected in the ordinary mode as provided in the gen- 
 eral street improvement act, the act of March 18, 1885. 
 By section 4, it is provided that "if any person * * * * 
 notifies said treasurer, in writing, that he desires no 
 bond to be issued for the assessment upon said lot or 
 parcel of land, then no such bond shall be issued there- 
 fore, and the payee of the warrant, or his assignee, shall 
 retain the right for enforcing collection, as if said lot or 
 parcel of land had not been so listed by the street superin- 
 tendent.' 7 On the other hand, in rebuttal to this reply, it 
 might be urged that, if the council shall determine that 
 serial bonds shall be issued to represent the cost of any 
 proposed work or improvement authorized by the said act 
 of March 18, 1885, the contractors might for that reason 
 put in bids in larger amounts than they otherwise would, 
 and that therefore, notwithstanding any property owner 
 may elect not to have issued a bond representing the assess- 
 ment upon his lot, his assessment might be greater than it 
 would be if the proceedings were not had under this bond 
 act. 
 
 On the other hand it might be said, in reply to this last 
 objection, as was said in Doyle v. Austin, 47 Cal. 353, 359, 
 "As they (the property owners) have the benefit of the 
 credit, it is but just that they should pay the accruing 
 interest, and any discount which might be suffered in the sale 
 of bonds." In this case of Doyle v. Austin, the act of April 
 1, 1872, an act to open and establish a street in the city 
 and county of San Francisco, to be called "Montgomery 
 avenue," and to take private lands therefor, [statutes 1871-2, 
 p. 911] was assailed on the ground that it was unconsti- 
 tutional. That act provided [Sec. 8] that "all the damages, 
 costs and expenses arising from or incidental to the open- 
 ing of said avenue being fixed and determined, * * * 
 
CONSTITUTIONALITY OF THE ACT f^w* 5 * 225 
 
 , 93 
 
 said board shall cause to be -prepared and issued bonds in 
 sums of not less than one thousand dollars each, for such 
 an amount as shall be necessary to pay and discharge all 
 said damages, costs and expenses." By section 11 of that 
 act it was provided that "There shall be levied, assessed 
 and collected, annually, at the same time and in the same 
 manner as other taxes are levied, assessed and collected in 
 said city and county, a tax upon lands described in section 
 4 of this act, sufficient to pay the interest upon said bonds 
 as the same mature. * * * There shall be levied, 
 assessed and collected annually, commencing with the year 
 1SXO, at the same time and in the same manner, and upon 
 the same lands, and in accordance with the same rule of 
 assessment upon enhanced values, * * * a tax of one 
 per cent, upon each one hundred dollars valuation, which 
 shall constitute a sinking fund for the redemption of said 
 bonds." Section 4 of the act described a certain district; 
 and by section 3, it was provided that the lands in this 
 district should be assessed to pay the value of the land 
 taken, the damages to the improvements, and all other expen- 
 ses, in proportion to the benefits accruing to the several lots 
 in said district. By section 24 it was provided that " the 
 city and county of San Francisco shall not in any event 
 whatever be liable for the payment of the bonds, nor any 
 part thereof." After deciding that the act provided for an 
 "assessment" to defray the expenses, and not for a "tax," in 
 the strict sense, the court, per Crockett, J., page 358, con- 
 tinued: "It is next objected that it is not competent for the 
 legislature to impose upon the property to be benefited, a 
 greater burden than will be sufficient to defray the cost of 
 improvement, and it is said that under this act the property 
 is charged not only with the actual cost of improvement, 
 but with an additional sum sufficient to cover the interest 
 to accrue on the bonds, and such discount as may be suffered 
 in converting them into cash. But instead of requiring the 
 cost of the improvement to be paid in cash during the pro- 
 gress or on the completion of the work, the act provides for 
 raising the money by the sale of bonds, payable at a future 
 day, the annual interest on which, and the ultimate 
 redemption of the principal, are provided for by an assess- 
 ment of the property to be benefited. We do not see on 
 what theory it can be claimed that by this process the prop- 
 erty is charged with anything more than the cost of the 
 improvement. The interest ou the bonds, and the discount, if 
 any, on the sale of them, are incidental expenses incurred in 
 providing a sufficient fund for the accomplishment of the work, 
 without exacting in cash from the property owners the 
 
226 STREET WORK LAW BOND ACT 
 
 necessary sura. It is a provision for thoir benefit, which 
 enables them to pay the cost of the improvement in easy 
 installments, instead of paying the whole sum on the com- 
 pletion of the work. As they will have the benefit of the 
 credit, it is but just that they should pay the accruing inter- 
 est, and any discount which may be suffered in the sale of 
 bonds. As before stated, the interest and discount are but 
 incidental expenses of the enterprise, and, upon principle, 
 stand upon the same footing as the compensation of the 
 officers who superintend it." 
 
 SECTION 2. Whenever the city council of any municipality in this state 
 shall find, upon estimates of the city engineer, that the cost of any pro- 
 posed work or improvement authorized by said street work act will be 
 greater than one dollar per front foot along each line of the street so pro- 
 posed to be improved, including the cost of intersection work assessable 
 upon said frontage, it shall have the power, in its discretion, to determine 
 that serial bonds shall be issued to represent the cost of said work or 
 improvement in the manner and form hereinafter provided. Said serial 
 bonds shall extend over a period not to exceed ten years from their date, 
 and an even annual proportion of the principal sum thereof shall be pay- 
 able, by coupon, on the second day of January every year after their date, 
 until the whole is paid, and the interest shall be payable semi-annually, 
 by coupon, on the second days of January and July, respectively, of each 
 year, at the rate of not to exceed ten per cent, per annum on all sums 
 unpaid, until the whole of said principal and interest are paid. Said 
 bonds and interest thereon shall be paid at the office of the city treasurer 
 of said municipality, who shall keep a fund designated by the name of 
 said bonds, into which he shall receive all sums paid him for the principal 
 of said bonds and the interest thereon, and from which he shall disburse 
 such sums upon the presentation of said coupons; and under no circum- 
 stances shall said bonds or the interest thereon be paid out of any other fund. 
 Said city treasurer shall keep a register in his office, which shall show the 
 series, number, date, amount, rate of interest, payee and indorsees of each 
 bond, and the number. and amount of each coupon of principal or interest 
 paid by him, and shall cancel and file each coupon so paid. [Statutes 1893, 
 p. 33.] 
 
 SECTION 3. When said city* council shall determine that serial bonds 
 shall be issued to represent the expenses of any proposed work or improve- 
 ment under said street work act, it shall so declare in the resolution of 
 intention to do said work, and shall specify the rate of interest which they 
 shall bear. The like description of said bonds shall be inserted in the 
 resolution ordering the work, in the resolution of award, and in all notices 
 of said proceedings required by said street work act to be either posted or 
 published ; and also a notice that a bond will issue to represent each 
 assessment of fifty dollars or more remaining unpaid for thirty- days after 
 the date of the warrant, or five days after the decision of said council upon 
 an appeal, and describing the bonds, shall be included in the warrant pro- 
 vided for in section nine of said street work act. [Statutes 1893, p. 34.] 
 
FORM OF BOND %SS!f%i& A * 227 
 
 SECTION 4. After the full expiration of thirty days from the date of the 
 warrant, or if an appeal be taken to the city counci', as provided in section 
 eleven of said street work act, then five days after the final decison of said 
 council, and after the street superintendent shall have recorded the return 
 as provided in section 10 of the same act, the street superintendent shall make 
 and certify to the city treasurer a complete list of all assessments unpaid, 
 which amount to fifty dollars or over upon any assessment or diagram num- 
 ber ; and said treasurer shall thereupon make out, sign and issue to the con- 
 ractoror his assigns, payee of the warrant and assessment, a separate bond, 
 representing upon each lot or parcel of land upon said list the total amount 
 of the assessments against the same, as thereon shown. And if said lot or 
 pan-el of land is described upon said assessment and diagram by its num- 
 ber or block, or both, and is also designated by its number or block, or 
 both, upon the official map of said municipality, or upon any map on file 
 in the office of the county recorder of the county in which said municipal- 
 ity is situated, then it shall be in said bond a sufficient description of said 
 lot or parcel of land to designate it by said number or block, or both, as it 
 appears on said ofi'icial or recorded map. Said bond shall be substantially 
 in the following form: 
 
 STREET IMPROVEMENT BOND. 
 
 Series (designating it), in the city (or other form of the municipality) of 
 (naming it). 
 
 $ ioiT No. . 
 
 I'nder and by virtue of an act of the legislature of the state of California 
 (title of this act), I, out of the fund for the above designated street 
 
 improvement bonds, series , will pay to , or order, the 
 
 sum of ($ ), with interest at the rate of per cent. 
 
 per annum, all as is hereinafter specified, and at the office of the 
 
 treasurer of the of , state of California. This bond is 
 
 issued to represent the cost of certain street work upon , in the 
 
 of , as tlje same is more fully described in assessment 
 
 number , issued by the street superintendent of said , 
 
 after his acceptance of said work, and recorded in his office. Its amount 
 is the amount assessed in said assessment against the lot or parcel of land 
 
 numbered therein, and in the diagram attached thereto, as number , 
 
 and which now remains unpaid, but until paid, with accrued interest, is a 
 first lien upon the property affected thereby, as the same is described herein, 
 and in said recorded assessment with its diagram, to wit: the lot or parcel 
 of land in said of , county of , state of California, 
 
 This bond is payable exclusively from said fund, and neither the 
 municipality nor any officer thereof is to be holden for payment otherwise 
 
 of its principal or interest. The term of this bond is : years from 
 
 its date, and at the expiration of said time the whole sum then unpaid 
 shall be due and payable ; but on the second day of January of each year 
 after its date an even annual proportion of its whole amount is due and 
 payable, upon presentation of the coupon therefor, until the whole is paid, 
 
 with all accrued interest at the rate of per centum per annum. 
 
 The interest is payable semi-annually, to wit, on the second days of Jan- 
 uary and of July in each year hereafter, upon presentation of the coupons 
 
228 STREET WORK LAW BOND ACT 
 
 therefor, the first of which is for the interest from date to the next second 
 
 day O f _, an d thereafter the interest coupons are for semi-annual 
 
 interest, except the last, which is for interest from the semi-annual pay- 
 ment next preceding and to the date of the final maturity of this bond. 
 Should default be made in the.annual payment upon the principal, or in 
 any payment of interest, from the owner of said lot or parcel of land, or 
 anyone in his behalf, the holder of this bond is entitled to declare the 
 whole unpaid amount to be due and payable, and to have said lot or par- 
 cel of land advertised and sold forthwith, in the manner provided by law 
 for sale of land assessed for state and county taxes delinquent in the pay- 
 ment thereof. 
 
 At said of , this day of , in the year 
 
 one thousand hundred and . 
 
 City Treasurer of the of 
 
 Provided, that in case the amount of unpaid assessments upon any lot 
 or parcel of land shall be less than fifty dollars, then the same shall be 
 collected as is hereinbefore provided in part one of said street work act. 
 
 Provided, also, that if any person, or his authorized agent, shall at any 
 time before the issuance of the bond for said assessment upon his lot or 
 parcel of land, present to the city treasurer his affidavit, made before a 
 competent officer, that he is the owner of a lot or parcel of land in said 
 list, accompanied by the certificate of a searcher of records, that he is such 
 owner of record, and with such affidavit and certificate, such person 
 notifies said treasurer, in writing, that he desires no bond to be issued for 
 the assessments upon said lot or parcel of land, then no such bond shall 
 be issued therefor, and the payee of the warrant, or his assigns, shall 
 retain his right for enforcing collection, as if said lot or parcel of land had 
 not been so listed by the street superintendent. The bonds so issued by said 
 treasurer shall be payable to the party to whom they issue, or order, and 
 shall be serial bonds, as is hereinbefore described, and shall bear interest 
 at the rate specified in the resolution of intention to do said work. They 
 shall have annual coupons attached thereto, payable in annual order, on 
 the second day of January in each year after the date of the bond, until 
 all are paid, and each coupon shall be for an even annual proportion of the 
 principal of the bond. They shall have semi-annual interest coupons thereto 
 attached, the first of which shall be payable upon the second day of Jan- 
 uary or July, as the case may be, next after its date, and shall be for the 
 interest accrued at that time, and the last of which shall be for the 
 amount of interest accruing from the second day of January or July, as 
 the case may be, next preceding the maturi f y of said bonds to the 
 maturity thereof. The city treasurer shall, in addition to his other duties 
 in the premises, report all coupon payments of principal upon said bonds 
 to the street superintendent, who shall forthwith indorse the same upon 
 the margin of the record of the assessment to the credit of which the same 
 is paid, and said assessment shall be a first lien upon the property affected 
 thereby, until the bond issued for the payment thereof, and the accrued 
 interest thereon, shall be fully paid. Said bonds, by their issuance, shall 
 be conclusive evidence of the regularity of all proceedings thereto under 
 said street work act and this act, previous to the making of the certified 
 list of all assessments unpaid to the amount of fifty dollars or over by the 
 
EVIDENCE OF REGULARITY || c b 8 ru 4 a ^ d 27 5 <*<* of 2 29 
 
 street superintendent, to the city treasurer, and of the validity of said lien, 
 up to the date of said list. [Statutes 1893, page 34.] 
 
 This section purports to make the bonds, by their 
 issuance, conclusive evidence of the regularity of all pro- 
 ceedings thereto previous to the making by the superin- 
 tendent of streets of the certified list of unpaid assessments; 
 and also conclusive evidence of the validity of the lien, up 
 to the date of said list. How far the legislature has the 
 constitutional power to make these bonds conclusive evi- 
 dence of the regularity of such proceedings, and of said 
 lien, is a question which lies outside the plan of this book, 
 and therefore will not receive that attention here which its 
 importance would otherwise demand in a work upon the 
 general principles of municipal corporation law in relation 
 to the improvement of streets. A correct statement of the 
 rule upon this matter is, perhaps as follows: The legis- 
 lature has the power to declare that a neglect to perform 
 any act, which it has the power to dispense with in the 
 outset, will not affect the validity of the lien, and, therefore, 
 it has the power to declare that the bonds shall be conclu- 
 sive evidence of the due performance of such acts as it 
 may thus dispense with at the outset; but, as to those 
 things which the legislature can not dispense with, e. g., 
 notice, actual or constructive, to the property owner that 
 his property is liable to be become charged with an assess- 
 ment, the legislature cannot make the bonds conclusive 
 evidence that such things were done. It may make the 
 bonds conclusive evidence as to regularity in respect to the 
 manner of doing these necessary things, but may not make 
 the bonds conclusive evidence that these things were, in 
 in fact, done. [See McCready v. Sexton, 29 Iowa, 356; 
 Strode r. Washer, (Or.) 16 Pac. Rep. 926; Joslyn v. Rock- 
 well, 128 N. Y. 334; Cooley on Taxation, (ed. 1886) 521; 
 Marx v. Hawthorn, 13 Sup. Ct. Rep. 508; Cooley's Constitu- 
 tional Limitations (3rd ed.) page 369; Desty on Taxation, 
 Vol. II p. 953.] 
 
 SECTION 5 AVhenever, through the default of the owner of any lot or 
 parrel of land to represent the assessment upon which such bond has been 
 issued, any payment, either upon the principal or of the interest, shall 
 not be made when the same is due, and the holder of the bond thereupon 
 demands, in writing, that the said city treasurer proceed to advertise and 
 sell said lot or parcel of land, as herein provided, then the whole bond, or 
 its unpaid remainder, with its accrued interest, shall become due and pay- 
 able immediately, and on the day following shall become delinquent; and 
 the city treasurer shall have, and shall act thereafter with, all the powers 
 and duties of tho tax collector in the collection of unpaid state and county 
 
230 STREET W.ORK LAW BOND ACT 
 
 taxes, and shall forthwith proceed to advertise and sell said lot or parcel of 
 land by proceedings in all respects the same as are provided by law for the 
 collection of delinquent state and county taxes. All such provisions and 
 proceedings, after taxes have become delinquent, including the certificate 
 of sale, the right of redemption, and the deed, with the respective costs 
 thereof, are hereby made applicable to this case. [Statutes 1893, p. 36.] 
 
 Where a street improvement act refers to the law for the 
 collection of delinquent state and county taxes for the 
 manner in which the street assessment is to be"collected,the law 
 for the collection of taxes is referred to as providing simply 
 the manner of collecting, and not what shall be collected; 
 and, therefore, in such case, a percentage as a penalty for 
 delinquencies can not be added, simply because the general 
 revenue law thus referred to, allows the collection of such 
 penalty where a tax has become delinquent. [Bucknall 
 v. Story, 36 Gal. 67.] 
 
 SECTION 6. Whenever any railroad track or tracks of any description 
 exists upon any street or streets on which the city council has ordered 
 word to be done or improvements made, excepting therefrom such por- 
 tions as is required by law to be kept in order or repair by any person or 
 company having railroad tracks thereon, the said council may, at any time 
 thereafter, order such person or company to perform upon said excepted 
 portion th.e work or improvements, similar in all respects to that already 
 ordered to be performed under the same specifications and superintendence, 
 with the same materials, within the same time, and to the like satisfaction 
 and acceptance. Thereupon it shall be the duty of the clerk of said council 
 to deliver immediately a copy of such order, certified by him, to such per- 
 son or company, and to make and preserve in his office a certificate of such 
 delivery, its date, and upon whom made. Should such person or company, 
 for thirty days, or within such extension of time as the city council may 
 grant, thereafter refuse or neglect to make or have made such work or 
 improvement in the manner or time ordered, it shall be the duty of the 
 city council to have such work or improvement performed, and such 
 refusal or neglect punished in the manner provided by law. Within fifteen 
 days after receiving the certified copy of said order, such person or com- 
 pany may file with the clerk of said council a written assumption of the 
 performance of said work or improvement, according to the order, or a 
 request to the council to have such work or improvement performed, for 
 and at the expense oi such person or company, in the manner herein pro- 
 vided. The failure to file such instrument within said time shall be taken 
 and deemed to be a refusal to comply with the order. Upon reception of 
 said assumption of the direct performance of said work or improvement, 
 the city council shall take no further proceedings in the matter, unless 
 such person or company neglects or fails for thirty days, or such further 
 time as the council may grant, to comply with the provisions of the order. 
 But if such person or company files the said request that the said council 
 have such work or improvement performed, or fails to perform said work 
 within thirtv days, 'or within such further time as the council may grant, 
 then said city council may pass an ordinance of intention to perform said 
 work, which ordinance shall specify the work to be performed, and a 
 
IMPROVEMENTS BY STREET RAILROAD f^f ^ of 231 
 
 statement that unless within thirty days after the recording of the return 
 of the warrant, or within five days aftei the final decision of the council on 
 an appeal, the said person or company shall pay the cost of said work, or 
 the street superintendent of said city shall issue bonds to represent the cost of 
 said work, stating also that the cost of said work, in case bonds shall issue, 
 shall be paid in ten yearly installments, and also the rate of interest (not 
 to exceed ten per cent, per annum) that the same shall bear. The subse- 
 quent procedure shall be as provided by the "street work act." A similar 
 statement shall also be incorporated in all notices required to be posted or 
 published by the provisions of the ''street work act;" also in the ordinance 
 or resolution ordering the work, advertisement for proposals, and in the 
 contract. Whenever the person or company owning any such railroad 
 shall not have, within thirty days after the recording of the return of the 
 warrant, or within five days after the final decision of the council on an 
 appeal, paid the cost of such work, the street superintendent shall issue to 
 tin- contractor, or his assigns, bonds for the amount of such cost, which 
 shall describe the franchise, tracks, and roadbed along or between which 
 said work has been performed, and describing the same as upon the 
 iiient and diagram, giving its assessment number. Such bonds shall 
 also describe the work performed, giving the total amount of the cost of 
 such work, the name of the owner of said railroad, the number of install- 
 ments in which the cost of the work is to be paid, and the rate of interest 
 which the deferred payments shall bear. Said bonds shall be in sums of 
 not less than one hundred dollars or more than one thousand dollars, and 
 shall recite that the total amount of the cost of such work, together with 
 the interest thereon, as represented in said bonds, is, except state, county 
 and municipal taxes, a first lien upon all the track, roadbed, switches and 
 franchises of said railroad lying within the corporate limits of the city or 
 town, on any part of which said work has been performed. Said street 
 superintendent shall also keep a record of such bonds, as required by sec- 
 tion eighteen of the "street work act." Whenever bonds have been issued, 
 as herein provided, the same, together with the cost of such work and the 
 interest thereon, shall be, except state, county or municipal taxes, a first 
 lien upon all the tracks, roadbed, switches and franchises of said railroad 
 within the corporate limits of the city or town, on any part of which said 
 work lias been performed. Sections four and five of this act, regarding the 
 form, issuance and foreclosure of street bonds and the sale of property 
 described therein, shall apply hereto, except that the w r ork required to be 
 performed by the treasurer by said sections shall be performed by the street 
 superintendent, in so far as the bonds for the paving of railroads are con- 
 cerned. None of the provisions of the "street work act " in regard to a 
 protest against the work shall apply to any work contemplated by this sec- 
 tion. All provisions of the " street work act " not inconsistent with the 
 provisions hereof, shall apply hereto. [Statutes '93, p. 36.] 
 
 Section 6 purports to provide the machinery whereby 
 the city authorities may compel the persons or companies 
 own in o- <>r having railroads tracks on any street, to perform 
 upon the portions of such street which such persons or 
 companies are by law required to keep in order or repair, 
 any work or improvement similar to that which may have 
 
232 STREET WORK LAW BOND ACT 
 
 been already ordered to be performed on such street. The 
 other sections of the act assume that other acts, designated 
 collectively under the phrase "Street Work Act," provide the 
 machinery enabling the city authorities to order the improve- 
 ment of streets and to compel the property owners affected 
 to pay the expenses thereof by assessments; and then, as 
 supplementary to the provisions of said other acts, these 
 other sections of the bond act of February 27, 1893, pro- 
 vide the machinery for the issuance of said bonds to pay 
 such expenses, in those cases where the council elects to do 
 so as provided in section 2 of the act. The provisions 
 of these other sections seem to be fully covered by the title 
 of the act, "An act to provide a system of street improve- 
 ment bonds to represent certain assessments for the cost of 
 street work and improvements within municipalities, and 
 also for the payment of such bonds." But section 6 of 
 the act, not only provides for the issuance of bonds to pay 
 the cost of such work as is required to be done by the 
 owners of street railways, but likewise purports to provide 
 the machinery for compelling the owners of such railways 
 to do such work or to have it done at their expense. In 
 this respect section 6 of the act seems to contravene the 
 requirement of section 24 of article IV of the constitution 
 that "every act shall embrace but one subject which sub- 
 ject shall be expressed in its title." Since, in so far as 
 section six attempts to provide the machinery for enabling 
 the city authorities to order to be done any work which 
 they are not enabled to order to be done under the acts 
 embraced by the general phrase "Street Work Act," the act 
 embraces a subject not expressed in its title, and as to this 
 subject the act seems to be void. "If any subject shall be 
 embraced in an act which shall not be expressed in its title, 
 such act shall be void only as to so much thereof as shall 
 not be expressed in its title. "[Section 24 article IV of Consti- 
 tution.] Section 497 of the Civil Code empowers the city 
 council, etc., to grant a franchise to a street railroad upon 
 "such terms" as it may provide. 
 
 Section 498 of the Civil Code provides that "the city or 
 town authorities in granting the right of way to street rail- 
 road corporations * * * must require a strict com- 
 pliance with the following conditions: * * * (%^ To 
 plank, pave or macadamize the entire length of the street 
 used by their track, between the rails, and for two feet on 
 each side thereof, and between the tracks, if there be more 
 than one, and to keep the same constantly in repair, flush 
 with the street, and with good crossings." 
 
 Section 511 of the Civil Code makes the above provisions 
 
IMPROVEMENTS BY STREET RAILROAD JtbruSJ i f 233 
 
 27, . 
 
 applicable in like manner to a natural person when a street 
 railroad is constructed, owned or operated by any such 
 person. 
 
 These provisions of the Civil Code are the only pro- 
 visions of law known to the author which require any work 
 to be done by any person or company having railroad 
 tracks on a street. These Civil Code provisions provide 
 that the city authorities, in granting a right of way to a 
 street railroad corporation, or to a person owning or 
 operating a street railroad, shall impose said conditions to 
 do said street work. But they do not provide any machinery 
 for compelling such corporations or persons to do sucji 
 work. There is no doubt but that the city authorities with- 
 out any special statutory provision therefor have an appro- 
 priate remedy if these conditions are not complied with, 
 . </., mandamus to compel the performance of the conditions. 
 [Elliott on Roads and Streets, page 592.] But the question 
 is: Is there any statutory provision providing the machinery 
 for compelling the owners of street railroads to pay the 
 expense of doing the work which such owners are required 
 to do by said sections of the Civil Code. Is there any 
 statutory provision compelling the owners of street railroads 
 to pay for such expenses by assessing the same upon the 
 tracks, roadbed, switches and franchises of said railroad? 
 Subdivision 1 of section 7 of the general street improvement 
 act the Vrooman act of March 18, 1885 provides that the 
 expense incurred for any work authorized by said act, and 
 which is to be assessed according to the front-foot principle 
 of assessment, "shall not include the cost of any work done 
 in such portion of any street as is required by law to be 
 kept in order or repair by any person or company having 
 railroad tracks thereon." [See supra p. 64.] But said 
 act does not declare what street work is to be done 
 by persons or companies having railroad tracks, nor 
 does it provide how the expense of doing such work 
 is to be met. It provides no machinery for assessing 
 the property of persons or companies having railroad 
 tracks. The only act, known to the author, which 
 does attempt to furnish such machinery is said bond act-^ 
 the act of February 27, 1893, section 6 thereof. [See in this 
 connection McVerry v. Boyd, 89 Cal. 309.] In the case of 
 Schmidt v. Market St., etc., R. R. Co., 90 Cal. 37, Mr. Justice 
 Harrison, page 39, said: "No mode is provided in the act 
 [act of March 18, 1885] for collecting from a street railroad 
 corporation, whose road occupies a portion of the street, any 
 portion of the expense of improving the street." And, if 
 section 6 of the bond act of February 27, 1893, in so far as 
 
234 STREET WORK LAW BOND ACT 
 
 it attempts to provide a mode for collecting from a person 
 or company having a street railroad any portion of the 
 expense of improving the street, be unconstitutional and 
 void as it certainly seems to be, in view of the mandatory 
 requirement of section 24 of article IV of the constitution 
 that " every act shall embrace but one subject " then it 
 must follow that there is still no special mode provided by 
 law for collecting from a person or company having a street 
 railroad any portion of the expense of improving the street, 
 and the only way in which the conditions imposed under 
 the provisions of section 498 of the Civil Code can be 
 enforced, is by mandamus, or some other appropriate rem- 
 edy not dependent for its existence upon any special statutory 
 provision providing a special remedy in such cases. 
 
 In said case of Schmidt v. Market St., etc., R. R. Co., 90 
 Cal. 37, it was held that when, under section 497 of the Civil 
 Code, the city council, in granting to a street railroad com- 
 pany the right of way or franchise, imposes as one of the 
 conditions that the company shall pay the cost of improving 
 the part of the street occupied by its tracks, etc., and that 
 such cost shall be "collected in the manner provided for the 
 collection of other street assessments," the acceptance of the 
 franchise, subject to such condition, is equivalent to a con- 
 tract to pay such cost in such manner. Held, further, that 
 as the manner provided for the collection of other street 
 assessments under the Vrooman act of March 18, 1885, is by 
 suit brought by the contractor, that the defendant was liable 
 on said contract in an action by the contractor to recover the 
 amount of the assessment. In that case the defendant's 
 liability was founded upon its contract with the city made 
 by its acceptance of its franchise with a condition imposed 
 that it would not only pay the cost of the street work in 
 question, but that the same should be " collected in the 
 manners/provided for the collection of other street assess- 
 ments." Defendant's liability in that case was not founded 
 upon any provision of any statute providing a manner for 
 the collection of assessments from persons or companies 
 having street railroads, but was founded solely upon its said 
 contract, arising out of its acceptance of said franchise sub- 
 ject to said conditions. [See this subject considered in the 
 notes to subdivision 1 of section 7 of the Vrooman act of 
 March 18, 1885, supra, page 67 et seq.] 
 
 SECTION 7. The term "city treasurer," as used in this act, shall be held 
 to mean and include any person who, under whatever name or title, is the 
 custodian of the funds of the municipality. [Statutes '93, p. 38.] 
 
IMPROVEMENTS BY STREET RAILROADS fSbruarVSfiaSs! A * f 235 
 
 SECTION 8. The act entitled "An act to amend an act entitled 'An act to 
 provide for work upon streets, lanes, alleys, courts, places and sidewalks, 
 and for construction of sewers within municipalities,' approved March 
 eighteenth, eighteen hundred and eighty-five, by adding thereto an addi- 
 tional part, numbered four, consisting of sections thirty-eight, thirty-nine, 
 forty, forty-one, forty-two, forty-tnree and forty-four, relative to a system 
 of street improvement bonds," approved March seventeenth, eighteen hun- 
 dred and ninety-one, is hereby repealed, except as to any and all proceed- 
 ings hitherto commenced thereunder, which proceedings may be completed 
 and have full force as is therein provided. [Statutes '93, p. 38.] 
 
 SECTION 9. This act shall take effect and become of force from and after 
 its passage. [Statutes '93, p. 38.] 
 
Tree Planting M of March 11, 1893, 
 
 An Act to provide for the planting, maintenance, and care of 
 shade trees upon streets, lanes, alleys, courts and places within 
 municipalities, and of hedges upon the lines thereof; also, for 
 the eradication of certain weeds within city limits. 
 
 [Approved Man h 11, 1893, statutes 1893, p. 153.] 
 
 The people of the state of California, represented in senate and assembly r 
 do enact as follows : 
 
 SECTION 1. All streets, lanes, alleys, places or courts in the municipali- 
 ties of this state, now open or dedicated, or which may hereafter be opened 
 or dedicated to public use, whose grade has been officially established, and 
 which have been actually graded in conformity therewith, may be planted 
 with shade trees along the edges of the sidewalks thereof, by order of the 
 city council, which shall have power also to provide for the maintenance 
 and care of the same; and the city council shall have power to prescribe 
 the height, thickness and manner of trimming of all hedges set out, or that 
 shall be hereafter set out, along the line of any street, lane, alley, place or 
 court dedicated to public use, whether graded or not, and to compel com- 
 pliance with its ordinances in the premises by the owners or occupants of 
 the lots fronting thereon. The powers hereby conferred upon city councils 
 shall be exercised in the manner and under the proceedings hereinafter 
 described. 
 
 Section 1 of this act declares what work the city council 
 is authorized to order to be done under the act. The sub- 
 sequent sections provide the machinery by which the coun- 
 cil is to acquire jurisdiction to order the work done, and 
 likewise the machinery by which the cost of the work is to 
 be paid for by means of assessments levied upon the prop- 
 erty owners. As the procedure provided for by the act is 
 very similar to that provided by the general street improve- 
 ment act of March 18, 1885, supra, pages 1-210, the reader is 
 referred to the notes to the corresponding and analogous 
 sections of that act. 
 
 SECTION 2. The city council of any municipality in the state may, at its 
 discretion, pass a resolution of intention to plant, or cause to be planted, 
 with shade trees, any graded street, lane, alley, place or court within the 
 limits of such municipality. Such resolution of intention may embrace the 
 entire length of any street, lane, alley, place or court, or any portion there- 
 of, but must specify the kind of trees to be planted, their size, age, and their 
 distance apart. The street superintendent shall thereupon cause to be 
 conspicuously posted along both sides of the street mentioned in the reso- 
 lution, at not more than three hundred feet in distance apart, notices of 
 the passage of said resolution. Said notice shall be headed, "Notice to 
 plant shade trees," in letters not less than one inch in length, and shall, in 
 
TREE PLANTING ACT Act of March 11, 1893. 237 
 
 legible characters, set forth the language of the resolution, and the date of 
 its passage. The city clerk shall also cause a copy of the resolution to be 
 published for six days in one or more daily newspapers published and cir- 
 culated in said city, and designated by said city council. 
 
 [See notes to section 2 of act of March 18, 188* ,npra,page 6.] 
 SECTION 3. The owners of a majority of the frontage of the property on 
 both sides of the street proposed to be planted as aforesaid, may, within 
 ten days after the expiration of the time of publication of said resolution, 
 file their written statement of objections to the proposed work, with the 
 city clerk, which must be signed by the objectors, each one writing after 
 his or her name the number of feet frontage owned by him or her. Such 
 objection must show wherein the parties making them will be injured or 
 aggrieved by the proposed work, and if the objection be to the kind of trees 
 proposed to be planted, they must name some other kind of tree to be sub- 
 stituted therefor. The city council shall, at its next meeting after the filing 
 of said objections, fix a time for hearing the same, not less than one week 
 thereafter. The city clerk shall thereupon notify each objector, or his 
 agent, who has signed his or her name to the statement, by depositing in 
 the post office of said city a notice addressed to him or her, postage pre- 
 paid, notifying the objectors of the time and place of hearing. At the time 
 specified, the council snail hear the objections urged, and pass upon the 
 same, and its decision shall be final and conclusive, except that in the 
 choice of trees to be planted, it shall be governed by the written request of 
 the owners of a majority of the frontage on both sides of the street which it 
 is proposed to plant. If the objections be sustained, no further proceedings 
 shall be taken under the resolution of intention for six months after the 
 date of its passage. If it be again proposed to plant the street, the council 
 shall commence proceedings de novo, as if no action had been previously 
 taken. 
 
 [See notes to section 3 of act of March 18, 1885, supra, page 10.] 
 SECTION 4. At the expiration of ten days after the expiration of the time 
 of publication of said resolution of intention, if no written objections to the 
 work therein described shall have been filed with the city clerk, as herein- 
 before provided, otherwise immediately upon the overruling of the objec- 
 tions by the council, the council shall be deemed to have acquired jurisdic- 
 tion to order to be done the work which is authorized by this act, which 
 order shall be published for two days in the same papers and manner as 
 provided for the publication of the resolution of intention. 
 [See notes to section 4 of act of March 18, 1885, supra, page 37. J 
 SECTION 5. Before passing any resolutions for the planting of any street, 
 the city council shall cause notice, with specifications, to be posted conspic- 
 uously for five days near the door of the council chamber, and shall adver- 
 tise the same for five days in the same manner and papers as heretofore 
 provided for the publication of the resolution of intention, inviting sealed 
 proposals for bids for furnishing the trees and doing the work ordered. All 
 bids shall state the sum or price for which the bidder will undertake to 
 furnish the trees, of the kind, age and size required, and will suitably pre- 
 pare the ground, set out the trees, warrant every one of them to grow, or 
 replace all that fail to grow or receive damage from whatever cause with 
 others of the same kind, and of suitable age and size to preserve uniformity, 
 and will for three years care for, cultivate, protect, irrigate and trim said 
 
 * y \ 
 
 , X 
 
 (u 
 
 DIVERSITY 
 
248 STREET WORK LAW TREE PLANTING ACT 
 
 trees. And no order for the planting of any street shade trees shall be 
 made that does not likewise provide for the care and maintenance of the 
 trees for three years by the contractor planting the trees. All proposals or 
 bids shall be accompanied by a check payable to the order of the mayor, or 
 president of the city council, certified by a responsible bank, for an amount 
 which shall not be less than ten per cent, of the aggregate of the proposal. 
 Said proposals or bids shall be delivered to the clerk of the city council, 
 indorsed "Proposals to plant trees," and said council shall, in open session, 
 examine and publicly declare the same ; provided, that no proposal or bid 
 shall be considered unless accompanied by said check. The council may 
 reject all proposals, should it deem this for the public good, and shall reject 
 the bid of any party who has been delinquent, or unfaithful in any former 
 contract with the municipality, and may award the contract to the lowest 
 responsible bidder, at the prices named in his bid, which award shall be 
 approved by the mayor, or president of the council. Notice of such awards 
 of contract shall be posted and advertised for five days, in the manner 
 hereinbefore provided, and it shall be the duty of the superintendent of 
 streets to enter into a contract with the bidder to whom the work shall 
 have been awarded by the council, and at the prices specified in his bid; 
 whereupon the certified checks of all the other bidders shall be returned to 
 them, respectively. But if such lowest bidder neglects, fails or refuses, for 
 fifteen days after the first posting and publication of the award, to enter 
 into the contract, then the city council, without further proceedings, shall 
 again advertise for proposals or bids as in the first instance, and shall award 
 the contract for said work to the then lowest bidder. If the contractor who 
 shall have taken any contract shall not complete the planting within the 
 time limited in the contract, or within such further time as the council 
 may give him, the superintendent of streets shall report such delinquency 
 to the council, which may relet the unfinished portion of the planting, and 
 the future care of the trees, after pursuing the formalities hereinbefore pre- 
 scribed for the letting of the whole in the first instance. 
 
 [See notes to section 5 of act of March 18, 1885, supra, page 44.] 
 SECTION 6. All contractors shall, at the time of executing any contract 
 for the planting and care of trees, execute a bond to the satisfaction of the 
 mayor, or president of the city council, with two or more sureties, and 
 payable to the city, in such sums as the mayor, or president of the council, 
 shall deem adequate, conditioned for the faithful performance of the con- 
 tract, and the sureties shall justify before the recorder, or a justice of the 
 peace, in double the amount mentioned in such bond, over and above all 
 statutory exemption. Before being entitled to any contract, the bidder to 
 whom the award shall have been made must pay into the city treasury the 
 cost of the publication of notices, resolutions and orders, and all other 
 incidental expenses required under the proceedings prescribed by this act. 
 [See notes to section 6 of act of March 18, 1885, supra, page 62.] 
 SECTION 7. All work done under the provisions of this statute shall be 
 executed under the direction of the superintendent of streets, whose duty 
 it shall be, under the general control of the council, to see that all the obli- 
 gations assumed by contractors towards the city are faithfully complied 
 with, and that all trees furnished are sound, healthy, free from infection 
 by insects, and of the kind, size and age called for by the contract. He 
 shall certify to the completion of all w r ork, or portion of work, which, by 
 
TREE PLANTING ACT Act of March 11, 1893. 239 
 
 the terms of the contract, shall entitle the contractor to payment in whole 
 or in part, and the presentation of his certificate by the contractor shall be 
 a condition precedent to each payment that shall become due under the 
 contract. 
 
 [See notes to section 7 of act of March 18, 1885, supra, page 67.] 
 SECTION 8. All sums due to contractors under the provisions of this act 
 shall be payable by installments, as follows, to wit f Not more than one- 
 half the entire consideration in the contract shall be payable on the com- 
 pletion of the planting, and out of this amount the superintendent of streets 
 shall see that the trees are paid for, to the party furnishing the same; one 
 half the balance at the end of eighteen months after the completion of the 
 planting; prodded, all conditions shall have been complied with; the 
 remaining one-half to be paid at the end of three years after the completion 
 of the planting; provided, all conditions shall have been complied with. 
 
 SECTION 9. Immediately upon the execution of any contract for the 
 planting and care of street trees under the provisions of this act, it shall be 
 the duty of the city assessor to make an assessment to cover the sum to 
 become due for the work specified in such contract (including all incidental 
 expenses) upon the lots and land fronting on the street, lane^ alley, court 
 or place to which such contract relates, each lot or portion of a lot being 
 separately assessed, in proportion to the frontage, at a rate per foot front 
 sufficient to cover the total expenses of the work. Said assessment shall 
 briefly refer to the contract, the work contracted for, and shall show the 
 amount to be paid therefor, together with any incidental expenses, the rate 
 per front foot assessed, the amount of each assessment, the name of the 
 owner of each lot, if known to the assessor (if unknown, the word 
 " unknown" shall be written opposite the number or description of the lot 
 with the amount assessed thereon). And the assessor shall attach to said 
 assessment a diagram, exhibiting the street, lane, alley, place or court on 
 which the work is contracted to be done, and showing the relative location 
 and frontage of such lot, numbered to correspond with the numbers in the 
 assessment. To said assessment shall be attached a warrant, which shall 
 be signed by the superintendent of streets, and countersigned by the mayor, 
 or president of the council. The said assessments and warrants shall be 
 separately issued for each payment that shall be due the contractor, as 
 specified in section eight of this act, and shall be substantially in the follow- 
 ing form : 
 
 FORM OF THE WARRANT. 
 
 By virtue hereof, I (name of the superintendent of streets), of the city of 
 
 , county of - , and state of California, by virtue of the authority 
 
 vested in me as said superintendent of streets, do authorize and empower 
 (name of contractor), his agents or assigns, to demand and receive the sev- 
 eral assessments upon the assessment and diagram hereto attached, and 
 this shall be his warrant for the same. 
 
 Date , . (Name of superintendent of streets.) 
 
 (Countersigned by name of mayor or president of council.) 
 
 Recorded (date , ). (Name of superintendent of streets.) 
 
 Said warrant, assessment and diagram shall be recorded in the office of 
 the superintendent of streets. When so recorded the several amounts 
 assessed shall be a lien upon the lands, lots or portions of lots assessed, 
 respectively, for the period of two years from the date of said recordifl 
 
240 STREET WORK LAW TREE PLANTING ACT 
 
 unless sooner discharged. From arid after the date of said record, all per- 
 sons interested in any manner in any or all of the lots assessed, shall be 
 deemed to have notice of the contents of said record. 
 
 [See notes to sections 7, 8 and 9, act of March 18, 1885, supra, pp. 67 
 to 107.] 
 
 SECTION 10. After said warrant, assessment and diagram shall have been 
 recorded,the same shall be delivered to the contractor, his agents or assigns, 
 on demand, who shall thereby be authorized to demand and receive the 
 the amounts of the several assessments. In default whereof, and as regards 
 enforced collections, interest, cost and penalties, and the correction of 
 errors, the same proceedings are to be had as are specified in sections nine, 
 ten, eleven, twelve, sixteen and seventeen of an act entitled "An act to 
 provide for work upon streets, lanes, alleys, courts, places and sidewalks, 
 and for the construction of sewers within municipalities," approved March 
 eighteenth, eighteen hundred and eighty-five, amended March fourteenth, 
 eighteen hundred and eighty-nine. 
 
 [See notes to sections 10, 11, 12 and 16 of act of March 18, 1885, supra, 
 p. 108, et seq.] 
 
 SECTION 11. The city council of every municipality in this state has 
 jurisdiction of the hedges and fences placed by property owners along street 
 lines, and may, by ordinance, prohibit the planting of thorn-bearing hedges , 
 and the use of barbed wire along street lines, and may regulate the height, 
 width, and the mode of trimming hedges, and enforce ordinances enacted 
 for such purposes against absentees, or other negligent or recusant owners 
 or occupants of lots or lands on which hedges are maintained. They may 
 also condemn, as public nuisances, any or all weeds whose seeds are of a 
 winged or downy nature, and are spread by the winds, and may compel 
 the eradication of such weeds by the owners of the lots whereon they grow, 
 or at their expense. 
 
 SECTION 12. The city council or trustees of every municipality shall 
 provide for the replacement of missing trees, and for the trimming and 
 care of all trees that have or shall have been planted for three or more 
 years in the streets and highways, whether such planting shall have been 
 done under this act or otherwise ; the expense whereof must be defrayed 
 out of the street fund, and the work be done by the superintendent of 
 streets of such municipality. 
 
 SECTION 13. This act shall only apply to such municipalities as shall by 
 vote of the electors residing therein determine to come within its provi- 
 sions. 
 
 SECTION 14. This act shall take effect from and after its passage. 
 
Street Opening tict of ^arch 6, 1889. 
 
 An Act to provide for laying out, opening, extending, widening, 
 straightening, or dosing up in whole or in part any street, 
 square, lane, alley, court, or place within municipalities, and 
 to condemn and acquire any and all land and property neces- 
 sary or convenient for that purpose. 
 
 [Approved March 6, 1889, statutes 1889, p. 70.] 
 
 The people of the state of California, represented in senate and assem- 
 bly, do enact as follows : 
 
 SECTION 1. Whenever the public interest or convenience may require, 
 the city council of any municipality shall have full power and authority to 
 order the opening, extending, widening, straightening, or closing up in 
 whole or in part of any street, square, lane, alley, court, or place within 
 the bounds of such city, and to condemn and acquire any and all land and 
 property necessary or convenient for that purpose. [Statutes 1889, p. 70.] 
 
 The above act of March 6, 1889, is the first general act 
 upon the subject of street opening, passed since the adop- 
 tion of the new constitution. 
 
 Section 1 provides what work the city council is author- 
 ized to do under the act, and the following sections provide 
 the machinery for doing that work. Two proceedings are 
 contemplated and provided for in the act, one against the 
 property to be condemned for the use of the street, and 
 the other to assess other property benefited by the improve- 
 ment. 
 
 As recited in the title, it is an act " to condemn and 
 acquire any and all land and property necessary or con- 
 venient" for the purposes of the act, namely for opening 
 extending, widening, straightening or closing up any street 
 etc., and therefore the act necessarily involves the exercise 
 of two different and high prerogative or sovereign powers, 
 namely, that of " eminent domain" and that of " taxation." 
 By the power of " eminent domain" the property is taken to 
 open, widen, extend or straighten the street. By the power 
 of " taxation" (which includes assessments upon the prop- 
 erty specially benefited, or perhaps upon such as is legisla- 
 tively deemed to be thus benefited), compensation is made 
 to those whose property has been taken under the exercise 
 of the power of eminent domain. 
 
 After providing in section 1 what work the city council 
 is authorized to do under the act, namely, the opening, 
 
242 STREET WORK: LAW OPENING ACT 
 
 extending, widening, straightening or closing up any street, 
 etc., the act provides the machinery for accomplishing 
 these objects, in substance as follows: The council passes 
 its resolution declaring its intention to do the work, and 
 specifying the extreme boundaries of the district to be 
 assessed to pay the damages and the expense of doing the 
 work. [Section 2.] Notice of the passage of such resolution 
 is then posted and published by the superintendent of 
 streets. [Section 3.] Persons interested may file objec- 
 tions to said work or to the extent of the assessment dis- 
 trict. [Section 4.] These objections, if filed, are heard and 
 passed upon by the council, and if none are filed, or if 
 being filed, are overruled, the council is then deemed to 
 have acquired jurisdiction to order any of the work to be 
 done which is authorized by section 1. [Section 5.] The 
 council then passes an ordinance or resolution ordering 
 the work to be done, and, unless the proposed work is for 
 closing up, appoints three commissioners to assess the ben- 
 efits and damages. These commissioners have the power of 
 general supervision of the proposed work or improvement 
 until the completion thereof. [Section 6.] The commis- 
 sioners then proceed to view the lands affected, and to 
 determine (1.) the value of the land actually taken for the 
 improvement; (2.) the damage to improvements taken; (3.) 
 damages to the property not actually taken damages which 
 will accrue to the property not actually taken, by reason of 
 its severance from the portion which is sought to be taken, 
 and damages resulting thereto from the doing of the pro- 
 posed work; (4-) the amount of expenses incident to the pro- 
 posed work or improvement, e. g. expenses of removing 
 obstructions where a street is to be opened, and likewise the 
 expenses enumerated in sections 6 and 7. The commis- 
 sioners then assess upon the assessment district described 
 in the resolution of intention the total amount, namely the 
 amount of said value of said land and property taken, 
 together with the amount of said damages and the amount 
 of said expenses incident to said work or improvement. 
 Such assessment is made upon all the lands in said district 
 in proportion to the benefits derived. [Section 9.] The 
 commissioners then make a written report to the council, 
 accompanying the same with a plat of the district, showing 
 the land taken or to be taken, etc. [Section 10.] The city 
 clerk then gives notice, by publication, of the filing of said 
 report. [Section 13.] Written objections to said report may 
 be filed, and if filed the council fixes a day for hearing the 
 same. The clerk notifies the objectors, by depositing notice 
 in the post office. At the time set, the council hears the 
 
BRIEF OUTLINE OF MACHINERY Sffrch? [JS ACt f 243 
 
 objections, and passes upon the same, and likewise upon the 
 commissioners' report, and may confirm, correct, or modify 
 the same, or order a new assessment, report, and plat. 
 [Section 14.] The city clerk then forwards to the street 
 superintendent a certified copy of the report, assessment 
 and plat, and such copy becomes the assessment roll. [Sec- 
 tion 15.] Thereupon the superintendent of streets publishes 
 notice that he has received said assessment roll, and that 
 all sums levied and assessed therein are due and payable 
 in i mediately, and that payment of said sums is to be made 
 to him within thirty days from the date of the first publi- 
 cation. If not paid within said time, the superintendent 
 of streets proceeds to advertise and collect the sums delin- 
 quent, by the sale of the property assessed, in the same man- 
 ner as is provided for the collection of state and county 
 tuxes. [Section 16.] The money collected from payment 
 of the assessments is paid into a fund devoted to the pro- 
 posed work, and all payments for land and improvements 
 taken or damaged, as well as for the expenses incident to 
 doing the work, are paid by the city treasurer upon war- 
 rants drawn upon said fund from time to time. [Sections 
 <Sand I'.).] When sufficient money is in the fund, the commis- 
 sioners notify the owner, possessor, or occupant of any land or 
 Improvements to whom damages have been awarded, that a 
 warrant has been drawn for the payment of the same, and 
 that he can receive such warrant at the office of the com- 
 missioners upon tendering a conveyance of any property to 
 be taken. [Section 17.] If any owner of land or property 
 to be taken, neglects or refuses to accept the warrant drawn 
 in his favor, or objects to the report as to the necessity of 
 taking his land, the commissioners, with the approval of 
 the council, may cause proceedings to be taken for the con- 
 demnation of such land or property, as provided by law, 
 under the right of eminent domain. [Section 18.] Sup- 
 plementary assessments may be ordered to make up a defi- 
 ciency, and if there be a surplus the same may be divided 
 pro rata to the parties paying the same. [Section 20.] 
 Proceedings may be taken by the council to settle defective 
 titles. [Section 21.] The council may declare the bound- 
 aries of the assessment district to include the whole city. 
 [Section 22.] 
 
 The foregoing constitutes a brief outline of the machinery 
 provided by the act for accomplishing its purpose; i. e., for 
 doing the work authorized to be done by section 1 of the 
 act. 
 
 The act is authority for the opening, extending, widening, 
 straightening and closing of streets, and authorizes the 
 
244 STREET WORK LAW OPENING ACT 
 
 damages, which must be paid to those whose property is to 
 be taken or damaged for any of such purposes, as well as 
 the expenses incident to such work or improvement, to be 
 assessed upon the property in the assessment district, in 
 proportion to the benefits to be derived. But the act does 
 not give the power to assess for any work other than that 
 described in section 1. It does not include the power to 
 assess any property in the assessment district for the 
 improvement of the street by grading, culverting, and the 
 like. These things must be done under the street improve- 
 ment act the Vrooman act of March 18, 1885. Thus, if 
 the council, proceeding under the street opening act of 
 March 6, 1889, resolve to open a street, it can not in the 
 same proceeding provide for any improvement on the street, 
 such as grading, etc. The term "opening" does not include 
 the improving of a street by grading, paving, etc. It refers 
 to throwing open to the public what before was appropriated 
 to individual use, and the removing of such obstructions as 
 exist on the surface of the earth, rather than any artificial 
 improvement of the surface. When proceedings are had 
 under the said act of March 6, 1889, to open a street, the 
 assessment which the act authorizes to be levied upon all 
 the property in the assessment district declared to be bene- 
 fited by the proposed improvement, is an assessment con- 
 fined to raising a fund necessary to pay what the right of 
 way might cost, which includes the cost of the land and 
 property taken or damaged, the cost of removing such 
 obstructions as exist on the surface of the earth, and all 
 costs and expenses incident to the work or improvement, 
 such as the commissioners' compensation, office rent, etc. 
 [Reed v. City of Toledo, 18 Ohio, 161.] 
 
 In Reed v. City of Toledo, supra, a bill in chancery 
 was filed to enjoin the collection of a tax by the 
 city of Toledo upon real estate of the complain- 
 ant. The city council had commenced proceedings 
 under section 17 of the city charter to extend a street. 
 Section 16 of the charter corresponded to our general street 
 improvement act the Vrooman act of March 18, 1885 
 and provided that the city might grade, gravel, level, pave, 
 repair, plank, flag, or macadamize a street, and assess the 
 costs and expenses thereof upon the lots fronting thereon. 
 Section 17 of the city's charter corresponded to our general 
 street opening act the act of March 6, 1889 and provided 
 that the city council shall have power to lay out and pro- 
 long and open streets, lanes, etc., and assess the damages 
 due property owners whose property is taken therefor, to 
 the real estate situated within an assessment district whose 
 
OPENING, ETC., NOT IMPROVING SftiJj ft* 4 * * 245 
 
 boundaries were defined by the charter to be 60 rods on each 
 side of such improvements. The city council, under said 
 section 17 of the city's charter, passed an ordinance to 
 extend Adams street, one of the streets of the town, from its 
 then termination, so as to intersect what was known by the 
 name of the terminal road; and at the same time the ordin- 
 ance also provided that the street should be graded, and that 
 the total expense for grading as well as for extending the 
 street should be assessed upon the property lying within 
 the district benefited. The court said: " Now it will be 
 seen that all that this section [section 17] provides for, that 
 would require any outlay of money, is the opening of the 
 street and paying for the right of way. By the term open- 
 ing, we do not understand the improvement of a street or 
 highway by grading, culverting, etc.; the term is generally 
 (we think always) clearly distinguishable from such kind of 
 improvement. The term opening refers to the throwing 
 open to the public what before was appropriated to individ- 
 ual use, and the removing of such obstructions as exist on 
 the surface of the earth, rather than any artificial improve- 
 ment of the surface. * * * The assessment provided 
 for in the 17th section on all the lots within 60 rods bene- 
 fited by an improvement, we suppose relates merely to rais- 
 ing a fund to pay for what the right of way might cost." 
 See also City and County of San Francisco v. Kiernan, 33 
 Pac. Rep. 721 where it is said, per Vanclief, C., " No work 
 or improvement, in the sense of the act of 1883, [the Vroo- 
 niMii act of March 6, 1883, statutes 1883, page 32, entitled, 
 'An act to provide for the improvement of streets, lanes, 
 alleys/ etc.] could be done or made on the addition to the 
 street made by the widening, until after the widening. All 
 the work and improvements authorized by the act of 1883 
 [the Vrooman act of 1883] are to be done upon existing 
 streets. Work and improvements upon existing streets con- 
 stitute the whole subject matter of the act, and therefore the 
 prohibition in the first section ["no public work or improve- 
 ment of any description shall be done or made within any 
 municipality organized and existing for municipal purposes, 
 or hereafter organized, in, upon or about the streets thereof, 
 the cost and expense of which is made chargeable, or may be 
 assessed upon, private property by special assessment, 
 except as in this act provided"] cannot extend to the subject 
 of creating or partially creating streets. In this connection 
 it should be observed that heretofore it seems to have been 
 the policy of the legislature to provide for improvements 
 upon existing streets by acts entirely distinct from acts pro- 
 viding for opening, extending and widening streets." 
 
246 STREET WORK LAW OPENING ACT 
 
 This street opening act of March 6, 1889, not only pro- 
 vides for opening, widening, entending and straightening 
 streets but also for "closing" streets. In Polack v. S. F. 
 Orphan Asylum, 48 Cal. 490, it was held that the legislature 
 has power to close or vacate a street in a city; and it may 
 delegate such power to the municipal authorities of a city, 
 and after such power has been delegated to the municipal 
 authorities, the legislature may revoke it in part, as well as 
 in whole, or without any express revocation, may itself 
 exercise it; that the municipal authorities cannot close or 
 vacate a street without the consent of the legislature. It 
 was also held that the legislature may vacate a portion of 
 a street, even if a person owns property fronting on another 
 portion of the street which will incidentally be injured 
 thereby. Under section 14 of article I of the present con- 
 stitution it is altogether probable that if, by reason of the 
 closing of any street, a property owner should suffer special 
 consequential damages over and above the common injury 
 to the other abutters on the street, or the general public, 
 the municipal corporation would be liable therefor; [Reardon 
 v. San Francisco, 66 Cal. 492] but owners of lands abutting 
 upon neighboring streets, or upon- other parts of the same 
 street, are not entitled to damages, even though the value 
 of their lands should be -lessened by the closing or partial 
 closing of the street. [See Elliott on Roads and Streets, pp. 
 662-3. See also Brook v. Horton, 68 Cal. 554, as to power 
 of the legislature to vacate a street.] 
 
 Constitutionality of the Street Opening Act. The question 
 of the constitutionality of this street opening act, the act of 
 March 6, 1889, came before the Supreme Court in the case 
 of Davies v. City of Los Angeles, 86 Cal. 37, where it was 
 held that the act was constitutional. It was held in the 
 prevailing opinion, by Mr. Justice Works, Justices Thorn- 
 ton, McFarland and Paterson concurring, that the act is a 
 general law within the meaning of section 6 of article XI 
 of the constitution; that it supersedes all city charters 
 existing prior to the adoption of the new constitution, and 
 likewise such as have been framed since under section 8 of 
 article XI of the constitution. The action was brought 
 by a property owner, upon who property an assessment 
 had been made for the payment of the expenses of 
 opening and widening a certain street, against the city 
 of Los Angeles and the street superintendent, as defend- 
 ants, to enjoin the enforcement of said assessment. 
 The defendants demurred to the complaint and the trial 
 court overruled the demurrer. The city appealed. Plaint- 
 iff, respondent on appeal, contended that the statute was 
 
CONSTITUTIONALITY OF ACT M arJii(f i889 ACt f 247 
 
 unconstitutional. While the prevailing opinion of the 
 Supreme Court held the act to be constitutional, it neverthe- 
 less decided that the trial court did not err in overruling 
 the demurrer, since the complaint did, in fact state a cause 
 of action, notwithstanding the constitutionality of the act, 
 since it sufficiently appeared from the complaint that all 
 the property within the assessment district was not assessed. 
 It was held that this allegation showed the assessment to be 
 void, under the decisions in People v. Lynch, 51 Cal. 15; 
 Moulton v. Parks, 64 Cal. 181; Dyer v. Harrison, 63 Cal. 
 447; and Diggins v. Brown, 76 Cal. 318, and that therefore 
 the complaint in an action to enjoin the enforcement of the 
 assessment, was sufficient, even if the statute were in all 
 respects constitutional. Justices Fox and Beatty concurred 
 in the judgment, but dissented from all that was said in the 
 main opinion in support of the proposition that the act is 
 in force in cities which, like Los Angeles, have adopted 
 freeholders charters since the adoption of the new con- 
 stitution. 
 
 It was contended by counsel in this case: (1.) That, 
 even if the act be constitutional, it is not applicable to the 
 city of Los Angeles, since that city has a charter containing 
 ample provisions for the opening and widening of streets. 
 (2.) That the statute is unconstitutional for the following 
 reasons: (a.) That, while it gives authority 'to assess 
 property within assessment districts, the subject of such 
 assessment is not included in the title of the act. (b.) That 
 it provides for taking property without due process of law, 
 because the notice provided for may be given generally by 
 posting, and no personal notice to each of the parties inter- 
 ested is required or authorized, (c.) That it "authorizes 
 an assessment for benefits and a sale, and conveyance on 
 delinquency, while the improvement supposed to confer the 
 benefits is hypothetical, and may be incapable of materiali- 
 zation." (d.) That the "provisions of the act admit of an 
 assessment for benefits largely in excess of the amount 
 needed." (e .) That the statute is in violation of section 13 
 of article XI of the constitution because it delegates to a 
 special commission the power to perform municipal 
 functions. (8.) That so much of the statute as provides 
 for the assessment of the value of the property to be taken 
 or condemned in opening or widening the street, is 
 invalid for various reasons. 
 
 The prevailing opinion of the court decided against all of 
 these contentions of counsel. As to the last contention, 
 namely, that so much of the statute as provides for the 
 assessment of the value of the property to be taken or con- 
 
248 STREET WORK LAW OPENING ACT 
 
 demned, is invalid, the prevailing opinion says: "For the 
 purposes of this case, this point may be conceded. * * * 
 This does not concern the party where property has been 
 assessed. It is a question affecting the rights of the city 
 and the party whose property is sought to be taken." 
 [NOTE: It may be well to state here that the word "assess- 
 ment/' as used in connection with these street opening and 
 closing acts, is often used in two different connections, and 
 with two different meanings. (1.) It is used in connection 
 with property which is to be assessed to pay the expenses 
 of the work these expenses including the damages to be 
 paid to those property owners whose property is taken or 
 damaged. In this connection it means the rating or fixing 
 of the proportion of the total expenses which the property 
 owners have to pay, whose property lies within the assess- 
 ment district declared to be benefited by the proposed 
 improvement. It means, in this connection, a charge 
 against the property lying within the assessment district, 
 and liable to be assessed to pay the cost of the work. (2.) 
 The word "assessment" is likewise often used in connection 
 with the proceedings to take or condemn the land necessary 
 to be taken or condemned for the purpose of opening the 
 street, etc. In this connection it means- the fixing by the 
 commissioners of the value of the land thus sought to be 
 taken or condemned. In the one connection it is a charge 
 against the land burdened with the expenses of the work. 
 In the other it is a valuation of the land which is to be 
 taken or condemned for the street opening purposes. 
 In the first connection the word "assessment" is used in 
 that sense which it has as a part of the sovereign power of 
 taxation; in the second connection it is used in the sense 
 that attaches to the word "appraisment." In the first sense, 
 i. e. t as a part of the sovereign power of taxation, it is 
 applicable to all the property in the assessment district; 
 in the other sense, i. e., appraisement, it is applicable only 
 to the property taken or damaged to open or widen the 
 street, and as thus used, it is used in connection with the 
 exercise of the power of "eminent domain."] 
 
 Mr. Justice Fox, in the said case of Davies v. City of Los 
 Angeles, dissented only from so much of the main opinion 
 as supported the proposition that the act applied to 
 municipalities acting under freeholders charters. 
 
 Mr. Chief Justice Beatty concurred, in the main, in the 
 dissenting opinion of Justice Fox, and thought, moreover, 
 that the statute was unconstitutional on two grounds: (1.) 
 That it does not provide for any proper notice to the owners 
 of the property affected; and (2.) that it permits assess- 
 
CONSTITUTIONALITY OF ACT Marcht? im** 249 
 
 ments upon the property supposed to be benefited in excess 
 of the benefits. 
 
 The act again came before the Supreme Court in the 
 case of Dehail v. Morford. 95 Gal. 457. The action was 
 brought by plaintiff, a property owner whose property had 
 been assessed, to restrain the defendant, the superintendent 
 of streets of the city of Los Angeles, from making a sale of 
 plaintiff's property to satisfy the assessment against it. The 
 proceedings to widen the street were had under this act of 
 March 6, 1889, by the city of Los Angeles, a city having 
 a freeholders charter adopted pursuant to the provis- 
 ions of section 8 of article XI of the constitution. 
 It was held that the plaintiff was entitled to a judgment 
 perpetually restraining the defendant from making such 
 sale, because the resolution of intention did not specify the 
 exterior boundaries o^the districts to be assessed to pay the 
 cost of the improvement, as it was required to do by sec- 
 tion 2 of the act. But, the constitutionality of the act 
 itself, and its applicability to cities which, like Los Angeles, 
 have freeholders charters, containing ample provisions for 
 the opening of streets, seems to have been assumed. The 
 act again came before the Supreme Court in the very recent 
 case of city and county of San Francisco v. Kiernan, 33 
 Pac. Rep. 721. In that case, proceedings had been begun 
 under the act of April 25th, 1863, [statutes 1863, p. 560] "an 
 act to confer further powers upon the board of supervisors of 
 the city and county of San Francisco/' and in effect, an 
 amendment to the consolidation act. Subsequently and pur- 
 suant to the provisions of section 24 of the street opening 
 act now being considered, the street opening act of March 
 6, 1889, [see infra, section 24] the proceedings were con- 
 tinued under said last named act. The constitutionality of 
 the provisions of section 18 of the act, providing for the 
 form of complaints, in an action to condemn, was expressly 
 upheld, and the constitutionality of the act, in its general 
 features, was at least assumed. 
 
 The statute again came before the Supreme Court 
 in the still more recent case of City of Santa Ana v. 
 Harlin, No. 19,030, decided September 13, 1893, an 
 action by the city under this street opening act of 
 March 6, 1889, to condemn a right of way over the 
 property of the defendant for the opening of Second street 
 in said city. The court assumed the act to be constitutional. 
 
 It would seem therefore, that all the propositions laid down 
 by the four judges who concurred in the prevailing opinion 
 in Davies v. City of Los Angeles, 86 Cal. 37, may be assumed 
 to be settled, and that the act of March 6, 1889, is the act 
 
250 STREET WORK LAW STREET OPENING ACT 
 
 under which streets are to be opened, closed, etc., in all the 
 cities of this state, unless it has heen repealed or super- 
 seded by any other act. 
 
 In 1893, the legislature passed an act approved March 
 23, 1893, [statutes 1893 p. 220] entitled "An act to provide 
 for laying out, opening, extending, widening, straighten- 
 ing, diverging, curving, contracting, or closing up, in whole 
 or in part, any street, square, lane, alley, court, or place 
 within municipalities, or cities and cities and counties of 
 forty thousand inhabitants or over, and to condemn and 
 acquire any and all land and property necessary or con- 
 venient for that purpose." 
 
 By section 23 of this act of March 23, 1893, it is provided 
 that "the act approved March 6, 18S9, entitled 'An act for 
 opening, widening and extending streets,' etc., after the 
 passage of this act, shall not apply to any city or city and 
 county having a population of forty thousand inhabitants 
 or over, but as to any city or city and county having a 
 population of forty thousand inhabitants or over said act 
 shall not apply; but said cities and cities and counties 
 shall be subject only to the provisions of this act in all 
 matters embraced within the purview of this act." 
 
 Whether this act of March 23, 1893, is constitutional or 
 not, and whether it operates to confine the provisions of the 
 act of March 6, 1889, to municipalities of less than forty 
 thousand inhabitants, are questions that are considered in 
 the notes to section 1 of the said act of March 23, 1893, 
 infra. 
 
 Decisions under Street Opening Acts passed prior to the 
 adoption of (he new Constitution and prior to the passage of a 
 General Street Opening Act. A town that has no corporate 
 existence, e. g., because its act of incorporation is unconsti- 
 tutional, cannot exercise the power of eminent domain to 
 open a street. [Colton v. Rossi, 9 Gal. 595.] 
 
 A street cannot be extended, so as to take in private 
 property, without condemnation. [People v. Kruger, 19 
 Cal. 4li.] 
 
 The legislature may determine how the expense of open- 
 ing a street shall be borne. Whether the cost of such 
 enterprises shall be borne by contiguous property to be 
 benefited thereby, or by all the property of the city, or by a 
 certain proportion of such, is a matter for legislative dis- 
 cretion. [Sin ton v. Ashbury, 41 Cal. 525.] 
 
 The power to lay out or change streets is in its nature 
 legislative and not judicial. The legislature may itself per- 
 form these acts, or it may select such agencies for that pur- 
 
DECISIONS UNDER EARLIER ACTS MarcU* Jss^ ACt f 251 
 
 pose as it deems proper. Usually the requisite powers are 
 conferred upon the authorities of the municipal govern- 
 ment; but these powers, or some of them, may be devolved 
 upon a court. In the latter case the proceedings are 
 "special proceedings," and the court possesses jurisdiction 
 only by virtue of the authority of the legislature, and does 
 not derive it from any other source. Therefore if several 
 tenants in common agree to run a street through the 
 middle of a block owned by them, and, in pursuance of 
 such agreement, execute a covenant by which, through 
 mistake, the street is located at a place not in the middle 
 of the block, and subsequently the municipal authorities 
 locate and establish the street, not in the middle of the 
 block, but in the position described in the covenant, the 
 courts, in an action by parties to the covenant, or their 
 assigns, cannot adjudge that the street be located in the 
 middle of the block, because, if the action be regarded as 
 an action to change the location of the street as fixed by 
 the municipal authorities, the reply is that, in the absence 
 of a statute specially delegating to the court powers to lay 
 out or change streets, it has no such jurisdiction, and, if 
 the action be regarded as having for its purpose an adjudi- 
 cation that the space through the middle of the block was 
 dedicated as a street by the parties to the covenant, the 
 judgment cannot be sustained because the covenant as 
 executed does not locate the street in that position, and 
 until the covenant is reformed, so as to express the alleged 
 intent of the parties, there is no basis for such adjudica- 
 tion. [De Witt v. Duncan, 46 Cal. 343.] 
 
 Commissioners appointed to assess damages and benefits, 
 in a proceeding to condemn land for a street, have no 
 jurisdiction to determine questions of title. [Wilcox v. City 
 of Oakland, 49 Cal. 29. 
 
 The act of March 28, 1878, " to provide for the opening 
 of streets in the city of Oakland," required the petition of 
 five or more residents and freeholders to the city council 
 to contain, inter alia u a statement that in the opinion of the 
 petitioners the public interests require that the improve- 
 ment asked for [describing it generally] should be made." 
 In the Matter of Grove Street, 61 Cal. 438, it appeared that 
 the petition of the residents and freeholders to the council 
 contained a statement that " in the opinion of the petition- 
 ers the improvement asked for should be made." Held: 
 That the statement contained in the petition is not the 
 same in substance as that required by the statute, and for 
 this reason the petition of the freeholders did not give 
 power or jurisdiction to the council. It was urged by 
 
252 STREET WORK LAW STREET OPENING ACT 
 
 respondent in that case that (he council had itself conclusively 
 determined that it had jurisdiction, when it passed the res- 
 olution of intention, it being claimed that in doing so, 
 the council adjudicated the existence of facts upon which 
 its jurisdiction depended. On this point the court, per 
 McKinstry, J., pages 453-4, said: " An inferior board may 
 determine conclusively its own jurisdiction or power by 
 adjudicating the existence of facts, upon the existence of 
 which its jurisdiction or power depends. Where, however, 
 the power depends, not upon the existence or non-existence 
 of matters in pais, to be established by evidence, but upon 
 allegations in a petition, a portion of the record, the ques- 
 tion is not the same." 
 
 Where the council is empowered to open or improve a 
 street upon the petition of the owners of a majority of the 
 frontage upon the proposed improvement, the council can- 
 not include more than one street in one proceeding. [Boor- 
 man v. Santa Barbara, 65 Cal. 313. J 
 
 The interest which a street railroad company has in a 
 street upon which it is authorized to lay down tracks, is an 
 easement in the land, and is real property. The interest or 
 estate of the company in the street is capable of being 
 enhanced in value by the widening of the street, and by such 
 widening a substantial benefit may accrue to the compan^, 
 and the company may be assessed for its share of the 
 expenses in widening the street. [Appeal of N. B. & M. 
 R. R. Co., 32 Cal. 500.] 
 
 Where commissioners are appointed to assess benefits, 
 etc., upon the lands affected by the improvement, the stat- 
 utes sometimes provide that the courts shall receive the 
 reports of the commissioners and exercise supervisory pow- 
 ers thereover, although in such matlers it is not usual to 
 permit an appeal to the courts while the proceedings are in 
 fieri, and the right to supervise the acts and reports of the 
 commissioners usually falls to the city councils or other 
 municipal legislative bodies. Where, however, the statute 
 thus grants these supervisory powers to the courts, the 
 courts on appeal will not set aside the commissioners' 
 report unless it is based upon an erroneous principle of 
 law, or unless it is demonstrable that the commissioners 
 have erred in respect to the facts, in fixing the values 
 which they have arrived at. These reports, in respect to 
 values, are in the nature of a verdict of a jury upon a ques- 
 tion of fact, which is never set aside as against evidence 
 unless it appears affirmatively and clearly to have been 
 unwarranted by the proofs. [Appeal of Piper, 32 Cal. 530; 
 Appeal of Brooks et al., 32 Cal. 560.] 
 
DECISIONS UNDER EARLIER ACTS Bch8, SS^ * 253 
 
 The benefits accrue to the lards and not to the buildings. 
 [Appeal of Piper, supra.] 
 
 The assessment is properly chargeable to the owner of 
 the fee, and not in part to the lessee, if it does not appear 
 that the lessee will be benefited. [Appeal of Reese 32 
 Cal. 568.] 
 
 For a very able review of some of the most important 
 questions of constitutional law in connection with these 
 street opening statutes, see the opinion of Mr. Justice 
 Temple in Lent v. Tillson, 72 Cal. 404, reviewing 
 the act of March 23, 1876, providing for the widening 
 of Dupont street in the city and county of Sari Francisco, 
 and the proceedings had thereunder. 
 
 It is not within the scope or plan of this book to discuss 
 general principles. Its sole aim is to give the gen- 
 eral street laws of California, as the same exist to-day, 
 with amendments up to date, and to cite, in the notes to 
 the sections of said acts, such decisions of our own Supreme 
 Court as will serve to illustrate the working of these stat- 
 utes, and the points of law liable to arise in the course of 
 proceedings thereunder. The decisions of our own courts 
 upon the street improvement acts, i. e., acts for the 
 improvement of streets already in existence, by grading, 
 macadamizing, paving, or otherwise improving such 
 streets have been so numerous that they alone suffice to 
 shed ample light upon these street improvement acts. But 
 this is not so in respect to acts for opening, closing, or 
 widening streets. As to these opening and closing acts, the 
 decisions of our own courts are meager, and, alone, do not 
 afford much help in construing these street opening and 
 closing acts. But, it is not the intention of this book to 
 cite the decisions of the courts of other states save in a 
 few particular instances, and the reader is, therefore, 
 referred to chapter XVI of Dillon's Municipal Corporations 
 chapter on eminent domain, where the subject matter 
 of street opening acts is considered. 
 
 In many respects, the proceedings necessary to a valid 
 assessment upon the property liable to be charged with the 
 expenses of opening, extending, straightening, or closing 
 streets, under this act, act of March 6, 1889, are analo- 
 gous or similar to the corresponding proceedings under the 
 Vrooman act of March 18, 1885, for the improvement of 
 streets, and therefore the decisions, cited in the notes to 
 that act, [supra pp. 1-216] are not cited in the notes to 
 this act, but the reader is referred to the notes to those 
 sections of said act of March 18, 1885, which contain pro- 
 visions analogous to the corresponding sections of this 
 
254 STREET WORK LAW STREET OPENING ACT 
 
 street opening act, whenever the proceedings are similar or 
 analogous. 
 
 SECTION 2. Before ordering any work to be done or improvement made 
 which is authorized by section one of this act, the city council shall pass a 
 resolution declaring its intention to do so, describing the .work or improve- 
 ment, and the land deemed necessary to be taken therefor, and specifying 
 the exterior boundaries of the district of lands to be affected or benefited 
 by said work or improvement, and to be assessed to pay the damages, cost 
 and expenses thereof. [Statutes '89, p. 70,] 
 
 Section two requires the resolution of intention to specify 
 "the exterior boundaries" of the district to be assessed to 
 pay the cost of the improvement, and if the resolution does 
 not specify the exterior boundaries, the council will not 
 acquire jurisdiction over the matter, and the proceedings 
 will be void. The following is not a description or specifi- 
 cation of the exterior boundaries of any district, viz: "All 
 lots and parcels of land fronting on the east side of First 
 street, from the west side of Los Angeles street to the west 
 line of Alameda street." In this case, the only boundaries 
 of the district which are " specified " are the lines of First 
 street between Los Angeles and Alameda streets, and these, 
 instead of being the "exterior boundaries" of the district to 
 be assessed are only the boundaries of a tract within the 
 district which is exempted from assessment. There is noth- 
 ing in the description of the district from which its extent 
 in either direction from First street can be ascertained, or 
 by which any one can determine the quantity of land which 
 is to be assessed. [Dehail v. Morford, 95 Cal. 457.] 
 
 [See notes to section 3 of the act of March 18, 1885, supra, 
 page 8 et seq.~\ 
 
 SECTION 3. The street superintendent shall then cause to be conspicu- 
 ously posted along the line of said contemplated work or improvement, at 
 not more than three hundred feet in distance apart, but not less than three 
 in all, notices of the passage of said resolution. Said notice shall be headed, 
 "Notice of public work," in letters not less than one inch in length, shall 
 be in legible characters, state the fact of passage of the resolution, its date, 
 and, briefly, the work or improvement proposed, and refer to the resolution 
 for further particulars. He shall also cause a notice, similar in substance, 
 to be published for a period of ten days in one or more daily newspapers 
 published and circulated in said city, and designated by said city council ; 
 or, if there is no daily newspaper so published and circulated in said city, 
 then by four successive insertions in a weekly or semi-weekly newspaper so 
 published, circulated and designated. [Statutes '89, p. 70.] 
 
 [See notes to section 3 of act of March 18, ]885, supra, page 8, et seq.] 
 
 SECTION 4. Any person interested objecting to said work or improvement, 
 or to the extent of the district of lands to be affected or benefited by said 
 work or improvement, and to be assessed to pay the cost and expenses 
 
asiTY 
 
 NOTICE - OBJECTIONS ~TSl<Lu Act f 255 
 
 thereof, may make written objections* to the same within ten days after the 
 expiration of the time of the publication of said notice, which objection 
 shall be delivered to the clerk of the city council, who shall indorse thereon 
 the date of its reception by him, and at the next meeting of the city coun- 
 cil after the expiration of said ten days, lay said objections before said city 
 council, which shall fix a time for hearing said objections not less than one 
 week thereafter. The city clerk shall thereupon notify the persons making 
 such objections, by depositing a notice thereof in the post office of said city, 
 postage prepaid, addressed to such objector. [Statutes '89, p. 70.] 
 
 If, by reason of some jurisdictional defect in the proceed- 
 ings, e. g., failure of the notice of intention to specify the 
 exterior boundaries of the assessment district the council 
 fails to acquire jurisdiction, the property owner does not 
 waive his right to object in court to this want of jurisdiction 
 or to defeat an action upon the assessment, 
 merely because he appeared before the city council and 
 filed objections, as provided for in section 4. If the council 
 failed to acquire jurisdiction of the subject matter of the 
 improvement, it could not acquire jurisdiction by the con- 
 sent of the property owner, much less by the fact that he 
 objected to the improvement. [Dehail v. Morford, 95 Cal. 
 457.] 
 
 [See notes to sections 3 and 11 of act of March 18, 1885, 
 , pages 8-37; 64-84.] 
 
 SECTION 5. At the time specified or to which the hearing may be 
 adjourned, the said city council shall hear the objections urged and pass 
 upon the same, and its decision shall be final and conclusive. If such 
 objections are sustained, all proceedings shall be stopped, but proceedings 
 may be again commenced at any time by giving notice of intention to do 
 said work or make said improvement. If such objection is overruled by 
 the city council, the proceedings shall continue the same as if such objec- 
 tion had not been made. At the expiration of the time prescribed during 
 which objections to said work or improvement may be made, if no objec- 
 tions shall have been made, or if an objection shall have been, and said 
 council, after hearing, shall have overruled the same, the city council shall 
 be deemed to have acquired jurisdiction to order any of the work to be 
 done, or improvements to be made, which is authorized by section one of 
 this act. [Statutes '89, p. 71.] 
 
 [See notes to section 3 of act of March 18, 1885, supra, page 8 et seq.] 
 
 SECTION 6. Having acquired jurisdiction, as provided in the preceding 
 section, the city council shall order said work to be done, and unless the 
 proposed work is for closing up, and it appears that no assessment is neces- 
 sary, shall appoint three commissioners to assess benefits and damages and 
 have general supervision of the proposed work or improvement until the 
 completion thereof in compliance with this statute. For their services 
 they shall receive auch compensation as the city council may determine 
 from time to time; provided, that such compensation shall not exceed two 
 hundred dollars per month each, nor continue more than six month^ 
 
256 STREET WORK LAW STREET OPENING ACT 
 
 unless extended by order of the city council. Such compensation shall be 
 added to and be chargeable as a part of the expenses of the work or 
 improvement. Each of said commissioners shall file with the clerk of the 
 city council an affidavit, and a bond to the state of California in the sum of 
 five thousand dollars, to faithfully perform the duties of his office. The 
 city council may at any time remove any or all of said commissioners for 
 cause, upon reasonable notice and hearing, and may fill any vacancies 
 occurring among them for any cause. [Statutes '89, page 71.] 
 
 [See notes to section 3 of act of March 18, 1885, supra, page 8 et seq.] 
 
 SECTION 7. Said commissioners shall have power to employ such assist. 
 ance, legal or otherwise, as they may deem necessary and proper; also, to 
 rent an office and provide such maps, diagrams, plans, books, stationery, 
 fuel, lights, postage, expressage, and incur such incidental expenses as 
 they may deem necessary. [Statutes '89, p. 71.] 
 
 SECTION 8. All such charges and expenses shall be deemed as expenses 
 of said work or improvement, and be a charge only upon the funds devoted 
 to the particular work or improvement as provided hereinafter. All pay- 
 ments, as well for the land and improvements taken or damaged, as for 
 the charges and expenses, shall be paid by the city treasurer, upon war- 
 rants drawn upon said fund fronrtime to time, signed by said commission- 
 ers, or a majority of them. All such warrants shall state whether they are 
 issued for land or improvements taken or damaged, or for charges and 
 expenses, and that the demand is payable only out of the money in said 
 fund, and in no event shall the city be liable for the failure to collect any 
 assessment made by virtue hereof, nor shall said warrant be payable out of 
 any other fund, nor a claim against the city. [Statutes '89, p. 71.] 
 
 SECTION 9. Said commissioners shall proceed to view the lands described 
 in the resolution of intention, and may examine witnesses on oath, to be 
 administered by any one of them. Having viewed the land to be taken, 
 and the improvements affected, and considered the testimony presented, 
 they shall proceed with all diligence to determine the value of the land 
 and the damage to improvements and property affected, and also the 
 amount of the expenses incident to said work or improvement, and having 
 determined the same, shall proceed to assess the same upon the district of 
 lands declared benefited, the exterior boundaries of which were fixed by 
 the resolution of intention provided for by section 2 hereof. Such assess- 
 ment shall be made upon the lands within said district in proportion to the 
 benefit to be derived from said work or improvement, so far as the said 
 commissioners can reasonably estimate the same, including in such esti- 
 mate the property of any railroad company within said district, if such 
 there be. [Statutes '89, p. 72.} 
 
 [See notes to sections 3, 8 and 11 of the Vrooman act of March 18. 1885> 
 supra, pp. 34, 95 and 138. The street opening act of March 6, 1889, does 
 not contain any provision for "appeal" similar to that contained in section 
 11 of the Vrooman act of March 18, 1885.J 
 
 If all property in the assessment district liable to assess- 
 ment be not assessed, the assessment will be void, and there 
 can be no recovery thereon. [Davies v. City of Los Angeles, 
 86 Gal. 37, 49; People v. Lynch, 51 Gal. 20; Moulton v. 
 
PROCEEDINGS OF COMMISSIONERS Mwh fessf 9 f ACt f 257 
 
 Parks 64 Cal, 181; Dyer v. Harrison, 63 Gal. 447; Diggins 
 v. Brown, 76 Cal. 318.] But property belonging to the 
 United States, this state, or a municipal corporation, may 
 be omitted from assessment. [Doyle v. Austin, 47 Cal. 353."] 
 
 The commissioners, under section 9, assess upon the 
 lands lying within the assessment district, liable to assess- 
 ment, each lot being assessed in proportion to the bene- 
 fits received by it the total cost of the work or improve- 
 ment. This total cost is made up of the value of the land 
 and property taken, and the damages which accrue to the 
 land and property not taken, plus the cost and expense inci- 
 dent to the work or improvement, which latter item 
 includes the costs and expenses enumerated in sections 6 
 and 7 of the act, and, in the case of opening, widening or 
 straightening a street, the cost of removing such obstruc- 
 tions as exist on the surface of the earth. 
 
 It is altogether probable that the net contemplates that 
 the rules or principles by which the commissioners are to 
 be guided in ascertaining the amount of damages which 
 are to be paid or awarded to any property owner, whose 
 property is to be taken or damaged for the opening of a 
 street, or other improvement mentioned in section 1 of the 
 act, are the rules or principles by which a jury is to be 
 guided, under the provisions of section 1248 of the Code of 
 Civil Procedure, relative to the exercise of the power of 
 eminent domain. So that, where a street is to be opened, 
 for example, the commissioners acting under section 9 of 
 the act, should probably proceed about as follows: I. If the 
 improvement takes all of the land and property of the 
 owner, the commissioners determine the full and fair mar- 
 ket value of the land and property at the time it is appro- 
 priated, but no more. [Section 624 Dillon's Municipal 
 Corporations, 3rd ed.; Subdiv. 1 of section 1248 C. C.P.; Vol. 
 6, Am. and Eng. Enc. of Law, pp. 567-70.] II. If, however, 
 as most commonly happens, part only of the property is to 
 be taken, the commissioners should probably proceed as fol- 
 lows: (1.) Determine the full and fair market value of the 
 land and property actually taken, at the time when it is 
 appropriated. (2.) Determine the damages which will 
 accrue to the portion not sought to be taken, by reason of 
 its severance from the portion sought to be taken as well 
 as by reason of the doing of the proposed improvement in 
 the manner proposed by the city authorities. (3.) Deter- 
 mine how much the 'portion not sought to be taken, 
 will be benefited, if at all, by the doing of the 
 proposed improvement. (4.) Deduct from the dam- 
 ages which will accrue to the portion not sought to 
 
258 STREET WORK LAW STREET OPENING ACT 
 
 be taken, the said benefits thereto, if the benefits be less 
 than the damages, and add the remainder to the value of 
 the land and property which is actually taken, and the sum 
 is the amount of damages to be awarded to the property 
 owner. (5.) If the benefits which will accrue to the por- 
 tion not sought to be taken, by reason of the proposed 
 improvement, equal or exceed the damages which will accrue 
 thereto, the owner will be entitled to the full and fair mar- 
 ket value of the land and property actually taken, and no 
 more. [Section 1248, C. C. P.; Sections 624-625 Dillon's 
 Municipal Corporations, 3rd ed.; Vol. 6 Am. and Eng. Enc. 
 of Law, pp. 571-584.] III. To the total amount of dam- 
 ages to be awarded to all the property owners whose prop- 
 erty is sought to be taken, ascertained according to the 
 foiegoing principles the commissioners add the total 
 amount of expenses incident to the work or improvement. 
 These last mentioned incidental expenses include the cost 
 of removing all obstructions upon the surface of the earth, 
 obstructions which must be removed before the street can 
 be thrown open to public use to the width proposed, also 
 such incidental expenses as are mentioned in sections 6 and 
 7 of the act. IV. The commissioners then determine the 
 amount of benefit which will accrue to each parcel of land 
 in the assessment district, liable to be assessed to pay the 
 expenses of the proposed work. V. The commissioners 
 then assess upon all the lands within the assessment dis- 
 trict, liable to be assessed, the total cost of the proposed 
 work. Said total cost including (1.) the total amount to be 
 awarded to property owners as damages to property taken 
 or damaged, and (2.) the total amount of incidental expenses, 
 incident to the doing of the work, as aforesaid. The said 
 total cost of the proposed work is assessed upon the lands in 
 the district in proportion to the benefits to be derived from 
 said work or improvement, each lot or parcel of land being 
 assessed with such a proportion of the total cost of the 
 work, as the amount of benefit derived by it from the pro- 
 posed work bears to the total amount of benefits which will 
 accrue to all the lands in the assessment district, subject to 
 assessment. 
 
 The commissioners having thus determined the amount 
 of damages to be awarded to each property owner whose, 
 property is to be taken or damaged for the proposed work 
 and having thus determined the amount to be 
 assessed against each lot or parcel of land to pay the total 
 amount of damages to be awarded to the property owners, as 
 well as the expenses incident to the work, make out a writ- 
 
DAMAGES BENEFITS 
 
 ten report thereof and a plat of the assessment district, as 
 provided for by sections 10 and 11 of the act. 
 
 Under section 14 of article I of the constitution, the ben- 
 efits that will accrue to the portion of the land not sought 
 to be taken may be deducted from the damages which will 
 accrue to said portion, when the corporation for whose use 
 the property is taken or damaged, is a "municipal corpora- 
 tion." [Pacific Coast R'y Co. v. Porter, 74 Cal. 261; Butte 
 County v. Boydston, 64 Cal. 110; Tehama County v. Bryan 
 68 Cal. 57.] 
 
 An assessment upon lands fronting on a street, to raise 
 the amount to be paid the owner for land taken from him 
 for a street, is not in violation of the provision of the con- 
 stitution which declares that the compensation to be paid 
 to a party for his land, taken for public use, shall be "with- 
 out deduction for benefits." "Assessment" for benefits in the 
 exercise of the sovereign power of taxation, is not the same 
 as "deduction for benefits" in the exercise of the sovereign 
 power of eminent domain. [Cleveland v. Wick, 18 Ohio 
 St. 303. 
 
 For a discussion of some of the principles of assessment 
 by street commissioners, in a proceeding to open or widen 
 a street, see Appeal of Piper, 32 Cal. 530; Appeal of Brooks, 
 32 Cal. 559; Appeal of Keese, 32 Cal. 568.] 
 
 SECTION 10. Said commissioners having made their assessment of bene- 
 fits and damage, shall, with all diligence, make a written report thereof to 
 the city council, and shall accompany their report with a plat of the assess- 
 ment district showing the land taken or to be taken for the work or 
 improvement, and the lands assessed, showing the relative location of each 
 district, block, lot, or portion of lot, and its dimensions, so far as the com- 
 missioners can reasonably ascertain the same. Each block and lot, or poi- 
 tion of lot, taken or assessed, shall be designated and described in said 
 plat by an appropriate number, and a reference to it by such descriptive 
 number shall be a sufficient description of it in any suit entered to con- 
 demn, and in all respects. When the report and plat are approved by the 
 city council, a copy of said plat, appropriately designated, shall be filed by 
 the clerk thereof in the office of the recorder of the county. [Statutes 1889 , 
 page 12.} 
 
 [See notes under section 8 of act of March 18, 1885, supra, page 85 et seq.] 
 SECTION 11. Said report shall specify each lot, subdivision, or piece of 
 property taken or injured by the widening or other improvement, cr 
 assessed therefor, together with the name of the owner or claimants 
 thereof, or of persons interested therein as lessees, incumbrancers, or 
 otherwise, so far as the same are known to such commissioners, and the 
 particulars of their interest, so far as the same can be ascertained, and the 
 amount of value or damage, or the amount assessed, as the case may be. 
 [Statutes 1889, page 72.} 
 
 [See notes under section 8 of act of March 18, 1885, supra, page 85, et seq.] 
 
260 STREET WORK LAW STREET OPENING ACT 
 
 SECTION 12. If in any case the commissioners find that conflicting claims 
 of title exist, or shall be in ignorance or doubt as to the ownership of any 
 lot of land, or of any improvements thereon, or of any interest therein, it 
 shall be set down as belonging to unknown owners. Error in the designa- 
 tion of the owner or owners of any land or improvements, or of the partic- 
 ulars of their interest, shall not affect the validity of the assessment or of 
 the condemnation of the property to be taken. [Statutes 1889, page 73.} 
 
 [See notes under section 8 of act of March 18, 1885, supra, page 85, et seq.\ 
 
 SECTION 13. Said report and plat shall be filed in the clerk's office of the 
 city council, and thereupon the clerk of said city council shall give notice 
 of such filing by publication for at least ten days in one or more daily 
 newspapers published and circulated in said city ; or if there be no daily 
 pa per, by three successive insertions in a weekly or semi-weekly newspa- 
 per so published and circulated. Said notice shall also require all persons 
 interested to show cause, if any, why such report should not be confirmed, 
 before the city council, on or before a day fixed by the clerk thereof, and 
 stated in said notice, which day shall not be less than thirty days from the 
 first publication thereof. [Statutes 1889, page 73. J 
 
 SECTION 14. All objections shall be in writing and filed with the clerk 
 of the city council, who shall, at the next meeting after the day fixed in 
 the notice to show cause, lay the said objections, if any, before the city 
 council, which shall fix a time for hearing the same, of which the clerk 
 shall notify the objectors in the same manner as objectors to the original 
 resolution of intention at the time set, or at such other time as the hear- 
 ing may be adjourned to r the city council shall hear such objections and 
 pass upon the same; and at such time, or if there be no objections at the 
 first meeting after the day set in such order to show cause, or such other 
 time as may be fixed, shall proceed to pass upon such report, and may 
 confirm, correct, or modify the same, or may order the commissioners to 
 make a new assessment, report, and plat, which shall be filed, notice given, 
 and hearing had as in the case of an original report. [Statutes 1889, page 73.} 
 
 SECTION 15. The clerk of said city council shall forward to the street 
 superintendent of the city a certified copy of the report, assessment and 
 plat, as finally confirmed and adopted by the city council. Such certified 
 copy shall thereupon be the assessment roll. Immediately upon 
 receipt thereof by the street superintendent the assessment therein con- 
 tained shall become due and payable, and shall be alien upon all the prop- 
 erty contained or described therein. [Statute* 1889, page 73.} 
 
 SECTION 16. The superintendent of streets shall thereupon give notice 
 by publication for ten days in one or more daily newspapers published and 
 circulated in such city, or city and county, or by two successive insertions 
 in a weekly or semi- weekly newspaper so published and circulated, that 
 he has received said assessment roll, and that all sums levied and assessed 
 in said assessment roll are due aud payable immediately, and that the 
 payment of said sums is to be made to him within thirty days from the 
 date of the first publication of said notice. Said notice shall also contain 
 a statement that all assessments not paid before the expiration of said 
 thirty days will be declared to be delinquent, and that thereafter the sum 
 of five per cent, upon the amount of each delinquent assessment, together 
 with the cost of advertising each delinquent assessment, will be added 
 thereto. When payment of any assessment is made to said superintendent 
 
MANNER OF COLLECTING ASSESSMENTS KrehVl889 f the Act f 261 
 
 of streets he shall write the word "paid," and the date of payment, oppo- 
 site the respective assessment so paid, and the names of persons by or for 
 whom said assessment is paid, and shall, if so required, give a receipt 
 therefor. On the expiration of said thirty days all assessments then 
 unpaid shall be and become delinquent, and said superintendent of streets 
 shall certify such fact at the foot of said assessment roll, and shall add five, 
 per cent, to the amount of each assessment so delinquent. The said super- 
 intendent of streets shall, within five days from the date of said delin- 
 quency, proceed to advertise and collect the various sums delinquent, and 
 the whole thereof, including the cost of advertising, which last shall not 
 exceed the sum of fifty cents for each lot, piece, or parcel of land separately 
 assessed, by the sale of the assessed property in the same manner as is or 
 may be provided for the collection of state and county taxes; and after 
 the date of said delinquency, and before the time of such sale herein pro- 
 vided for, no assessment shall be received unless at the same time the five 
 per cent, added thereto, as aforesaid, together with the costs of advertising 
 then already incurred, shall be paid therewith. Said list of delinquent 
 assessments shall be published daily for five days in one or more daily 
 newspapers published and circulated in such city, or by at least one inser- 
 tion in a weekly newspaper so published and circulated, before the day of 
 sale of such delinquent assessment. Said time of sale must not be less 
 than seven days from the date of the first publication of said delinquent 
 assessment list, and the place must be in or in front of the office of said 
 superintendent of streets. All property sold shall be subject to redemp- 
 tion in the same time and manner as in sales for delinquent state and 
 county taxes ; and the superintendent of streets may collect for each cer- 
 tificate fifty cents, and for each deed one dollar. All provisions of the 
 law, in reference to the sale and redemption of property for delinquent 
 state and county taxes in force at any given time, shall also then, so far as 
 the same are not in conflict with the provisions of this act, be applicable 
 to the sale and redemption of property for delinquent assessments here- 
 under, including the issuance of certificates and execution of deeds. The 
 deed of the street superintendent made after such sale, in case of failure to 
 redeem, shall be prima facie evidence of the regularity of all proceedings 
 hereunder, and of title in the grantee. It shall be conclusive evidence of 
 the necessity of taking or damaging the lands taken or damaged, and of 
 the correctness of the compensation awarded therefor. The superintend- 
 ent of streets shall, from time to time, pay over to the city treasurer all 
 moneys collected by him on account of any such assessments. The city 
 treasurer shall, upon receipt thereof, place the same in a separate fund, 
 designating such funds by the name of the street, square, lane, alley, 
 court, or place for the widening, opening, or other improvement of which 
 the assessment was made. Payments shall be made from said fund to the 
 parties entitled thereto upon warrants signed by the commissioners, or a 
 majority of them. [Statutes 1889, page 73.] 
 
 Where a street improvement act provides that the assess- 
 ment shall be collected in the manner prescribed by law 
 for the collection of general state and county taxes, such 
 provision prescribes the manner of collecting, and not what 
 shall be collected, and therefore does not authorize the 
 
262 STREET WORK LAW STREET OPENING ACT 
 
 addition of a per centage for delinquency, except such as 
 the street improvement act, itself, may in terms provide 
 for. [Bucknall v. Story, 36 Cal. 67.] 
 
 SECTION 17. When sufficient money is in the hands of the city treasurer, 
 in the fund devoted to the proposed work or improvement, to pay for the 
 land and improvements taken or damaged, and when in the discretion of 
 the commissioners, or a majority of them, the time shall have come to 
 make payments, it shall he the duty of the commissioners to notify the 
 owner, possessor, or occupant of any land or improvements thereon to 
 whom damages shall have been awarded, that a warrant has been drawn 
 for the payment of the same, and that he can receive such warrant at the 
 office of such commissioners upon tendering a conveyance of any property 
 to be taken; such notification, except in the case of unknown owners, to 
 be made by depositing a notice, postage paid, in the post office, addressed 
 to his last known place of abode or residence. If at the expiration of 
 thirty days after the deposit of such notice, he should not have applied for 
 such warrant, and tendered a conveyance of the land to be taken, the 
 warrant so drawn shall be deposited with the county treasurer, and shall 
 be delivered to such owner, possessor, or occupant, upon tendering a con- 
 veyance as aforesaid, unless judgment of condemnation shall be had, when 
 the same shall be canceled. [Statutes 1889, page 75.] 
 
 SECTION 18. If any owner of land to be taken neglects or refuses to accept 
 the warrant drawn in his favor as aforesaid, or objects to the report as to 
 the necessity of taking his land, the commissioners, with the approval of 
 the city council, may cause proceedings to be taken for the condemnation 
 thereof, as provided by law under the right of eminent domain. The com- 
 plaint may aver that it is necessary for the city to take or damage and 
 condemn the said lands, or an easement therein, as the case may be, with- 
 out setting forth the proceedings herein provided for, and the resolution and 
 ordinance ordering said work to be done shall be conclusive evidence of 
 such necessity. Such proceeding shall be brought in the name of the 
 municipality, and have precedence so far as the business of the court will 
 permit; and any judgment for damages therein rendered shall be payable 
 out of such portion of the special fund as may remain in the treasury, so 
 far as the same can be applied. At any time after trial and judgment 
 entered, or preceding an appeal, the court may order the city treasurer to 
 set apart in the city treasury a sufficient sum from the fund appropriated 
 to the particular improvement to answer the judgment and all damages, 
 and thereupon may authorize and order the municipality to enter upon the 
 land and proceed with the proposed work and improvement. In case of a 
 deficiency in said fund to pay the whole of such judgment and damages, 
 the city council may, in their discretion, order the balance thereof to be 
 paid out of the general fund of the treasury or to be distributed by the 
 commissioners over the property assessed by a supplementary assessment; 
 but in the last named case, in order to avoid delay, the city council may 
 advance such balance out of any appropriate fund in the treasury, and 
 reimburse the same from the collections of the assessment. Pending the 
 collection and payment of the amount of the judgment and damages, the 
 court may order such stay of proceedings as may be necessary. [Statutes 
 1889, page 75.} 
 
CONDEMNATION - COMPENSATION Mar^hlb^ 8 f ACt f 263 
 
 No condemnation proceeding: can be inaugurated under 
 the power of eminent domain, or by virtue of the provisions 
 of section 18 of the act, until the municipality shall have 
 acquired jurisdiction so to do, by the passage of a valid res- 
 olution of intention; and if the resolution of intention does 
 not specify the exterior boundaries of an assessment district, 
 it does not confer upon the city jurisdiction to take any 
 steps toward making the improvement, and cannot be used 
 as the basis of any action for condemnation of the land 
 sought to be included in the improvement. [City of Los 
 Angeles v. Dehail, 97 Gal. 13. See section 605, Dillon on 
 Municipal Corporations, 3rd ed.] But see City and County of 
 San Francisco v. Kiernan, 33 Pac. Rep. 724, where Mr. 
 Commissioner Vanclief, said: "The court first rendered an 
 interlocutory judgment, requiring the plaintiff, within thirty 
 days, to pay to each defendant, or to the clerk of the court 
 for his use, the sums of money awarded to him by the jury 
 for the value of his land condemned, and for damages to 
 his land not condemned. After plaintiff's compliance with 
 the interlocutory order, by paying into court the money 
 awarded to each defendant, the court rendered final judg- 
 ment of condemnation. Whether the money thus tendered 
 and paid into court for their use had been obtained by 
 plaintiff through regular or irregular assessments on the 
 property of others, did not concern the appellants, [defend- 
 ants in the condemnation suit,] nor affect the right of the 
 plaintiff to condemn their lands which had not been 
 assessed. The proceedings to assess, and to enforce the 
 payment of assessments are entirely distinct from actions 
 to condemn land. There is no pretense that the money 
 tendered was not the property of the plaintiff, nor that it 
 did not amount to just compensation. Therefore the rights 
 of the appellants in this action, [defendants in an action by 
 the city to condemn] could not have been prejudiced by 
 defects in proceedings to assess the property of others." 
 
 Even where lands are in terms taken, it may be 
 questioned whether the title to the fee passes absolutely to 
 the municipality. The prevailing doctrine in such cases is, 
 that the title vests only to the extent necessary for the pur- 
 pose for which the property is taken. No more of the title 
 is divested from the former owner than what is necessary 
 for the public use. [Heyneman v. Blake, 19 Cal. 579, 597.] 
 
 Compensation must be made in advance, or a fund must 
 be provided, out of which compensation must be made so 
 soon as the amount can be determined. The property of 
 the citizen cannot be taken from him until ample means of 
 
264 STREET WORK LAW STREET OPENING ACT 
 
 remuneration are provided. [Colton v - Rossi, 9 Gal. 595; 
 McCann v. Sierra Co., 7 Gal. 121.] 
 
 When the street is finally established, the party whose 
 land has been taken is entitled to payment, although the 
 street has not been opened. [Section 614 Dillon's Municipal 
 Corporation?, 3rd ed.] 
 
 When the purpose for which land is to be taken, to open a 
 street for example, is as well met by construing the authority 
 to warrant the taking of an easement only as of the fee, the 
 grant, if doubtful, will be construed most favorably to the 
 citizen. [Section 603 Dillon's Municipal Corporations, 3rd ed.] 
 
 In an action to condemn a parcel of land for a public 
 street, evidence tending to show a former dedication by the 
 owner, for the purpose of establishing the amount of dam- 
 age or compensation, is not admissible. As, if there had 
 been a dedication, an action to condemn would not lie, and 
 in an action to condemn the question of dedication is not 
 involved for any purpose. Either the land has been 
 dedicated, and is already a public street, or the defendant 
 is the owner. [San Jose v. Reed, 65 Cal. 241.] 
 
 The provision of section 18 of the act that "the complaint 
 [in an action to condemn] may aver that it is necessary for 
 the city to take or damage and condemn the said lands, or 
 an easement therein, as the case may be, without setting 
 forth the proceedings herein provided for, and the resolution 
 and ordinance ordering said work to be done shall be con- 
 clusive evidence of such necessity" is constitutional. City 
 and County of San Francisco v. Kiernan, 33 Pac. Rep. 721, 
 where Mr. Commissioner Vanclief said: "It is contended 
 that this provision [of section 18] is unconstitutional, both 
 as to the form of the complaint, and as to the conclusive- 
 ness of the evidence. As to the form of the complaint, in 
 an action merely to condemn, I think the provision is 
 uriobjectional, whether such a complaint in an action to 
 enforce an assessment, would be subject to the objection 
 here made, is a question not involved in this action." 
 
 When the several steps provided by the statute for 
 acquiring jurisdiction have been regularly taken, and the 
 resolution and ordinance ordering the work have been reg- 
 ularly adopted, the action of the council is final and con- 
 clusive of the necessity of the improvement, and the courts 
 may not adjudicate the question of such necessity in an 
 action or proceeding for condemnation of lands necessary 
 to the improvement; and therefore, if the answer sets up 
 that the proceedings were inaugurated, and the action to 
 condemn was instituted upon the motion and at the request 
 of a railroad corporation, for the purpose and benefit of 
 
CONDEMNATION PROCEEDINGS MarJh {? f 8 89 f 265 
 
 such railroad company, the court may strike out such 
 allegations in the answer; the question sought to be raised 
 by such allegations is one going to the public character of 
 the use and necessity for its establishment, rnd as such is 
 properly solvable by the city council only. [City of Santa 
 Ana v. flarlin, No. 19,030, decided September 13, 1893.] So 
 also, the mere fact that individuals have subscribed monev 
 or given a bond to the city to contribute toward the expense 
 of laying out a street will not vitiate the proceedings, or 
 prove that the land was taken for the accommodation' of 
 private persons, and not for public use. [Id.\ 
 
 In this case of City of Santa Ana v. Harlin, Mr. Com- 
 missioner Searls, said: "Under the act of March 6, 1889, 
 statutes of 1889, page 70, the power to order the opening of 
 streets in municipalities, and the method of its exercise, is 
 conferred upon the city council or legislative department of 
 the municipality. Provision is made whereby those inter- 
 ested and objecting to the improvement and to various of the 
 measures for carrying it out may be heard and their objec- 
 tions passed upon by the council, and when the several steps 
 provided by the statute have been taken and the resolution 
 and ordinance ordering said work have been regularly 
 adopted, the action of the council is final and conclusive of 
 the necessity of the improvement, and the courts may not 
 adjudicate the question of such necessity in an action or 
 proceeding for condemnation of lands necessary to the 
 improvement. [See section 18 of statutes of 1889, p. 75; 
 Tehama Co. v. Bryan, 68 Cal. 57; Butte Co. v. Boydston 
 (not reported), 11 Pac. Rep. 781; San Francisco v. Kiernan 
 et al., vol. 5, Cal., Dec., p. 207.] * * 
 
 There is no doubt that in many instances of attempted 
 taking of private property for public uses it devolves upon 
 the courts to determine whether or not the use is a public 
 use. [Con. Channel Co. v. C. P. R. R. Co., 61 Cal. 269; Varick 
 v. Smith, 5 Paige Ch. 159; Loan Assn. v. City of Topeka, 20 
 Wall, 655.] These, however, are exceptions to a general 
 rule which recognizes in the legislative department the 
 source of the power to determine what shall be held to be a 
 public use, and the action of the legislature on the question 
 is not, except in extreme cases, open to review by the 
 courts. [Napa Valley R. R. Co. v. Napa County, 30 
 Cal. 437.] That the use of land for public streets in an incor- 
 porated town is a public use is true beyond controversy. 
 And, when, as under the statute of March 6, 1889, the duty 
 of determining the necessity of opening such streets and 
 where as under that statute the official declaration or order 
 opening a street is made conclusive evidence of the necessity 
 
266 STREET WORK LAW STREET OPENING ACT 
 
 therefor, the field of inquiry, in proceedings for the 
 condemnation of land for such purposes, is confined to 
 comparatively narrow limits." 
 
 In this case of Santa Ana v. Harlin, it was, in effect, 
 stated by the learned commissioner who wrote the opinion, 
 that if the defendant, in an action under section 18 of the 
 act to condemn, desires to defend upon the ground of any 
 defect or irregularities in the proceedings, he must allege 
 such defect or irregularities. In this connection the learned 
 commissioner said: 
 
 "The answer contains no allegations of any defect or 
 irregularity in the proceedings, and hence there was no 
 issue under which such evidence was admissible. The case 
 of Los Angeles County v. San Jose Land Co., 96 Cal. 93 r 
 involved a like principle with that urged by appellant here, 
 although under a different statute." 
 
 In an action under section 1.8 of the act to condemn, the 
 present market value of the land, is the measure of dam- 
 ages and not its use to the owner or to the parties seeking 
 to condemn it. [City of Santa Ana v. Harlin, supra. } It 
 cannot, for the purpose of proving the market value, be 
 shown for what general purposes the land might be properly 
 used, as it might be used for a great variety of purposes r 
 but such fact would not enlighten the jury upon the ques- 
 tion of its value. It may, however, be shown whether or 
 not the land is adapted to and peculiarly suited for some 
 specific purpose, as that, by reason of its location, or its 
 characteristics or qualities, it is peculiarly suited -for a 
 court house, or for a college or school. The witnesses are 
 not allowed to give their opinions as to the value of the 
 property for a particular purpose, but they may state its 
 market value in view of any purpose to which it is adapted. 
 [Id.] As a general rule it is not competent for the owner 
 to prove what he has been offered for his property, or what 
 persons who have been looking for similar property were 
 willing to give for it. Or, if such questions are allowed, the 
 testimony as to such offers must be confined to a period near 
 the time at which the value was to be ascertained. [Id] Upon 
 cross-examination, however, where great latitude is allowed 
 for the purpose of testing witnesses, questions of this char- 
 acter are allowable. [Id.] In respect to these rules of 
 evidence in such condemnation suits, Mr. Commissioner 
 Searls, in said case of City of Santa Ana v. Harlin, said: 
 
 "The next error assigned relates to the exclusion of evi- 
 dence offered by defendant to show the uses and purposes 
 to which the land proposed to be taken could properly be 
 applied. In proceedings for the condemnation of land, the 
 
CONDEMNATION - EVIDENCE OF VALUE ^g\^ ot 267 
 
 present market value of the land is the measure of damages 
 and not its value in use to the owner or to the parties seek- 
 ing to condemn it. By the term 'present market value' is 
 meant not what the owner could realize at a forced sale, 
 but 'the price he could obtain after reasonable and ample 
 time, such as would ordinarily be taken by an owner to 
 make sale of like property.' [Little Rock J. Ry. v Wood- 
 ruff, 49 Ark. 390.] 
 
 "In the Boom Co. r. Patterson, 98 U. S. 403, it was said: 
 'The inquiry in such cases must be, what is the property 
 worth in the market, viewed, not merely with reference to 
 the uses to which it is at the time applied, but with refer- 
 ence to the uses to which it is plainly adapted that is to 
 say, what it is worth from its availability for valuable uses?' 
 Again the court says: 'As a general thing we should say 
 that the compensation to the owner is to be estimated by 
 reference to the uses for which the property is suitable, 
 having regard to the existing business or wants of the com- 
 munity, or such as may be reasonably expected in the 
 immediate future.' 
 
 "The peculiar fitness of land for particular purposes is 
 an element in estimating its value which may* be shown, 
 and when it appears, forms a factor in solving the problem 
 of market value. [San Diego Land, etc. Co. v. Neale, 78 
 Cul. Go and 88 Cal. 50; Drinkhouse v. S. V. W. W., 92 Cal. 
 528.] 
 
 "One of the questions ruled as inadmissible was the follow- 
 ing: 'For what purpose could that property be used properly?' 
 No doubt the land in question could be properly used 
 for a great variety of purposes, but it is not perceived that 
 such fact would enlighten a jury upon the question of its 
 value. Whether or not it was adapted to and peculiarly 
 suited for some specific purpose is quite a different proposi- 
 tion, and testimony was introduced in reference to its qual- 
 ities, location, surroundings, etc., all of which was proper. 
 The following question was asked by defendant: 'What 
 are the characteristics or qualities of the land, Mr. Palmer, 
 that renders it suitable for a court house?' Similar ques- 
 tions tending to draw out testimony showingthe adaptation 
 of the land for a college, and for the purpose of a school, 
 etc., were put and ruled out on the objection of plaintiff, 
 and the rulings are assigned as error. 
 
 "I am of opinion the court erred in some of these rulings. 
 The rule as enunciated by Lewis on Eminent Domain, 
 at section 479 is as follows: 'The conclusion from the 
 authorities and reason of the matter seems to be that wit- 
 nesses should not be allowed to give their opinions as to 
 
268 STREET WORK LAW STREET OPENING ACT 
 
 the value of property for a particular purpose, but should 
 state its market value in view of any purpose to which it is 
 adapted. The condition of the property and all its surround- 
 ings may be shown, and its availability for any particular use. 
 If it has a peculiar adaption for certain uses, this may be 
 shown; and if such peculiar adaptation adds to its value 
 the owner is entitled to the benefit of it. But when all the 
 facts and circumstances have been shown, the question at 
 last is, wh-at is it worth in the market?' 
 
 "It will be seon from the foregoing quotation, which is 
 regarded as a correct exposition of the law on the subject, 
 that as to some of the questions seeking to elicit the value 
 of the property for a specific purpose, the rulings of the 
 court below were correct. It should, however, it is thought, 
 have permitted a full and free investigation as to the adapt- 
 bility of the land to the varied practical purpose to which 
 it is naturally adapted. [Central Pacific R. R. Co. v. Pear- 
 son, 35 Gal. 247.] Such proof should be limited to show- 
 ing the present condition of the property and the uses to 
 which it is adapted, and may not be extended to specula- 
 tive inquiries as to possible future uses under altered cir- 
 cumstances, which may or may not arise. 
 
 "There was no error in the ruling of the court excluding 
 an answer to the following question propounded to defend- 
 ant when testifying as a witness in his own behalf; 
 'Question. Have you ever received offers for this real 
 estate property?' The witness had just testified that he 
 owned the land described in the pleadings, and had resided 
 there sixteen years. The question as to whether he had 
 received offers for the property was in effect to ask him if 
 he had received such offers at any time in sixteen years. 
 The general rule in estimating the market value of 
 property is that 'it is not competent for the owner to prove 
 what he has been offered for his property [C. P. R. R. Co. 
 v. Pearson, 35 Cal. 247], or what persons who have been 
 looking for similar property were willing to give for it.' 
 [Selina R. R. Co. v. Keith, 53 Ga. 178; Lewis on Eminent 
 Domain, 446; see, also, Drinkhousev. S. V.W. Wks., 92 Cal. 
 528.] A case apparently at variance with the general line of 
 decisions is to be found in Muller v. Railway Co., 83 Cal. 
 240, in which the court held a similar question admissible, 
 saying: l Bona fide offers for property afford some test as 
 to its value, and are, we think, admissible,' quoting Harri- 
 son v. Glover, 72 N. Y. 451. The case quoted was not in 
 relation to the market price of land, but related to a subject 
 so different as to lend no support to the case there under 
 discussion. If the doctrine of Muller v. Railwav Co. can 
 
SUPPLEMENTAL ASSESSMENT ffa^'frn* of Act of 269 
 
 be upheld, it must be only AS an exception to a general 
 rule applicable only in peculiar cases, of which the present 
 is not one. 
 
 "Again, if the binding force of Muller v. Railway Co. be 
 admitted, the question put to defendant was improper in 
 not confining the witness to a period near the time at which 
 the value was to be ascertained. 
 
 ''Upon cross-examination, where great latitude is allowed 
 for the purpose of testing witnesses, questions of this char- 
 acter are conceded on all hands to be allowable. The 
 questions put upon cross-examination of defendant's wit- 
 nesses and objected to were proper. Great liberality is 
 properly extended in such cross-examinations, and for the 
 purpose of testing the knowledge, judgment or bias of the 
 witness, the liberality is wisely exercised. In such cases, 
 and for such purposes, much must be left to the discretion 
 of the trial court and it is only for an abuse of discretion 
 that its action should be impugned. The witnesses, Pin- 
 ther, Ames and Blee, should have been allowed to testify as 
 to the market value of the property. They were not experts 
 in the severe sense of the term but showed such knowledge 
 and experience as to values of land in that neighborhood 
 as entitled the defendant to their opinions. [Penn. & N. 
 Y. R. R. Co. v. Bunnell, 81 Pa. St. 426; Robertson v. 
 Knapp, 35 N. Y. 92; LeRoy & W. R. R. Co. v. Hawk, 39 
 Kan. 638; Shattuck v. Stoneham R. R. Co., 6 Allen, Mass. 
 117; People v. Sanford, 43 Cal. 32; San Diego Land, etc. v. 
 Neale, 78 Cal. 77."] 
 
 SECTION 19. The treasurer shall pay such warrants out of the appropri- 
 ate fund, and not otherwise, in the order of their presentation; provided, 
 that warrants for land or improvements taken or damaged shall have 
 priority over warrants for charges and expenses, and the treasurer shall 
 see that sufficient money is and remains in the fund to pay all warrants of 
 the first class before paying any of the second. [Statutes 1889, page 76.] 
 
 SECTION 20. If after the sale of the property for delinquent assessments 
 there should be a deficiency, and there should be unreasonable delay in 
 collecting the same, or if for the purpose of equalizing the assessments, 
 supplying a deficiency, or for any cause it appears desirable, the commis- 
 sioners may so report to the city council, who may order them to make a 
 supplementary assessment and report the same in manner and form as the 
 original, and subject to the same procedure. If by reason of such supple- 
 mentary assessment, or for any cause, there should be at any time a sur- 
 plus, the city council may appropriate the same and declare a dividend 
 pro rata to the parties paying the same, and they, upon demand, shall 
 have the right to have the amount of such pro rata dividends refunded to 
 them, or credited upon any subsequent assessment for taxes made against 
 said parties in favor of said city. [Statutes 1889, page 76.} 
 
270 STREET WORK LAW STREET OPENING ACT 
 
 SECTION 21. If any title attempted to be acquired by virtue of this act 
 shall be found to be defective from any cause, the city council may again 
 institute proceedings to acquire the cause as in this act provided, or other- 
 wise, or may authorize the commissioners to purchase the same and 
 include the cost thereof in a supplementary assessment as provided in the 
 last section. {Statutes 1889, page 76.] 
 
 SECTION 22. If the city council- deem it proper that the boundaries of 
 the districts of lands to be affected and assessed to pay the damages, cost, 
 and expenses of any work or improvement under this act, shall include 
 the whole city, then the commissioners appointed shall proceed in a sum- 
 mary manner to purchase the lands to be taken or condemned from the 
 owners and claimants thereof. If said commissioners and the owners and 
 claimants cannot agree upon the price to be paid for said lands, they shall 
 proceed to view and value the same, and shall thereupon make a summary 
 report to the city council. Upon final confirmation of the report, the 
 city council, if there be not sufficient money available in the city treasury, 
 shall cause the cost and expenses of the contemplated public improvement 
 to be assessed upon the whole of the taxable property of said city, and to 
 be included in and form part of the next general assessment roll of said 
 city, and with like effect in all respects as if the same formed a part of the 
 city, state and county taxes; and when the same shall have been collected 
 the said city council shall cause the land required to be paid for or the 
 value thereof tendered, and the said contemplated public improvement 
 to be forthwith made and completed. All the provisions of the preceding 
 sections not in conflict with this section shall be applicable thereto. [Stat- 
 utes 1889, page 76.] 
 
 SECTION 23. 1. The words "work" and "improvement," as used in 
 this act, shall include all work mentioned in section one of this act. 
 
 #. In case there is no daily or weekly or semi- weekly newspapers 
 printed and circulated in the city, then such notices as are herein required 
 to be published in a newspaper shall be posted and kept posted for the 
 length of time required herein for the publication of the same in a weekly 
 newspaper, in three of the most public places in such city. Proof of the 
 publication or posting of any notice provided for herein shall be made by 
 affidavit of the owner, publisher or clerk of the newspaper, or of the poster 
 of the notice. 
 
 3. The word "municipality" and the word "city" shall be understood 
 and so construed as to include all corporations heretofore organized and 
 now existing, or hereafter organized, for municipal purpose. 
 
 4. The term street superintendent and superintendent of streets, as 
 used in this act, shall be understood and so construed as to include, and 
 are hereby declared to include, any person or officer whose duty it is, 
 tinder the law, to have the care or charge of the streets, or the improve- 
 ment thereof, in any city. In all those cities where there is no street 
 superintendent or superintendent of streets, the city council thereof is 
 hereby authorized and empowered to appoint a suitable person to dis- 
 charge the duties herein laid down as those of street superintendent or 
 superintendent of streets ; and all the provisions hereof applicable to the 
 street superintendent or superintendent of streets shall apply to such per- 
 sons so appointed. 
 
 5. The term "city council" is hereby declared to include any body or 
 
DEFINITIONS Sees. 21 to 25 of Act 97-1 
 
 of March , 1889. ' A 
 
 board which, under the law, is the legislative department of the govern- 
 ment of any city. 
 
 6. The term ' -clerk" and "city clerk," as used in this act, is hereby 
 declared to include any person or officer who shall be clerk of said city 
 council. 
 
 7. The term "treasurer" or "city treasurer," as used in this act, shall 
 include any person or officer who shall have charge and make payment of 
 the city funds. 
 
 8. No publications or notice other than that provided for in this act 
 shall be necessary to give validity to any proceedings had thereunder. 
 [Hulutet 1889, page 77.] 
 
 SKCTFON 24. The proceedings in any work or improvement, such as is 
 provided for in this act, already commenced and now progressing under 
 any other act now in force, or by virtue of any ordinance passed by any 
 city council or board of supervisors of any city, county, or city and county, 
 by virtue of any other act. now in force, may, from any stage of such pro- 
 ceedings already commenced and now progressing, be continued under 
 this act by resolution of the city council. The said work or improvement 
 may then be conducted under the provisions of this act with full force and 
 effect in all respects, from the stage of such proceedings under such other 
 acts or ordinances at and from which such resolution shall declare an 
 election or intention to have said work or improvement cease under such 
 other act or ordinance and continue under this act; and from such elec- 
 tion so made, all proceeding theretofore had under such other act or ordi- 
 nance are hereby ratified, confirmed, and made valid, and it shall be 
 unnecessary to renew or conduct over again proceedings had under such 
 other act or ordinance. This section shall not apply to any work or 
 improvement proceedings in which were commenced more than eighteen 
 months prior to the passage of this act. {Statutes 1889, page 77.] 
 
 The subject of section 24 providing that "the proceedings 
 in any work or improvement, such as is provided for in 
 this act, already commenced and now progressing under 
 any other act * * * * may from any stage of such 
 proceedings * * * * he continued under this act," 
 is sufficiently expressed in the title of the act to render 
 such provision of section 24 valid. [City and County of 
 San Francisco v. Kiernan, 33 Pac. Rep. 721.] It was 
 not necessary, immediately upon the passage of 
 the act of March 6, 1889, to declare the intention of pro- 
 ceeding thereunder, but discretioa might be used in deter- 
 mining the stage at which the change should be made. (Id.) 
 See said case of City and County of Francisco v. Kiernan 
 for what constitutes a commencement of proceedings, 
 within the meaning of the above section of the act [section 
 24 of the act of March 6, 1889,] providing that any work or 
 improvement commenced within eighteen months before its 
 passage may be continued under this act. 
 
 SECTION 25. The provisions of this act shall be liberally construed to 
 promote the objects thereof. This act shall take effect and be in force 
 from and after its passage. [Statutes 1889, page 78.] 
 
Street Opening /fct of March 23, 7 893. 
 
 An act to provide for laying out, opening, extending, widening, 
 straightening, diverging, curving, contracting, or closing up, 
 in whole or in part, any street, square, lane, alley, court or 
 place, within municipalities, or cities, and cities and coun- 
 ties, of forty thousand inhabitants or over, and to condemn 
 and acquire any and all land and property necessary or con- 
 venient for that purpose. 
 
 [Approved March 23, 1893. Statutes 1893, p. 220.] 
 
 The people of the state of California, represented in senate and 
 assembly, do enact as follows : 
 
 SECTION 1. Be it enacted : Whenever the public interest or convenience 
 may require, the city council of any municipality, or cities, and cities and 
 counties, containing over forty thousand inhabitants, shall have full power 
 to order, and upon the petition of the owners of a majority of the frontage 
 to be taken for said purpose shall order, the opening, extending, widening 
 straightening, diverging, curving, contracting, or closing up, in whole or 
 in part, of any street, square, lane, alley, court or place within the bounds of 
 such city, and shall condemn and acquire any and all lands necessary or 
 convenient for that purpose. [Statutes 1893, p. 220.} 
 
 This street opening act of March 23, 1893, differs from 
 the street opening act of March 6, 1889, principally in this: 
 The act of March 6, 1889, applies to all municipalities, 
 regardless of population, whereas, the provisions of the act of 
 March 23, 1893, are confined to municipalities containing 
 forty thousand inhabitants or over. Also the act of March 
 23, 1893 section 1 thereof authorizes the city councils 
 to order more and different kinds of work than the act of 
 March 6, 1893. The machinery provided by the act of 
 March 23, 1893, for doing the work or improvements 
 authorized by that act, is substantially the same as the 
 machinery provided by the act of March 6, 1889, for 
 accomplishing its purposes. And therefore, the cases cited 
 in the notes to the act of March 6, 1889, will not be 
 repeated here, but, if the act of March 23, 1893, be consti- 
 tutional for any purpose, and proceedings be had there- 
 under, the reader is referred to the notes to the act of 
 March 6, 1889, [supra page 241 , et seq.] since they are likewise 
 applicable to this act of March 23, 1893. 
 
 Until the constitutionality of this act of March 23, 1893, 
 is decided by our Supreme Court, no definite statement in 
 
CONSTITUTIONALITY OF ACT OP 1893 ff - 1 ,|n A 9*9, f 273 
 
 respect thereto, can safely be made. But this much is 
 certain: It is a very serious question whether or not the 
 act of March 23, 1893, is not violative of subdivisions 7 and 
 33 of section 25 of article IV of the constitution, which 
 are as follows: "The legislature shall not pass local or 
 special laws in any of the following enumerated cases, that 
 is to say: * * * Seventh: Authorizing the laying 
 out, opening, altering, maintaining, or vacating roads, 
 highways, streets, alleys, town plats, parks, cemeteries, 
 graveyards, or public grounds not owned by the state. * 
 * * Thirty-third: In all other cases where a general 
 law can be made applicable." The question then is: Is 
 the act of March 23, 1893, a local or special law? In view 
 of the contrariety of opinion upon this subject, it would 
 not.be wise to attempt to define the meaning of the tarms 
 "local" and "special" laws. But it may be possible to 
 determine whether or not the act of March 23, 1893, is a 
 local or special law within the meaning of those terms as 
 applied to analogous cases. 
 
 It is also a serious question as to whether the act is not 
 violative of section 11 of article I of the constitution, which 
 provides that "all laws of a general nature shall have a 
 uniform operation." 
 
 In City of Pasadena v. Stimson, 91 Cal. 251, Mr. 
 Chief Justice Beatty said: "Although a law is general and 
 constitutional when it applies equally to all persons 
 embraced in a class founded upon some natural or intrinsic 
 or constitutional distinction, it is not general or constitu- 
 tional if it confers particular privileges or imposes peculiar 
 disabilities or burdensome conditions, in the exercise of a 
 common right, upon a class of persons arbitrarily selected 
 from the general body of those who stand in precisely the 
 same relation to the subject of the law." 
 
 In Earl v. S. F. Board of Education, 55 Cal. 489, it was 
 held that the Traylor act, "An act to add a new section to 
 the Political Code/ * * * relating to cities and counties 
 having 100,000 inhabitants or more," was local and special, 
 and unconstitutional. 
 
 Mr. Justice Myrick, in his concurring opinion in this 
 case, page 495, said: "Subdivision 20, section 25, article IV, 
 prohibits the passage of special or local laws, changing 
 county seats. Could it be said not to be special legislation 
 to pass a law changing county seats of all counties having 
 more than one hundred thousand inhabitants, and prescrib- 
 ing another mode for counties having a less population?" 
 Therefore, while the Traylor act might have been consid- 
 ered special and local legislation because made applicable 
 
274 STREET WORK LAW STREET OPENING ACT OF 1893 
 
 only to cities and counties having 100,000 inhabitants 
 or more, when there was but one city and county in the 
 state, (the city and county of San Francisco,) it will be seen 
 from the above quotation from the opinion of Mr. Justice 
 Myrick, that, in his opinion a law would be special, and 
 therefore unconstitutional, if made applicable only to all 
 counties having more than one hundred thousand inhabi- 
 tants. If this be so, it is difficult to perceive why a law 
 would not be obnoxious as special legislation if made appli- 
 cable only to all municipalities, or cities, or cities and 
 counties of forty thousand inhabitants or more. 
 
 In Desmond v. Dunn, 55 Gal. 242, it was held that the 
 '' McClure Charter" was not a general law and was uncon- 
 stitutional, because by the terms of the act, it was limited 
 in its operation to cities and counties of more than 100,000 
 inhabitants. 
 
 In Miller v. Kister, 68 Cal. 145, it was held that section 4 
 of the act of March 18, 1885, amending the act of March 
 14, 1883, (the county government act) was local or special 
 legislation, and unconstitutional. In that case the grounds 
 of the decision were: (1.) That the amendment in question 
 was a general law. (2.) That, as a general law, its opera- 
 tion was restricted so that as to certain salaries it did not 
 apply until the expiration of the terms of the incumbents 
 then in office, except as to the officers of counties coming 
 under three classes, and as to them it took effect at a date 
 named in the law. Mr. Justice McKee, delivering the opin- 
 ion of the court, said: "The amendatory acts passed in 1885 
 must be regarded as general laws upon the subjects 
 embraced by them, i. e., the classification of counties and 
 the compensation of officers within the classified counties. 
 But as general laws the legislature restricted their opera- 
 tion as follows: 'Section 3. The salaries herein provided 
 shall not take effect nor be in force until the expiration of 
 the terras of the present officers, except as hereinafter pro- 
 vided. Section 4. The salaries herein provided for the 
 officers of the tenth, thirty-fifth, and forty-sixth classes, 
 shall take effect and be in force from and after the first 
 day of the first month next succeeding its passage.' 
 By these sections the operation of the law upon the sub- 
 ject of the compensation of officers in the fifty-two counties 
 of the state, except the counties of three classes, is sus- 
 pended until the expiration of the terms of the then incum- 
 bents in office, and is put in force almost immediately upon 
 officers of the three specified classes. Unquestionably, the 
 legislature has the power to suspend the operation of the 
 general laws of the state. But when it does so, the suspen- 
 
CONSTITUTIONALITY OF ACT OF 1893 Marches IS f 275 
 
 sion must be general, and cannot be made in individual 
 cases or for particular localities.'' 
 
 It was held in that case that the law was not 
 uniform in its operation, because the act, itself, 
 declared that it did not operate upon the' large 
 majority of the county officers in the counties of the state, 
 but that it should operate upon the officers of three coun-' 
 ties only. It was likewise held that a law which produced 
 such an effect is special and local legislation. 
 
 If section 4 of the said act of March 18, 1885, amending 
 the said county government act of March 14, 1883, sus- 
 pended the operation of a general law, (the county govern- 
 ment act of March 14, 1883) for "particular localities" viz., 
 in counties of the tenth, thirty-fifth, and forty-sixth classes, 
 and if for this reason, it was special legislation, and uncon- 
 stitutional, it is difficult to perceive why the street opening 
 act of March 23, 1893, does not in like manner suspend the 
 operation of a general law (the street opening law of March 
 6, 1889,) for "particular localities," viz., in cities and cities 
 and counties having a population of forty thousand or over. 
 And if the said street opening act of March 23, 1893, does 
 thus suspend the operation of a general law for particular 
 localities, it is difficult to perceive why it is not obnoxious 
 as special legislation for the same reason that the said act 
 of March 18, 1885, amending the county government act of 
 1883, was held to be special legislation and unconstitutional 
 in said case of Miller v. Kister. 
 
 In City of Pasadena v. Stimson, 91 Cal. 238, it was held 
 that section 870 of the municipal incorporation act of 1883, 
 requiring cities of the fifth and sixth classes to make an 
 effort to agree with the owners of land sought to be con- 
 demned, before instituting condemnation proceedings, is a 
 special la\v making a forbidden discrimination against two 
 classes of municipal corporations, by imposing upon them 
 alone, a burdensome condition to the exercise of a right 
 common to all public and private corporations and to all 
 natural persons sui juris in the state, from which condition 
 all others are exempt by the general law, and that it was, 
 therefore, unconstitutional and void. It being as special 
 and local legislation, in conflict with section 25 of article IV 
 of the constitution, and, as wanting in uniformity of opera- 
 tion, in conflict with section 11 of article I of the constitu- 
 tion. Under the general law of the state relative to the exercise 
 of the power of eminent domain, section 1001 of the Civil 
 Code it is provided that "any person" may exercise the 
 power of eminent domain under the provisions of section 
 1238 of the Code of Civil Procedure. But section 870 of 
 
276 STREET WORK LAW STREET OPENING ACT OF 1893 
 
 the said municipal incorporation act of 1883 [statutes 1883, 
 page 93] sought to exempt cities of the fifth and sixth 
 classes from the otherwise general application of said section 
 1001 of the Civil Code, by requiring cities of the fifth and 
 sixth classes to make an effort to agree with the owner of 
 the property, as a condition to the exercise of the right of 
 eminent domain. 
 
 The court, per Beatty, C. J., page 249, said: "Can the leg- 
 islature make such a discrimination? 'All laws of a gen- 
 eral nature shall have a uniform operation.' [Constitution, 
 art. I, section 11.] 'The legislature shall not pass local 
 or special laws in cases where a general law can be made 
 applicable/ [Constitution, art. IV, section 25.] It 
 seem to us perfectly clear that the clause of the incor- 
 poration act requiring cities of the fifth and sixth classes 
 to make an effort to agree, while all other persons are 
 exempt from such condition, is in plain and direct conflict 
 with both these constitutional inhibitions. It destroys the 
 uniform operation of a general law, and is special in a case 
 where a general law not only can be made applicable, but 
 in which a general law has been enacted, and in which 
 there is no conceivable reason for discrimination." 
 
 In Morrison v. Bachert, 112 Penn. St. 322; s. c. 5 
 At. Rep. 739, it was held that the Pennsylvania statute of 
 1878, entitled "An act to ascertain and appoint the fees to 
 be received by sheriffs, etc., except in counties containing 
 'more than 150,000 or less than 10,000 inhabitants" is an act 
 "regulating the affairs of counties/' within the meaning of 
 article 3, section 7 of the constitution of Pennsylvania, which 
 declares that "the general assembly shall not pass any local 
 or special law regulating the affairs of counties, or pre- 
 scribing the duties and powers of officers in counties;" and 
 that, inasmuch as the act excludes counties of over and 
 under a certain number of inhabitants, it is a local, or 
 special law, and, as such, is unconstitutional, under said 
 section of the constitution. 
 
 In State v. Trenton, 42 N. J. L. 486, it was held that a 
 statute conferring upon all cities having a population of 
 not less than 25,000 inhabitants the power of issuing bonds 
 to fund their floating debt, is special and local legislation, 
 and as such, is unconstitutional and void. 
 
 In State v. Herrmann, 75 Mo. 340, it was held that an 
 act to regulate the appointment of notaries public in all 
 cities having a population of 100,000 or more, and provid- 
 ing that the office of any notary in such city, holding a 
 commission bearing date prior to the passage of the act, 
 and whose term of office had not expired at the time the 
 
CONSTITUTIONALITY OF ACT OF 1893 Marches A 1883* 277 
 
 act became a law, should be abolished, was special legisla- 
 tion, and as such was unconstitutional and void. 
 
 In State v. Mitchell, 31 Ohio St. 592, a street improve- 
 ment act providing for the improvement of streets in cer- 
 tain cities of the second class, to wit, cities having a popu- 
 lation of 31,000 inhabitants, according to the last federal 
 census, was held to be special legislation, and as such, 
 unconstitutional and void. 
 
 In view of the above decisions, it seems to follow as a 
 necessary conclusion that the said street opening act of 
 March 23, 1893, providing for the opening, etc., of streets 
 in municipalities having 40,000 inhabitants or over, is 
 special and local legislation, and prevents the said street 
 opening act of March 6, 1889, from having a uniform 
 operation; and that, therefore, unless, the above decisions 
 have been modified by some other and controlling decision 
 by our Supreme Court, or unless there be some other pro- 
 vision of the constitution justifying such an act, the act in 
 question act of March 23, 1893 is unconstitutional and 
 void. 
 
 The decision of our Supreme Court which seems to give 
 the strongest support to the constitutionality of the act of 
 March 23, 1893, is the decision in the case of People exrel., 
 S. F. Daniels v. Henshaw, 76 Cal. 442. The facts of the 
 Henshaw case are as follows: The case came before the 
 Supreme Court on an agreed statement of facts. It was 
 stipulated that S. F. Daniels, the relator in the case, 
 received the highest number of votes cast for police judge of 
 the city of Oakland, at an election held March 8th, 1886. 
 It was also stipulated that said relator, Daniels, was entitled 
 to the office of police judge of the city of Oakland, if that 
 office was not abolished by an act entitled " An act to provide 
 for police courts in cities having thirty thousand and under 
 one hundred thousand inhabitants, and to provide for 
 officers thereof" approved March 18, 1885, and known as 
 the Whitney act. It was also stipulated that, if the said 
 act of March 18, 1885, did abolish the office of police judge 
 of the city of Oakland as provided by an act of the legis- 
 lature approved March 10, 1866, by which such office was 
 established, the defendant, Henshaw, was, in that event, 
 entitled to the office. As will be seen, the agreed state- 
 ments of facts, by conceding the right of the relator, 
 Daniels, to the office of police judge, if "such office now 
 exists," and the right of respondent, Henshaw, to the office 
 of judge of the police court if there is no such office as police 
 judge, eliminated from the problem all questions except one 
 viz: Was the office of police judge of the city of Oakland 
 
278 STREET WORK LAW STREET OPENING ACT OF 1893 
 
 abolished by an act of the legislature, entitled "An act to 
 provide for police courts in cities having thirty thousand 
 and under one hundred thousand inhabitants, and to pro- 
 vide for officers thereof," approved March 18, 1885. 
 
 The question thus presented was divided into two heads, 
 viz : (1.) Did the legislature seek by the act of 1885, to repeal 
 the act of 1866? (2.) Had it the power so to do by the 
 method pursued? 
 
 It was held that it was clearly the intention of the leg- 
 islature that the act of 1885, should supersede the act of 
 1866 since the latter statute was so repugnant to the former, 
 that the two could not stand together, and that therefore, 
 the act of 1885 did repeal the act of 1866 provided the act 
 of 1885 was constitutional. 
 
 The last section of the act of 1885, was as follows: "This 
 act to go into effect upon the expiration of the term of 
 office of the present police judge of said cities, or when a 
 vacancy occurs therein." In connection with the second 
 head into which the question was divided had the legis- 
 lature power to pass the act of 1885, by the method which 
 it pursued, and thereby repeal the act of 1866 it was con- 
 tended by counsel for the relator that the legislature had 
 no such power, because: .(1.) It was contended that the 
 act of 1885 conflicted with section 11 of article I of the 
 constitution which provides that "all laws of a general 
 nature shall have a uniform operation" in that, by its own 
 terms, the act of 1885 must take effect in different cities at 
 different times, that is to say when the term of the police 
 judge expires, or when there shall be a vacancy in his 
 office. (8.) It was contended that the act was local and special 
 legislation, and therefore violative of section 25 of article 
 IV of the constitution. 
 
 In answer to the first objection, that the law was not uniform 
 in its operation because by its own terms it must take effect 
 in different cities at different time the court said: "If the 
 law operates equally upon all the objects embraced within 
 it, when they come within the circle or scope of its authority, 
 the uniformity of operation contemplated by the constitution 
 is attained. A general law to fill vacancies in office cannot 
 be void for want of unformity of operation because such 
 vacancies must occur at different periods. If it meets 
 every contingency when it arises and treats all the contin- 
 gencies of like character in like manner, it is uniform in 
 its operation. * * * Under the same circumstances; 
 existing at the same period of time, the law must ^.apply 
 equally at the same time, or uniformity of operation is not 
 
CONSTITUTIONALITY OF ACT OF 1893 K^. 279 
 
 attained. Beyond this, identity as to time of application is 
 not necessary." 
 
 in answer to the second contention of counsel, that the 
 act of 1885 was local and special legislation the court said 
 that under section 6 of article XI of the constitution, the 
 legislature had the po^ver to classify municipal corpora- 
 tions, according to population, and that "a law which applies 
 to one or more, but not to all, of these classes, is not for 
 that reason special legislation." 
 
 However, the reasons clearly pointed out by Mr. Justice 
 Mr.Kinstry,in his dissenting opinion page 452, seem to afford 
 most cogent reasons for holding that the said act of 1885 
 was special legislation, because it created a special class fora 
 special municipal purpose. 
 
 The learned justice who wrote the prevailing opinion in 
 the case seems to have demonstrated clearly that the act of 
 1885 the Whitney Act was not obnoxious to the provi- 
 sions of section 11 of article I of the constitution, requiring 
 that "all laws of a general nature shall have a uniform opera- 
 tion," merely because the act might take effect in different 
 cities at different times. Upon this branch of the question 
 there seems to be no doubt but that, as stated by the learned 
 writer of the prevailing opinion, "if the law operates equally 
 upon all the objects embraced within it, when they come 
 within the circle or scope of its authority, the uniformity of 
 operation contemplated by the constitution is attained." 
 But upon the other branch of the question, viz: Is the law local 
 or special legislation,and therefore unconstitutional because 
 made to apply only to cities having a population of thirty 
 thousand and under one hundred thousand inhabitants? the 
 weight of reason seems to lie with the dissenting opinion of 
 Mr. Justice McKinstry, for, even admitting that, for the 
 incorporation, organization and government of cities and 
 towns, the legislature may by general laws classify them, 
 and by general laws provide for their incorporation, organ- 
 ization and government according to such classification, 
 giving to each class a complete system of municipal govern- 
 ment, still, as pointed out by Mr. Justice McKinstry in his 
 dissenting opinion, the act in question, purporting to provide 
 for police courts in cities having thirty thousand and under 
 one hundred thousand inhabitants, attempted to create a 
 special class for a special and particular purpose. The class 
 of cities to which the provisions of the act were made appli- 
 cable w^as not a class which had been created by any gen- 
 eral law classifying all the cities and towns of the state 
 according to their population. It was a different class from 
 any provided for in any general law classifying cities and 
 
280 STREET WORK LAW STREET OPENING ACT OF 1893 
 
 towns. And this special class wa. created not for all muni- 
 cipal purposes, but only for one special municipal purpose, 
 namely for the purpose of creating and providing for police 
 courts. 
 
 Under section 6 of article XI of the constitution, the leg- 
 islature has the power by a general law to classify cities and 
 towns according to population, and by general laws provide 
 for the incorporation and organization of the cities thus 
 classified, giving to each class a complete system of muni- 
 cipal government. 
 
 By the acts of March 2 and 13, 1883, [statutes 1883, 
 pages 24, 93J the legislature had complied with the mandate 
 contained in section 6 of article XI of the constitution. 
 By the act of March 2, 1883, it provided "for the classifi- 
 cation of municipal corporations/' and by the act of March 
 13, 1883, provided "for the organization, incorporation and 
 government of municipal corporations." 
 
 The first of these acts act of March 2, 1883 pro- 
 vides that a all municipal corporations within this 
 state are hereby classified as follows: Those having 
 a population of more than one hundred thousand 
 inhabitants shall constitute the first class; those 
 having a population of more than thirty thousand and not 
 exceeding one hundred thousand inhabitants shall constitute 
 the second class," etc. As said by Mr. Justice McKinstry in 
 his dissenting opinion: "The act of March 18, 1885, [the 
 Whitney act] which is claimed to be operative in the city of 
 Oakland, attempts to create a single class for a particular 
 purpose, a different class from any provided for in the 
 general law, passed in obedience to the behest of the con- 
 stitution for the classification of municipal corporations. 
 It attempts to provide for a police court in every city, 'hav- 
 ing thirty thousand and under one hundred thousand 
 inhabitants.' ****** Will any one 
 contend that after general laws have been passed for the 
 incorporation, organization, and classification of cities in 
 proportion to population, the legislature may create, not 
 merely a new classification of all cities and towns for a 
 special municipal purpose, but a single class, differing from 
 any included in the general classification for a special 
 municipal purpose?" ^ 
 
 This position of Judge McKinstry that an act is obnoxious 
 as special legislation, which for a special municipal purpose, 
 creates a special class, differing from any included in the 
 general classification, is fully sustained by the Supreme 
 Court of New Jersey in the case of State v. Trenton, 42 N. 
 J. L. 486. 
 
CONSTITUTIONALITY OF ACT OF 1893 K^*. A a? 281 
 
 But, as said by Beatty, C. J., in City of Pasadena v. Stim- 
 son, 91 Cal. 250, the author of the prevailing opinion in 
 People v. Henshaw," assumed that the class of cities to which 
 the Whitney act the act of 1885 was made applicable, 
 was identical w r ith the second class as defined in the gen- 
 eral incorporation act, and upon that assumption concluded 
 that as cities having a large population require different 
 legislation from those containing few inhabitants, the 
 Whitney act, though applying to only one class, was never- 
 theless constitutional." The class of cities to which the 
 Whitney act was made applicable was not identical with 
 the second or any class defined in the general incorporation 
 act or in the municipal classification act of March 2, 1883. 
 Because the second class of municipal corporations defined 
 by the said municipal classification act are those having a 
 population of more than thirty thousand and not exceeding 
 one hundred thousand inhabitants; whereas the Whitney 
 act was made applicable to cities having thirty thousand and 
 under one hundred thousand inhabitants. 
 
 Now, if it be assumed that the class of cities to which the 
 Whitney act was made applicable was identical with the 
 second class as defined in the general municipal incorpor- 
 ation act of March 2, 1883,the decision in the Henshaw case 
 may be upheld as good law, and still it would not afford 
 any support to the street opening act of March 23, 1893, 
 since the latter act clearly creates a special class of munici- 
 palities for one particular special municipal purpose, viz., 
 for the purpose of opening streets, etc. 
 
 Again, as pointed out by Mr. Justice Thornton in his dis- 
 senting opinion in Ex parte Henshaw, 73 Cal. 507, under 
 section 1 of article VI of the constitution, a police court, 
 such as that established by the act of 1885, may be created 
 by a special law for each city. 
 
 Again, it seems to have been assumed by the author of the 
 prevailing opinion in People v. Henshaw, that, because under 
 section 6 of article XI of the constitution, the legislature 
 may by general laws provide for the incorporation, organi- 
 zation, and classification, in proportion to population, of cities 
 and towns, that therefore, the legislature, by an act applying 
 to all cities of any particular class created by the act of class- 
 ification, might amend the charter of any city not incorpo- 
 rated under the general municipal incorporation act. [See 
 dissenting opinion of Mr. Justice McKinstry.] Neverthe- 
 less, even if this assumption be admitted to be correct, it 
 would not for that reason, follow that the street opening act 
 of March 23, 1893, was constitutional. Because, 
 it cannot well be said that an act dividing all the 
 

 282 STREET WORK LAW STREET OPENING ACT OF 1893 
 
 municipalities of the state into municipalities having 40,000 
 inhabitants or over, and municipalities having less than 
 40,000 inhabitants, is an act providing "for the classification, 
 in proportion to population of cities and towns." It seems 
 rather to be an act applicable to "a class arbitrarily selected 
 from the general body of those who stand in precisely the 
 same relation to the subject of the law," and for" this 
 reason, as stated by Mr. Chief Justice Beatty, in City of 
 Pasadena v. Stimson. 91 Cal. 251-2, to be unconstitutional. 
 
 Furthermore, subdivision 7 of section 25, article IV of 
 the constitution, expressly prohibits all special or local 
 legislation "authorizing the laying out, opening, altering r 
 maintaining, or vacating roads, highways, streets, alleys y 
 town plats, parks, cemeteries, grave yards, or public grounds 
 not owned by the state." Therefore, while under section 6 
 of act XI, "the legislature, by general laws, shall provide 
 for the incorporation, organization, and classification, in 
 proportion to population, of cities and towns," still said 
 subdivision 7 of section 25, article IV might, perhaps, be 
 regarded as constituting an exception to the general rule con- 
 tained in this part of section 6 of article XI. That is to say y 
 under section 6 of article XI, the legislature may pass a gen- 
 eral law providing for a classification of all of the cities 
 and towns of the state, in proportion to population, and, by 
 the same, or another general law, may provide a complete 
 system of municipal government for each class thus created. 
 Now it is possible that this may be regarded as being 
 intrinsically special or local legislation, although expressly 
 allowed by the constitution for all general purposes of 
 municipal incorporation and organization, with the possible 
 exception of such municipal purposes as are described in 
 said subdivision 7 of section 25 of article IV, namely, laying 
 out, opening, altering, maintaining or vacating roads r 
 highways, streets, etc. 
 
 In Pasadena v. Stimson, 91 Cal. 251, Mr. Chief Justice 
 Beatty, said that a law is not special if it applies to all 
 members of a class, provided the class " be founded upon 
 some natural or intrinsic or constitutional distinction." 
 That is, the class must be founded upon some special 
 peculiarities or characteristics naturally inhering in 
 the class itself, thus differentiating it from all others 
 not members of that class. Sex, for example, affords 
 an illustration of such natural and intrinsic differenti- 
 ating qualities. Or the class must be one defined by the 
 constitution itself. Thus, in his dissenting opinion in Peo- 
 ple v. Central Pac. R. R. Co., 83 Cal. 414, Mr. Chief Justice 
 Beatty gave it as his opinion that the legislation in ques- 
 
CONSTITUTIONALITY OF ACT OF 1893 March^lsa* 283 
 
 tion there, provisions of the Political Code relating to the 
 assessment and collection of taxes levied upon railroads 
 operated in two or more counties was not special because 
 it applied to all railroads of a class created and denned by 
 the constitution itself. Now if the cases cited supra, 
 Earle v. S. F. Board of Education, 55 Cal. 489; Desmond v. 
 Dunn, 55 Cal. 242; Miller v, Kister, 68 Cal. 145; Pasadena 
 V. Stimson, 91 Cal. 230; Morrison v. Bachert, 112 Penn. 
 St. 322; s. c. 5 At. Rep. 739; State v. Trenton, 42 N. J. L. 
 486; State v. Herrmann, 75 Mo. 340; and State v. Mitchell, 
 31 Ohio St. 592, were correctly decided, it would seem to 
 follow that the classes into which the said street opening 
 act of March 23, 1893, divided, the municipalities of the 
 state, are not classes founded upon some " natural or 
 intrinsic " distinction. And they are not classes defined or 
 created by the constitution itself. While it is true that the 
 constitution [article XI, section 6] allows the legislature to 
 classify the cities and towns of the state, in proportion to 
 population, so that they may be incorporated and organized 
 by general laws, according to such classification, still the 
 constitution itself nowhere classifies the cities or towns of 
 the state. Consequently such a classification is not founded 
 upon a constitutional distinction, i. e. cities classified 
 according to their population do not form any class created 
 or defined by the constitution itself, as was the case in said 
 case of People v. Central Pac. R. R. Co., 83 Cal. 393. If, 
 therefore, cities classified according to their population do 
 not form a class founded upon any natural or intrinsic dis- 
 tinction, arid do not form a class defined or created by the 
 constitution itself, it is possible that, though section 6 of 
 article XI of the constitution, from the necessities of the 
 case, permits the legislature by general laws to classify 
 cities and towns in proportion to population, and, for all 
 general purposes of municipal incorporation, organization 
 and government, permits the legislature by general laws to 
 apply to each class of cities, thus legislatively created, a 
 different system of municipal incorporation, organization 
 and government, still the provisions of subdivision 7 of 
 section 25 of article IV may possibly be regarded as consti- 
 tuting an exception to the general provisions of section 6 of 
 article XI. That is to say, it is possible, and consistent 
 with the provisions of section 6 of article XI, that, as to one 
 of the purposes of municipal incorporation, organization 
 and government, namely, the laying out, opening, widening 
 and maintaining streets, etc., the provisions of section 6 of 
 article XI do not apply, and that for this particular muiiici- 
 
284 STREET WORK LAW STREET OPENING ACT OF 1893 
 
 pal function, the legislature must provide by a general law 
 applicable alike to all the cities and towns of the state. 
 
 Resume. In view of the foregoing, it may, therefore, be 
 said that there are good reasons for believing that the case 
 of People v. Henshaw, does not establish that the said 
 street opening act of March 23, 1893, is a general law, uni- 
 form in its operation, and does not sustain the constitution- 
 ality of that act, for the following reasons: 
 
 1. As stated by Mr. Chief Justice Beatty in Pasadena v. 
 Stimson, 91 Cal. 250, the author of the prevailing opinion 
 in the Henshaw case " assumed that the class of cities to 
 which the Whitney act the act of 1885 was made appli- 
 cable was identical with the second class as defined in the 
 general incorporation act, and, upon that assumption, con- 
 cluded that as cities having a large population require dif- 
 ferent legislation from those containing few inhabitants, the 
 Whitney act, though applying to only one class, was neverthe- 
 less constitutional." On the other hand, the said street 
 opening act of March 23, 1893, is not made applicable to 
 any class of cities created or denned by any general classi- 
 fication or municipal incorporation act. It creates and 
 defines a special and particular class of cities for one special 
 and particular municipal purpose. 
 
 2. In his dissenting opinion in the Henshaw case, Mr. 
 Justice McKinstry says that an act which creates a special 
 class of cities for a special and particular purpose is special 
 legislation and is unconstitutional, notwithstanding the pro- 
 visions of section 6 of article XI of the constitution. 
 
 3. It is possible that the decision in the Henshaw case, 
 76 Cal. 442, is correct, under the provisions of section 1 of 
 article VI of the constitution, even if the law in question 
 in that case was special legislation. It was partly 
 upon this provision of the constitution that Mr. Justice 
 Thornton based his concurring opinion, 76 Cal. 447. [See 
 dissenting opinion of Mr. Justice Thornton in Ex parte Hen- 
 shaw, 73 Cal. 507.] 
 
 4- Even if, under the provisions of section 6 of article 
 XI of the constitution, the legislature might make a special 
 classification of the cities and towns of the state for some 
 particular and special municipal purpose the creation of a 
 police court, for example still, it is quite possible that as 
 to the opening of streets and the other municipal functions 
 mentioned in subdivision 7 of section 25 of article IV of the j 
 constitution, an exception is created, and that as to these 
 particular municipal functions, there must be some general 
 law, such as that of March 6, 1889, operating alike in all 
 the cities of the state. 
 
CONSTITUTIONALITY OF ACT OP 1893 MareVB A i893 0f 285 
 
 Furthermore, it seems to have been assumed by the 
 author of the prevailing opinion in People v. Henshaw, 
 that, under the provisions of section 6 of article XI of the 
 constitution, the legislature might enact a law which 
 should apply, to all the cities included in any class, 
 classified in proportion to population, even though some of 
 the cities of such class might never have been incorporated 
 or organized under any general municipal incorporation 
 act, such as that mentioned in and contemplated by said 
 section 6 of article XL Now, admitting the correctness of 
 this view of said provision of the constitution, and admit- 
 ting that the decision in People v. Henshaw was correct, for 
 the reasons given therefor in the prevailing opinion, still 
 that case seems to have reached the limits of liberality of con- 
 struction in holding that the Whitney act was not an act of 
 special or local legislation. Indeed, Mr. Justice Fox, in Ex 
 parte Ah You, 82 Gal. 343, in a dissenting opinion, speaking 
 of said case of People v. Henshaw, and the act under con- 
 sideration in that case, says: "The act of the legislature 
 then under consideration ' An act to provide for police 
 courts in cities having thirty thousand and under one hun- 
 dred thousand inhabitants, and to provide for officers there- 
 of,' approved March 18, 1885, commonly called the ' Whit- 
 ney act/ [statutes 1885, p. 213] was, at the time of its pas- 
 sage, as clearly a special law as any ever passed by a legis- 
 lative body, and under the constitution should have been 
 declared void." 
 
 In view of this clear-cut, emphatic language, and in view 
 of the opinions in the cases cited supra, page 283, holding 
 laws similar to the said street opening act of March 23, 
 1893, to be special legislation, it does not seem probable 
 that the constitutionality of said street opening act can find 
 any material support from the decision in the Henshaw 
 case. 
 
 In conclusion it may be said that there are grave reasons to 
 believe -the street opening act of March 23, 1893, to be 
 unconstitutional. Those reasons are as follows: 
 
 1. A statute conferring upon all cities, having a popu- 
 lation over a certain number, particular municipal powers, 
 not given to other cities, is special and local legislation. 
 
 2. The constitution, subdivision 7 of section 25, article 
 IV, expressly provides that the legislature shall not pass 
 any special or local laws, authorizing the laying out, widen- 
 ing, opening of streets, etc. 
 
 3. The act prevents the act of March 6, 1889, from 
 having a uniform operation. 
 
 If. The act does not confer upon any of the classes of 
 
286 STREET WORK LAW STREET OPENING ACT OF 1893 
 
 cities created by the general municipal classification act 
 the act of March 2, 1883, "An act to provide for the classi- 
 fication, of municipal corporations/' any municipal powers 
 relative to streets. It does not follow that classification, but 
 creates a special class for a special or particular purpose, 
 and in this respect differs from the Whitney act, as that 
 act was assumed to be by the author of the prevailing opinion 
 in People v. Henshaw, which decision, by the way, might be 
 supported by the provisions of section 1 of articles VI of the 
 constitution, according to the concurring opinion of Mr. 
 Justice Thornton in People v. Henshaw, 76 Cal. 447 and 
 likewise the dissenting opinion of the same justice in Ex 
 parte Henshaw, 73 Cal. 507. 
 
 5. For the purpose of opening and widening streets, etc., 
 the act divides the municipalities of the state into those 
 having a population of 40,000 inhabitants or over, and 
 those having less. It is doubtful if this can be regarded as 
 a "classification, in proportion to population, of cities and 
 towns," within the meaning of that phrase as used in sec- 
 tion 6 of article XI of the constitution. [See Morrison v. 
 Bachert, 112 Penn. St. 322; s. c. 5 At. Rep. 739.] 
 
 If the street opening act of March 23, 1893, be unconsti- 
 tutional the question arises: Does it expressly or by 
 implication repeal the street opening act of March 6, 1889, 
 in so far as municipalities having a population of 40,000 
 inhabitants or over, are concerned? 
 
 The act of March 23, 1893, does not in terms repeal the 
 street opening act of March 6, 1889, but in section 23 of the 
 former act it is provided that "The act approved 
 March sixth, eighteen hundred and eighty-nine, entitled 
 'An act for opening, widening and extending streets/ 
 etc., after the passage of this act, shall not apply to an}' 
 city or city and county having a population of forty thous- 
 and inhabitants or over." 
 
 It is possible that if the act of March 23, 1893, in terms 
 repealed the act of March 6, 1889, the latter act would be 
 repealed, even though the repealing act the act of March 
 23, 1893 should, in all other respects be unconstitutional. 
 It has been held that a repealing clause in a statute may 
 be valid, though every other portion of it be unconstitu- 
 tional. [Ely v. Thompson, 3 A. K. Marsh (Ky.) 70.] But 
 the act of March 23, 1893, does not in terms repeal the 
 act of March 6, 1889. It merely provides that the latter 
 act the act of March 6, 1889 shall not apply to cities 
 having a population of less than 40,000 inhabitants. But 
 if the act of March 23, 1893, be unconstitutional upon the 
 
CONSTITUTIONALITY OF ACT OF 1893 g^'* * 5 1fi ( f, Act of 287 
 
 , 1893. 
 
 ground that it is special legislation then, for the same rea- 
 son, this part of the act the part which declares that the 
 act of March 6, 1889, shall not apply to cities having a 
 population of less than 40,000 inhabitants must be uncon- 
 stitutional, since, in that case, the act of March 23, 1893, 
 in attempting to limit the application of the act of March 
 6, 1889, bases the limitation upon what is tantamount to 
 special legislation. [See County of Orange v. Harris, 97 Cal. 
 600.] 
 
 If, therefore, the act of March 23, 1893, be unconstitu- 
 tional and void, upon the ground that it is special legisla- 
 tion, the act of- March 6, 1889, is still in full force and 
 effect, and applicable to all the municipalities of the 
 state. 
 
 SECTION 2. Before ordering any work to be done or improvement made, 
 which is authorized by section one of this act, the city council shall then 
 pass a resolution declaring the intention to do said work, describing the 
 work or improvement, and the land deemed necessary to be taken there- 
 for, and specifying the exterior boundaries of the district of land to be 
 affected or benefited by said work or improvement, and be assessed to pay 
 the damages, costs, and expense thereof. 
 
 SECTION 3. The street superintendent shall then cause to be conspic- 
 uously posted along the line of said contemplated work or improvement, 
 and not more than three hundred feet in distance apart, but not less than 
 three in all, notices of the passage of said resolution. Said notice shall be 
 headed, "Notice of Public Work," in letters not less than one inch in 
 length, shall be in legible characters, state the fact of passage of the reso- 
 lution, its date, and, briefly, the work of improvement proposed, and 
 refer to the resolution for further particulars. He shall also cause a notice 
 similar in substance to be published for a period of ten days in one or more 
 daily newspapers published and circulated in said city, and designated by 
 said city council, or, if there is no daily newspaper so published and cir- 
 culated in said city, then by four successive insertions in a weekly or 
 semi-weekly newspaper so published, circulated, and designated. 
 
 SECTION 4. Any person through whose lands said proposed street exten- 
 sion runs, or who will be damaged or affected by said proposed work, may 
 within ten days after the first publication of said notice, file with the 
 clerk of the city council his written objections thereto, stating in what 
 manner and to what extent he will be damaged, which objection shall be 
 delivered to the clerk of the city council, who shall indorse thereon the 
 date of its reception by him, and at the next meeting of the city council, 
 after the expiration of said ten days, lay said objections before said city 
 council, which shall fix a time for hearing said objections, not less than 
 one week thereafter. The city clerk shall thereupon notify the persons 
 making such objections by depositing a notice thereof in the postoffice of 
 said city, postage prepaid, addressed to such objector. 
 
 SECTION 5. At the time specified, or to which the hearing may be 
 adjourned, the city council shall .hear the objections filed, and if the 
 owners of a majority of the frontage of all lands to be assessed for benefits, 
 as said owners appear on the last preceding annual assessment roll for 
 
288 STREET WORK LAW STREET OPENING ACT OF 1893 
 
 state and county taxes, object, in writing, to said proposed opening, 
 extending, and widening, straightening, diverging, curving, contracting, 
 or closing up of said street, said city council shall sustain said objections, and 
 all proceedings therefor shall be stopped for the period of twelve months. 
 Proceedings may be again commenced by a new resolution of intention. 
 If the owners of a majority of the frontage of all streets within the assess- 
 ment district do not object, in writing, thereto, within the time specified 
 in this act, the city council shall be deemed to have acquired jurisdiction 
 to order any of the work to be done or improvements to be made which is 
 authorized by section one of this act. 
 
 SECTION 6. Having acquired jurisdiction, as provided in the preceding 
 section, the city council shall order said work to e be done, and unless 
 the proposed work is for closing up, and it appears that no assess- 
 ment is necessary, shall appoint three disinterested persons, who shall 
 constitute a board of commissioners in that regard, who shall have full 
 supervision of the proposed work or improvement until the completion 
 thereof in compliance with this statute. For their services they shall 
 each receive, as compensation, not to exceed five dollars for every day of 
 actual service ; provided, that said compensation shall not be paid for a 
 longer term than six months for each district, unless extended by the 
 council. Such extension shall not exceed two months at one time, nor 
 shall the term of office of said commissioners, for any district, continue for 
 longer than one year. Such compensation shall be added to and be 
 chargeable as a part of the expenses of the work or improvement. Each 
 of said commissioners shall file with the clerk of the city council an affi- 
 davit and a bond to the state of Oalifornia,in the sum of five thousand dollars 
 to faithfully perform the duties of his office. The city council may at any 
 time remove any or all of said commissioners for cause, upon reasonable 
 notice and hearing, and may fill any vacancies occurring among them for 
 any cause. At the end of the terms of said commissioners, they shall 
 hand over all unfinished business to the city council, who shall complete 
 the same. In all municipalities where there is a board of public works, 
 such board shall constitute the board of commissioners in this section pro- 
 vided for, and shall perform the duties of such commissioners, and their 
 salaries as members of the board of public works shall be in full compen- 
 sation for such services. It shall be the official duty of the city attorney to 
 render said commissioners all necessary legal services ; pnvided, that the 
 city surveyor shall, for any work or services which he may perform by the 
 direction of the common council or other legislative department of the city 
 government, receive, in addition to his salary allowed by law, all sums 
 which he may lay out, pay out, or expend in the prosecution of said work, 
 for materials or labor necessarily therein by him employed. 
 
 SECTION 7. Said commissioners shall have an office assigned to them by 
 the city council, in the city hall, and shall have power to employ a secre- 
 tary, at a salary not to exceed one hundred and fifty dollars per month, 
 and such other clerical assistance as shall be provided them by the city 
 council, the salaries and fees of whom shall be established and fixed by 
 said city council. 
 
 SECTION 8. All such charges and expenses shall be deemed as expenses 
 of said work of improvement, and be a charge only upon the funds devoted 
 to the particular work or improvement as provided hereinafter. All pay- 
 
COMMISSIONERS PROVIDED BY ACT ^arc^ ^sSj ACt f 289 
 
 ments, as well for the land and improvements taken or damaged, and for 
 the charges and expen ses, shall be paid by the city treasurer, upon war- 
 rants drawn upon said fund from time to time, signed by said commis- 
 sioners, or a majority of them. All such warrants shall state whether 
 they are issued for land or improvements taken or damaged, or for 
 charges and expenses, and that the demand is only payable out of the 
 money in said fund, and in no event shall the city be liable for the failure 
 to collect any assessment made by virtue hereof, nor shall said warrant be 
 payable out of any other fund, nor a claim against the city. 
 
 SECTION 9, Said commissioners shall proceed to view the lands described 
 in the resolution ot intention, and may examine \vitnesses on oath, to be 
 administered by any of them. Having viewed the land to be taken, and 
 the improvements affected, and considered the testimony presented, they 
 shall proceed with all diligence to determine the value of the land, and the 
 damage to improvement and property affected, and also the amount of the 
 expenses incident to said work or improvement, and, having determined 
 the same, shall proceed to assess the same upon the lands described in 
 said district herein provided. The lands fronting on said extension or 
 widening shall only be assessed to the depth of one hundred and twenty 
 feet, or the full depth of the lots, not exceeding one hundred and fifty feer ; 
 and said lands shall be assessed with reference to the amount of grading 
 to be done, and their location on the grades of said streetor improvement; 
 and the expenses of grading said lots or lands, whether filling or cutting 
 shall be necessary to place them on the grade of said street or improve- 
 ment, shall be estimated in determining the value of the land, and the 
 damage to the improvement and property affected. 
 
 SKCTION 10. Said commissioners having made their assessment of bene- 
 fits ami damage, shall, with all diligence, make a written report thereof to 
 the city council, and shall accompany their report with a plat showing the 
 land taken, or about to be taken, for the work or improvement, and the 
 lands assessed, showing the relative location of each district, block, lot, or 
 portion of lot, and its dimensions, so far as the commissioners can reason- 
 ably ascertain the same. Each block and lot, or portion of lot, taken or 
 assessed, shall be designated and described in said plat by an appropriate 
 number, and a reference to it by such descriptive number shall be a suffi- 
 cient description of it in any suit entered to condemn and in all respects. 
 When the report and plat are approved by the city council, a copy of said 
 plat, appropriately designated, shall be filed by the clerk thereof in the 
 office of the recorder of the county. 
 
 SECTION 11. Said report shall specify each lot, subdivision or piece of 
 property taken or injured by the widening or other improvement, or 
 assessed therefor, together with the name of the owner or claimant thereof, 
 or of persons interested therein as lessees, incumbrancers, or otherwise, so 
 far as the same are known to such commissioners, and the particulars of 
 their interests, so far as the same can be ascertained, and the amount of 
 value or damage, or the amount assessed, as the case may be. 
 
 SECTION 12. If in any case the commissioners find conflicting claims of 
 title exist, or shall be in ignorance or doubt as to the ownership of any lot 
 Of land, or of any improvements thereon, or any interest therein, it shall 
 be set down as belonging to unknown owners. Error in the designation of 
 the owner or owners of any land or improvements, or of the particulars of 
 
290 STREET WORK LAW STREET OPENING ACT OF 1893 
 
 their interest, shall not affect the validity of the assessment or the con- 
 demnation of the property to be taken. 
 
 SECTION 13. Said report and plat shall be filed in the clerk's office of 
 the city council, and thereupon the clerk oi said city council shall give 
 notice of such filing by publication for at least ten days in one or more 
 daily newspapers published and circulated in said city; or if there be no 
 daily newspaper, by three successive insertions in a weekly or semi-weekly 
 newspaper so published and circulated. Said notice shall also require all 
 persons interested to show cause, if any, why such report should not be 
 confirmed, before the city council, on or before a day fixed by the clerk 
 thereof, and stated in said notice, which day shall be not less than thirty 
 days from the first publication thereof. 
 
 SECTION 14. All objections shall be in writing, and filed with the clerk 
 of the city council, who shall, at the next meeting after the day fixed in 
 the notice to show cause, lay the said objections, if any, before the city 
 council, which shall fix a time for hearing the same, of which the clerk 
 shall notify the objectors in the same manner as objectors to the original 
 resolution of intention. At the time set, or at such other time as the 
 hearing may be ad journed to, the city council shall hear such objections 
 and pass upon the same ; and at such time, or if there be no objections at 
 the first meeting after the day set in such order to show cause, or such 
 other time as may be fixed, shall proceed to pass upon such report, and 
 may confirm, correct, or modify, or may sustain the objections thereto, 
 and order the commissioners to make a new report, assessment, and plat, 
 which in either case shall be filed, and notice given and hearing had, as 
 in the case of the original report; but no report, or plat, or assessment 
 shall be filed by said commissioners after the expiration of ten months, 
 after their appointment. 
 
 SECTION 15. The clerk of said city council shall forward to the street sup- 
 erintendent of the city a certified copy of the report, assessment, and plat 
 as finally confirmed and adopted by the city council. Such certified copy 
 shall thereupon be the assessment roll, and thirty days after such filing 
 shall become a lien on the property assessed therein, for its proportion of 
 the costs of said improvement, as hereinbefore provided. 
 
 SECTION 16. The superintendent of streets shall thereupon give notice by 
 publication for ten days in two daily newspapers published and circulated 
 in said city and county, or by two successive insertions in a weekly or semi- 
 weekly newspaper so published and circulated, that he has received said 
 assessment roll, and that all sums levied and assessed in said assessment 
 roll are due and payable immediately, and that the payment of said sums 
 is to be made to him w r ithin thirty days from the date of the first publica- 
 tion of said notice. Said notice shall also contain a statement that all 
 assessments not paid before the expiration of said thirty days will be declared 
 to be delinquent, and that thereafter the sum of five per cent, upon the 
 amount of each delinquent assessment, together with the cost of advertis- 
 ing each delinquent assessment, will be added thereto. When payment of 
 any assessment is made to said superintendent of streets he shall write 
 the word "paid" and the date of said payment opposite the respective 
 assessments so paid, and the names of persons by or for whom said assess- 
 ment is paid, and shall, if so required, give a receipt therefor. On the 
 expiration of said thirty days, all assessments then unpaid shall be and' 
 
OBJECTIONS ASSESSMENT ROLL 
 
 become delinquent, and said superintendent of streets shall certify such 
 fact at the foot of said assessment roll, and shall add five per cent, to the 
 amount of each assessment so delinquent. The said superintendent of 
 streets shall, within five days from the date of said delinquency, proceed to 
 advertise and collect the various sums delinquent and the whole thereof 
 including the cost of advertising, which last shall not exceed the sum of fifty 
 cents for each lot, piece or parcel of land separately assessed, by the sale o>f 
 the assessed property in the same manner as is or may be provided for the 
 collection of state and county taxes ; and after the date of said delinquency, 
 and before the time of said sale herein provided for, no assessment shall be 
 received unless at the same time the five per cent, added thereto, as afore- 
 said, together with the cost of advertising then already incurred, shall be 
 paid therewith. Said list of delinquent assessments shall be published 
 daily for five days in one or more daily newspapers published and cir- 
 culated in such city, or by at least one insertion in a weekly newspaper so 
 published and circulated, before the day of sale of such delinquent assess- 
 ment. Said time of sale must not be less than seven days from the date of 
 the first publication of said delinquent assessment list, and the place must 
 be in or in front of the office of said superintendent of streets. All prop- 
 erty sold shall be subject to redemption in the same time and manner as 
 in sales for delinquent state and county taxes; and the superintendent of 
 streets may collect for each certificate fifty cents, and for each deed one 
 dollar. All provisions of the law in reference to the sale and redemption 
 of property for delinquent state and county taxes in force at any given 
 time shall also then, so far as the same are not in conflict with the provi- 
 sions of this act, be applicable to the sale and redemption of property for 
 delinquent assessments hereunder, including the issuance of certificates 
 and the execution of deeds. The deed of the street superintendent made 
 after such sales, in case of failure to redeem, shall be prima facie evidence 
 of the regularity of all proceedings hereunder and of title in the grantee. 
 It shall be conclusive evidence of the necessity of taking or damaging the 
 lands taken or damaged, and of the correctness of the compensation 
 awarded therefor. The superintendent of streets shall, from time to time, 
 pay over to the city treasurer all moneys collected by him on account of 
 any such assessments. The city treasurer shall, upon receipt thereof, 
 place the same in a separate fund, designating such fund by the name of 
 the street, square, lane, alley, court, or place for the widening, opening, or 
 other improvement of which the assessment was made. Payments shall 
 be made from said fund to the parties entitled thereto, upon warrants 
 signed by the commissioners, or a majority of them. 
 
 SECTION 17. When sufficient money is in the hands of the city treasurer, ' 
 | in the fund devoted to the proposed work or improvement, to pay for the 
 land or improvements taken or damaged, and when in the discretion of 
 the commissioners, or a majority of them, the time shall have come to 
 make payments, it shall be the duty of the commissioners to notify the 
 owner, possessor, or occupant of any land or improvements thereon to 
 whom damages shall have been awarded, that a warrant has been drawn 
 for the payment of the same, and that he can receive such warrant at 
 the office of such commissioners, upon tendering a conveyance of any 
 property to be taken ; such a notification, except in the case of unknown 
 owners, to be made by depositing a notice, postage paid, in the post office, 
 
292 STREET WORK LAW STREET OPENING ACT OF 1893 
 
 addressed to his last known place of abode or residence. If, at the expira- 
 tion of thirty days after the deposit of such notice, he should not have 
 applied for such warrant and tendered a conveyance of the land to be 
 taken, the warrant so drawn shall be deposited with the county treasurer, 
 and shall be delivered to such owner, possessor, or occupant upon tender- 
 ing a conveyance as aforesaid, unless judgment of condemnation shall be 
 had, when the same shall' be canceled. 
 
 SECTION 18. If any owner of land to be taken neglects or refuses to 
 accept the warrant drawn in his favor, as aforesaid, or objects to the 
 report as to the necessity of taking his land, the commissioners, with the 
 approval of the city council, may cause proceedings to be taken for the 
 condemnation thereof, as provided by law under the right of eminent 
 domain. The complaint may aver that it is necessary for the city to take 
 or damage and condemn the said lands, or an easement therein, as the 
 case may be, without setting forth the proceedings herein provided for, 
 and the resolution and ordinance ordering said work to be done shall be 
 conclusive evidence of such necessity. Such proceedings shall be brought 
 in the name of the municipality, and have precedence, so far as the busi- 
 ness of the court will permit; and any judgment for damages therein ren- 
 dered shall be payable out of such portion of the special fund as may 
 remain in the treasury, so far as the same can be applied. At any time 
 after trial and judgment entered, or preceding an appeal, the court may 
 order the city treasurer to set apart in the city treasury a sufficient sum 
 from the fund appropriated to the particular improvement, to answer the 
 judgment and all damages, and thereupon may authorize and order the 
 municipality to enter upon the land and proceed with the proposed work 
 and improvement. In case of a deficiency in said fund to pay the whole 
 of said judgment and damages, the city council shall order the balance 
 thereof to be paid out of the general fund of the treasury. 
 
 SECTION 19. The treasurer shall pay such warrants out of the appropriate 
 fund, and not otherwise, in the order of their presentation; provided, that 
 warrants for land or improvements taken or damaged shall have priority 
 over warrants for charges and expenses, and the treasurer shall see that 
 sufficient money is and remains in the fund to pay all warrants of the 
 first class before paying any of the second. 
 
 SECTION 20. If any title attempted to be acquired by virtue of this act 
 shall be found to be defective from any cause, the city council may again 
 institute proceedings to acquire the land as in this act provided, or other- 
 wise, or may authorize the commissioners to purchase the same, and 
 include the cost thereof in a supplementary assessment, as provided in 
 the last section. 
 
 SECTION 21. 1. The words "work" and "improvement," as used in this 
 act. shall include all work mentioned in section one of this act. 
 
 2. In case there is no daily or weekly or semi-weekly newspaper printed 
 and circulated in the city, then such notices as are herein required to be 
 published in a newspaper shall be posted and kept posted for the length of 
 time required herein for the publication of the same in a weekly news- 
 paper, in three of the most public places in such city. Proof of the publi- 
 cation of posting of any notice provided for herein shall be made by affida- 
 vit of the owner, publisher, or clerk of the newspaper, or of the poster of 
 the notice. 
 
DEFINITIONS BOARD OP AUDIT Kch 231893 f ACt f 293 
 
 3. The word "municipality" and the word "city" shall be understood 
 and so construed as to include all corporations heretofore organized and 
 
 .now existing, or hereafter organized, for municipal purposes. 
 
 4. The term "street superintendent" and "superintendent of streets," as 
 used in this act, shall be understood and so construed as to include,' and 
 are hereby declared to include, any person or officer whose duty it is, under 
 the law, to have the care or charge of the streets or the improvement there- 
 of, in any city. In all those cities where there is no street superintendent 
 or superintendent of streets, the city council thereof is hereby authorized 
 and empowered to appoint a suitable person to discharge the duties herein 
 laid down as those of street superintendent or superintendent of streets, 
 and all the provisions hereof applicable to the street superintendent or 
 superintendent of streets, shall apply to such persons so appointed. 
 
 5. The term "city council" is hereby declared to include any body or 
 board which, under the law, is the legislative department of the govern- 
 ment of any citv. 
 
 6. The term "clerk" and "city clerk," as used in this act, is hereby 
 declared to include any person or officer who shall be clerk of said city 
 council. 
 
 7. The term "treasurer" or "city treasurer" as used in this act, shall 
 include any person or officer who shall have charge, and make payment of 
 the city funds. 
 
 SECTION 22. The mayor, tax collector, and city or city and county attor- 
 ney, as the case may be, of all municipalities wherein there is existing at 
 the passage of this act any commission appointed for the opening, extend- 
 ing, or widening of streets under the provision of said act of March sixth, 
 eighteen hundred and and eighty-nine, and which commission is not with- 
 in the proviso of section twenty-three of this act, are hereby constituted a 
 board of audit, whose duty it shall be, upon petition of said commission, to 
 carefully examine all the accounts, bills, and expenditures, made or con- 
 tracted for by said commission, including the salaries of the said commis- 
 sioners and said board of audit, or a majority of its members, is hereby 
 authorized to audit and allow such amounts as it shall find to be just and 
 reasonable, and report said amounts, with the items thereof and to whom 
 payable,to the city council. Said report shall be final and conclusive as to said 
 amounts. The city council is authorized to pass and allow, and order paid, to 
 each of the persons entitled thereto, the amounts so found to be due, in the 
 same manner as claims and demands against such municipality are 
 passed, allowed, and ordered paid. The payment of said amounts shall 
 be provided for in the tax levy next thereafter made by said city coun- 
 cil, and when said taxes are collected the said amounts shall be paid 
 out of the general fund of said municipality, in the same manner as other 
 claims and demands are paid. 
 
 SECTION 23. The act approved March sixth, eighteen hundred and 
 eighty-nine, entitled "An act for opening, widening, and extending 
 streets," etc., after the passage of this act, shall not apply to any city or 
 city and county having a population of forty thousand inhabitants or over ; 
 but as to any city or city and county having a population of forty thousand 
 or over said act shall not apply ; but said cities and cities and counties 
 shall be subject only to the provisions of this act in all matters embraced 
 within the purview of this act ; provided, however, that the present city 
 
294 STREET WORK LAW STREET OPENING ACT OF 1893 
 
 council, or other governing body of any municipality of forty thousand 
 inhabitants or over, shall have power, by a three-fourths vote of its mem- 
 bers, to extend the life of any existing commission until its work shall 
 have been completed, as in said act provided ; but in all other cases in 
 cities or cities and counties of forty thousand inhabitants or over, the 
 assessments, plats, and reports filed by said commissioners are declared to 
 be null and void, and all moneys collected under the provisions of said act 
 shall be refunded to the persons from whom the same were collected, in 
 the same manner as taxes which have been twice collected, and the said 
 commissioners are hereby removed from office ; provided, further, however, 
 that in case of the lands necessary to widen or open any street, there shall 
 have been actually purchased and conveyed to the municipality, under the 
 provisions of said act of March sixth, eighteen hundred and eighty-nine, 
 more than one-half of the land necessary for said improvements, as shown 
 by the report and plat on file, then said streets and the improvement 
 thereof, shall not be affected by this act, but the same shall be completed 
 as commenced. 
 
 SECTION 24. This act shall be liberally construed to promote the objects 
 the reof . 
 
 This act shall take effect and be in force from tne time of its passage. 
 [Statutes 1893, page 221.} 
 
Sanitary District flct. 
 
 It is a serious question as to whether this sanitary district 
 act is constitutional or not. It provides, [section 1,] that 
 twenty-five persons in any county, residents and freeholders 
 within the proposed district, may present to the board of su- 
 perv isors of such county a petition in writing, signed by them, 
 stating the name of the proposed district, and setting forth 
 the boundaries thereof, and praying that an election be held 
 as provided by the act. Section 2 provides that "when 
 such petition is presented * * the board of supervisors 
 must within thirty days thereafter, order that an election be 
 held as provided by this act. The order * * * must 
 show the boundaries of the proposed district." Section 4 
 provides for an election at which every qualified voter, res- 
 ident within the proposed district for the period requisite 
 to enable him to vote at a general election, shall be entitled 
 to vote, and that "if a majority of the votes cast at such 
 election shall be in favor of a sanitary district, the board of 
 supervisors shall make and cause to be entered in the min- 
 utes an order that a sanitary district of the same name and 
 with the boundaries stated in the petition (setting forth such 
 boundaries) has been duly established." It will thus be 
 seen that the boundaries of the district may be fixed by the 
 petition of twenty-five persons; that the board of super- 
 visors, the legislative body of the county, have no discre- 
 tion in the matter. They must call an election, upon the 
 filing of the petition, and must declare to be established the 
 very district described in the petition, if a majority of the 
 electors, voting at the election, cast their votes in favor of 
 the proposed district. Here is an attempt to transfer to a 
 majority of the qualified electors of any proposed district, 
 the power to declare that such portion of the county as is 
 specified in said petition will be benefited by sewers and 
 drains to be erected at the expense of all the property, real 
 and personal, within the district, and to set in motion 
 machinery for the enforcement of a tax and assessment 
 against the minority of the qualified electors, even though 
 such minority of the qualified electors may be the owners 
 of a large majority of the property lying within the pro- 
 posed district. Upon the principles laid down in Moulton 
 v. Parks, 64 Cal. 166, there would seem to be room for grave 
 
29G STREET WORK LAW SANITARY DISTRICT ACT 
 
 doubts as to the constitutionality of the sanitary district 
 act. In Moulton v. Parks, it was held that the act of March 
 25, 1868, [statutes 1867-8, page 316,] an act to provide for 
 the protection of certain lands in the county of Sutter from 
 overflow, by the erection of levee districts was unconsti- 
 tutional. Section 21 of that act provided that ''whenever 
 a petition shall be received by said board of supervisors, 
 from persons in possession of more than one-half of the 
 acres of any specified portion of said county, asking to be 
 set apart and erected into a levee district, said board shall 
 at once erect such territory into a levee district, and place it 
 under the provisions of this act, to be called Levee District, 
 No. 1, 2, 3, and so on, as the case may be; provided, that it 
 shall not be required to submit the question of tax to a vote 
 of the people of any district so erected." It was held that 
 this act was unconstitutional because the act did not pro- 
 vide for the creation of an assessment district by the legis- 
 lative authority of the state, or by a properly organized 
 municipality, or by assessors or commissioners authorized 
 to ascertain what lands would be benefited by the proposed 
 levees, as it should have done to be constitutional [Cooley 
 on Taxation, 449], but provided, instead, that on the presen- 
 tation of a petition the board of supervisors ''shall at once 
 proceed" to erect the territory described in the petition into 
 a levee district, "and place it under the provisions of this 
 act." The court per McKinstry, J., page 183, said: "Here is 
 an attempt to transfer to persons in possession of more than 
 one-half of the acres of any portion of the county of Sutter 
 which they may specify, the power to declare that such por- 
 tion of the county will be benefited by works erected at the 
 expense of all the property, real and personal, within it, 
 and to set in motion machinery for the enforcement of a 
 tax and assessment against the owners of a majority of the 
 acreage. The act provides for no judicial inquiry as to 
 what lands will be benefited by a proposed work, nor does 
 it contain any declaration by the state legislature that any 
 specified lands will be benefited, nor provide that such 
 declaration may be made by the supervisors, or by any offi- 
 cer or agent of the state or county. When those in posses- 
 sion of more than one-half of the land by them specified 
 file a petition they assert that they will be benefited by the 
 proposed work, and they also attempt to determine that the 
 owners of other lands will be benefited. They determine 
 that the work will benefit all, and attempt to levy a tax 
 upon others as well as themselves, which shall be expended 
 in work of joint as well as several benefit. No man can be 
 a judge in his own cause, and no man's property can be 
 
CONSTITUTIONALITY OF ACT Act of March 31, 1891. 297 
 
 taken without due process of law." And on page 184, the 
 learned judge said: "The supervisors have no discretion to 
 reject the petition, or to modify or change the boundaries 
 of the district, or otherwise to exercise any judgment with 
 reference to the expediency of fixing the limits of the assess- 
 ment district where the petition fixes them. One man in 
 possession of 3000 acres of land, which he believes will be 
 protected by a levee, may thus decree that 5999 acres (of 
 which 2999 are owned by one hundred other men), will be 
 benefited by a levee, and arbitrarily adjudge the one hun- 
 dred to pay almost half of the expense of building it. 
 Under our constitution there never has been power in the 
 legislature to delegate such legislative functions to interested 
 individuals." 
 
 In like manner, it may be said of the sanitary district act: 
 "The supervisors have no discretion to reject the petition, 
 or to modify or change the boundaries of the district, or 
 otherwise to exercise any judgment with reference to the 
 expediency of fixing the limits of the assessment district 
 where the petition fixes them." It is true that under this 
 sanitary district act the board of supervisors are not com- 
 pelled to at once proceed to erect the territory described in 
 the petition into a sanitary district, as was the case in said 
 levee district act of 1868, but if a majority of the qualified 
 electors voting at the election vote for the district, the 
 supervisors must then make an order that a sanitary district, 
 of the name and with the boundaries stated in the petition, 
 has been duly established. So that the whole matter is vir- 
 tually taken out of their hands and left to the discretion of 
 a majority of the electors, who m&y own a minority of the 
 property affected and liable to be taxed or assessed. The 
 supervisors exercise no judgment whatever with reference 
 to fixing the boundaries of the district. 
 
 In Moulton v. Parks it was said that the owners of a bare 
 majority of the acreage (3000 acres, for example) might 
 arbitrarily decree that the owners of a minority of the acre- 
 age (2999 acres, for example) should contribute toward the 
 expense of building a levee. But in the sanitary district 
 act, the owners of a minority of the acreage might arbitra- 
 rily decree that the owner of a majority of the acreage 
 should pay the greater part of the burdens. Thus, suppose 
 a community of twenty-six persons. One of these owns 
 twenty-five twenty-sixtns of tne land in the proposed dis- 
 trict. The remaining twenty-five own one twenty-sixth of 
 the land in the proposed district. These latter file a peti- 
 tion describing the proposed district. The supervisors, 
 without any discretion in the matter, call an election. The 
 
298 STREET WORK LAW SANITARY DISTRICT ACT 
 
 twenty-five owners of one twenty-sixth vote for the estab- 
 lishment of the district. The owner of the twenty-five 
 twenty-sixths of all the property in the district votes against 
 it. Therefore, if there is any difference between this sani- 
 tary district act and the levee district act, considered in 
 Moulton v. Parks, it is that the latter act empowered the 
 owners of a majority of the lands, liable to be taxed for the 
 proposed improvement, to declare that such portion of the 
 county as they might specify would be benefited by the 
 works to be erected at the expense of all the property in the 
 district, and to set in motion machinery for the enforce- 
 ment of a tax and assessment against the owners of a 
 minority of the acreage. Whereas the sanitary district act 
 gives the same powers to the owners of a minority of the 
 lands liable to be taxed, to be exercised against the owner 
 or owners of a majority of the lands. 
 
 Furthermore, the sanitary district act does not provide 
 for the establishment of the district in either of the modes 
 which, according to Mr. Justice Cooley, seern to be essential, 
 namely (1.) by the legislative authority of the state, or, 
 when properly organized, by a municipality; or, (2.) by 
 assessors or commissioners, authorized by law to assess such 
 lands as in their opinion are specially benefited, and ought, 
 therefore, to contribute to the cost. [Cooley on Taxation, 
 449.] 
 
 Furthermore, the sanitary districts which the act provides 
 for are public corporations for the exercise of a most impor- 
 tant municipal function, viz., the building and maintaining 
 of sewers and drains, in the exercise of which function the 
 corporations are empowered to exercise the sovereign power 
 of taxation, a power which may, perhaps, be justly regarded 
 as the most important attribute of sovereignty. [See Dean 
 v. Davis, 51 Cal. 406; People v. Williams, 56 Gal. 647; 
 Reclamation District v. Hagar, 66 Cal. 54; Irrigation Dis- 
 trict v. Williams, 76 Cal. 360; In re Madera Irrigation Dis- 
 trict, 92 Cal. 296.] Under the act a sanitary district may 
 be created wholly or partly within a city or town or other 
 public corporation organized for municipal purposes and 
 exercising municipal functions, or the boundaries of the san- 
 itary district may coincide and be coterminous with the boun- 
 daries of such city, town, or other municipal corporation. It is 
 possible, therefore, that the act may be considered as delegat- 
 ing to individuals, viz., the board of directors of the sanitary 
 district, and the electors therein, powers over municipal 
 improvement, and to exercise municipal functions that 
 properly belong to the regular municipal authorities of a 
 city or town; and, it is possible, that for this reason the act 
 
CONSTITUTIONALITY OF ACT fgj^ J^f* Act of 299 
 
 may be violative of section 13 of article XI of the constitu- 
 tion. This point was raised against the Wright Irrigation 
 Act in Irrigation District v. Williams, 76Cal. 30; Modesto 
 Irrigation District v. Tregea, 88 Gal. 334, and In re Madera 
 Irrigation District, 92 Cal. 296; and, while the point was 
 decided in favor of the constitutionality of that act in those 
 cases, still, as said by the court on rehearing in the latter 
 case, [92 Cal. 344] "a system of irrigation contemplated by 
 the act in question |the Wright act] cannot be considered 
 as a 'municipal purpose/ within the scope of the organiza- 
 tion of a city or town, and there can be no conflict between 
 a corporation organized under the act to produce a system 
 of irrigation within the district, and the municipal incorpo- 
 ration of the town of Madera;" whereas, the purpose of the 
 sanitary district act the construction of sewers, drains, etc. 
 is distinctively a municipal purpose, and this language of 
 the court in In re Madera Irrigation District tends to cast 
 doubt upon the constitutionality of the sanitary district act, 
 rather than to clear up the question. However, it is not 
 within the purview of this book to discuss these questions 
 of constitutional law, but merely to briefly raise such ques- 
 tions of the constitutionality of these street work acts as 
 have suggested themselves to the mind of the author. 
 
 An Act to provide for the formation, government, operation, 
 and dissolution of sanitary districts in any part of the state, 
 for the construction of sewers and other sanitary purposes] 
 the acquisition of property thereby, the calling and conduct- 
 ing of elections in such districts', the assessment, levy, col- 
 lection, custody, and disbursement of taxes therein: the 
 issuance and disposal of the bonds thereof, and the deter- 
 mination of their validity, and making provision for the pay- 
 ment of such bonds, and the disposal of their proceeds. 
 
 [Approved M*.rch 31, 1891, statutes 1891, p 223.1 
 
 The people of the state of California, represented in senate and assem- 
 bly, do enact as follows : 
 
 SECTION 1 . Whenever twenty-five persons in any county of the state 
 shall desire the formation of a sanitary district within the county, they 
 may present to the board of supervisors of such county a petition, in writ- 
 ing, signed by them, stating the name of the proposed district, and setting 
 forth the boundaries thereof, and praying that an election be held as pro- 
 vided by this act. Each of the petitioners must be a resident and free- 
 holder within the proposed district. 
 
 SECTION 2. When such petition is presented as above provided, the 
 board of supervisors must, within thirty days thereafter, order that an 
 election be held as provided by this act. The order must fix the day of 
 
300 STREET WORK LAW SANITARY DISTRICT ACT 
 
 such election, which must be within sixty days from the date of the order, 
 and must show the boundaries of the proposed district, and must state 
 that at such election persons to fill the offices provided by this act, viz., a 
 sanitary assessor, and five members of the sanitary board, will be voted 
 for. This order shall be entered in the minutes of the board, and shall be 
 conclusive evidence of the due presentation of a proper petition, and of the 
 fact that each of the petitioners was at the time of the signature and pres- 
 entation of such petition a resident and freeholder within the limits of the 
 proposed district. 
 
 SECTION 3. A copy of such order shall be posted for four successive 
 weeks prior to the election, in three public places within the proposed dis- 
 trict, and shall be published for four successive weeks prior to the election, 
 in some newspaper published in the proposed district, if there be one, and 
 if not, in some newspaper published in the county. It shall be sufficient 
 if the order be published once a week. 
 
 SECTION 4. The board of supervisors, at any time prior to the election, 
 shall select one polling place within the proposed district, and make all 
 suitable arrangements for the holding of such election. The tickets shall 
 contain the words "For a Sanitary District," or "Against a Sanitary Dis- 
 trict," as the case may be, and the name of a person for sanitary assessor, 
 and the names of five persons for members of the sanitary board. Such 
 election shall be conducted in accordance with the general election laws 
 of the state, so far as the same shall be applicable, except as herein other- 
 wise provided. Every qualified elector, resident within the proposed dis- 
 trict for the period requisite to enable him to vote at a general election, 
 shall be entitled to vote at the election above provided for. If a majority 
 of the votes cast at such election shall be in favor of a sanitary district, 
 the board of supervisors shall make and cause to be entered in the min- 
 utes an order that a sanitary district of the name and with the boundaries 
 stated in the petition (setting forth such boundaries) has been duly estab- 
 lished, and said order shall be conclusive evidence of the fact and regular- 
 ity of all prior proceedings of every kind and nature provided for by this 
 act or by law, and of the existence and validity of the district. If a 
 majority of the votes cast shall be against a sanitary district, the board 
 shall, by order, so declare; no other proceedings shall be taken in relation 
 thereto until the expiration of one year from the presentation of the peti- 
 tion. 
 
 SECTION 5. Every sanitary district formed under the provisions of this 
 act shall have power to have and use a common seal, alterable at the 
 pleasure of the sanitary board; to sue and be sued by its name; to con- 
 struct and maintain and keep clean such sewers and drains as in the judg- 
 ment of the sanitary board shall be necessary or proper, and for this pur- 
 pose to acquire, by purchase, gift, devise, condemnation proceedings, or 
 otherwise, such real and personal property and rights of way, either within 
 or without the limits of the district, as in the judgment of the sanitary 
 board shall be necessary or proper, and to pay for and hold the same; to 
 make and accept any and all contracts, deeds, releases and documents of 
 every kind which, in the judgment of the sanitary board, shall be neces- 
 sary or proper to the exercise of any of the powers of the district, and to 
 direct the payment of all lawful claims and demands against it; to issue 
 bonds as hereinafter provided, and to assess, levy and collect taxes to pay 
 
ELECTION ASSESSMENT Sch sf 8 is?)l A l f 301 
 
 the principal and interest of the same, and the cost of laying and the 
 expense of maintaining any sewer or sewers that may be constructed sub- 
 sequent to the issuance of said bonds, or any lawful claims against said 
 district, and the running expenses of the district; to employ all necessary 
 agents and assistants, and pay the same; to lay its sewers and drains in 
 any public street or road of the county, and for this purpose to enter upon 
 the same and make all necessary and proper excavations, restoring the 
 same to proper condition, but in case such street or road shall be in an 
 incorporated city or town, the consent of the lawful authorities thereof 
 shall first be obtained ; to make and enforce all necessary and proper reg- 
 ulations for the removal of garbage and the cleanliness of the roads and 
 streets of the district, and for the purpose of guarding against the spread 
 of contagious and infectious diseases, and for the isolation of persons and 
 houses affected with such diseases, and for the notification of the other 
 inhabitants of the existence thereof, and all other sanitary regulations 
 not in conflict with the constitution and laws of the state; to impose fines, 
 penalties and forfeitures for any and all violations of its regulations and 
 orders, and to fix the penalty thereof by fine or imprisonment, or both ; 
 but no such fine shall exceed the sum of one hundred dollars, and no such 
 imprisonment shall exceed one month ; to call, hold, and conduct all 
 elections necessary or proper after the formation of the district; to pre- 
 scribe, by order, the time, mode and manner of assessing, levying, and 
 collecting taxes for sanitary purposes, except as is otherwise provided 
 herein; to compel all residents and property owners within the district to 
 connect their houses and habitations with the street sewers and drains; 
 and generally to do and perform any and all acts necessary or proper to 
 the complete exercise and effect of any of its powers, or the purpose for 
 which it was formed. 
 
 SECTION (>. The officers of the district shall be a sanitary assessor and 
 five members of the sanitary board. 
 
 SECTION 7. There shall be an election for sanitary assessor on every 
 even numbered year in which members of the sanitary board are elected, 
 and at the same time, place and manner; and the person then elected 
 shall hold office for two years next thereafter, and until the election and 
 qualification of his successor. The person elected assessor at the election 
 at which the district was formed shall hold office until the election and 
 qualification of his successor; provided, that if at any time a vacancy 
 occur in the office of assessor, the sanitary board shall appoint a suitable 
 person to fill such vacancy until the next election at which an assessor 
 may be elected under the provisions of this act. 
 
 SECTION 8. It shall be the duty of the sanitary assessor to make out, 
 before the first Monday in July of each year, a list of all the tangible, 
 real and personal property within the district. Such list shall contain a 
 brief and general description of the property, an assessment of the value 
 thereof, the name or names ot the owner or owners, and such other mat- 
 ters as may be ordered by the sanitary board and such matters as shall 
 be necessary to make such list conform to the provisions ot tne general 
 laws of the state of California. The land shall be assessed separately from 
 the improvements thereon. No mistake in the name of the owner of any 
 of the real or personal property assessed, or any informality in the 
 description, or in other parts of the assessment, shall invalidate the same 
 
302 STREET WORK LAW SANITARY DISTRICT ACT 
 
 The sanitary assessor shall verify said list by his oath before some officer 
 authorized to administer oaths, and shall deposit the same with the san- 
 itary board on the first Monday of July of each year, or as soon thereafter 
 as is practicable. He shall have power to administer all oaths and 
 affirmations necessary or proper in the performance of his duty as asses- 
 sor, and shall receive such compensation as shall be fixed by the order of 
 the board. He shall also perform such further duties and do such further 
 acts as may be ordered or required by the sanitary board. 
 
 SECTION 9. There shall be an election for two members of the sanitary 
 board in every even numbered year, beginning with the second even num- 
 bered year after the election at which the district was organized, and the 
 two members then to be elected shall hold office until the election and 
 qualification of their successors in the next even numbered year; and there 
 shall be an election for three members of the sanitary board in every odd 
 numbered year, beginning with the second odd numbered year after the 
 election at which the district was organized, and the three members then 
 to be elected shall hold office until the election and qualification of their 
 successors in the next odd numbered year. The five members elected at 
 the election at which the district was organized shall, at their first meeting, 
 or as soon thereafter as may be practicable, so classify themselves, by lot, 
 that two of them shall go out of office in the second even numbered year 
 after the election at which the district was organized, and upon the election 
 and qualification of their successors, as provided by this act, and three of 
 them in the second odd numbered year after the election at which the dis- 
 trict was organized, and upon the election and qualification of their suc- 
 cessors, as provided by this act. All elections for officers after the forma- 
 tion of the district shall be on the first Monday after the first Tuesday in 
 the month of March. The members of the sanitary board shall receive no 
 compensation whatever, either for general or special services. 
 
 SECTION 10. The sanitary board shall be the governing power of the 
 district, and shall exercise all the powers thereof, except the making of an 
 assessment list in the first instance, as. herein provided. At its first meet- 
 ing, or as soon thereafter as may be practicable, the board shall choose one 
 of its members as president and another of its members as secretary. And 
 all contracts, deeds, w r arrants, releases, receipts and documents of every 
 kind shall be signed in the name of the district by its president, and shall 
 be countersigned by its secretary. The board shall hold such meetings, 
 either in the day or in the evening, as may be convenient. In case of the 
 absence or inability to act, of the president or secretary, the board shall, by 
 order entered upon the minutes, choose a president, pro tern., or secretary, 
 pro tern., or both, as the case may be. 
 
 SECTION 11. The sanitary board shall sit as a board of equalization as 
 soon as it receives the asssessor's list, or as soon thereafter as practicable, 
 and shall continue in session as such board, with convenient intermissions, 
 until the entire list furnished by the assessor shall have been examined 
 and rectified, if rectification be necessary. The board shall have power to 
 hear complaints as to the proceedings of the assessor, and to adjudicate 
 and determine the controversy thereon, and may of its own motion raise 
 an assessment, after such reasonable notice to the party whose assessment 
 is to be raised as may be ordered by the board. After the examination 
 
BOARD PROVIDED BY ACT llSch 3? lie? A< * ** 303 
 
 and rectification of the assessor's list shall have been completed, the board 
 shall, by resolution, fix the rate of taxation for sanitary purposes, designat- 
 ing the number of cents on each one hundred dollars to he levied for each 
 fiui.i, and shall designate the fund into which the same shall be paid; but 
 no more than fifteen cents on each one hundred dollars shall be levied for 
 all the sanitary purposes of any one year, besides what shall be required 
 for the i ayment of the principal and interest of such year upon outstand- 
 ing IHHH la. After the entry in the minutes of the resolution fixing the rate 
 of taxation, the sanitary board shall cause the assessor to compute the 
 amount of the tax upon each piece of real and personal property and enfer 
 the same upon the assessment list in a suitable place. The list, when so 
 completed, shall be verified by the assessor and signed by the president 
 and secretary; and the amount of the tax shall thereupon become alien 
 upon the property upon which it is assessed, and shall have the effect of a 
 judgment against the person of the owner thereof, and every such lien shall 
 have the force and effect of an execution duly levied against all the prop- 
 erty of the delinquent; and the judgment shall not be deemed satisfied or 
 the lien. extinguished until the taxes are paid or the property sold to satisfy 
 the same, and no statute of limitation shall apply; but no more then sev- 
 enty-five thousand dollars of bonds shall be voted for or issued at any one 
 time, nor shall the bonded indebtedness of the district ever exceed the sum 
 of seventy-five thousand dollars at any one period, whether it be made up 
 of one issue of bonds or of several periods. 
 
 SKCTEON 12. On or before the first Monday in July of each year, the 
 board shall transmit, or cause the assessor to transmit, a duplicate of the 
 list so made to the tax collector of the county, who shall collect the taxes 
 shown by said list to be due, in the same manner as he collects the county 
 taxes, and all the provisions of the laws of the state as to the collection of 
 taxes ami delinquent taxes, and the enforcement of the payment thereof, 
 so far as applicable, shall apply to the collection of taxes for sanitary pur- 
 poses; and said tax collector, and the sureties on his official bond, shall be 
 responsible for the due performance of the duties imposed upon him by 
 this act; provided, that the sanitary board may, in its discretion, direct the 
 district attorney of the county to commence and prosecute suits for the 
 collection of the whole or any portion of the delinquent taxes; and it shall 
 be the duty of the district attorney to carry out such directions of the san- 
 itary board, and he, and the sureties upon his official bond, shall be 
 responsible for the due performance of the duty imposed upon him by this 
 act; and provided further, that the sanitary board may, at any time, by 
 order entered in its minutes, provide a system for the collection of delin- 
 quent taxes, or make any change in the manner of their collection, which 
 as to such taxes shall have the force of law. All money collected for sani- 
 tary purposes by the district attorney under this act shall be at once paid 
 to the county treasurer. 
 
 SECTION 13. The tax collector shall pay over to the county treasurer all 
 moneys collected by him for sanitary purposes, as fast as the same shall be 
 collected, and the said treasurer shall keep the same in the county treasury 
 as follows : In a fund called the bond fund for sanitary district (naming it) 
 he shall place and keep the moneys levied by the sanitary board for such 
 fund ; and no part of the money in this fund shall be transferred to any 
 other fund, or be used for any other purpose than the payment of the prin- 
 
304 STREET WORK LAW SANITARY DISTRICT ACT 
 
 cipal and interest of I, he bonds of the sanitary district, so long as any such 
 bonds shall be unpaid ; in a fund called the running expense of sanitary 
 district (naming it) he shall place ard keep the moneys levied by the san- 
 itary board for such fund. The whole or any part of the money in the 
 running expense fund may be transferred to the bond fund, or to the other 
 fund hereinafter provided for, upon the order of the sanitary board, and it 
 shall be the duty of the treasurer to comply with such order. The treas- 
 urer shall pay out moneys from either of said funds, or from the fund here- 
 inafter mentioned, only upon the written order of the sanitary board, signed 
 by the president and countersigned by the secretary, which order shall 
 specify the name of the person to whom the money is to be paid and the 
 fund from which it is to be paid, and shall state generally the purpose for 
 which the payment is made, and such order shall be entered in the min- 
 utes of the sanitary board. The treasurer shall keep the order as his 
 voucher, and shall keep a specific account of his receipts and disbursements 
 of money for sanitary purposes. The treasurer and sureties upon his offi- 
 cial bond shall be liable for the due performance of the duties imposed 
 upon him by this act. The treasurer shall keep the money arising from 
 the sale of bonds in the fund hereinafter mentioned. 
 
 SECTION 14. At any time after the district is organized, the sanitary 
 board may, by order entered in the minutes, call an election for the pur- 
 pose of determining whether bonds shall be issued for the construction of 
 sewers. Such order shall fix the day of the election, and shall specify the 
 amount of money to be raised, and shall state in general terms the purpose 
 for which it is to be raised. A copy of such order shall be posted for four 
 successive weeks prior to the election in at least three public places within 
 the district, and shall be published for four successive weeks prior to the 
 election, in some newspaper published within the district, if there be one, 
 and if not, in some newspaper published in the county. It shall be suffi- 
 cient if the order be published once a week. 
 
 ^SECTION 15. At any time prior to the day fixed for the election, the 
 board shall select one, and may select two, polling places within the district, 
 appoint officers of election, and make all necessary and proper arrange- 
 ments for holding the election, The tickets shall contain the words, "For 
 the issuance of bonds as proposed by the sanitary board," or "Against the 
 issuance of bonds as proposed by the sanitary board." The election 
 shall be conducted in accordance with the general election laws of the state, 
 so far as the same shall be applicable, except as herein otherwise provided. 
 Every qualified elector, resident within the district for the length of time 
 necessary to enable him to vote at a general election, shall be entitled to 
 vote at the election above provided for. After the votes shall have been 
 announced, the ballots shall be sealed up and delivered to the secretary or 
 president of the sanitary board, which shall, as soon as practicable, proceed 
 to canvass the same, and shall enter the result upon its minutes. Such 
 entry shall be conclusive evidence of the fact and regularity of all prior pro- 
 ceedings of every kind and nature provided bv this act or bylaw, and of the 
 facts stated in such entry. If, at such election, two-thirds of the votes cast 
 be in favor of the issuance of bonds as proposed by the sanitary board, the 
 said board shall thenceforth have full power and authority to issue and 
 dispose of bonds as proposed in the order calling the election. 
 
BONDS OF THK DISTRICT LEVY &&*&?* Act ** 305 
 
 SECTION 16. Such bonds shall be in sums of one thousand dollars 
 each, payable in gold coin of the United States, and shall bear interest at 
 the rate of five per cent, per annum, payable semi-annually, at dates to be 
 fixed by the board, and specified, respectively, in the bonds and coupons, 
 payable in like gold coin. Tiie principal of each bond shall be payable in 
 installments of one twentieth of the face of the bond, and one of such 
 installments shall fall due at the end of each year, so that the whole prin- 
 cipal shall be paid in twenty years from the issuance of the bond. Each 
 bond shall refer to this art by its title and the date of its approval by the 
 governor, and shall be payable to bearer; but every person into whose 
 hands any bond or coupon shall come shall be deemed to have notice of 
 any and all payments that have actually been made thereon. Each bond 
 shall be signed by the president and countersigned by the secretary of the 
 sanitary board. The bonds shall be numbered consecutively beginning 
 with the number one. Each coupon shall refer to its bond by number, and 
 shall be signed by the president and countersigned by the secretary. No 
 bond shall be redeemed before it is due without the consent of the holder 
 thereof, nor shall the rate of interest on any bond be reduced or the bonds 
 be refunded without the consent of the holder thereof. When any pay- 
 ment of any installment of interest is made, the coupon therefor is directed 
 to be surrendered to the county treasurer and to be canceled by him ; and 
 when any installment of principal is paid, such payment is directed to be 
 indorsed upon the bond by such treasurer; and when the whole princi- 
 pal of any bond is paid, the bond is directed to be surrendered to the 
 treasurer and to be by him canceled. The bonds must be disposed of by 
 the sanitary board in such manner and in such quantities as may be deter- 
 mined by said board, in its discretion, but no bond must be disposed of for 
 less than its face value. The proceeds of such sales shall be deposited 
 with the county treasurer, and shall be by him placed in a fund to be 
 
 called the sewer construction fund of sanitary district (naming it). 
 
 The money in such fund shall be used for the purpose indicated in the 
 order calling the election upon the question of the issuance of the bonds, 
 ami for no other purpose; provided, that if after such purposes are entirely 
 fulfilled, any balance remain in such fund, such balance may, upon the 
 order of the sanitary board, be transferred to either of the other funds 
 provided by this act. If the result of the election be against the issuance 
 of bonds, no other election upon the question shall be called or held for 
 the period of one year. 
 
 SECTION 17. It is hereby made the duty of the sanitary board to levy, 
 each year, upon the property within the district, a sufficient tax to pay 
 off the interest accruing upon said bonds for the respective year, as it falls 
 due, and also to pay one twentieth of the principal of said bonds, so that 
 the entire amount of principal and interest of said bonds shall be paid 
 within twenty years from the date of the issuance of said bonds; and it is 
 hereby made the duty of the tax collector, or such other person as may be 
 charged with the duty of collecting the sanitary taxes, to collect the said 
 taxes so to be levied, and the duty of the sanitary board to order the same 
 to be paid, in manner and form as provided by this act, and the duty of 
 the county treasurer to pay the same. If, for any reason, any portion of 
 the tax for any year remains unpaid, and in consequence thereof any por- 
 tion of the interest or principal due for any year remains unpaid, the same 
 
306 STREET WORK LAW SANITARY DISTRICT ACT 
 
 shall be added to the levy for the next year, and be collected and paid 
 accordingly. The payment of the whole amount of the principal and 
 interest of all of said bonds, within twenty years from their issuance, is 
 hereby made the imperative duty of the district; and, if necessary for that 
 purpose, a special tax shall be levied; and it is hereby made the duty 
 of every officer and board to do his respective part towards the 
 levy, collection, and payment of such tax; and mandamus shall issue 
 from the Superior Court of the county in which the district is situated, or 
 from any other competent court, upon application of any party interested, 
 for the purpose of compelling the performance of the duty imposed by this 
 act upon any and all officers or boards. 
 
 SECTION 18. If the result of any election upon the question of the issu- 
 ance of bonds be in favor of such issuance, the sanitary board may, in 
 their discretion, before such issuance, commence in the Superior Court oi 
 the count}, a special proceeding to determine their right to issue such 
 bonds and the validity thereof, similar to the proceeding in relation to irri- 
 gation bonds, provided for by an act entitled "An act supplemental to an 
 act entitled 'An act to provide for the organization and government of irri- 
 gation districts, and to provide for the acquisition of water and other prop- 
 erty, and for the distribution of water thereby for irrigation purposes/ 
 approved March seventh, eighteen hundred and eighty-seven, and to pro- 
 vide for the examination, approval and confirmation of proceedings for the 
 issue and sale of bonds issued under the provisions of said act;" and all 
 the provisions of said act shall apply to and govern the proceedings so to 
 be commenced by the sanitary board, so far as the same are applicable; 
 and said proceedings shall be in accordance with the provisions of said act, 
 so far as the same are applicable, and the judgment in such proceedings 
 shall have the same effect as a judgment in relation to irrigation bonds 
 under the provisions of said act. 
 
 SECTION 19. Any general regulation of the sanitary board shall be by 
 order entered in the minutes, but such order shall be published once a 
 week for one week in some newspaper published within the district, if 
 there be one, and if there be no such newspaper, then such order shall be 
 posted for one week in three public places within the district. A subsequent 
 order of the board that such publication or posting has been duly made 
 shall be conclusive evidence that such publication or posting has been 
 properly made. Orders not establishing a general regulation need not be 
 published or posted (unless otherwise provided by this act), but shall be 
 entered in the minutes, and the entry shall be signed by the secretary of 
 the board. A general regulation shall take effect immediately upon the 
 expiration of the week of publication or posting thereof. An ordinary 
 order shall take effect upon the entry in the minutes. 
 
 SECTION 20. The board may instruct the district attorney of the county 
 to commence and prosecute any and all actions and proceedings necessary 
 or proper to enforce any of its regulations or orders, and may call upon 
 said district attorney for advice as to any sanitary subject; and it shall be 
 the duty of the district attorney to obey such instructions and to give 
 advice when called on by the board therefor. The board may at any 
 time employ special counsel for any purpose. All fines for the violation of 
 any regulation or order of the sanitary board shall, after the expenses of 
 the prosecution are paid therefrom, be paid to the secretary of the board, 
 
 
 
DISSOLUTION OF DISTRICT ASSESSMENTS 0^1 llu* ACt f 307 
 
 who shall forthwith deposit the same^with the county treasurer, who shall 
 place the same in the running expense fund of the district. 
 
 SECTION 21. The district may at any time be dissolved upon the vote of 
 two-thirds of the qualified electors thereof, upon an election called by the 
 sanitary board upon the question ot' dissolution. Such election shall be 
 called and conducted in the same manner as other elections of the district. 
 Upon such dissolution, the property of the district shall vest in any incor- 
 porated city or town that may at said time be in occupation of a consider- 
 able portion of the territory of the district, and if there be no such incor- 
 porated city or town, then the property shall be vested in the board of 
 supervisors of the county until the formation of such a city or town ; pro- 
 vided, however, that if at the time of such election to dissolve such district, 
 there be any outstanding bonded indebtedness of such district, then, in such 
 event, the vote to dissolve such district shall dissolve the same for all pur- 
 poses excepting only the levy and collection of taxes for the payment of 
 such indebtedness. And from the time such district is thus dissolved, 
 until such bonded indebtedness, with the interest thereon, is fully paid, 
 satisfied, and discharged, the legislative authority of said incorporated city 
 or town, or the board of supervisors, if there be no such incorporated city 
 or town, is hereby constituted ex-officio the sanitary board of such district. 
 And it is hereby made obligatory upon such board to levy such taxes, and 
 perform such other acts as may be necessary in order to raise money for 
 the payment of such indebtedness, and the interest thereon, as herein pro- 
 vided. 
 
 SECTION 22. The sanitary board shall have power at any time after main 
 sewers, or other sewers are laid, to order and contract for the construction 
 of a sewer in any street of the district where a sew r er is not already con- 
 structed, and to provide by such order that the cost thereof shall be borne 
 by the property fronting along the line of the sewer so ordered ; and in 
 case such order is made, the said cost shall be assessed on the lots and 
 lands fronting on such sewer, according to the provisions of the general 
 law of the state in relation to street improvements in incorporated cities 
 or towns, in force at the time such assessment is made, so far as the 
 same shall be applicable; and the lien of the assessment so made shall be 
 enforced by action to be brought by the district attorney of the county, in 
 the name of the sanitary district ; provided, that nothing in this section 
 contained shall be construed to take away or impair the power of the board 
 to provide that the expenses of the sewers above provided for shall be 
 borne by the whole district, as in other cases. 
 
 SECTION 23. All acts and parts of acts in conflict with this act, or any 
 portion thereof, are hereby repealed. 
 
 SECTION 24. This act shall take effect immediately. 
 
 *SI:CTIOX 15 was amended to read as above by an act approved March 9, 1893, statutes 1893, 
 page 88. 
 
'Municipal Indebtedness /fct. 
 
 A n act authorizing the incurring of indebtedness by cities, towns, 
 a,nd municipal corporations, incorporated under the laws of 
 this state', for the construction of water-works, sewers, and all 
 necessary public improvements, or for any purpose whatever, 
 and to repeal the act approved March 9, 1885, entitled an act 
 to authorize municipal corporations of the fifth class, contain- 
 ing more than three thousand and less than ten thousand 
 inhabitants, to obtain water-ivorks: also to repeal an act 
 approved March 15, 1887, entitled an act authorizing the 
 incurring of indebtedness by cities, towns, and municipal 
 corporations, incorporated under Ihe laws of this state. 
 
 [Approved March 19, 1889. Statutes 1889, p. H99.] 
 
 The people of the state of California, represented in senate and assembly 
 do enact as follows : 
 
 SECTION 1. Any city, town, or municipal corporation, incorporated under 
 the laws of this state, may, as hereinafter provided, incur indebtedness to 
 pay the cost of any municipal improvement, or for any purpose whatever 
 requiring an expenditure greater than the amount allowed for such 
 improvement by the annual tax levy. [Statutes 1889, p. 399.} 
 
 An act approved March 15, 1887, [statutes 1887, p. 120] 
 seems to have been the first general act passed since the 
 adoption of the new constitution, authorizing all municipal 
 corporations, incorporated under the laws of this state, to 
 incur indebtedness to pay the cost of any permanent munici- 
 pal improvement requiring an expenditure greater than the 
 amount allowed for such improvements by the ordinary 
 annual tax levy, and to issue the bonds of the municipality 
 therefor. This act of 1887 was repealed by section 12 of 
 the above act of March 19, 1889, and the latter act, as 
 amended in 1891 and 1893, is the act now in force authoriz- 
 ing the incurring of such indebtedness. 
 
 The legislature, by an act approved March 9, 18Sr>, 
 [statutes 1885. p. 42] authorized municipal corporations of 
 the fifth class, to incur an indebtedness and issue bonds, to 
 supply such city with public water- works. Then followed 
 said general act of March 15, 1887. By an act approved 
 February 16, 1889, section 4 of said act "of March 15, 1887, 
 
MUNICIPAL INDEBTEDNESS ACT 5fiiS J WbS' 
 
 was amended. [Statutes 1889, p. 14.] Then followed the act 
 which, as amended is the act now in force, the act of 
 March 1<), 1S89, section 12 of which expressly repeals the 
 said act of March 9, 1885, entitled "An act 'to authorize 
 municipal corporations of the fifth cLiss, etc., to obtain 
 public water-works;" likewise, repeals the said act approved 
 March 15, 1887, entitled "An act authorizing the incurring 
 of indebtedness by cities, towns, and municipal corpora- 
 tions, incorporated under the laws of this state;" and also 
 repeals "all general acts, or special acts, or parts of acts," 
 conflicting with said act of March 19, 1889. By an act 
 approved March 11, 1891, [statutes 1891, p. 94] section 2 of 
 the act of March 19, 1S89, was amended. By another act 
 approved March 11, 1891, [statutes 1891, p. 84 1 section 5 of 
 the act of March 19, 1889, was amended. By a n'act approved 
 March 19, 1891, [statutes 1891, p, 132] sections 9 and 10 of 
 the act of March 19, 1889, were amended. By an act 
 approved March 1, 1893, [statutes 1893, p. 61] sections 6 
 and 8 of the act of March 19, 1889, were amended. 
 
 This act of March 19, 1889, authorizes the incurring of 
 such indebtedness by a municipality, exceeding in any 
 year the income and revenue provided for it for such year, 
 in the mode prescribed and required by section 18 of article 
 XI of the constitution. The act authorizes the incurring 
 of indebtedness by municipalities and the issuance of 
 municipal bonds upon which the municipal corporation is 
 directly liable. On the other hand the street improvement 
 bond act, the act of February 27, 1893, [statutes 1893, p. 
 33, supra p. 217 et seq.~] provides, not for the issuance of 
 municipal bonds, (the municipality is expressly excepted 
 from all liability,) but for the issuance of bonds, secured by 
 the property which has been assessed to pay the expenses of 
 this work, each bond representing upon each lot or parcel 
 of land upon the assessment list, the total amount of the 
 assessment against such particular lot or parcel of land, as 
 shown on such assessment list The remedy of thebond holder, 
 holding bonds issued under the municipal indebtedness act 
 of March 19, 1889, authorizing the incurring of indebted- 
 ness by municipal corporations, is against the municipality 
 itself, and its property. The remedy of the bond holder, hold- 
 ing a bond issued under the said street improvement bond 
 act, the act of February 27, 1893, is against the partic- 
 ular lot or parcel of land upon which his bond is a lien. 
 The assessment upon said lot or parcel of land is 
 represented by his bond. 
 
 Section 18 of article XI of the constitution was amended 
 at the general election held in 1892, ,&e$& ahtirffo^ city 
 
STREET WORK LAW MUNICIPAL INDEBTEDNESS ACT 
 
 or town, etc., to incur an indebtedness, the maturity of 
 which shall not exceed forty years from the time of con- 
 tracting the same. Prior to this amendment the section 
 limited the maturity of the indebtedness to twenty years 
 from the time of contracting the same. Accordingly, sec- 
 tions 6 and 8 of this act of March 19, 1889, were amended 
 in 18 ( .)3, [statutes 1893, p. fil] so as to make provision for 
 the issuance of forty year bonds. 
 
 SECTION 2. Whenever the legislative branch of any city, town, or 
 municipal corporation shall, by ordinance passed by a vote of two-thirds of 
 all its members, and approved by the executive of said city, town, or 
 municipal corporation, determine that the public interest or necessity 
 demands the acquisition, construction, or completion of any municipal 
 buildings, bridges, water-works, water rights, sewers, or other municipal 
 improvements, the cost of which will be too great to be paid out of the 
 ordinary annual income and revenue of the municipality, they may, after 
 the publication of such ordinance for at least two weeks in some newspaper 
 published in such municipality, and at their next regular meeting after 
 such publication, or at an adjourned meeting, by ordinance passed by a 
 vote of two-thirds of all its members, and also approved by the said execu- 
 tive, call a special election and submit to the qualified voters of said city, 
 town, or municipal corporation, the proposition for the purpose set forth 
 in the ordinance, and no question other than the incurring of indebtedness 
 for said purpose shall be submitted. The ordinance calling such special 
 election shall recite the objects and purposes for which the indebtedness is 
 proposed to be incurred, the estimated cost of the proposed public improve- 
 ment, the necessity for such improvement, and that the bonds of the 
 municipality shall issue for the payment of the cost of such improvement, 
 as in such ordinance set forth, if the proposition be accepted by the 
 qualified voters, as hereinafter provided, and shall fix the day on which 
 such special election shall be held, the manner of holding such election, 
 and the voting for or against incurring such indebtedness ; such election 
 shall be held as provided by law for holding such election in such city, 
 town, or municipal corporation; provided, however, that where by the 
 terms or provisions of the charter of any city, town or municipal corpo- 
 ration, the cost of making the proposed improvements is to be or must be 
 paid from a special fund created by such charter for that purpose, the 
 proposition of incurring such an indebtedness may be submitted to the 
 qualified voters at any general election for officers of the state of California 
 or of such city, town, or municipal corporation. [Statutes 1891, p. 94. j 
 
 SECTION 3. Such ordinance shall be published once a day, for at least 
 ten days, or once a week for two weeks before the publication of the notice 
 of the special election, in some newspaper published in such municipality. 
 After said publication said legislative body shall cause to be published, for 
 not less than two weeks, in at least one of the newspapers published in 
 such municipality, a notice of such special election, the purpose for which 
 tne indebtedness is to be incurred, the number and character of the bonds 
 to be issued, the rate of .nterest to be paid, and the amount of tax levy 
 to be made for the payment thereof. It shall require the votes of two- 
 thirds of all the voters voting at such special election to authorize the 
 issuance of the bonds herein provided. [Statutes 1SS9, p. 400.] 
 
BONDS TAX LEVY Pecs. 3 to 8 of Act of 011 
 
 March ii>, 11:89. Oil 
 
 SECTION 4. It shall be the duty of the legislative branch of any munici- 
 pality contemplating permanent public improvements, to first have plans 
 and estimates of the costs of such improvements made by a competent 
 engineer or architect, who lias had successful experience in such work, 
 before the question of incurring an indebtedness for such improvement 
 is submitted to vote. [Statutes 1889, p. 400.] 
 
 SECTION 5. No city, town, or municipal corporation shall incur an 
 indebtedness for public improvements which shall, in the aggregate, 
 exceed fifteen per cent, of the assessed value of all the taxable real 
 estate and personal property of such city, town, or municipal corporation. 
 [Statutes 1891, p. 84.] 
 
 SECTION 6. All municipal bonds for public improvements issued under 
 the provisions of this act shall be of the character of bonds known as 
 serials, and shall be payable in gold coin or lawful money of the United 
 States, in the manner following: One fortieth part of the whole amount 
 of indebtedness shall be paid each and every year, on a day and at a 
 place to be nxed by the legislative branch of the municipality issuing the 
 bonds, to-ether with tne interest on all sums unpaid at such date. The 
 bonds shall be issued in such denominations as the legislative branch of 
 the municicality may determine, except that no bonds shall be of a less 
 denomination than one hundred dollars, nor of a greater denomination 
 than one thousand dollars each, payable on the day and at the place fixed 
 in such bond, and with interest at the rate specified in the bond, which 
 rate shall not be in excess of the legal rate of the state of California, and 
 may be payable annually or semi-annually. Such bonds may be issued 
 and sold by the legislative branch of the city, town, or municipal corpo- 
 ration, as they may determine, at not less than their face value, in gold 
 coin of the United States, and the proceeds of such sale shall be placed 
 in the municipal treasury to the credit of the proper improvement fund, 
 and shall be applied exclusively to the purposes and objects mentioned in 
 the ordinance, until such objects are fully accomplished, after which, if 
 any surplus remains, such surplus shall be transferred to the general 
 fund of such municipality. [Statutes 1893, p. 61.} 
 
 SUCTION 7. The legislative branch of any city, town, or municipal corpo- 
 poration, issuing bonds under authority of this act, shall have the right to 
 determine the rate of interest such bonds shall bear; provided, that in no 
 cast- shall it exceed seven per cent, per annum, and to name the date and 
 place where such bonds and interest shall be paid; pro vided, that the place 
 of payment shall be either at the office of the treasurer of the municipality, 
 or at some designated bank in San Francisco, Chicago, New York, or 
 Boston. The said bonds shall be signed by the executive of the munici- 
 pality, and also by the treasurer thereof, and shall be countersigned by the 
 clerk. The coupons of said bonds shall be numbered consecutively and 
 signed by the treasurer. [Statutes 1889, p. 401.] 
 
 SECTION 8. The legislative branch of said city, town, or municipal corpo- 
 ration shall, at the time of fixing the general tax levy, and in the manner 
 for such general tax levy provided, levy and collect annually, each year, 
 for the term of forty years, a tax sufficient to pay the annual interest 
 on such bonds, and also one-fortieth part of the aggregate amount of such 
 indebtedness so incurred. The taxes herein required to be levied arid 
 collected shall be in addition to all other taxes levied for municipal pur- 
 
312 STREET WORK LAW MUNICIPAL INDEBTEDNESS ACT 
 
 poses, and shall be collected at the same time and in the same manner as 
 other municipal taxes are collected. [Statutes 1893, p. 61.} 
 
 SECTION 0. It shall be the duty of the legislative branch of every city, 
 town, or municipal corporation, wherein public improvements are being 
 made under the-provisions of this act, to make all needful rules and regula- 
 tions for carrying out and maintaining such improvements; to appoint all 
 needful agents, superintendents, and engineers to properly look after the 
 construction and operation of such public works, and in all lawful ways to 
 protect and preserve the rights and interests of the municipality ; provided, 
 however, that in cities, towns, or municipalities operating under a charter 
 heretofore or hereafter framed under section eight of article eleven of the 
 constitution, and having a board of public works, all the matters and 
 things required in this section to be done and performed by the legislative 
 branch of the municipality shall be done and performed by the board of 
 public works of such city, town, or municipality. [Statutes 1891, p. 132. \ 
 
 SECTION 10. All contracts for the construction or completion of any 
 public works or improvements, or for furnishing labor or materials there- 
 for, as herein provided, shall be let to the lowest responsible bidder. The 
 legislative branch of the municipality shall advertise, for at least ten days, 
 in one or more newspapers published in the municipality, inviting sealed 
 proposals for furnishing the labor and materials for the proposed improve- 
 ments, before any contract shall be made therefor. The said legislative 
 branch shall have the right to require such bonds as they may deem best 
 from the successful bidder, to insure the faithful performance of the con- 
 tract work. They shall also have the right to reject any or all bids; 
 provided, however, that in cities, towns, or municipalities operating under 
 a charter heretofore or hereafter framed under section eight of article 
 eleven of the constitution, and having a board of public works, all the 
 matters and things required in this section to be done and performed by 
 the legislative branch of the municipality shall be done and performed by 
 the board of public works of such city, town, or municipality. [Statutes 
 1891, p. 132.} 
 
 SECTION 11. Whenever the legislative branch of any municipality shall 
 by resolution deem it necessary, they may require the treasurer of such 
 municipality to give additional bonds for the safe custody and care of the 
 public funds. [Statutes 1889, p. 402.} 
 
 SECTION 12. The act approved March ninth, eighteen hundred and 
 eighty-five, entitled an act to authorize municipal corporations of the fifth 
 class, containing more than three thousand and less than ten thousand 
 inhabitants, to obtain public water-works, and the act approved March 
 fifteen, eighteen hundred and eighty-seven, entitled an act authorizing the 
 incurring of indebtedness by cities, towns, and municipal corporations, 
 incorporated under the laws of this state, and all general acts, or special acts, 
 or parts of acts, conflicting with this act, are hereby repealed. [Statutes 
 1889, p. 402.} 
 
 SECTION 13. This act shall take effect and be in force from and after its 
 passage. ]Statutes 1889, p. 402.} 
 
OF THE 
 
 UNIVERSITY 
 
 Street Work /fct of March 18th, 1886 
 
 AS AMENDED BY 
 
 SUBSEQUENT AMENDATORY AND SUPPLEMENTARY ACTS UP 
 TO AND INCLUDING ACTS OF 1893. 
 
 An Act to provide for work upon streets, lanes, alleys, courts, 
 places and sidewalks t and for the construction of sewers 
 within municipalities. 
 
 [Approved March 18, 1885.] 
 
 PART I. 
 
 SECTION 1. All streets, lanes, alleys, places, or courts, in the muni- 
 cipalities of this state now open or dedicated, or which may hereafter 
 be opened or dedicated to public use, shall be deemed and held to be open 
 public streets, lanes, alleys, places, or courts, for the purposes of this act, 
 and the city council of each municipality is hereby empowered to establish 
 and change the grades of said streets, lanes, alleys, places, or courts, and 
 fix the width thereof, and is hereby invested with jurisdiction to order to 
 be done thereon any of the work mentioned in section two of this act, 
 under the proceedings hereinafter described. [Statutes 1885, page 147.] 
 
 Section 1 of the act of March 18, 1885, has never been altered or 
 IOD ended.] 
 
 SECTION' 2. Whenever the public interest or convenience may require, the 
 city council is hereby authorized and empowered to order the whole, or any 
 port ion, either in length or width, of the streets, avenues, lanes, alleys, courts, 
 or places of any such city graded or re-graded to the official grade, planked 
 or re-planked, paved or re-paved, macadamized or re-macadamized, grav- 
 eled, or re-graveled, piled or re-piled, capped or re-capped, sewered or 
 re-sewered, and to order sidewalks, manholes, culverts, cesspools, gutters, 
 tunnels, curbing, and cross-walks to be constructed therein, or to order break- 
 waters, levees, or walls of rock, or other material to protect the same from 
 overflow or injury, and to order any other work to be done which shall be 
 necessary to complete the whole or any portion of said streets, avenues, 
 sidewalks, lanes, alleys, courts, or places, and it may order any of the said 
 work to be improved ; and also to order a sewer or sewers, with outlets, for 
 drainage or sanitary purposes, in, over or through any rightof way granted 
 or obtained for such purpose; provided, that whenever the grade of a street, 
 avenue, lane, alley, court, or place shall hereafter be changed, the petition 
 of the owners of a majority of the feet fronting thereon, asking for grading 
 the same to the new grade, shall be a condition precedent to the ordering 
 of such grading to be done. [Amendment, approved March 11, 1893, Stat- 
 utes 1893, page 178.] 
 
 [Section 2 was amended 1889, by act of March 14, 1889, statutes 1889, 
 page 157; again in 1891, by act of March 31, 1891. statutes 1891, page 196; 
 and again in 1893, by act of March 11, 1893, statutes!893, page 172. J 
 
'2a STREET WORK LAW STREET IMPROVEMENT ACT 
 
 SECTION 3. Before ordering any work done or improvement made, which 
 is authorized by section two of this act, the city council shall pass a resolu- 
 tion of intention so to do, and describing the work, which shall be posted 
 conspicuously for two days on or near the chamber door of said council, 
 and published by two insertions in one or more daily, semi-weekly, or 
 weekly newpapers published and circulated in said city, and designated by 
 said council for that purpose. The street superintendent shall thereupon 
 cause to be conspicuously posted along the line of said contemplated work 
 or improvement, at not more than one hundred feet in distance apart, 
 but not less than three in all, or when the work to be done is only upon 
 an entire crossing or any part thereof, in front of each quarter block and 
 irregular block liable to be assessed, notices of the passage of said resolu- 
 tion. Said notice shall be headed "Notice of Street Work," in letters of 
 not less than one inch in length, and shall, in legible characters, state the 
 fact of the passage of the resolution, its date, and briefly the work 
 or improvement proposed, and refer to the resolution for further particu- 
 lars. He shall also cause a notice, similar in substance, to be published 
 for six days, in one or more daily newspapers published and circulated in 
 said city, and designated by said city council, or in cities where there is no 
 daily newspaper, by one insertion in a semi-weekly or weekly newspaper 
 so published, circulated, and designated. In case there is no such paper 
 published in said city, said notice shall be posted for six days on or near 
 the chamber door of said council and in two other conspicuous places in 
 said city, as hereinafter provided. The owners of a majority of the front- 
 age of the property fronting on said proposed work or improvement, where 
 the same is for one block, or more, may make a written objection to the 
 same within ten days after the expiration of the time of the publica- 
 tion and posting of said notice, which objection shall be delivered to the 
 clerk of the city council, who shall indorse thereon the date of its reception by 
 him, and such objections so delivered and indorsed shall be a bar for six 
 months to any further proceedings in relation to the doing of said work, 
 or making said improvements unless the owners of the one-half or more 
 of the frontage, as aforesaid, shall meanwhile petition for the same to be 
 done. At any time before the issuance of the assessment roll, all owners 
 of lots or lands liable to assessment therein, who, after the first public a- 
 tion of said resolution of intention, may feel aggrieved, or who may have 
 objections to any of the subsequent proceedings of said council in relation 
 to the performance of the work mentioned in said notice of intention, 
 shall file with the clerk a petition of remonstrance, wherein they shall 
 state in what respect they feel aggrieved, or the proceedings to which they 
 object; such petition or remonstrance shall be passed upon by the said 
 city council, and its decision therein shall be final and conclusive. But 
 when the work or improvement proposed to be done is the construction of 
 sewers, man holes!, culverts, or cesspools, crosswalks or sidewalks, and 
 curbs, and the objection thereto is signed by the owners of a majority of 
 the frontage liable to be assessed for the expense of said work, as afore- 
 said, the said city council shall, at its next meeting, fix a time for hearing 
 said objections, not less than one week thereafter. The city clerk shall 
 
SECTION THREE Sec. 3, as amended o n 
 
 Mar. 81, 185)1. 
 
 'hereupon notify the persons making such objections, by depositing a 
 notice thereof in the postoffice of said city, postage prepaid, addressed to eac."i 
 objector, or his agent, when he appears for such objector: At the timo 
 specified said city council shall hear the objections urged, and pass upon 
 the same, and its decisions shall be final and conclusive, and the said bar 
 for six months to any further proceedings shall not be applicable thereto. 
 And when not more than two blocks, including street crossings, remain 
 ungraded to the official grade, or otherwise unimproved, in whole or in 
 part, and a block or more on each side upon said street has been so graded 
 or otherwise improved, or when not more than two blocks at the end o e 
 a street remain so ungraded or otherwise unimproved, said city council 
 may order any of the work mentioned in this act to be done upon said 
 intervening, ungraded, or unimproved part of said street, or at the end OT 
 a street, and said work upon said intervening part, or at the end of A 
 street, shall not be stayed or prevented by any written or other objection, 
 unless such council shall deem proper. And if one-half or more in width 
 or in length, or as to grading one-half or more of the grading work of any 
 street lying and being between two successive main street crossings, or 
 if a crossing has been already partially graded or improved, as aforesaid, 
 said council may order the remainder improved, graded, or otherwise, not- 
 withstanding such objections of property owners. At the expiration of 
 twenty days after the expiration of the time of said publication by said 
 street superintendent, and at the expiration of twenty-five days after the 
 u !\ertising and posting, as aforesaid, of any resolution of intention, if no 
 written objection to the work therein described has been delivered, iv; 
 aforesaid, by the owners of a major frontage of the property fronting on 
 said proposed work or improvement, or if any written objection purport- 
 in- to be signed by the owners of a major frontage is disallowed by said 
 council, as not of itself barring said work for six months, because, in its 
 judgment, said objection has not been legally signed by the owners of >t 
 majority of said frontage, the city council shall be deemed to have acquired 
 jurisdiction to order any of the work to be done, or improvement to be 
 made, which is authorized by this act; which order, when made, shall be 
 published for two days, the same as provided for the publication of the 
 resolution of intention. Before passing any resolution for the construction 
 of said improvements, plans and specifications and careful estimates of the 
 costs and expenses thereof shall be furnished to said city council, if 
 required by it, by the city engineer of said city; and for the work of con- 
 structing sewers, specifications shall always be furnished by him. When- 
 ever the contemplated work of improvement, in the opinion of the city 
 council, is of more than local or ordinary public benefit, or whenever, 
 according to estimate to be furnished by the city engineer, the total esti- 
 mated costs and expenses thereof would exceed one-half the total assessed 
 value of the lots and lands assessed, if assessed upon the lots or land front- 
 ing upon said proposed work or improvement, according to the valuation 
 fixed by the last assessment roll whereon it was assessed for taxes for 
 municipal purposes, and allowing a reasonable depth from such frontage 
 for lots or lands assessed in bulk, the city council may make the expense 
 
 , 
 
 UNIVERSITY 
 
4a STREET WORK LAW STREET IMPROVEMENT ACT 
 
 of such work or improvement chargeable upon a district, which the said 
 city council shall in its resolution of intention declare to be the district 
 benefited by said work or improvement, and to be assessed to pay the 
 costs and expenses thereof. Objections to the extent of the district of 
 lands to be affected or benefited by said work or improvement, and to be 
 assessed to pay the costs and expenses thereof, may be made by interested 
 parties, in writing, within ten days after the expiration of the time of the 
 publication of the notice of the passage of the resolution of intention. The 
 city clerk shall lay said objections before the city council, which shall, at 
 its next meeting, fix a time for hearing said objections, not less than one 
 week thereafter. The city clerk shall thereupon notify the persons mak- 
 ing such objections by depositing a notice thereof in the postoffice of said 
 city, postage prepaid, addressed to each objector. At the time specified 
 the city council shall hear the objections urged, and pass upon the same, 
 and its decision shall be final and conclusive. If the objections are sus- 
 tained, all proceedings shall be stopped ; but proceedings may be imme- 
 diately again commenced by giving the notice of intention to do the said 
 work or make said improvements. If the objections are overruled by the 
 city council, the proceedings shall continue the same as if such objections 
 had not been made. [Amendment approved March 31, 1891. Statutes 1891, 
 page 192.} 
 
 [Section 3 was amended in 1889 by act of March 14, 1889, Sta. '83, r>. 158; 
 and again in 1891, by act of March 31, 1891, Sta. '91, p. 196,] 
 
 Section 4. The owners of a majority in frontage of lots and lands front- 
 ing on any street, avenue, lane, alley, place or court, or of lots or lands lia- 
 ble to be assessed for the expense of the work petitioned to be done, or 
 their duly authorized agents, may petition the city council to order any of 
 the work mentioned in this act to be done, and the city council may order 
 the work mentioned in said petition to be done, after notice of its intention 
 so to do has been posted and published as provided in section 3 of this act. 
 [Amendment approved March 31, 1891, statutes 1891, page 199.] 
 
 [Section 4 was amended in 1889 by act of March 14, 1889, statutes '89, p. 
 160; and again in 1891 by act of March 31, 1891, statutes '91, p. 199.] 
 
 SECTION 5. Before the awarding of any contract by the city council for 
 doing any work authorized by this act, the city council shall cause notice, 
 with specifications, to be posted conspicuously for five days on or near the 
 council chamber door of said council, inviting sealed proposals or bids for 
 doing the work ordered, and shall also cause notice of said work inviting 
 said proposals, and referring to the specifications posted or on file, to be 
 published for two days in a daily, semi-weekly ,or weekly newspaper pub- 
 lished and circulated in said city, designated by the council for that 
 purpose, and in case there is no newspaper published in said city, then it 
 shall only be posted as hereinbefore provided. All proposals or bids 
 offered shall be accompanied by a check payable to the order of the mayor of 
 the city, certified by a responsible bank, for an amount which shall not be 
 less than ten per cent, of the aggregate of the proposal, or by a bond for the 
 said amount and so payable, signed by the bidder and by two sureties, 
 
SECTION FIVE 
 
 who shall justify, before any officer competent to administer an oath, in 
 double the said amount, and over and above all statutory exemptions. 
 Said proposals or bids shall be delivered to the clerk of the said city 
 council, and said council shall, in open session, examine and publicly 
 declare the same ; provided, however, that no proposal or bid shall be con- 
 sidered unless accompanied by said check or bond satisfactory to the 
 council. The city council may reject any and all proposals or bids should 
 it deem this for the public good, and also the bid of any party who has 
 been delinquent and unfaithful in any former contract with the munici- 
 pality, and shall reject all proposals or bids other than the lowest regular 
 proposal or bid of any responsible bidder, and may award the contract for 
 said work or improvement to the lowest responsible bidder at the prices 
 named in his bid, which award shall be approved by the mayor, or a three- 
 fourths vote of the city council. If not approved by him, or a three-fourths 
 vote of the city council, without further proceedings, the city council may 
 readvertise for proposals or bids for the performance of the work as in the 
 first instance, and thereafter proceed in the manner in this section pro- 
 vided, and shall thereupon return to the proper parties the respective 
 checks snd bonds corresponding to the bid so rejected. But the checks 
 accompanying such accepted proposals or bids shall be held by the city 
 clerk of said city until the contract for doing said work, as hereinafter 
 provided, has been entered into, either by said lowest bidder or by the 
 owners of three-fourths part of the frontage, whereupon said certified 
 check shall l>e returned to said bidder. But if said bidder fails, neglects, 
 or refuses to enter into the contract to perform said work or improvement, 
 as hereinafter provided, then the certified check accompanying his bid and 
 the amount therein mentioned, shall be declared to be forfeited to said 
 city, and shall be collected by it, and paid into its fund for repairs of 
 streets; and any bond forfeited may be prosecuted, and the amount due 
 thereon collected and paid into said fund. Notice of such awards of 
 contract shall be posted for five days, in the same manner as hereinbefore 
 provided for the posting of proposals for said work, and shall be published for 
 two days in a daily newspaper published and circulated in said city, and des- 
 ignated by said city council, or in cities where there is no daily newspaper, 
 by one insertion in a semi-weekly or weekly newspaper so published, cir- 
 culated and designated ; provided, however, that in case there is no news- * 
 paper printed or published in any such city, then such notice of award J 
 shall only be kept posted as hereinbefore provided. The owners of three- 
 fourths of the frontage of lots and lands upon the street whereon said 
 work is to be done, or their agents, and who shall make oath that they are 
 such owners or agents, shall not be required to present sealed pro- 
 posals or bids, but may, within ten days after the first posting and publi- 
 cation of said notice of said award, elect to take said work and enter into 
 a written contract to do the whole work at the price at which the same 
 has been awarded. Should the said owners fail to elect to take said 
 work, and to enter into a written contract therefor within ten days, or to 
 commence the work within fifteen days after the first posting and publication 
 
6a STREET WORK LAW STREET IMPROVEMENT ACT 
 
 of said award, and to prosecute the same with diligence to completion, it 
 shall be the duty of the superintendent of streets to enter into a contract 
 with the original bidder to whom the contract was awarded, and at the 
 prices specified in his bid. But if such original bidder neglects, fails or 
 refuses, for fifteen days after the first posting and publication of the notice 
 of award, to enter into the contract, then the city council, without further 
 proceedings, shall again advertise for proposals or bids as in the first 
 instance, and award the contract for the said work to the then lowest regular 
 bidder. The bids of all persons and the election of all owners as aforesaid, 
 who have failed to enter into the contract as herein provided, shall be 
 rejected in any bidding or election subsequent to the first for the same 
 work. If the owner or contractor who may have taken any contract, do 
 not complete the same within the time limited in thte contract, or within 
 such further time as the city council may give them, the superintendent 
 of streets shall report such delinquency to the city council, which may 
 relet the unfinished portion of said work, after pursuing the formalities 
 prescribed hereinbefore for the letting of the whole in the first instance. 
 All contractors, contracting owners included, shall, at the time of execut- 
 ing any contract for street work, execute a bond to the satisfaction and 
 approval of the superintendent of streets of said city, with two or more 
 sureties and payable to such city, in such sums as the mayor shall deem 
 adequate, conditioned for the faithful performance of the contract; and 
 the sureties shall justify before any person competent to administer an 
 oath, in double the amount mentioned in said bond, over and above all 
 statutory exemptions. Before being entitled to a contract, the bidder to 
 whom the award was made, or the owners who have elected to take the 
 contract, must advance to the superintendent of streets, for payment by 
 him, the cost of publication of the notices, resolutions, orders, or other 
 incidental expenses and matters required under the proceedings prescribed 
 in this act, and such other notices as may be deemed requisite by the city 
 council. And in case the work is abandoned by the city before the letting 
 of the contract, the incidental expenses incurred previous to such aban- 
 donment shall be paid out of the city treasury. [Amendment ^pprvred 
 March 31, 1891, statutes 1891, page 199.] 
 
 [Section 5 was amended in 1889, by act of March 14, 1889, statutes 1889, 
 p. 160, and again in 1891 by act of March 31, 1891, statutes, 1891, p. 199.J 
 
 SECTION 6. The superintendent of streets is hereby authorized, in his 
 official capacity, to make all written contracts, and receive all bonds 
 authorized by this act, and to do any other act, either express or implied, 
 that pertains to the street department under this act; and he shall fix the 
 time for the commencement, which shall not be more than fifteen days 
 from the date of the contract, and for the completion of the work under 
 all contracts entered into by him, which work shall be prosecuted with 
 diligence from day to day thereafter to completion, and he may extend 
 the time so fixed from time to time, under the direction of the city coun- 
 cil. The work provided for in section 2 of this act, must, in all cases, be 
 done under the direction and to the satisfaction of the superintendent of 
 
SECTION SEVEN 
 
 streets, and the materials used shall comply with the specifications and be 
 to the satisfaction of said superintendent of streets, and all contracts 
 made therefor must contain a provision to that effect, and also express 
 notice, that, in no case, except where it is otherwise provided in this act, 
 will the city, or any officer thereof, be liable for any portion of the 
 expense, nor for any delinquency of persons or property assessed. The 
 city council may, by ordinance, prescribe general rules directing the 
 superintendent of streets and the contractor as to the materials to be 
 used, and the mode of executing the work, under all contracts thereafter 
 made. The assessment and apportionment of the expenses of all such 
 work or improvement shall be made by the ^superintendent of streets in 
 the mode herein provided. [Statutes 1885, p. 151.] 
 
 [Section 6 of the act of March 18, 1885, never has been amended.] 
 
 SECTION 7. Subdivision One The expenses incurred for any work 
 authori/ed by this act (which expense shall not include the cost of any 
 work done in such portion of any street as is required by law to be kept 
 in order or repair by any person or company having railroad tracks 
 thereon, nor include work which shall have been declared in the resolution 
 of intention to be assessed on a district benefited) shall be assessed upon 
 the lots and lands fronting thereon, except as hereinafter specifically pro- 
 vided ; each lot or portion of a lot being separately assessed, in proportion 
 to the front :>-v. at a rate per front foot sufficient to cover the total expense 
 of the work. 
 
 SulnliriNiini Two The expense of all improvements, except such as are 
 done by contractors under the provisions of section thirteen of this act, until 
 the streets, avenues, street crossings, lanes, alleys, places, or courts are finally 
 accepted, as provided in section twenty of this act, shall be assessed upon 
 the lots and lands as provided in this section, according to the nature and 
 character of the work; and after su?h acceptance the expense of all the 
 work thereafter done thereon shall be paid by said city out of the street 
 department fund. 
 
 Snhdi, inion Three The expense of the work done on main street cross- 
 ings shall be assessed at a uniform rate per front foot of the quarter blocks 
 and irregular blocks adjoining and cornering upon the crossings, and 
 separately upon the whole of each lot or portion of a lot having any 
 frontage in the said blocks fronting on said main streets, half way to the 
 next main street crossing, and all the way on said blocks to a boundary 
 line of the city where no such crossing intervenes, but only according to 
 its in nitage in said quarter blocks and irregular blocks. 
 
 Kii'xlii-ixion Four Where a main street terminates in another main 
 street, the expenses of the work done on one-half of the width of the 
 street opposite the termination shall be assessed upon the lots in each of 
 the two quarter blocks adjoining and cornering on the same, according to 
 the frontage of such lots on said main streets, and the expense of the 
 other half of the width of said street upon the lot or lots fronting on the 
 latter half of the street at such termination. 
 
 Subdinaion Five Where any alley or subdivision street crosses a main 
 
8a STREET WORK LAW STREET IMPROVEMENT ACT 
 
 street, the expense of all work done on said crossing shall be assessed on all 
 lots or portions of lots half way on said alley or subdivision street to the next 
 crossing or intersection, or to the end of such alley or subdivision street if 
 it does not meet another. 
 
 Subdivision Six The expense of work done on alley or subdivision 
 street crossings shall be assessed upon the lots fronting upon such alley or 
 subdivision btreets on each side thereof, in all directions, half way to the 
 next street, place, or court, on either side, respectively, or to the end of 
 such alley or subdivision street, if it does not meet another. 
 
 Subdivision Seven Where a subdivision street, avenue, lane, alley, 
 place, or court terminates in another street, avenue, lane, alley, place, or 
 court, the expense of the work done on one-half of the width of the sub- 
 division street, avenue, lane, alley, place, or court opposite the termina- 
 tion, shall be assessed upon the lot or lots fronting on such subdivision 
 street, or avenue, lane, alley, place or court so terminating, according to 
 its frontage thereon, half way on each side, respectively, to the next 
 street, avenue, lane, alley, court or place, or to the end of such street, 
 avenue, lane, alley, place or court, if it does not meet another, and 
 the other one-half of the width upon the lots fronting such termination. 
 
 Subdivision Eight Where any work mentioned in this act (man-holes, 
 cesspools, culverts, crosswalks, piling and capping excepted) is done on 
 either or both sides of the center line of any street for one block or less, 
 and further work opposite to the work of the same class already done is 
 ordered to be done to complete the unimproved portion of said street, the 
 assessment to cover the total expenses of said work so ordered shall be 
 made upon the lots or portions of the lots only fronting the portions of 
 the work so ordered. And when sewering or resewering is ordered to be 
 done under the sidewalk on only one side of a street for any length 
 thereof, the assessment for its expenses shall be made only upon the lot? 
 and lands fronting nearest upon that side, and for intervening intersections 
 only upon the two quarter blocks adjoining and cornering upon that side. 
 
 Subdivision Nine Section one of chapter three hundred and twenty-five 
 of the laws of this state entitled "An act amendatory of and supple- 
 mentary to 'An act to provide revenue for the support of the government 
 of this state,' approved April twenty-ninth, eighteen hundred and fifty- 
 seven," approved April nineteenth, eighteen hundred and fifty-nine, 
 shall not be applicable to the provisions of this section ; but the property 
 herein mentioned shall be subject to the provisions of this act, and be 
 assessed for work done under the provisions of this section. 
 
 Subdivision Ten It shall be lawful for the owner or owners of lots or 
 lands fronting upon any street, the width and grade of which have been 
 established by the city council, to perform at his or their own expense 
 (after obtaining permission from the council so to do, but before said 
 council has passed its resolution of intention to order grading inclusive of 
 this) any grading upon said street, to its full width, or to the center line 
 thereof, and to its grade as then established, and thereupon to procure, at 
 his or their own expense, a certificate from the city engineer, setting forth 
 
SECTION SEVEN Marchl 
 
 the number of cubic yards of cutting and filling made by him or them in 
 said grading, and the proportions performed by each owner, and that the 
 same is done to the established width and grade of said street, or to 
 the center line thereof, and thereafter to file said certificate with the super- 
 intendent of streets, which certificate the superintendent shall record in a 
 book kept for that purpose in his office, properly indexed. Whenever 
 thereafter the city council orders the grading of said street, or any portion 
 thereof, on which any grading certified as aforesaid has been done, the 
 bids and the contract must express the price by the cubic yard for cutting 
 and filling in grading; and the said owner or owners, and his or their 
 successors in interest, shall be entitled to credit on the assessment upon his 
 or their lots and lands fronting on said street for the grading thereof, to 
 the amount of the cubic yards of cutting and filling set forth in his or 
 their said certificate, at the prices named in the contract for said cutting 
 and filling; or, if the grade meanwhile has been duly altered, only for so 
 much of said cert i lied work as would be required for grading to the 
 altered grade; provided, however, that such owner or owners shall not be 
 entitled to such credit as may be in excess of the assessments for grading 
 upon the lots and lands owned by him or them, and proportionately 
 assessed for the whole of said grading ; and the superintendent of streets 
 shall include in the assessment for the whole of said grading upon the 
 same grade the number of cubic yards of cutting and filling set forth in 
 any and all certificates so recorded in his office, or for the whole of said 
 grading to the duly altered grade so much of said certified work as would 
 be required for grading thereto, and shall enter corresponding credits, 
 deducting the same as payments upon the amounts assessed against the 
 lots and lands owned, respectively, by said certified owners and their suc- 
 cessors in interest; provided, however, that he shall not so include a'ny 
 grading quantities or credit any sums in excess of the proportionate 
 assessments for the whole of the grading which are made upoa any lots 
 and lands fronting upon said street and belonging to any such certified 
 owners or their successors in interest. Whenever any owner or owners of 
 any lots and lands fronting on any street shall have heretofore done, or shall 
 hereafter do, any work (except grading) on such street, in front of any 
 block, at his or their own expense, and the city council shall subsequently 
 order any work to be done of the same class in front of the same blook, said 
 work so done at the expense of such owner or owners shall be excepted 
 from the order ordering work to be done, as provided in subdivision 
 eleven of this section of this act; provided, that the work so done at the 
 expanse of such owner or owners shall be upon the official grade, and in 
 condition satisfactory to the street superintendent at the time said order is 
 passed. 
 
 Subdivision Eleven The city council may include in one resolution of 
 intention and order any of the different kinds of work mentioned in this 
 act, and it may except therefrom any of said work already done upon the 
 street to the official grade. The lots and portions of lots fronting upon 
 said excepted work already done shall not be included in the frontage 
 
10a STREET WORK LAW STREET IMPROVEMENT ACT 
 
 assessment for the class of work from which the exception is made; pro. 
 vided, that this shall not be construed so as to affect the special provisions 
 as to grading contained in subdivision ten of this section. 
 
 Subdivision Twelve Whenever the resolution of intention declares that 
 the costs and expenses of the work and improvement are to be assessed 
 upon a district, the city council shall direct the city engineer to make a 
 diagram of the property affected or benefited by the proposed work or 
 improvement, as described in the resolution of intention, and to be 
 assessed to pay the expenses thereof. Such diagram shall show each sepa- 
 rate lot, piece, or parcel of land, the area in square feet of each of such 
 lots, pieces, or parcels of land, and the relative location of the same to the 
 work proposed to be done, all within the limits of the assessment district; 
 and when said diagram shall have been approved by the city council, the 
 clerk shall, at the time of such approval, certify the fact and date thereof. 
 Immediately thereafter the said diagram shall be delivered to the super- 
 intendent of streets of said city, who shall, after the contractor of any street 
 work has fulfilled his contract to the satisfaction of said superintendent of 
 streets, or city council, on appeal, proceed to estimate upon the lands, 
 lots or portions of lots within said assessment district, as shown by said 
 diagram, the benefits arising from such work, and to be received by each 
 such lot, portion of such lot, piece, or subdivision of land, and shall 
 thereupon assess upon and against said lands in said assessment district 
 the total amount of the costs and expenses of such proposed work, and in 
 so doing shall assess said total sum upon the several pieces, parcels, lots, 
 or portions of lots, and subdivisions of land in said district benefited 
 thereby, to wit: Upon each, respectively, in propoition to the estimated 
 benefits to be received by each of said several lots, portions of lots, or 
 subdivisions of land. In other respects the assessment shall be as pro- 
 vided in the next section, and the provisions of subdivisions three, four 
 five, six, seven, and eight of this section shall not be applicable to the work 
 or improvement provided for in this subdivision. [Amendment approved 
 March 31, 1891, Statutes 1891, p. 201.] 
 
 [Section 7 was amended in 1889, by act of March 14, 1889, statutes 
 '89, p. 163; and again in 1891, by act of March 31, 1891, statutes '91, p. 201.] 
 SECTION 8. After the contractor of any street work has fulfilled his con- 
 tract to the satisfaction of the street superintendent of said city, or city 
 council on appeal, the street superintendent shall make an assessment td 
 cover the sum due for the work performed and specified in said contract 
 (including any incidental expenses,) in conformity with the provisions of 
 the preceding section according to the character of the work done ; or, if 
 any direction and decision be given by said council on appeal, then in, 
 conformity with such direction and decision, wh.ch assessment shall briefly 
 refer to the contract, the work contracted for and performed, and shall 
 show the amount to be paid therefor, together with any incidental 
 expenses, the rate per front foot assessed, if the assessment be made pe^ 
 front foot, the amount of each assessment, the name of the owner of each; 
 lot, or portion of a lot (if known to the street superintendent) ; if unknown 
 the word "unknown" shall be written opposite the number of the lot, and 
 
SECTION NINE Sec. 9 as amended 
 
 March 31, 1891. 
 
 the amount assessed thereon, the numbei of each lot or portion or portions 
 *sed,and shall have attached thereto a diagram exhibiting 
 each street or street crossing, lane, alley, place, or court, on which anv 
 work nas been done, and showing the relative location of each district lot 
 or portion of lot to the work done, numbered to correspend with the num- 
 bers in the assessments, and showing the number of feet fronting, or 
 number of lots assessed, for said work contracted for and performed 
 {Amendment app,'un><l March 14, 1889. Statutes 1889, p. 166.] 
 
 SECTION !>. To said assessment shall be attached a warrant, which shall 
 }. signed by the superintendent of streets, and countersigned by the mayor 
 of said city. The said warrant shall be substantially in the following form : 
 
 FOKM OF THE WARRANT. 
 
 By virtue hereof, I (name of the superintendent cf streets), of the city 
 , county of - - (or city and county of ), and state of Cali- 
 fornia, by virtue of the authority vested in me as said superintendent of 
 streets, do authori/e and empower (name of contractor), (his or their) 
 agents or assigns, to demand and receive the several assessments upon 
 the assessment and diagram hereto attached, and this shall be (his or 
 their) warrant for the same. 
 
 (Ikite.) (name of superintendent of streets). 
 
 Countersigned by (name of mayor). 
 
 Said warrant, assessment and diagram, together with the certificate of 
 the city engineer, shall be recorded in the office of said superintendent of 
 streets. When so recorded the several amounts assessed shall be a lien 
 upon the lamN, lots, or portions of lots assessed, respectively, for the 
 perio.lof two yars from thn date of said recording, unless sooner dis- 
 charged; and from and after the date of said recording of any warrant, 
 assessment, diagram and certificate, all persons mentioned in section 
 eleven of this act shall be deemed to have notice of the cont nts of the 
 record thereof. After said warrant, assessment, diagram and certificate 
 are recorded the same shall be delivered to the contractor, or his 
 agent or assigns, on demand, but not until after the payment to the said 
 superintendent of streets of the incidental expenses not previously paid by 
 the contractor, or his assigns; and by virtue of said warrant said contractor, 
 or his agent or assigns, shall be authorized to demand and receive the amount 
 of the several assessments made to cover the sum due for the work speci- 
 fied in such contracts and assessments. Whenever it shall appear by any 
 final judgment of any court of this state that any suit brought to fore- 
 close the lien of any sum of money assessed to cover the expense of said 
 street work done under the provisions of this act has been defeated by 
 reason of any defect, error, informality, omission, irregularity or illegality 
 in any assessment hereafter to be made and issued, or in the recording 
 thereof, or in the return thereof made to or recorded by said superintend- 
 ent of streets, any person interested therein may, at any time within three 
 months after the entry of said final judgment, apply to said superintend- 
 ent of streets who issued the same, or to any superintendent of streets in 
 oilice at the time of said application, for another assessment to be 
 
I2a STREET WORK LAW STREET IMPROVEMENT ACT 
 
 issued in conformity to law; and said superintendent shall, within fifteen 
 days after the date of said application, make and deliver to said applicant 
 a new assessment, diagram and warrant in accordance with law; and the 
 acting mayor shall countersign the same as now provided by law, which 
 assessment shall be a lien for the period of two years from the date of said 
 assessment, and be enforced as provided in section seven of this act. 
 [Amendment approved March 31, 1891, statutes 1891, page 205.} 
 
 [Section 9 was amended in 1889, by act of March 14, 1889, statutes 1889, 
 page 167; and again in 1891 by act of March 31, 1891, statutes 1891, page 
 205.] 
 
 SECTION 10. The contractor, or his assigns, or some person in his or their 
 behalf, shall call upon the persons assessed, or their agents, if they can 
 conveniently be found, and demand payment of the amount assessed to 
 each. If any payment be made the contractor, his assigns, or some person in 
 his or- their behalf, shall receipt the same upon the assessment in presence 
 of the person making such payment, and shall also give a separate receipt if 
 demanded. Whenever the person so assessed or their agents, cannot con- 
 veniently be found, or whenever the name of the owner of the lot is stated as 
 "unknown " on the assessment, then the said contractor, or his assigns, or 
 some person in his or their behalf, shall publicly demand payment on the 
 premises assessed. The warrant shall be returned to the superintendent 
 of streets within thirty days after its date, with a return indorsed thereon 
 signed by the contractor, or his assigns, or some person in his or their 
 behalf, verified upon oath, stating the nature and character of the demand, 
 and whether any of the assessments remain unpaid, in whole or in part, 
 and the amount thereof. Thereupon the superintendent of streets shall 
 record the return so made, in the margin of the record of the warrant and 
 assessment, and also the original contract referred to therein, if it has not 
 already been recorded at full length in a book to be kept for that purpose 
 in his office, and shall sign the record. The said superintendent of streets 
 is authorized at any time to receive the amount due upon any assessment 
 list and warrant issued by him, and give a good and sufficient discharge 
 therefor; provided, that no such payment so made after suit has been 
 commenced, without the consent of the plaintiff in the action, shall operate 
 as a complete discharge of the lien until the costs in the action shall be 
 refunded to the plaintiff; and he may release any assessment upon the 
 books of his office, on the payment to him of the amount of the assessment 
 against any lot with interest, or on the production to him of the receipt of 
 the party or his assigns to whom the assessment and warrant were issued; 
 and if any contractor shall fail to return his warrant within the time and in 
 the form provided in this section, he shall thenceforth have no lien upon the 1 
 property assessed; provided, however, that in case any warrant is lost, upon 
 proof of such loss a duplicate can be issued, upon which a return may be 
 made, w r ith the same effect as if the original had been so returned. After 
 the return of the assessment and warrant as aforesaid, all amounts remain- 
 ing due thereon shall draw interest at the rate of ten per cent, per annum 
 until paid. [Statutes 1885, p. 155]. 
 
 Section 10 of the act of March 18, 1885, never has been amended. 
 
SECTIONS TEN TO TWELVE Sf8Mi*"* U 
 
 SECTION 11. The owners, whether named in the assessment or not, the 
 contractor, or his assigns, and all other persons directly interested in any 
 work provided for in this act, or in the assessment, feeling aggrieved by 
 any act or determination of the superintendent of streets in relation 
 thereto, or who claim that tne work has not been performed according to 
 the contract in a good and substantial manner, or having or making any 
 objection to the correctness or legality of the assessment or other act, 
 determination, or proceedings of the superintendent of streets, shall, 
 within thirty days after the date of the warrant, appeal to the city council, 
 as provided in this section, by briefly stating their objections in writing, 
 and filing the same with the clerk of said city council. Notice of the time 
 and place of the hearing, briefly referring to the work contracted to be 
 done, or other subject of appeal, and to the acts, determinations, or pro- 
 ceedings objected to or complained of, shall be published for five days. 
 Upon such appeal, the said city council may remedy and correct any error 
 or informality in the proceedings, and revise and correct any of the acts 
 or determinations of the superintendent of streets relative to said work ; 
 may confirm, amend, set aside, alter, modify, or correct the assessment in 
 Much manner as to them shall seem just, and require the work to be completed 
 according to the .directions of the city council; and may instruct and 
 direct the superintendent of streets to correct the warrant, assessment, or 
 diagram in any particular, or to make and issue a new warrant, assessment 
 and diagram, to conform to the decisions of said city council in relation 
 thereto, at their option. All the decisions and determinations of said city 
 council, upon notice and hearing as aforesaid, shall be final and conclusive 
 upon all persons entitled to appeal under the provisions of this section, as 
 to all errors, informalities, and irregularities which said city council might 
 have remedied and avoided ; and no assessment shall be held invalid , 
 except upon appeal to the city council, as provided in this section, for any 
 error, informality, or other defect in any of the proceedings prior to the 
 assessment, or in the assessment itseli, where notice of the intention of 
 the city council to order the work to be done, for which the assessment is 
 made, has been actually published in any designated newspaper of said 
 city for the length of time prescribed by law, before the passage of the 
 resolution ordering the work to be done. [Statutes 1885, p. 156.] 
 
 [Section 11 of the act of March 18, 1885, never has been amended.! 
 
 SECTION 12. At any time after the period of thirty-five days from the 
 day of the date of the warrants, as herein provided, or if an appeal is 
 taken to the city council, as provided in section eleven of this act, at any 
 time after five days from the decision of said council, or after the return 
 of the warrant or assessment, after the same may have been corrected, 
 altered or modified, as provided in said section eleven (but not less than 
 thirty-five days from the date of the warrant), the contractor or his assignee 
 may sue, in his own name, the owner of the land, lots or portions of lots, 
 assessed on the day of the date of the recording of the warrant, 
 assessment and diagram, or any day thereafter during the con- 
 tinuance of the lien of said assessment, and recover the amount of any 
 assessment remaining unpaid, with interest thereon at the rate of ten per 
 
I4a STREET WORK LAW STREET IMPROVEMENT ACT 
 
 cent, per annum until paid. And in all cases of recovery under the pro- 
 visions of this act the plaintiff shall recover the sum of fifteen dollars in 
 addition to the taxable cost, as attorney's fees, but not any percentage 
 upon said recovery. And when suit has been brought, after a personal 
 demand has been made and a refusal to pay such assessment so demanded, 
 the plaintiff shall also be entitled to have and recover said sum of fifteen 
 dollars as attorney's fees in addition to all taxable costs, notwithstanding 
 that the suit may be settled or a tender may be made before a recovery in 
 said action, and he may have judgment therefor. Suit may be brought in 
 the Superior Court within whose jurisdiction the city is in which said 
 work has been done, and in case any of the assessments are made against 
 lots, portions of lots, or lands, the owners thereof cannot, with due dili- 
 gence, be found, the service in each of such actions may be had in such 
 manner as is prescribed in the codes and laws of this state. The said war- 
 rant, assessment, certificate and diagram, with the affidavit of demand 
 and non-payment, shall be held prima facie evidence of the regularity and 
 correctness of the assessment and of the prior proceedings and acts of the 
 superintendent of streets and city council upon which said warrant, 
 assessment and diagram are based, and like evidence of the right of the 
 plaintiff to recover in the action. The court in which said suit shall be 
 commenced shall have power to adjudge and decree a lien against the 
 premises assessed, and to order such premises to be sold on execution, as 
 in other cases of the sale of real estate by the process of said courts ; and 
 on appeal the appellate courts shall be vested with the same power to 
 adjudge and decree a lien and to order such premises to be solJ on execu- 
 tion or decree as is conferred on the court from which an appeal is taken. 
 Such premises, if sold, may be redeemed as in other cases. In all suits 
 now pending, or hereafter brought to recover street assessments, the pro- 
 ceedings therein shall be governed and regulated by the provisions of this 
 act. and also, when not in conflict herwith, by the codes of this state. 
 This act shall be liberally construed to effect the ends of justice. [Amend- 
 ment approved March 14, 1889, statutes 1889, page 168.} 
 
 [Section 12 was amended in 1889 by act of March 14, 1889, statutes '89, 
 page 168.] 
 
 SECTION 12)^' The city council, instead of waiting until the completion 
 of the improvement, may, in its discretion, and not otherwise, upon the 
 completion of two blocks or more of any improvement, order the street 
 superintendent to make an assessment for the proportionate amount of 
 the contract completed, and thereupon proceedings and rights of collection 
 of such proportionate amount shall be had as in sections eight, nine, ten, 
 eleven and twelve of the act of which this is amendatory is provided. 
 [Amendment approved March 14, 1889, statutes 1889, page 169.} 
 
 [Section 12% was added to the act in 1889 by the act of March 14, 1889, 
 statutes 1889, page 169.] 
 
 SECTION 13. When any portion of any street, avenue, lane, alley, court 
 or place in said city improved, or any sidewalk constructed thereon shall 
 be out of repair, or needing reconstruction, and in condition to endanger 
 persons or property passing thereon, or in condition to interfere with the 
 
SECS. TWELVE AND ONE-HALF TO FOURTEEN of theA&t 13 U> 
 
 public convenience in the use thereof, it shall be the duty of said superin- 
 tendent of streets to require, by notice in writing, to be delivered to them 
 or their agents personally, or left on the premises, the owners or occupants 
 of lots or portions of lots fronting on said portion of said street, avenue, 
 alley, lane, court, or place, or of said portion of said sidewalk so out of 
 repair or needing reconstruction as aforesaid, to repair or reconstruct, or 
 to do both, forthwith, said portion of said street, avenue, lane, alley, 
 court, or place, to the center line of said street in front of the property of 
 which he is the owner, or tenant, or occupant, and said superintendent of 
 streets shall particularly specify in said notice what work is required to be 
 done, and how the same is to be done, and what material shall be used in 
 said repairs, or reconstructions, or both. If said repairs or reconstructions, 
 or both, be not commenced within three days after notice given as afore- 
 said, and diligently and without interruption prosecuted to completion, 
 the said superintendent of streets may, under authority from said city 
 council, make such repairs, reconstruction, or both, or enter into a contract 
 with any suitable person, at the expense of the owner, tenant or occupant, 
 after the specification for the doing of said work shall have been conspic- 
 uously posted by him in his office for two days, inviting bids for the doing 
 of said work, which bids shall be delivered to him at his office on or before 
 the second day of said posting, and opened by him on the next day follow- 
 ing the expiration of said two days of posting, and the contract by him be 
 awarded to the lowest bidder, if such lowest bid, in the judgment of said 
 street superintendent, shall be reasonable. All of said bids shall be pre- 
 served in his office and open at all times after the letting of the contract 
 to the inspection of all persons, and such owner, tenant or occupant shall 
 be liable to pay said contract price. Such work shall be commenced 
 within twenty-four hours after the contract shall have been signed, and 
 completed without delay to the satisfaction of said street superintendent. 
 Upon the completion of said repairs, or reconstruction, or both, by said 
 contractors as aforesaid to the satisfaction of said superintendent of streets, 
 said superintendent of streets shall make and deliver to said contractor a 
 certificate to the effect that said repairs, or reconstruction, or both, have 
 been properly made by said contractor to the grade, and that the charges 
 for the same are reasonable and just, and that he, said superintendent, 
 has accepted the same. [Amendment approved March 14, 1889, statutes 1889, 
 p. 169.] 
 
 [Section 13 was amended in 1889 by act of March 14, 1889, statutes 1889, 
 p. 169.] 
 
 SECTION 14. If the expenses of the work and material for such improve- 
 ments, after the completion thereof, and the delivery to said contractor of 
 said certificate, be not paid to the contractor so employed, or his agent or 
 assignee, on demand, the said contractor, or his assignee, shall have the 
 right to sue such owner, tenant, or occupant, for the amount contracted to 
 be paid ; and said certificate of the superintendent of streets shall be prima 
 facie evidence of the amount claimed for said work and materials, and of 
 the right of the contractor to recover for the same in such action. Said 
 certificate shall be recorded by the said superintendent of streets in a book 
 
16ft STREET WORK LAW STREET IMPROVEMENT ACT 
 
 kept by him in his office for that purpose, properly indexed, and the sum. 
 contracted to be paid shall be a lien, the same as provided in section nine 
 of this act, and may be enforced in the same manner. [Statutes 1885, page 
 158.} 
 
 [Section 14 never has been amended.] 
 
 SECTION 15. In addition, and as cumulative to the remedies above given, 
 the city council shall have power, by resolution or ordinance, to prescribe 
 the penalties that shall be incurred by any owner or person liable, or neg- 
 lecting, or refusing to make repairs when required, as provided in section 
 (13) thirteen of this act, which fines and penalties shall be recovered for 
 the use of the city by prosecution in the name of the people of the state of 
 California, in the court having jurisdiction thereof, and may be applied, if 
 deemed expedient by the said council, in the payment of the expenses of 
 any such repairs not otherwise provided for. [Statutes 1885, page 158.] 
 
 [Section 15 never has been amended.] 
 
 SECTION 16. The person owning the fee, or the person in whom, on the 
 day the action is commenced, appears the legal title to the lots and lands, 
 by deeds duly recorded in the county recorder's office of each county, or 
 the person in possession of lands, lots or portions of lots or buildings under 
 claim, or exercising acts of ownership over the same for himself, or as the 
 executor, administrator or guardian of the owner, shall be regarded, 
 treated and deemed to be the "owner" (for the purpose of this law), 
 according to the intent and meaning of that word as used in this act. And 
 in case of property leased, the possession of the tenant or lessee holding 
 and occupying under such persons shall be deemed to be the possession of 
 such owner. [Statutes 1885, page 159.] 
 
 [Section 16 never has been amended.] 
 
 SECTION 17. Any tenant or lessee of the lands or lots liable may pay 
 the amount assessed against the property of which he is the tenant or 
 lessee under the provisions of this act, or he may pay the price agreed on 
 to be paid under the provision of section thirteen of this act, either before 
 or after suit brought, together with cost?, to the contractor, or his assigns, 
 or he may redeem the property, if sold on execution or decree for the 
 benefit of the owner, within the time prescribed by law, and deduct the 
 amount so paid from the rents due and to become due from him, and 
 for any sums so paid beyond the rents due from him, he shall 
 have a lien upon and may retain possession of the said land and lots until 
 the amount so paid and advanced be satisfied, with legal interest, from 
 accruing rents, or by payment by the owner. [Statutes 1885, page 159.] 
 
 [Section 17 never has been amended.] 
 
 SECTION 18. The records kept by the superintendent of streets of said 
 city, in conformity with the provisions of this act, and signed by him, 
 shall have the same force and effect as other public records, and copies 
 therefrom, duly certified, may be used in evidence with the same effect as 
 the originals. The said records shall, during all office hours, be open to 
 the inspection of any citizen wishing to examine them, free of charge. 
 [Statutes 1885, page 159.] 
 
 [Section 18 never has been amended.] 
 
SECTIONS FIFTEEN TO TWENTY-ONE SoSdlloftoe A"' 
 
 SECTION 19. Notices in writing which are required to be given by the 
 superintendent of streets under the provisions of this act, may be served 
 by any person with the permission of the superintendent of streets, and 
 the fact of such service shall be "erified by the oath of the person making 
 it, taken before the superintendent of streets, who for that purpose and for 
 all other purposes, and in all cases where a verification is required under 
 the provisions of this act is hereby authorized to administer oaths, or 
 other person authorized to administer oaths, or such notices may be deliv- 
 ered to the superintendent of streets himself, who must also verify the 
 service thereof, and who shall keep a record of the fact of giving such 
 notices, when delivered by himself personally, and also of the notices and 
 proof of service when delivered by any other person. [Amendment approved 
 March 14, 188'J. Statutes 1889, p. 170.] 
 
 [Section 16 was amended by the act of March 14, 1889. Statutes 1889, 
 p. 170.] 
 
 SKCTION 20. Whenever any street, or portion of a street has been or 
 shall hereafter be fully constructed to the satisfaction of the superintend- 
 ent of streets and of the city council, and is in good condition throughout, 
 and a sewer, gas pipes, and water pipes are laid therein, under such regu- 
 lations as the rity council shall adopt, the same shall be accepted by the 
 city council, by ordinance, and thereafter shall be kept in repair and 
 Improved by the said municipality; the expense thereof, together with 
 the assessment for street work done in front of city property, to be paid 
 out of a fund to lie provided by said council for that purpose; provided, 
 that the city council shall not accept of any portion of the street less than 
 the entire width oi the roadway (including the curbing), and one block in 
 length, or one entire crossing; and provided further, that the city council 
 may partially or conditionally accepf any street, or portion of a street, 
 without a sewer, or gas pipes, or water pipes, therein, if the ordinance of 
 acceptance expressly states that the council deems such sewer, or gas 
 pipes, or water pipes, to be then unnecessary, but the lots of land pre- 
 viously or ut any time assessable for the cost of constructing a sewer, shall 
 remain and be assessable for such cost and for the cost of repairs and restor- 
 ation of the street damaged in the said construction, whenever said council 
 shall deem a sewer to be necessary, and shall order it to be constructed, 
 the same as if no partial or conditional acceptance had ever been made. 
 The superintendent of streets shall keep in his office a register of all streets 
 accepted by the city council under this section, which register shall be 
 indexed for easy reference thereto. [Statutes 1885, p. 160.} 
 
 [Section 20 never has been amended.] 
 
 SECTION 21. The superintendent of streets shall keep a public office in 
 some convenient place within the municipality, and such records as may 
 be required by the provisions of this act. He shall superintend and direct 
 the cleaning of all sewers, and the expense of the same shall be paid out 
 of the street or sewer fund of said city. [Statutes 1885, p. 160.} 
 
 [Section 21 never has been amended.] 
 
18tt STREET WORK LAW STREET IMPROVEMENT ACT 
 
 SECTION 22. It stiall be the duty of the superintendent of streets to see 
 that the laws, ordinances, orders, and regulations relating to the public 
 streets and highways be fully carried into execution, and that the penal- 
 ties thereof are rigidly enforced. He shall keep himself informed of the 
 condition of all the public streets and highways, and also of all public 
 buildings, parks, lots, and grounds of said city, as may be prescribed by 
 the city council. He shall, before entering upon the duties of his office, 
 give bonds to the municipality, with such sureties and for such sums as 
 may be required by the city council; and should he fail to see the laws, 
 ordinances, orders and regulations relative to the public streets or high- 
 ways carried into execution, after notice from any citizen of a violation 
 thereof, he and his sureties shall be liable upon his official bond to any 
 person injured in his person,or property in consequence of said official neg- 
 lect. [Statutes 1885, p. 160.} 
 
 [Section 22 never has been amended.] 
 
 SECTION 23. If, in consequence of any graded street or public high way 
 improved under the provisions of this act, being out of repair and in con- 
 dition to endanger persons or property passing thereon, any person while 
 carefully using said street or public highway, and exercising ordinary care 
 to avoid the danger, suffer damage to his person or property, through any 
 such defect therein, no recourse for damages thus suffered shall be had 
 against such city ; but if such defect in the street or public highway shall 
 have existed for the period of twenty-four hours or more after notice 
 thereof to the said superintendent of streets, then the person or persons on 
 whom the law may have imposed the obligations to repair such defect in the 
 street or public highway, and also the officer or officers through whose official 
 negligence such defect remains unrepaired, shall be jointly and severally 
 liable to the party injured for the damage sustained; provided, that said 
 superintendent has the authority to make said repairs, under the direction 
 of the city council, at the expense of the city. [Statutes 1885, p. 161.] 
 
 [Section 23 of the act never has been amended.] 
 
 SECTION 24. The city council of such city shall have full power and 
 authority to construct sewers, gutters, and manholes, and provide for the 
 cleaning of the same, and culverts or cesspools, or crosswalks or sidewalks, 
 or any portion of any sidewalk, upon or in any street, avenue, lane, alley, court 
 or place in such city; and also for drainage purposes, over or through any 
 right of way obtained or granted for such purposes, with necessary and 
 proper outlet or outlets to the same, of such materials, in such a manner, 
 and upon such terms as it may be deemed proper. None of the Work or 
 improvements described in this section shall be stayed or prevented by 
 any written or any other remonstrance or objection, unless such council 
 deems proper. [Amendment approved March 11, 1893, statutes 1893, p. 173.} 
 
 [Section 24 was amended by the act of March 14, 1889, statutes 1889, p. 
 170; again by act of March 31, 1891, statutes 1891, p. 206; and again by 
 the act of March 11, 1893, statutes 1893, p. 173. 
 
 SECTION 25. The city council may, in its discretion, repair and water 
 streets that shall have been graded, curbed and planked, paved or macada- 
 

 PART II Secs - 23 - 24 - 25 - 26, 27 
 
 and 28 of the Act 
 
 ized, and may build, repair and clean sewers, and shall provide a stre et 
 contingent fund at the same time and in the same manner as other fundq 
 are provided, out of which to pay the costs and expenses of makin- said 
 repair, and watering said streets and building, repairing and cleaning Sa 
 ewers; but whenever any unaccepted street or part of a street requires 
 regrading. recurbing, repiling, repaving, replanking, regraveling , 
 remacadamizing or requires new culverta or new crosswalks or new side 
 walks or new sewers, the work shall be advertised and let out by contract 
 and the costs and expenses thereof shall be assessed upon the propertv 
 affected or benefited thereby, the same as in the first instance. [Statutes 
 18S5, page 161.} 
 
 [Section 25 of the act has never been amended.] 
 
 SECTION 26. The city council may, in its discretion, order, by resolution 
 that the whole or any part of the cost and expenses of any of the work 
 mentioned in this act be paid out of the treasury of the municipality from 
 luch fund as the council may designate. Whenever a part of such cost 
 and expenses is so ordered to be paid the superintendent of streets, in 
 making up the assessment heretofore provided for such cost and expenses, 
 shall first deduct from the whole cost and expenses such part thereof as has 
 been so ordered to be paid out of the mu .icipal treasury, and shall assess the 
 remainder of said cost and expenses proportionately upon the lots, parts 
 of lota and lands fronting on the streets where said work was done, or 
 liable to be assessed for such work, and in the manner heretofore pro- 
 vided. [Amendment approved March 31, 1891, statutes 1891, page 206.} 
 
 [Section 2<> was amended by act of M.ur,h 14, 1839, statutes 1839, page 
 17, and again by the act of March 31, 1891, statutes 1891, page 206.]' 
 
 PART II. 
 
 SECTION 27. Whenever the city council deem it necessary to construct a 
 sewer, then the said council may, in its discretion, determine to construct 
 said sewer, and assess the cost and expenses thereof upon the property to 
 be affected or benefited thereby, in such manner and within such assess- 
 ment district as it shall prescribe, and the lien therefor upon said property 
 shall be the same as is provided in section nine of this act, or said council 
 may determine to construct said sewer and pay therefor out of the street 
 contingent fund. [Statutes 1885, page 162.} 
 
 [Section 27 of the act never has been amended.] 
 
 SECTION 28. If, at any time, the city council shall deem it necessary to 
 incur any indebtedness for the construction of sewers, in excess of the 
 money in the street contingent fund applicable to the construction of such 
 sewers, they shall give notice of a special election by the qualified electors 
 of the city, to be held to determine whether such indebtedness shall be 
 incurred. Such notice shall specify the amount of indebtedness proposed 
 to be incurred, the route and general character of the sewer or sewers to 
 be constructed, and the amount of money necessary to be raised annually 
 by taxation for an interest and sinking fund as hereinafter provided. 
 
20(2 STREET WORK LAW STREET IMPROVEMENT ACT 
 
 Such notice shall be published for at least three weeks in some newspaper 
 published in such city, and no other question or matter shall be submitted 
 to the electors at such election. If, upon a canvass of the votes cast at 
 such election, it appear that not less than two-thirds of all the qualified 
 electors voting at such election shall have voted in favor of incurring such 
 indebtedness, it shall be the duty of the city council to pass an ordinance 
 providing for the mode of creating such indebtedness, and of paying the 
 same; and in such ordinance provision shall be made for the levy and 
 collection of an annual tax upon all the real and personal property subject 
 to taxation, within such city, sufficient to pay the interest on such indebt- 
 edness as it falls due, and also to constitute a sinking fund for the payment 
 of the principal thereof, within a period of not more than twenty 5 ears 
 from the time of contracting the same. It shall be the duty of the city 
 council in each year thereafter, at the time when other taxes are levied, 
 to levy a tax sufficient for such purpose, in addition to the taxes author- 
 ized to be levied for city purposes. Such tax, when collected, shall be 
 kept in the treasury as a separate fund, to be inviolably appropriated to 
 the payment of the principal and interest of such indebtedness. [Statutes 
 1885, page 162.] 
 
 [Section 28 has never been amended.] 
 
 SECTION 29. If bonds are issued under the provisions of the last section, 
 said bonds shall be in sums of not less than one hundred dollars nor more 
 than one thousand dollars, shall be signed by the mayor and treasurer of 
 the city, and the seal of the city shall be affixed thereto. Coupons for the 
 interest shall be attached to each bond, signed by the mayor and treasurer. 
 Said bonds shall bear interest, to be fixed by the city council, at the rate 
 of not to exceed five per cent, per annum. [Statutes 1885, page 163.} 
 
 [Section 29 has never been amended.] 
 
 SECTION 30. Before the sale of said bonds, the council shall, at a regular 
 meeting by resolution, declare its intention to sell a specified amount of 
 said bonds, and the day and hour of such sale, and shall cause such resolu- 
 tion to be entered in the minutes, and shall cause notice of such sale to be 
 published for fifteen days in at least one newspaper published in the city 
 in which the bonds are issued and one published in the city and 
 county of San Francisco, and in any other newspaper in the state, at 
 their discretion. The notice shall state that sealed proposals will be 
 received by the council for the purchase of the bonds on the day and hour 
 named in the resolution. The council, at the time appointed, shall open 
 the proposals and award the purchase of the bonds to the highest bidder, 
 but may reject all bids. [Statutes 1885, page 163.] 
 
 [Section 30 has never been amended.] 
 
 SECTION 31. The council may sell said bonds, at not less than par value, 
 without the notice provided for in the preceding section. [Statutes 1885, 
 page 163. j 
 
 [Section 31 has never been amended.] 
 
 SECTION 32. The proceeds of the sale of the bonds shall be deposited in 
 the city treasury, to the account of the sewer fund, but no payment there- 
 from shall be made, except to pay for the construction of the sewer or 
 
PART III Pecs 29 30 31, 32, 33 o-| 
 
 and 34 of the Act. A 
 
 nvers for the construction of which the bonds were issued, and upon the 
 -rtificate of the superintendent of streets and the city engineer, that the 
 Drk has been done according to the contract; provided, that after the 
 )mpletion of the sewers, for the construction of which said bonds were 
 ued, if there be any money of said fund left in the treasury, the same 
 may be transferred to the general fund, for general purposes. [Statutes 
 1887, page 148.} 
 
 [Section 32 was amended by act of March 15, 1887, statutes 1887, p. 148.] 
 SKCTION :;:;. Whenever said council shall determine to construct any 
 sewer, and pay therefor out of the street contingent fund, or by the 
 issuance of bonds, as above provided, then said council shall cause to be 
 prepared plans and specifications of said work in sections, and shall adver- 
 tise for twenty days in at least one newspaper published in the city in 
 which the sewer is to be constructed, and one in the city and county of San 
 Francisco, for sealed proposals for constructing said sewer. The work 
 may be let in sections, and must be awarded to the lowest responsible 
 bidder, the council having the right to reject any and all bids. The work 
 shall be done and the materials furnished under the supervision and to 
 tlie satisfaction of the superintendent of streets and the city engineer. 
 [Statutes 1885, page 163.] 
 [Section 33 has never been amended.] 
 
 PART III. 
 
 SK<T i ON :>4. Firxt The city engineer, or where there is no city engineer, 
 the county, or city and county surveyor, shall be the proper officer to 
 do the surveying and other engineering work necessary to be done 
 under this act, and to survey and measure the work to be done under 
 contracts for grading and macadamizing streets, and to estimate the costs 
 and expenses thereof; and every certificate signed by him in his official 
 character shall be priina facie evidence in all courts in this state of the 
 truth of its contents. He shall also keep a record of all surveys made 
 under the provisions of this act, as in other cases. In all those cities where 
 there is no city engineer, the city council thereof is hereby authorized and 
 empowered to appoint a suitable person to discharge the duties herein laid 
 down as those of city engineer, and all the provisions hereof applicable to 
 the city engineer shall apply to such person so appointed. Said city 
 council is hereby empowered to fix his compensation for such services. 
 
 Second The words "work," "improve," "improved," and "improve- 
 ment," as used in this act, shall include all work mentioned in this act, 
 and also the construction, reconstruction, and repairs of all or any portion 
 of said work. 
 
 Third The term "incidental expenses," as used in this act, shall include 
 the compensation of the city engineer for work done by him ; also, the cost 
 of printing and advertising as provided in this act, and not otherwise; also, 
 the compensation of the person appointed by the superintendent of streets 
 to take charge of and superintend any of the work mentioned in section 
 thirty-five of this act. All demands for incidental expenses mentioned in 
 
22a STREET WORK LAW STREET IMPROVEMENT ACT 
 
 this sub-division shall be presented to the street superintendent by 
 itemized bill, duly verified by oath of the demandant. 
 
 Fourth The notices, resolutions, orders, or other matter, required to be 
 published by the provisions of this act, and of the act of which this is 
 amendatory, shall be published in a daily newspaper, in cities where such 
 there is, and where there is no daily newspaper, in a semi- weekly or weekly 
 newspaper, to be designated by the council of such city, as often as the 
 same is issued, and no other statute shall govern or be applicable to the 
 publications herein provided for; provided, however, that only in case 
 there is no daily, semi-weekly or weekly newspaper printed or circu- 
 lated in any such city, then such notices, resolutions, orders, or other 
 matters, as are herein required to be published in a newspaper, shall be 
 posted and kept posted for the same length of time as required herein for 
 the publication of the same in a daily, semi-weekly, or weekly newspaper, 
 in three of the most public places in such city. Proof of the publication 
 or posting of any notice provided for herein shall be made by affidavit of 
 the owner, publisher, or clerk of the newspaper, or of the poster of the 
 notice. No publication or notice, other than that provided for in this act, 
 shall be necessary to give validity to any of the proceedings provided for 
 therein. 
 
 Fifth The word "municipality," and the word "city," as used in this 
 act, shall be understood and so construed as to include, and is hereby 
 declared to include, all corporations heretofore organized and now existing, 
 and those hereafter organized, for municipal purposes. 
 
 Sixth The words "paved," or "repaved," as used in this act, shall be 
 held to mean and include pavement of stone, whether paving blocks or 
 macadamizing, or of bituminous rock or asphalt, or of iron, wood, or other 
 material, whether patented or not, which the city council shall by ordi- 
 nance adopt. 
 
 Seventh The word "street," as used in this act, shall be deemed to, and 
 is hereby declared to include avenues, highways, lanes, alley, crossings, or 
 intersections, courts, and places, and the term "main street" means such 
 actually opened street or streets as bound a block; the word "blocks," 
 whether regular or irregular, shall mean such blocks as are bounded by 
 main streets, or partially by a boundary line of the city. 
 
 Eighth The terms "street superintendent," and "superintendent of 
 streets," as used in this act, shall be understood, and so construed as to 
 include, and are hereby declared to include any person or officer whose 
 duty it is, under the law, to have the care or charge of the streets, or the 
 improvement thereof in any city. In all those cities where there is no 
 street superintendent or superintendent of streets, the city council thereof 
 is hereby authorized and empowered to appoint a suitable person to dis- 
 charge the duties herein laid down, as those of street superintendent or 
 superintendent of streets ; and all provisions hereof applicable to the street 
 superintendent or superintendent of streets, shall apply to such person so 
 appointed . 
 
 Ninth The term "city council" is hereby declared to include any body 
 
DEFINITION OF TERMS Sees. 35and3G 90 
 
 of the Act. &wb 
 
 or board which, under the law, is the legislative department of the govern- 
 ment of any city. 
 
 Tenth In municipalities in which there is no mayor, then the duties 
 imposed upon said officer by the provisions of this act shall be performed 
 by the president of the board of trustees, or other chief -executive officer 
 of the municipality. 
 
 Eleventh The term "clerk" and "city clerk," as used in this act, is 
 hereby declared to include any person or officer who shall be clerk of the 
 said city council. 
 
 Tn;>lfth The term "quarter block," as used in this act as to irregular 
 blocks, shall be deemed to include all lots or portions of lots having any 
 frontage on either intersecting street half way from such intersection to the 
 next main street, or when no main street intervenes, all the way to a 
 boundary line of the city. 
 
 Thirteenth The term "one year," as used in this act, shall be deemed to 
 include the time beginning with January first and ending with the thirty- 
 first day of December of the same year. 
 
 Fourteenth References in certain sections, by number, to certain other 
 sections of "this act" refer to the number of the sections of the original 
 act as heretofore amended, unless it appears from the context that the ref- 
 erence is to the section of this amendatory act, when it shall be construed 
 according to the context. [Amendment approved March 31, 1X91. Statutes 
 1891, page 206.] 
 
 fSection 34 was amended by act of March 14, 1889, statutes 1889, page 157 
 also by the act of March 31, 1891, statutes 1891, page 206.] 
 
 SECTION 35. The superintendent of streets shall, when in his judgment 
 it is necessary, appoint a suitable person to take charge of and superintend 
 the construction and improvement of each and every sewer constructed or 
 improved under the provisions of this act, and of piling and capping, side- 
 walking, or of the paving of whatever character heretofore mentioned, in 
 whole or in part, of one block or more, whose duty it shall be to see that 
 the contract made for the doing of said work is strictly fulfilled in every 
 respect, and in case of any departure therefrom to report the same to the 
 superintendent of streets. Such person shall be allowed for his time actu- 
 ally employed in the discharge of his duties such compensation as shall be 
 just, but not to exceed four dollars per day. The sum to which the party 
 BO employed shall be entitled shall be deemed to be incidental expenses, 
 within the meaning of those words as defined by this act. [Amendment 
 approved March 31, 1891, statutes 1891, page 208.] 
 
 [The act of March 14, 1889, statutes '89, p. 157, attempted to amend sec- 
 tion 35. and section 35 as amended is embraced in the body of the act, 
 [statutes '89, p. 173,] but the title of the act does not mention this section. 
 The section was amended in 1891 by the act of March 31, 1891, statutes '91, 
 p. 208.] 
 
 SECTION 36. The act entitled "An act to provide for the improvement of 
 streets, lanes, alleys, courts, places, and sidewalks, and the construction of 
 sewers within municipalities," approved March sixth, eighteen hundred 
 
STREET WORK LAW STREET IMPROVEMENT ACT 
 
 and eighty-three, is hereby repealed; provided, that any work or proceed- 
 ings commenced thereunder prior to the passage of this act shall in nowise 
 be affected hereby, but shall in all respects be finished and completed 
 under said act of March sixth, eighteen hundred and eighty-three, and said 
 repeal shall in nowise affect said work or proceedings. [Statutes '85, p. 165.] 
 [Section 36 has never been amended.] 
 
 SECTION 37. That said act shall take effect and be in force immediately 
 upon its passage, and all acts and parts of acts in conflict with this act are 
 hereby repealed; and, provided, however, that any work or proceeding of the 
 city council commenced under the act of which this is amendatory shall in 
 nowise be affected thereby, but shall in all respects be finished and com- 
 pleted thereunder. [Amendment approved March 11, 1893, statutes 1893, page 
 173.} 
 
 [Section 37 was amended in 1889 by the act of March 14, 1889, statutes 
 '89, p. 173; again in 1891 by the act of March 31, 1891, statutes '91, p. 209; 
 and again in 1893 by the act of March 11, 1893, statutes '93, p 173.] 
 
 SECTION 38. The city council is hereby empowered to change or modify 
 tne grade of any public street, lane, alley, place, or court, and to regrade or 
 repave the same, so as to coniorm to such modified grade, in the manner as 
 hereinafter provided. Before any change of grade is ordered the city coun- 
 cil-shall pass an ordinance or resolution of intention to make such change 
 or modification of grade, and it shall have power at the same time and in 
 the same ordinance or resolution to provide for the actual cost of perform- 
 ing the work of regrading, repaving, sewering, sidewalking, or curbing of 
 said street or portion of street, with the same or other material with which 
 it was formerly graded, paved, sewered, side walked or curbed ; and that the 
 cost of the same shall also be assessed upon the same district which is 
 declared to be benefited by such changed or modified grade. One or more 
 streets or blocks of streets may be embraced in the same ordinance or reso- 
 lution. Such ordinance or resolution shall be published in the newspaper 
 in which the official notices of the city council are usually printed and pub- 
 lished j and such newspaper is to be designated in such ordinance or reso- 
 lution. Such publication shall be made in every regular issue of such paper 
 for not less than ten days, and shall describe the proposed change or mod- 
 ification of grade or regrading, and shall designate and establish the district 
 to be benefited by such change or modification of grade or regrading, and 
 to be assessed for the cost of the same. Within five days after the first 
 publication of the ordinance or resolution of intention, the superintendent 
 of streets shall cause to be conspicuously posted within the district desig* 
 nated in the ordinance or resolution, notice of the passage of said resolution. 
 Said notices shall be the same in all requirements of contents and posting 
 as the "notices of street work" provided for in section three of the original 
 act to which this is amendatory. If no objection to said proposed change 
 or changes, or modifications of grade, shall be filed with the clerk of the 
 council within thirty days from the first publication of the ordinance or 
 resolution of intention hereinbefore mentioned, the city council shall have 
 power to declare such grades to be changed and established in conformity 
 
TTT Sees. 37 to 44, as amended 
 
 March 9, Ifc93. 
 
 to said ordinance or resolution, provided, that no change of an established 
 grade shall be ordered except on petition of the owners of a majority of the 
 property affected by the proposed change of grade. [Amendment approved 
 March 9, 1893, statutes J 93, p. 89.] 
 
 SECTION 39. Within thirty days after the first publication of said notice, 
 any person owning property fronting upon said portions of the street or 
 streets where such change of grade is made, may file a petition with the 
 clerk of the city council showing the fact of such ownership, the descrip- 
 tion and situation of the property claimed to be damaged, its market value, 
 and the estimated amount of damages over and above all benefits 
 which the property would sustain by the proposed change if completed. 
 Such petition shall be verified by the oath of the petitioners or their 
 agents. [Amendment approved March 9, 1893, statutes 1893, page 90. 
 
 SECTION 40. Whenever such petition or petitions have been filed, the 
 mayor, surveyor, and superintendent of streets, of the city, or city and 
 county, acting as a board of commissioners, shall assess the benefits, dam- 
 ages, and costs of the proposed change of grade upon each separate lot of 
 land situated within such assessment district, as said lot appears of record 
 upon the last city, or city and county assessment roll. [Amendment approved 
 March 9, 1893, statutes 1893, p. 90.] 
 
 SECTION 41. The commissioners shall be sworn to make the assessments 
 of benefits and damages to the best of their judgment and ability, without 
 fear or favor. [Amendment approved March 9, 1893, statutes 1893, p. 90.] 
 
 SECTION 42. The commissioners shall have power to subpoena witnesses 
 to appear before them to be examined under oath, which any one of said 
 commissioners is authorized to administer. [Amendment approved March 9, 
 1893, statutes 1893, p. 90.] 
 
 SKI TION 43. The commissioners having determined the damage which 
 would be sustained by each petitioner, in excess of all benefits, shall pro- 
 ceed to assess the total amount thereof, together with the costs, charges, 
 and expenses of the proceedings, upon the several lots of land benefited 
 within the district of assessment; so that each of the lots shall be assessed 
 in accordance with its benefits caused by such work or improvement ; and 
 during the progress of their work shall make a report to such city council 
 as often as it may be required. [Amendment approved March 9, 1893, stat- 
 utes 1893, p. 90.] 
 
 SECTION 44. The commissioners shall make their report, in writing, 
 and shall subscribe to the same and file with the city council. In their 
 said report they shall describe separately each piece of property which will 
 sustain damage, stating the amount of damages each will sustain over and 
 above all benefits. They shall also give a brief description of each lot ben- 
 efited within said assessment district, the name of the owner, if known, 
 and the amount of benefits in excess of damages assessed against the same. 
 In case the three commissioners do not agree, the award agreed upon by 
 any two of them shall be sufficient. In designating the lots to be assessed, 
 reference may be had to a diagram of the property in the district affected ; 
 
26a STREET WORK LAW STREET IMPROVEMENT ACT 
 
 such diagram to be attached to and made a part of the report of the com- 
 missioners. [Amendment approved March 9, 1893, statutes 1893, p. 91.] 
 
 SECTION 45. If in any case the commissioners find that conflicting 
 claims of title exist, or shall be in ignorance or doubt of the ownership of 
 any lot or land, or any improvement thereon, or any interest therein, it 
 shall be set down as belonging to unknown owners. Error in the designa- 
 tion of the owner or owners of any land or improvements, or particulars of 
 their interest, shall not affect the validity of the assessment. On the filing 
 of said report, the clerk of said city council shall give notice of such filing 
 by the publication of at least ten days in one or more daily newspapers 
 published and circulated in said city ; or if there be no daily newspaper, 
 by three successive issues in a weekly or semi-weekly newspaper so pub- 
 lished and circulated ; and said notice shall require all persons interested 
 to show cause, if any, why such report should not be confirmed, before the 
 city council, on a day to be fixed by the city council and stated in said 
 notice, which day shall not be less than twenty days from the first publi- 
 cation thereof. [Amendment approved March 9, 1893, statutes 1893, page 91.] 
 
 SECTION 46. All objections shall be in writing and filed with the clerk 
 of the city council, who shall at the next meeting after the date fixed in 
 the notice to show cause, lay the said objections, if any, before the council, 
 which shall fix a time for hearing the same; of which time the clerk shall 
 notify the objectors in the same manner as are notified objectors to the 
 original resolution of intention. At the time set, or at such other time as 
 tne hearing may be adjourned, the city council shall hear such objections 
 and pass upon the same, and at such time shall proceed to pass upon such 
 report, and may confirm, correct, or modify the same, or may order the 
 commissioners to make a new assessment, report, and plat, which shall be 
 filed, notice given and had, as in the case of an original report. In case 
 the ordinance or resolution of intention also provides for the assessing 
 upon the district the cost of regrading or repaving such street or streets to 
 such changed or modified grade, after the report of the commissioners as 
 to the damages caused by such change of grade has been passed upon by 
 the city council, it shall then advertise for bids to perform the work of 
 regrading, repaving, sewering, sidewalking, or curbing such street or 
 streets with the same or other material with which the same had been for- 
 merly graded, paved, sewered, sidewalked, or curbed; first causing a notice, 
 with specifications, to be posted conspicuously for five days on or near the 
 council chamber door, inviting sealed proposals for bids for doing such 
 work, and shall also cause notices of said work, inviting said proposals and 
 referring to the specifications posted or on file, to be published two days 
 in a daily, semi-weekly, or weekly newspaper published and circulated in 
 said city, and designated by the city council for that purpose, and in case 
 there is no newspaper published in the city, then it shall be posted as 
 provided in section three of the original act to which this is amendatory. 
 All proposals or bids offered shall be accompanied by a check, payable to 
 the order of the mayor of the city, and certified by a responsible bank for 
 that amount, which shall not be less than ten per cent, of the aggregate of 
 the proposals ; or by a bond for said amount, signed by the bidder and two 
 
P4T?T TTT Sees. 40 to 48 as amended 07 ~ 
 
 March 9. 1893. * ' & 
 
 sureties, who shall justify under oath in double said amount over and 
 above all statutory exemptions. Said proposals or bids shall be delivered 
 to the clerk of the said city council, 'and said council shall, in open ses- 
 sion, examine and publicly declare the same; provided, however, that no 
 proposal or bid shall be considered unless accompanied by a check or a 
 bond satisfactory to the council. The city council may reject any and all 
 bids, and may award the contract to the lowest responsible bidder, which 
 award shall be approved by the mayor or the three-fourths vote of the city 
 council. If not approved by the mayor or the three-fourths vote of the 
 city council, the city council may re-advertise for proposals or bids for 
 the performance of the work, as in the first instance, and thereafter pro- 
 ceed in the manner in this section provided. All checks accompanying 
 bids [shall be held by the clerk until the bearer has entered into a contract 
 as herein provided; and in case he refuses so to do, then the amount of his 
 certified check shall be declared forfeited to the city, and shall be collected 
 and paid into its general fund, and all bonds so forfeited shall be prose- 
 cuted and the amount thereon collected paid into such fund. Notice of the 
 awards of the contracts shall be published and posted in the same manner 
 as hereinbefore provided for the posting of proposals for said work. [Amend- 
 ment approved March 9, 1S93, statutes 1893, p. 91.] 
 
 SECTION 47. After such contract has been awarded and entered into, th e 
 clerk of the city council shall certify to the city council that fact, together 
 with the total amount of the cost of the same, whereupon the city council 
 shall cause to be forwarded to the commissioners a copy of such certificate; 
 whereupon such commissioners shall proceed to assess the cost of doing 
 such work upon all the lots and land lying within the district to be assessed, 
 distributing the same so that each lot will be assessed for its proportion of 
 the same, according to the benefits it receives from the work, and in the 
 same manner in which the damages caused by the change of grade were 
 assessed upon the same. Such commissioners, in making such assessment, 
 shall show the total amount for which each lot or tract is assessed, in 
 excess of all benefits, for the total cost of changing and modifying the 
 grade of the street, as well as the regrading, repaving, sewering, sidewalk- 
 ing, and curbing of the same, and costs or damages connected therewith. 
 The provisions of the act to which this is amendatory in regard to the 
 mode or manner of the assessment of the cost of such work shall not apply 
 to the work herein contemplated; neither shall the provisions of the same 
 in regard to the issuing of bonds to represent the cost of the same, nor the 
 provisions in regard to the right of protest against the work. [Amendment 
 approved March 9, 1893, statutes 1893, p. 92.] 
 
 SECTION 48. The clerk of said city council shall forward to the street 
 superintendent of the city a certified copy of the report, assessment, and 
 plat, as finally confirmed and adopted by the city council. Such certified 
 copy shall thereupon be the assessment roll, the cost of which shall be 
 provided for by the commissioners, as a portion of the cost of the proceed- 
 ings therein. Immediately upon receipt thereof by the street superintend- 
 ent, the assessment therein contained shall become due and payable, and 
 
28a STREET WORK LAW STREET IMPROVEMENT ACT 
 
 shall be a lien upon all the property contained or described therein. 
 [Amendment approved March 9, 1893, statutes 1893, p. 93.} 
 
 SECTION 49. The superintendent of streets shall thereupon give notice, 
 by publication for ten days in one or more daily newspapers published and 
 circulated in said city, or city and county, or two successive insertions in a 
 weekly or semi-weekly newspaper so published and circulated, that he has 
 received said assessment roll, and that all sums levied and assessed in said 
 assessment roll are due and payable immediately, and that the payment 
 of said sums is to be made to him within thirty days from the date of 
 the first publication of said notice. Said notice shall also contain a state- 
 ment that all assessments not paid before the expiration of said thirty days 
 will be declared to be delinquent, and that thereafter the sum of five per 
 cent, upon the amount of such delinquent assessment, together with the cost 
 of advertising each delinquent assessment, will be added thereto. When pay- 
 ment of any assessment is made to said superintendent of streets, he shall 
 write the word "paid" and the date of payment opposite the respective 
 assessment so paid, and the name of the persons by or for whom said 
 assessment is paid, and shall give a receipt therefor. On the expiration of 
 said thirty days, all assessments then unpaid shall be and become delin- 
 quent, and said superintendent of streets shall certify such fact at the foot 
 of said assessment roll, and shall add five per cent, to the amount of each 
 assessment so delinquent. The said superintendent of streets shall, within 
 five days from the date of such delinquency, proceed to advertise the 
 various sums delinquent, and the whole thereof, including the cost of 
 advertising which last shall not exceed the sum cf fifty cents for each lot, 
 piece, or parcel of land separately assessed, by the sale of the assessed 
 property in the same manner as is or may be provided for the collection of 
 state and county taxes ; and after the date of said delinquency, and before 
 the time of such sale herein provided for, no assessment shall be received 
 unless at the same time the five per cent, added to as aforesaid, together 
 with the costs of advertising then already incurred, shall be paid there- 
 with. Said list of delinquent assessments, with a notice of the time and 
 place of sale of the property affected thereby, shall be published daily for 
 five days, in one or more daily newspapers published and circulated in 
 such city, or by at least two insertions in a weekly newspaper so published 
 and circulated before the day of sale for such delinquent assessment. Said 
 time of sale must not be less than seven days from the date of the first 
 publication of said delinquent assessment list, and the place must be in or 
 in front of the office of said superintendent of streets. All property sold 
 shall be subject to redemption for one year, and in the same manner as in 
 sales for delinquent state and county taxes; and the superintendent of 
 streets shall, if there is no redemption, make and deliver to the purchaser 
 at such sale a deed conveying the property sold, and may collect for each 
 certificate fifty cents, and for each deed one dollar. All provisions of the 
 law in reference to the sale and redemption of property, for delinquent 
 state and county taxes, in force at any given time, shall also then, as far as 
 the same are not in conflict with the provisions of this act, be applicable 
 
TtT ^ ecs SO to 51 as amended 
 
 March 9, 1893. 
 
 to the sale and redemption of property for delinquent assessments hereun- 
 der, including the issuance of certificates and execution of deeds. The 
 deed of the street superintendent, made after such sale, in case of failure, 
 to redeem, shall be prima facie evidence of the regularity of all proceed- 
 ings hereunder, and of title in the grantee. The superintendent of streets 
 shall from time to time pay over to the city treasurer all moneys collected 
 by lii in on account of any such assessments. The city treasurer shall, 
 upon receipt thereof, place the same in a separate fund, designating each 
 fund by the name of the street, square, lane, alley, court, or place for the 
 change of grade for which the assessment was made. Payments shall be 
 made from said fund to the parties entitled thereto, upon warrants signed 
 by the commissioners or a majority of them. [Amendment approved March 
 .'>, 7.W3, statutes 1893, p. 93.] 
 
 SECTION 50. When sufficient money is in the hands of the city treasurer, in 
 the fund voted for the proposed work or improvement, to pay the total cost 
 for damages, as well as for the cost of doing the work, and all other expen- 
 ses connected therewith, it shall be the duty of the commissioners to notify 
 the owner, possessor or occupant of the premises damaged, and to whom 
 damages have been awarded, that a warrant has been drawn for the pay- 
 ment of the same, which can be received at the office of such commission- 
 ers. Such notification may be made by depositing a notice, postage paid 
 in the post office addressed to his last known place of residence. If, after 
 the expiration of three days after the service or deposit of the notice in the 
 post office he shall not have applied for such warrant, the same shall be 
 drawn and deposited with the city treasurer, to be delivered to him upon 
 di-mand. [Amendment approved March 9, 1893, statutes '93, p. 94.] 
 
 Si. ( TION 51. If the owner of any premises damaged neglects or refuses, 
 for ten days after the warrant has been placed in the hands of the city 
 treasurer, subject to his demand, to accept the same, the city council may 
 cause proceedings to be commenced, in the name of the city, to condemn 
 said premises, as provided by law under the right of eminent domain. The 
 ordinance or resolution of intention shall be conclusive evidence of the 
 necessity of the same. Such proceedings shall have precedence, so far as 
 the business of the court will permit, and any judgment for damages therein 
 rendered shall be payable out of the special fund in the treasury for that 
 purpose. At any time after the trial and judgment entered, or pending 
 appeal, the court may order the city treasurer to set apart in the city treas- 
 ury a sufficient sum from said fund to answer the judgment, and thereupon 
 may authorize or order the municipality to proceed with the proposed work 
 or improvements. In case of a deficiency in said fund to pay the whole 
 assessed judgment and damages, the city council may, in its discretion, 
 order the balance thereof to be paid out of the general fund of the treasury, 
 or to be distributed by the commissioners over the property assessed by a 
 supplementary assessment; but in the last named case, in order to avoid 
 delay, the city council may advance such balance out of any available fund 
 in the treasury, and reimburse the same from the collection of assessments. 
 The treasurer shall pay such warrants in the order of their presentation; 
 
30a STREET WORK LAW STREET IMPROVEMENT ACT 
 
 provided, that warrants for damages and for costs of performing the work 
 shall have priority over warrants for charges and expenses, and the treas- 
 urer shall see that sufficient money remains in the fund to pay all warrants 
 of the first class before paying any of the second. The provisions of section 
 one thousand two hundred and fifty-one of the Code of Civil Procedure, 
 requiring the payment of damages within thirty days after the entry of 
 judgment, shall not apply to damages rendered in proceedings under this 
 act. [Amendment approved March 9, 1893, statutes '93, p. 95.] 
 
 SECTION 52. All other provisions contained in the act to which this is 
 amendatory, and which provisions are not in conflict herewith, shall apply 
 to all matters herein contained. All proceedings in any work or improve- 
 ment, such as is provided for in this act, already commenced and now in 
 progress under another act now in force, or by virtue of an ordinance or 
 resolution of intention heretofore passed, may, from any stage of such pro- 
 ceedings already commenced and now in progress, be continued under this 
 act by resolution of the city council. The said work or improvement may 
 then be conducted under the provisions of this act, with full force and effect 
 in all respects from the stage of such proceedings at and from which such 
 resolution or ordinance shall declare the intention to have such work done 
 or improvement cease under such other acts or ordinances and continued 
 under this act ; and from such election so made all proceedings theretofore 
 had are hereby ratified, confirmed and made valid, and it shall be unneces- 
 sary to renew or conduct over again any proceedings prior to the passage of 
 this act. [Amendment approved March 9, 1893, statutes '93, p. 95.] 
 
 SECTION 53. The provisions of this act shall be liberally construed to 
 permit the objects thereof. [Statutes 1893, page 96.} 
 
 [Section 53 was amended by the act of March 9, 1893, statutes 1893, p. 96.] 
 
Street Improvement Bond tfct of 1893. 
 
 An Act to provide a system of Street Improvement Bonds to 
 represent certain assessments for the cost of street work and 
 improvement within municipalities, and also for the pay- 
 ment of such bonds. 
 
 [Approved February 27, 1893.] 
 
 The people of the state of California, represented in senate and assembly, 
 do enact as follows : 
 
 SECTION 1. Wherever in this act the phrase "Street Work Act" is used, 
 it means and shall be taken to mean the act entitled "An act to provide 
 for work upon streets, lanes, alleys, courts, places and sidewalks, and for 
 construction of sewers within municipalities," approved March eighteenth, 
 eighteen hundred and eighty-five, and all acts amendatory thereof or sup- 
 plementary thereto; and wherever in this act the name of any municipal 
 body or officer is used, or any word or phrase is used which is not herein 
 expressly defined, it means and shall be taken to mean such municipal 
 body or officer, or word or phrase as the same is expressly denned in said 
 street work act, and in all acts amendatory thereof or supplementary 
 thereto. [Statutes 1893, page 38.] 
 
 SECTION 2. Whenever the city council of any municipality in this state 
 shall find, upon estimates of the city engineer, that the cost of any pro- 
 posed work or improvement authorized by said street work act will be 
 greater than one dollar per front foot along each line of the street so pro- 
 posed to be improved, including the cost of intersection work assessable 
 upon said frontage, it shall have the power, in its discretion, to determine 
 that serial bonds shall be issued to represent the cost of said work or 
 improvement in the manner and form hereinafter provided. Said serial 
 bonds shall extend over a period not to exceed ten years from their date, 
 and an even annual proportion of the principal sum thereof shall be pay- 
 able, by coupon, on the second day of January every year after their date, 
 until the whole is paid, and the interest shall be payable semi-annually, 
 by coupon, on the second days of January and July, respectively, of each 
 year, at the rate of not to exceed ten per cent, per annum on all sums 
 unpaid, until the whole of said principal and interest are paid. Said 
 bonds and interest thereon shall be paid at the office of the city treasurer 
 of said municipality, who shall keep a fund designated by the name of 
 said bonds, into which he shall receive all sums paid him for the principal 
 of said bonds and the interest thereon, and from which he shall disburse 
 such sums upon the presentation of said coupons ; and under no circurn- 
 
32a STREET WORK LAW BOND ACT 
 
 stances shall said bonds or the interest thereon be paid out of any other fund. 
 Said city treasurer shall keep a register in his office, which shall show the 
 series, number, date, amount, rate of interest, payee and indorsees of each 
 bond, and the number and amount of each coupon of principal or interest 
 paid by him, and shall cancel and file each coupon so paid. [Statutes 1893, 
 p. 33.] 
 
 SECTION 3. When said city council shall determine that serial bonds 
 shall be issued to represent the expenses of any proposed work or improve- 
 ment under said street work act, it shall so declare in the resolution of 
 intention to do said work, and shall specify the rate of interest which they 
 shall bear. The like description of said bonds shall be inserted in the. 
 resolution ordering the work, in the resolution of award, and in all notices 
 of said proceedings required by said street work act to be either posted or 
 published ; and also a notice that a bond will issue to represent each 
 assessment of fifty dollars or more remaining unpaid for thirty days after 
 the date of the warrant, or five days after the decision of said council upon 
 an appeal, and describing the bonds, shall be included in the warrant pro- 
 vided for in section nine of said street work act. [Statutes 1893, p. 34.] 
 
 SECTION 4. After the full expiration of thirty days from the date of the 
 warrant, or if an appeal be taken to the city council, as provided in section 
 eleven of said street work act, then five days after the final decison of said 
 council, and after the street superintendent shall have recorded the return 
 as provided in section 10 of the same act, the street superintendent shall make 
 and certify to the city treasurer a complete list of all assessments unpaid, 
 which amount to fifty dollars or over upon any assessment or diagram num- 
 ber ; and said treasurer shall thereupon make out, sign and issue to the con- 
 ractoror his assigns, payee of the warrant and assessment, a separate bond, 
 representing upon each lot or parcel of land upon said list the total amount 
 of the assessments against the same, as thereon shown. And if said lot or 
 parcel of land is described upon said assessment and diagram by its num- 
 ber or block, or both, and is also designated by its number or block, or 
 both, upon the official map of said municipality, or upon any map on file 
 in the office of the county recorder of the county in which said municipal- 
 ity is situated, then it shall be in said bond a sufficient description of said 
 lot or parcel of land to designate it by said number or block, or both, as it 
 appears on said official or recorded map. Said bond shall be substantially 
 in the following form : 
 
 STREET IMPROVEMENT BOND. 
 
 Series (designating it), in the city (or other form of the municipality) of 
 (naming it). 
 
 $ ioo" No. . 
 
 Under and by virtue of an act of the legislature of the state of California 
 (title of this act), I, out of the fund for the above designated street 
 improvement bonds, series - , will pay to , or order, the 
 sum of ($ ), with interest at the rate of percent, 
 per annum, all as is hereinafter specified, and at the office of the 
 treasurer of the of , state of California. This bond is 
 
SECTION FOUR OF BOND ACT s93 
 
 issued to represent the cost of certain street work upon - , in the 
 - of - , as the same is more fully described in assessment 
 number , issued by the street superintendent of said , 
 after his acceptance of said work, and recorded in his office. Its amount 
 is the amount assessed in said assessment against the lot or parcel' of land 
 numbered therein, and in the diagram attached thereto, as number - , 
 and which now remains unpaid, but until paid, with accrued interest, is a 
 first lien upon the property affected thereby, as the same is described herein, 
 and in said recorded assessment with its diagram, to wit: the lot or parcel 
 of land in said of , county of - , state of California, 
 
 This bond is payable exclusively from said fund, and neither the 
 municipality nor any officer thereof is to be holden for payment otherwise 
 
 of its principal or interest. The term of this bond is years from 
 
 its date, and at the expiration of said time the whole sum then unpaid 
 shall be due and payable; but on the second day of January of each year 
 after its date an even annual proportion of its whole amouut is due and 
 payable, upon presentation of the coupon therefor, until the whole is paid, 
 with all accrued interest at the rate of per centum per annum. 
 The interest is payable send-annually, to wit, on the second days of Jan- 
 uary and of July in each year hereafter, upon presentation of the coupons 
 therefor, the first of which is for the interest from date to the next second 
 day of , and thereafter the interest coupons are for semi-annual 
 
 interest, except the last, which is for interest from the semi-annual pay- 
 ment next preceding and to the date of the final maturity of this bond. 
 Should default be made in the annual payment upon the principal, or in 
 any payment of interest, from the owner of said lot or parcel of land, or 
 any one in his behalf, the holder of this bond is entitled to declare the 
 whole unpaid amount to be due and payable, and to have said lot or par- 
 cel of land advertised and sold forthwith, in the manner provided by law 
 for sale of land assessed for state and county taxes delinquent in the pay- 
 ment thereof. 
 
 At said of , this day of , in the year 
 
 one thousand hundred and . 
 
 City Treasurer of the of 
 
 Provided, that in case the amount of unpaid assessments upon any lot 
 or parcel of land shall be less than fifty dollars, then the same shall be 
 collected as is hereinbefore provided in part one of said street work act. 
 
 Prodded, also, that if any person, or his authorized agent, shall at any 
 time before the issuance of the bond for said assessments upon his lot or 
 parcel of land, present to the city treasurer his affidavit, made before a 
 competent officer, that he is the owner of a lot or parcel of land in said 
 list, accompanied by the certificate of a searcher of records, that he is such 
 owner of record, and with such affida"it and certificate, such person 
 notifies said treasurer, in writing, that he desires no bond to be issued for 
 the assessments upon said lot or parcel of land, then no such bond shall 
 
STREET WORK LAW BOND ACT 
 
 be issued therefor, and the pa) r ee of the warrant, or his assigns, shall 
 retain his right for enforcing collection, as if said lot or parcel of land had 
 not been so listed by the street superintendent. The bonds so issued by said 
 treasurer shall be payable to the party to whom they issue, or order, and 
 shall be serial bonds, as is hereinbefore described, and shall bear interest 
 at the rate specified in the resolution of intention to do said work. They 
 shall have annual coupons attached thereto, payable in annual order, on 
 the second day of January in each year after the date of the bond, until 
 all are paid, and each coupon shall be for an even annual proportion of the 
 principal of the bond. They shall have semi-annual interest coupons thereto 
 attached, the first of which shall be payable upon the second day of Jan- 
 uary or July, as the case may be, next after its date, and shall be for the 
 interest accrued at that time, and the last of which shall be for the 
 amount of interest accruing from the second day of January or July, as 
 the case may be, next preceding the maturity of said bonds to the 
 maturity thereof. The city treasurer shall, in addition to his other duties- 
 in the premises, report all coupon payments of principal upon said bonds 
 to the street superintendent, who shall forthwith indorse the same upon 
 the margin of the record of the assessment to the credit of which the same 
 is paid, and said assessment shall be a first lien upon the property affected 
 thereby, until the bond issued for the payment thereof, and the accrued 
 interest thereon, shall be fully paid. Said bonds, by their issuance, shall 
 be conclusive evidence of the regularity of all proceedings thereto under 
 said street work act and this act, previous to the making of the certified 
 list of all assessments unpaid to the amount of fifty dollars or over by the 
 street superintendent, to the city treasurer, and of the validity of said lien, 
 up to the date of said list. [Statutes 1893, page 34.} 
 
 SECTION 5 Whenever, through the default of the owner of any lot or 
 parcel of land to represent the assessment upon which such bond has been 
 issued, any payment, either upon the principal or of the interest, shall 
 not be made when the same is due, and the holder of the bond thereupon 
 demands, in writing, that the said city treasurer proceed to advertise and 
 sell said lot or parcel of land, as herein provided, then the whole bond, or 
 its unpaid remainder, with its accrued interest, shall become due and pay- 
 able immediately, and on the day following shall become delinquent; and 
 the city treasurer shall have, and shall act thereafter with, all the powers 
 and duties of the tax collector in the collection of unpaid state and county 
 taxes, and shall forthwith proceed to advertise and sell said lot or parcel of 
 land by proceedings in all respects the same as are provided by law for the 
 collection of delinquent state and county taxes. All such provisions and 
 proceedings, after taxes have become delinquent, including the certificate 
 of sale, the right of redemption, and the deed, with the respective costs 
 thereof, are hereby made applicable to this case. [Statutes 1893, p. 36.] 
 
 SECTION 6. Whenever any railroad track or tracks of any description 
 exists upon any street or streets on which the city council has ordered 
 word to be done or improvements made, excepting therefrom such por- 
 tions as is required by law to be kept in order or repair by any person or 
 company having railroad tracks thereon, the said council may, at any time 
 
SECTION SIX OF BOND ACT fjU* * 35o 
 
 thereafter, order such person or company to perform upon said excepted 
 portion the work or improvements^ similar in all respects to that already 
 ordered to be performed under the same specifications and superintendence, 
 with the same materials, within the same time, and to the like satisfaction 
 and acceptance. Thereupon it shall be the duty of the clerk of said council 
 to deliver immediately a copy of such order, certified by him, to such per- 
 son or company, and to make and preserve in his office a certificate of such 
 delivery, its date, and upon whom made. Should such person or company, 
 for thirty days, or within such extension of time as the city council may 
 grant, thereafter refuse or neglect to make or have made such work or 
 improvement in the manner or time ordered, it shall be the duty of the 
 city council to have such work or improvement performed, and such 
 refusal or neglect punished in the manner provided by law. Within fifteen 
 days after receiving the certified copy of said order, such person or corn- 
 puny may file with the clerk of said council a written assumption of the 
 performance of said work or improvement, according to the order, or a 
 request to the council to have such work or improvement performed, for 
 and at the expense oi such person or company, in the manner herein pro- 
 vided. The failure to file such instrument within said time shall be taken 
 ami deemed to be a refusal to comply with the ordsr. Upon reception of 
 said assumption of the direct performance of said work or improvement, 
 the city council shall take no further proceedings in the matter, unless 
 such person or company neglects or fails for thin y days, or such further 
 time as the council may grant, to comply with the provisions of the order- 
 But if such person or company files the said request that the said council 
 have such work or improvement performed, or fails to perform said work 
 within thirtv days, or within such further time as the council may grant, 
 then said city council may pass an ordinance of intention to perform said 
 work, which ordinance shall specify the work to be performed, and a 
 statement that unless within thirty days after the recording of the return 
 of the warrant, or within five days after the final decision of the council on 
 an appeal, the said person or company shall pay the cost of said work, or 
 the street superintendent of said city shall issue bonds to represent the cost of 
 said work, stating also that the cost of said work, in case bonds shall issue, 
 shall be paid in ten yearly installments, and also the rate of interest (not 
 to exceed ten per cent, per annum) that the same shall bear. The subse- 
 quent procedure shall be as provided by the "street work act." A similar 
 statement shall also be incorporated in all notices required to be posted or 
 published by the provisions of the "street work act;" also in the ordinance 
 or resolution ordering the work, advertisement for proposals, and in the 
 contract. Whenever the person or company owning any such railroad 
 shall not have, within thirty days after the recording of the return of the 
 warrant, or within five days after the final decision of the council on an 
 appeal, paid the cost of such work, the street superintendent shall issue to 
 the contractor, or his assigns, bonds for the amount of such cost, which 
 shall describe the franchise, tracks, and roadbed along or between which 
 said work has been performed, and describing the same as upon the 
 assessment and diagram, giving its assessment number. Such bonds shall 
 
STREET WORK LAW BOND ACT 
 
 also describe the work performed, giving the total amount of the cost of 
 such work, the name of the owner of said railroad, the number of install- 
 ments in which the cost of the work is to be paid, and the rate of interest 
 which the deferred payments shall bear. Said bonds shall be in sums of 
 not less than one hundred dollars or more than one thousand dollars, and 
 shall recite that the total amount of the cost of such work, together with 
 the interest thereon, as represented in said bonds, is, except state, county 
 and municipal taxes, a first lien upon all the track, roadbed, switches and 
 franchises of said railroad lying within the corporate limits of the city or 
 town, on any part of which said work has been performed. Said street 
 superintendent shall also keep a record of such bonds, as required by sec- 
 tion eighteen of the "street work act." Whenever bonds have been issued, 
 as herein provided, the same, together with the cost of such work and the 
 interest thereon, shall be, except state, county or municipal taxes, a first 
 lien upon all the tracks, roadbed, switches and franchises of said railroad 
 within the corporate limits of the city or town, on any part of which said 
 work has been performed. Sections four and five of this act, regarding the 
 form, issuance and foreclosure of street bonds and the sale of property 
 described therein, shall apply hereto, except that the work required to be 
 performed by the treasurer by said sections shall be performed by the street 
 superintendent, in so far as the bonds for the paving of railroads are con- 
 cerned. None of the provisions of the " street work act " in regard to a 
 protest against the work shall apply to any work contemplated by this sec- 
 tion. All provisions of the " street work act " not inconsistent with the 
 provisions hereof, shall apply hereto. [Statutes '93, p. 36.] 
 
 SECTION 7. The term "city treasurer," as used in this act, shall be held 
 to mean and include any person who, under whatever name or title, is the 
 custodian of the funds of the municipality. [Statutes '93, p. 38.] 
 
 SECTION 8. The act entitled "An act to amend an act entitled 'An act to 
 provide for work upon streets, lanes, alleys, courts, places and sidewalks, 
 and for construction of sewers within municipalities,' approved March 
 eighteenth, eighteen hundred and eighty-five, by adding thereto an addi- 
 tional part, numbered four, consisting of sections thirty-eight, thirty-nine, 
 forty, forty-one, forty-two, forty-tnree and forty-four, relative to a system 
 of street improvement bonds," approved March seventeenth, eighteen hun- 
 dred and ninety-one, is hereby repealed , except as to any and all proceed- 
 ings hitherto commenced thereunder, which proceedings may be completed 
 and have full force as is therein provided. [Statutes '93, p. 38.] 
 
 SECTION 9. This act shall take effect and become of force from and after 
 its passage. [Statutes '93, p. 38.] 
 
Street Opening M of Inarch 6, 1889, 
 
 An Act to provide for laying out, opening, extending, widening, 
 straightening, or closing up in ivhole or in part any street, 
 square, lane, alley, court, or place within municipalities, and 
 to condemn and acquire any and all land and property neces^ 
 sary or convenient for that purpose. 
 
 [Approved March 6, 1889, statutes 1889, p. 70.] 
 
 The people of the state of California, represented in senate and assem- 
 bly, do enact as follows : 
 
 SECTION 1. Whenever the public interest or convenience may require, 
 the city council of any municipality shall have full power and authority to 
 order the opening, extending, widening, straightening, or closing up in 
 Whole or in part of any street, square, lane, alley, court, or place within 
 the bounds of such city, and to condemn and acquire any and all land and 
 property necessary or convenient for that purpose. [Statutes 1889, p. 70.} 
 
 SECTION 2. Before ordering any work to be done or improvement made 
 which is authorized by section one of this act, the city council shall pass a 
 resolution declaring its intention to do so, describing the work or improve- 
 ment, and the land deemed necessary to be taken therefor, and specifying 
 the exterior boundaries of the district of lands to be affected or benefited 
 by said work or improvement, and to be assessed to pay the damages, cost 
 and expenses thereof. [Statutes '89, p. 70.] 
 
 SECTION 3. The street superintendent shall then cause to be conspicu- 
 ously posted along the line of said contemplated work or improvement, at 
 not more than three hundred feet in distance apart, but not less than three 
 in all, notices of the passage of said resolution. Said notice shall be headed, 
 "Notice of public work," in letters not less than one inch in length, shall 
 be in legible characters, state the fact of passage of the resolution, its date, 
 and, briefly, the work or improvement proposed, and refer to the resolution 
 for further particulars. He shall also cause a notice, similar in substance, 
 to be published for a period of ten days in one or more daily newspapers 
 published and circulated in said city, and designated by said city council ; 
 or, if there is no daily newspaper so published and circulated in said city, 
 then by four successive insertions in a weekly or semi- weekly newspaper so 
 published, circulated and designated. [Statutes '89, p. 70.] 
 
38a STREET WORK LAW^-STREET OPENING ACT 
 
 SECTION 4. Any person interested objecting to said work or improvement, 
 or to the extent of the district of lands to be affected or benefited by said 
 work or improvement, and to be assessed to pay the cost and expenses 
 thereof, may make written objections to the same within ten days after the 
 expiration of the time of the publication of said notice, which objection 
 shall be delivered to the clerk of the city council, who shall indorse thereon 
 the date of its reception by him, and at the next meeting of the city coun- 
 cil after the expiration of said ten days, lay said objections before said city 
 council, which shall fix a time for hearing said objections not less than one 
 week thereafter. The city clerk shall thereupon notify the persons making 
 such objections, by depositing a notice thereof in the post office of said city, 
 postage prepaid, addressed to such objector. [Statutes '89, p. 70.} 
 
 SECTION 5. At the time specified or to which the hearing may be 
 adjourned, the said city council shall hear the objections urged and pass 
 upon the same, and its decision shall be final and conclusive. If such 
 objections are sustained, all proceedings shall be stopped, but proceedings 
 may be again commenced at any time by giving notice of intention to do 
 said work or make said improvement. If such objection is overruled by 
 the city council, the proceedings shall continue the same as if such objec- 
 tion had not been made. At the expiration of the time prescribed during 
 which objections to said work or improvement may be made, if no objec- 
 tions shall have been made, or if an objection shall have been, and said 
 council, after hearing, shall have overruled the same, the city council shall 
 be deemed to have acquired jurisdiction to order any of the work to be 
 done, or improvements to be made, which is authorized by section one of 
 this act. [Statutes '89, p. 71.} 
 
 SECTION 6. Having acquired jurisdiction, as provided in the preceding 
 section, the city council shall order said work to be done, and unless the 
 proposed work is for closing up, and it appears that no assessment is neces- 
 sary, shall appoint three commissioners to assess benefits and damages and 
 have general supervision of the proposed work or improvement until the 
 completion thereof in compliance with this statute. For their services 
 they shall receive such compensation as the city council may determine 
 from time to time ; provided, that such compensation shall not exceed two 
 hundred dollars per month each, nor continue more than six months, 
 unless extended by order of the city council. Such compensation shall be 
 added to and be chargeable as a part of the expenses of the work or 
 improvement. Each of said commissioners shall file with the clerk of the 
 city council an affidavit, and a bond to the state of California in the sum of 
 five thousand dollars, to faithfully perform the duties of his office. The 
 city council may at any time remove any or all of said commissioners for 
 cause, upon reasonable notice and nearing, and may fill any vacancies 
 occurring among them for any cause. [Statutes '89, page 71.} 
 
 SECTION 7. Said commissioners shall have power to employ such assist- 
 ance, legal or otherwise, as they may deem necessary and proper; also, to 
 rent an office and provide such maps, diagrams, plans, books, stationery, 
 
SECTIONS SIX-NINE, STREET OPENING ACT *Je March*? 1889* ACt 
 
 fuel, lights, postage, expressage, and incur such incidental expenses as 
 they may deem necessary. [Statutes '89, p. 71.} 
 
 SECTION 8. All such charges and expenses shall be deemed as expenses 
 of said work or improvement, and be a charge only upon the funds devoted 
 to the particular work or improvement as provided hereinafter. All pay- 
 ments, as well for the land and improvements taken or damaged, as for 
 the charges and expenses, shall be paid by the city treasurer, upon war- 
 rants drawn upon said fund from time to time, signed by said commission- 
 ers, or a majority of them. All such warrants shall state whether they are 
 issued for land or improvements taken or damaged, or for charges and 
 expenses, and that the demand is payable only out of the money in said 
 fund, and in no event shall the city be liable for the failure to collect any 
 assessment made by virtue hereof, nor shall said warrant be payable outo 
 any other fund, nor a claim against the city. [Statutes '89, p. 71.] 
 
 SECTION 9. Said commissioners shall proceed to view the lands described 
 in the resolution of intention, and may examine witnesses on oath, to be 
 administered by any one of them. Having viewed the land to be taken, 
 and the improvements affected, and considered the testimony presented, 
 they shall proceed with all diligence to determine the value of the land 
 and the damage to improvements and property affected, and also the 
 amount of the expenses incident to said work or improvement, and having 
 determined the same, shall proceed to assess the same upon the district of 
 lands declared benefited, the exterior boundaries of which were fixed by 
 the resolution of intention provided for by section 2 hereof. Such assess- 
 ment shall be made upon the lands within said district in proportion to the 
 benefit to be derived from said work or improvement, so far as the said 
 commissioners can reasonably estimate the same, including in such esti- 
 mate the property of any railroad company within said district, if such 
 there be. [Statutes '89, p. 72.} 
 
 SECTION 10. Said commissioners having made their assessment of bene- 
 fits and damage, shall, with all diligence, make a written report thereof to 
 the city council, and shall accompany their report with a plat of the assess- 
 ment district showing the land taken or to be taken for the work or 
 improvement, and the lands assessed, showing the relative location of each 
 district, block, lot, or portion of lot, and its dimensions, so far as the com- 
 missioners can reasonably ascertain the same. Each block and lot, or por- 
 tion of lot, taken or assessed, shall be designated and described in said 
 plat by an appropriate number, and a reference to it by such descriptive 
 number shall be a sufficient description of it in any suit entered to con- 
 demn, and in all respects. When the report and plat are approved by the 
 city council, a copy of said plat, appropriately designated, shall be filed by 
 the clerk thereof in the office of the recorder of the county. [Statutes 1889, 
 page 72.} 
 
 SECTION 11. Said report shall specify each lot, subdivision, or piece of 
 property taken or injured by the widening or other improvement, or 
 assessed therefor, together with the name of the owner or claimants 
 
40a STREET WORK LAW STREET OPENING ACT 
 
 thereof, or of persons interested therein as lessees, incumbrancers, or 
 otherwise, so far as the same are known to such commissioners, and the 
 particulars of their interest, so far as the same can be ascertained, and the 
 amount of value or damage, or the amount assessed, as the case may be. 
 [Statutes 1889, page 72.} 
 
 SECTION 12. If in any case the commissioners find that conflicting claims 
 of title exist, or shall be in ignorance or doubt as to the ownership of any 
 lot of land, or of any improvements thereon, or of any interest therein, it 
 shall be set down as belonging to unknown owners. Error in the designa- 
 tion of the owner or owners of any land or improvements, or of the partic- 
 ulars of their interest, shall not affect the validity of the assessment or of 
 the condemnation of the property to be taken. [Statutes 1889, page 73.} 
 
 SECTION 13. Said report and plat shall be filed in the clerk's office of the 
 city council, and thereupon the clerk of said city council shall give notice 
 of such filing by publication for at least ten days in one or more daily 
 newspapers published and circulated in said city ; or if there be no daily 
 paper, by three successive insertions in a weekly or semi-weekly newspa- 
 per so published and circulated. Said notice shall also require all persons 
 interested to show cause, if any, why such report should not be confirmed, 
 before the city council, on or before a day fixed by the clerk thereof, and 
 stated in said notice, which day shall not be less than thirty days from the 
 first publication thereof. [Statutes 1889, page 73.} 
 
 SECTION 14. All objections shall be in writing and filed with the clerk 
 of the city council, who shall, at the next meeting after the day fixed in 
 the notice to show cause, lay the said objections, if any, before the city 
 council, which shall fix a time for hearing the same, of which the clerk 
 shall notify the objectors in the same manner as objectors to the original 
 resolution of intention at the time set, or at such other time as the hear- 
 ing may be adjourned to, the city council shall hear such objections and 
 pass upon the same; and at such time, or if there be no objections at the 
 first meeting after the day set in such order to show cause, or such other 
 time as may be fixed, shall proceed to pass upon such report, and may 
 confirm, correct, or modify the same, or may order the commissioners to 
 make a new assessment, report, and plat, which shall be filed, notice given, 
 and hearing had as in the case of an original report. [Statutes 18S9,page73.] 
 
 SECTION 15. The clerk of said city council shall forward to the street 
 superintendent of the city a certified copy of the report, assessment and 
 plat, as finally confirmed and adopted by the city council. Such certified 
 copy shall thereupon be the assessment roll. Immediately upon 
 receipt thereof by the street superintendent the assessment therein con- 
 tained shall become due and payable, and shall be a lien upon all the prop- 
 erty contained or described therein. [Statutes 1889, page 73.] 
 
 SECTION 16. The superintendent of streets shall thereupon give notice 
 by publication for ten days in one or more daily newspapers published and 
 circulated in such city, or city and county, or by two successive insertions 
 in a weekly or semi-w r eekly newspaper so published and circulated, that 
 he has received said assessment roll, and that all sums levied and assessed 
 
STREET OPENING ACT OF 1889 March^sS ACt f 4la 
 
 in said assessment roll are due and payable immediately, and that the 
 payment of said sums is to be made to him within thirty days from the 
 date of the first publication of said notice. Said notice shall also contain 
 a statement that all assessments not paid before the expiration of said 
 thirty days will be declared to be delinquent, and that thereafter the sum 
 of five per cent, upon the amount of each delinquent assessment, together 
 with the cost of advertising each delinquent assessment, will be added 
 thereto. When payment of any assessment is made to said superintendent 
 of streets he shall write the word "paid," and the date of payment, oppo- 
 site the respective assessment so paid, and the names of persons by or for 
 whom said assessment is paid, and shall, if so required, give a receipt 
 therefor. On the expiration of said thirty days all assessments then 
 unpaid shall be and become delinquent, and said superintendent of streets 
 shall certify such fact at the foot of said assessment roll, and shall add five 
 per cent, to the amount of each assessment so delinquent. The said super- 
 intendent of streets shall, within five days from the date of said delin- 
 quency, proceed to advertise and collect the various sums delinquent, and 
 the whole thereof, including the cost of advertising, which last shall not 
 exceed the sum of fifty cents for each lot, piece, or parcel of land separately 
 assessed, by the sale of the assessed property in the same manner as is or 
 may be provided for the collection of state and county taxes; and after 
 the date of said delinquency, and before the time of such sale herein pro- 
 vided for. n<> assessment shall be received unless at the same time the five 
 per cent, added thereto, as aforesaid, together with the costs of advertising 
 then already incurred, shall be paid therewith. Said list of delinquent 
 iments shall be published daily for five days in one or more daily 
 newspapers published and circulated in such city, or by at least one inser- 
 tion in a weekly newspaper so published and circulated, before the day of 
 sale of such delinquent assessment. Said time of sale must not be less 
 than seven days from the date of the first publication of said delinquent 
 assessment list, and the place must be in or in front of the office of said 
 superintendent of streets. All property sold shall be subject to redemp- 
 tion in the same time and manner as in sales for delinquent state and 
 county taxes ; and the superintendent of streets may collect for each cer- 
 tificate fifty cents, and for each deed one dollar. All provisions of the 
 law, in reference to the sale and redemption of property for delinquent 
 state and county taxes in force at any given time, shall also then, so far as 
 the same are not in conflict with the provisions of this act, be applicable 
 to the sale and redemption of property for delinquent assessments here- 
 under, including the issuance of certificates and execution of deeds. The 
 deed of the street superintendent made after such sale, in case of failure to 
 redeem, shall be prima facie evidence of the regularity of all proceedings 
 hereunder, and of title in the grantee. It shall be conclusive evidence of 
 the necessity of taking or damaging the lands taken or damaged, and of 
 the correctness of the compensation awarded therefor. The superintend- 
 ent of streets shall, from time to time, pay over to the city treasurer all 
 moneys collected by him on account of any such assessments. The city 
 treasurer shall, upon receipt thereof, place the same in a separate fund, 
 
STREET WORK LAW STREET OPENING ACT 
 
 designating such funds by the name of the street, square, lane, alley, 
 court, or place for the widening, opening, or other improvement of which 
 the assessment was made. Payments shall be made from said fund to the 
 parties entitled thereto upon warrants signed by the commissioners, or a 
 majority of them. [Statutes 1889, page 73.} 
 
 SECTION 17. When sufficient money is in the hands of the city treasurer, 
 in the fund devoted to the proposed work or improvement, to pay for the 
 land and improvements taken or damaged, and when in the discretion of 
 the commissioners, or a majority of them, the time shall have come to 
 make payments, it shall be the duty of the commissioners to notify the 
 owner, possessor, or occupant of any land or improvements thereon to 
 whom damages shall have been awarded, that a warrant has been drawn 
 for the payment of the same, and that he can receive such warrant at the 
 office of such commissioners upon tendering a conveyance of any property 
 to be taken; such notification, except in the case of unknown owners, to 
 be made by depositing a notice, postage paid, in the post office, addressed 
 to his last known place of abode or residence. If at the expiration of 
 thirty days after the deposit of such notice, he should not have applied for 
 such warrant, and tendered a conveyance of the land to be taken, the 
 warrant so drawn shall be deposited with the county treasurer, and shall 
 be delivered to such owner, possessor, or occupant, upon tendering a con- 
 veyance as aforesaid, unless judgment of condemnation shall be had, when 
 the same shall be canceled. [Statutes 1889, page 75.] 
 
 SECTION 18. If any owner of land to be taken neglects or refuses to accept 
 the warrant drawn in his favor as aforesaid, or objects to the report as to 
 the necessity of taking his land, the commissioners, with the approval of 
 the city council, may cause proceedings to be taken for the condemnation 
 thereof, as provided by law under the right of eminent domain. The com- 
 plaint may aver that it is necessary for the city to take or damage and 
 condemn the said lands, or an easement therein, as the case may be, with- 
 out setting forth the proceedings herein provided for, and the resolution and 
 ordinance ordering said work to be done shall be conclusive evidence of 
 such necessity. Such proceeding shall be brought in the name of the 
 municipality, and have precedence so far as the business of the court will 
 permit; and any judgment for damages therein rendered shall be payable 
 out of such portion of the special fund as may remain in the treasury, so 
 far as the same can be applied. At any time after trial and judgment 
 entered, or preceding an appeal, the court may order the city treasurer to 
 set apart in the city treasury a sufficient sum from the fund appropriated 
 to the particular improvement to answer the judgment and all damages, 
 and thereupon may authorize and order the municipality to enter upon the 
 land and proceed with the proposed work and improvement. In case of a 
 deficiency in said fund to pay the whole of such judgment and damages, 
 the city council may, in their discretion, order the balance thereof to be 
 paid out of the general fund of the treasury or to be distributed by the 
 commissioners. over the property assessed by a supplementary assessment; 
 but in the last named case, in order to avoid delay, the city council may 
 advance such balance out of any appropriate fund in the treasury, and 
 
STREET OPENING ACT OP 1889 
 
 reimburse the same from the collections of the assessment. Pending the 
 collection and payment of the amount of the judgment and damages, the 
 court may order such stay of proceedings as may be necessary. [Statutes 
 1889, page 75.] 
 
 SECTION 19. The treasurer shall pay such warrants out of the appropri- 
 ate fund, and not otherwise, in the order of their presentation; provided, 
 that warrants for land or improvements taken or damaged shall have 
 priority over warrants for charges and expenses, and the treasurer shall 
 see that sufficient money is and remains in the fund to pay all warrants of 
 the first class before paying any of the second. [Statutes 1889, page 76.] 
 
 SECTION 20. If after the sale of the property for delinquent assessments 
 there should be a deficiency, and there should be unreasonable delay in 
 collecting the same, or if for the purpose of equalizing the assessments, 
 supplying a deficiency, or for any cause it appears desirable, the commis- 
 sioners may so report to the city council, who may order them to make a 
 supplementary assessment and report the same in manner and form as the 
 original, and subject to the same procedure. If by reason of such supple- 
 mentary assessment, or for any cause, there should be at any time a sur- 
 plus, the city council may appropriate the same and declare a dividend 
 pro rata to the parties paying the same, and they, upon demand, shall 
 have the right to have the amount of such pro rata dividends refunded to 
 them, or credited upon any subsequent assessment for taxes made against 
 said parties in favor of said city. [Statutes 1889, page 76.] 
 
 SIXTION 21. If any title attempted to be acquired by virtue of this act 
 shall be found to be defective from any cause, the city council may again 
 institute proceedings to acquire the cause as in this act provided, or other- 
 wise, or may authorize the commissioners to purchase the same and 
 include the cost thereof in a supplementary assessment as provided in the 
 last section. {Statutes 1889, page 76.] 
 
 SECTION 22. If the city council deem it proper that the boundaries of 
 the districts of lands to be affected and assessed to pay the damages, cost, 
 and expenses of any work or improvement under this act, shall include 
 the whole city, then the commissioners appointed shall proceed in a sum- 
 mary manner to purchase the lands to be taken or condemned from the 
 OWIKTS and claimants thereof. If said commissioners and the owners and 
 claimants cannot agree upon the price to be paid for said lands, they shall 
 proceed to view and value the same, and shall thereupon make a summary 
 report to the city council. Upon final confirmation of the report, the 
 city council, if there be not sufficient money available in the city treasury, 
 shall cause the cost and expenses of the contemplated public improvement 
 to be assessed upon the whole of the taxable property of said city, and to 
 be included in and form part of the next general assessment rol of said 
 city, and with like effect in all respects as if the same formed a part of the 
 city, state and county taxes; and when the same shall have been collected 
 the said city council shall cause the land required to be paid for or the 
 value thereof tendered, and the said contemplated public improvement 
 to be forthwith made and completed. All the provisions of the preceding 
 
 f^ *" OF THE >v 
 
 (UNIVERSITY) 
 *--~^S 
 
44a STREET WORK LAW STREET OPENING ACT 
 
 sections not in conflict with this section shall be applicable thereto. [Stat- 
 utes 1889, page 76.} 
 
 SECTION 23. 1. The words "work" and "improvement," as used in 
 this act, shall include all work mentioned in section one of this act. 
 
 #. In case there is no daily or weekly or semi-weekly newspapers 
 printed and circulated in the city, then such notices as are herein required 
 to be published in a newspaper shall be posted and kept posted for the 
 length of time required herein for the publication of the same in a weekly 
 newspaper, in three of the most public places in such city. Proof of the 
 publication or posting of any notice provided for herein shall be made by 
 affidavit of the owner, publisher or clerk of the newspaper, or of the poster 
 of the notice. 
 
 3. The word "municipality" and the word "city 7 ' shall be understood 
 and so construed as to include all corporations heretofore organized and 
 now existing, or hereafter organized, for municipal purpose. 
 
 4. The term street superintendent and superintendent of streets, as 
 used in this act, shall be understood and so construed as to include, and 
 are hereby declared to include, any person or officer whose duty it is, 
 under the law, to have the care or charge of the streets, or the improve- 
 ment thereof, in any city. In all those cities where there is no street 
 superintendent or superintendent of streets, the city council thereof is 
 hereby authorized and empowered to appoint a suitable person to dis- 
 charge the duties herein laid down as those of street superintendent or 
 superintendent of streets ; and all the provisions hereof applicable to the 
 street superintendent or superintendent of streets shall apply to such per- 
 sons so appointed. 
 
 5. The term "city council" is hereby declared to include any body or 
 board which, under the law, is the legislative department of the govern- 
 ment of any city. 
 
 6. The term "clerk" and "city clerk," as used in this act, is hereby 
 declared to include any person or officer who shall be clerk of said city 
 council. 
 
 7. The term "treasurer" or "city treasurer," as used in this act, shall 
 include any person or officer who shall have charge and make payment of 
 the city funds. 
 
 8. No publications or notice other than that provided for in this act 
 shall be necessary to give validity to any proceedings had thereunder. 
 [Statute? 1889, page 77.} 
 
 SECTION 24. The proceedings in any work or improvement, such as is 
 provided for in this act, already commenced and now progressing under 
 any other act now in force, or by virtue of any ordinance passed by any 
 city council or board of supervisors of any city, county, or city and county, 
 by virtue of any other act now in force, 'may, from any stage of such pro- 
 ceedings already commenced and now progressing, be continued under 
 this act by resolution of the city council. The said work or improvement 
 may then be conducted under the provisions of this act with full force and 
 effect in all respects, from the stage of such proceedings under such other 
 
STREET OPENING ACT OF 1889 *&*&?** 
 
 acts or ordinances at and from which such resolution shall declare an 
 election or intention to have said work or improvement cease under such 
 other act or ordinance and continue under this act; and from such elec- 
 tion so made, all proceeding theretofore had under such other act or ordi- 
 nan <> are hereby ratified, confirmed, and made valid, and it shall be 
 unnecessary to renew or conduct over again proceedings had under such 
 other act or ordinance. This section shall not apply to any work or 
 improvement proceedings in which were commenced more than eighteen 
 months prior to the passage of this act. {Statutes 1889, page 77.] 
 
 SKCTIOX 25. The provisions of this act shall be liberally construed to 
 promote the objects thereof. This act shall take effect and be in force 
 from and after its passage. [Statutes 1889, page 78.} 
 
APPENDIX. 
 
 FORMS USED UNDER THE VROOMAN ACT. 
 
 NOTE Those parts which are not permanent parts of any similar form, such as dates 
 descriptions, etc., are in italics. 
 
 No. 1. RESOLUTION OF INTENTION. 
 
 Resolution of Intention, No. 735; Resolved, That it is the intention of 
 the city council of the city of Lis Angeles, state of California, to order the 
 following street work to be done, in the said city, to wit: That that por- 
 tion of Hoover street in said city from the south curb line of Sixteenth street 
 to the north curb line of Washington street, which is east of the west city bound- 
 ary, including all intersections of streets, (excepting such portion of said 
 street and intersections as are required by law to be kept in order or repair 
 by any person or company having railroad tracks thereon, and also except- 
 ing such portions as have already been graded, graveled, and accepted,) be 
 graaea and graveled in accordance with the plans and profile on file in the 
 office of i he city engineer and specifications on file in the office of the city 
 clerk of the city of Los Angeles for graveled streets, said specifications being 
 numbered 5. 
 
 The Los Angeles Herald, a daily newspaper published and circulated in 
 s:ii<l r.ity, is hereby designated as the newspaper in which this resolution of 
 intenticn and notice of the passage thereof shall be published in the man- 
 ner and by the persons required by law. 
 
 The superintendent of streets of said city is hereby directed to post 
 notices of the passage of this resolution in the manner and in the form 
 required by law, and to cause a similar notice to be published for six days 
 in said newspaper, in the manner required by law. 
 
 The city clerk of said city is hereby directed to post this resolution of 
 intention conspicuously for two days on or near the chamber door of the 
 council, and to causa the same to be published by two insertions in the 
 manner required by law, in said daily newspaper. 
 
 I hereby certify that the foregoing resolution was passed by the city 
 council of the city of Los Angeles on the 13th day of November, 1893, by the 
 following vote : 
 
 Ayes ; Messrs. Campbell, Innes, Munson, Nickell, Pessett, and president 
 Teed. 
 
 Xoes : Messrs. Rhodes and Strohm. 
 
 C. A. LUCKENBACH, 
 
 City clerk and ex officio clerk of the city council of the city of Los Angeles. 
 
48a STREET WORK LAW APPENDIX FORMS 
 
 No. 2. NOTICE OF PASSAGE OF RESOLUTION OF INTENTION. 
 
 NOTICE OF STREET WORK. 
 
 Notice is hereby given that on Monday the 13th day of November, A. D. 
 1895. the city council of the city of Los Angeles did, at its meeting on said 
 day, adopt a resolution of intention, numbered 1923 (new series,) to order 
 the following street work to be done, to wit : 
 
 That a cement sidewalk six feet in width be constructed along tlie west side of 
 Burlington avenue, in said city, from the southerly curb line of Seventh street 
 to the northerly curb line of Ninth street (excepting such portions of said 
 street between said points along which a cement' or asphalt sidewalk has 
 been constructed and accepted.) said sidewalk to be constructed in accord- 
 ance with specifications on file in the office of the city clerk, said specifica- 
 tions being numbered twelve. 
 
 Reference is hereby made to the said resolution of intention for further 
 particulars. 
 
 D. A. WATSON, 
 
 Street Superintendent. 
 
 No. 3. RESOLUTION ORDERING WORK TO BE DONE. 
 
 Resolution ordering street work, No. 926, (third series) : Resolved, That 
 the street work herein described is required by the public interest and 
 convenience, and the city council of the city of Los Angeles, state of Cali- 
 fornia, hereby orders the same to be done according to the specifications 
 contained in its ordinance, No. 1847, and under the direction and to 
 the satisfaction of the superintendent of streets of said city, to wit : 
 
 That a cement sidewalk five feet in width be constructed along the south side 
 of Eleventh street in said city from the easterly curb line of Vernon street to 
 the westerly curb line ofSentous street, (excepting such portions of said street 
 between said points along which a cement or asphalt sidewalk has been con- 
 structed and accepted), said sidewalk to be constructed in accordance with 
 specifications on file in the office of the city clerk, said specifications being- 
 numbered 12. 
 
 The Daily Journal, a daily newspaper publisher and circulated in said 
 city, is hereby designated as the newspaper in which this resolution and 
 notice of said work, inviting sealed proposals, shall be published in the 
 manner and form and by the persons required by law. 
 
 The city clerk of said city is hereby directed to post conspicuously for 
 five days, on or near the chamber door of the council, in the manner and 
 form required by law, a notice, with specifications, inviting sealed pro- 
 posals or bids for doing said work ; and said clerk is hereby directed to 
 publish for two days, in the manner and form required by law, a notice of 
 said work, inviting sealed proposals or bids for doing said work, and 
 referring to the specifications posted or on file, in the said newspaper 
 hereby designated for that purpose as aforesaid. Said notice shall require 
 a certified check or bond, either, as prescribed by law, and for an amount 
 not less than 10 per cent, of the aggregate of the proposal. Said clerk is 
 
FORMS UNDER THE VROOMAN ACT 49 a 
 
 also hereby directed to publish this resolution for two days, in the manner 
 required by law, in said newspaper-designated for that purpose as aforesaid. 
 I hereby certify that the foregoing resolution was passed by the city 
 council of the city of Los Angeles, on the 13th day of November, 189,2, by the 
 following vote: 
 
 Ayes: Messrs. Campbell, Innes, Munson, Nickell, Pessell and President 
 Teed. 
 
 Noes: Messrs. Rhodes and Slrohm. 
 
 C. A. LUCKENBACH, 
 City clerk and ex officio clerk of the city council of the city of Los Angeles. 
 
 No. 4. NOTICE INVITING SEALED PROPOSALS. 
 
 NOTICE INVITING STREET WORK PROPOSALS. 
 
 Pursuant to statutes and to resolution No. 1930 of the council of the city 
 of Los Angeles, adopted November 20th, 1892, directing this notice, the 
 undersigned invites and will receive at his office in the city hall up to 11 
 o.'clock A. M. of Monday, December 11, 189.2, sealed proposals or bids, for 
 the following street work to be done according to the specifications No. 5 
 for graded and graveled streets in the city of Los Angeles, posted and on file, 
 the iv for adopted, or herein mentioned, to wit: That portion of Lyell street 
 in said city from the southerly curb line of Mozart street to the northerly 
 curb line of Kufirts street, including all intersections of streets, (excepting 
 such portions of said street and intersections as are required by law to be 
 kept in order or repair by any person or company having railroad tracks 
 thi'ivon, and also excepting such portions as have already been graded and 
 graveled and accepted) be graded and graveled in accordance with the plans 
 and profile on file in the office of the city engineer and specifications on 
 file in the office of the city clerk of the city of Los Angeles for graveled 
 streets, said specifications being numbered five. 
 
 Bidders must file with each proposal or bid a check payable to the order 
 of the mayor of this city, certified by a responsible bank, for an amount 
 which shall not be less than ten per cent, of the aggregate of the proposal, 
 or a bond for the said amount and so payable, signed by the bidder and by 
 two sureties, who shall justify, before any officer competent to administer 
 an oath, in double the said amount, and over and above all statutory 
 exemptions. 
 
 In bidding use blanks which will be furnished by the city clerk upon 
 application. 
 
 Los Angeles, Cal., November 80th, 1890. 
 
 FREEMAN G. TEED, 
 City clerk and ex officio clerk of the council of the city of Los Angeles. 
 
 [NOTE : The specifications must be posted with the notice which is posted 
 on or near the council chamber door.] 
 
STREET WORK LAW FORMS 
 
 No. 5. CONTRACTOR'S PROPOSAL WITH BOND. 
 I Attach Advertisement here.J 
 
 City of Los Angeles, December 10, 189,2. 
 To the Honorable City Council of the city of Los Angeles : 
 
 In compliance with the advertisement calling therefor, a copy of which 
 is hereto annexed, / hereby propose and agree to perform the work men- 
 tioned, upon Lyell street, in the city of Los Angeles from the southerly curb 
 line of Mozart street, to the northerly curb line of Kuhrts street, and furnish 
 materials in accordance with the specifications and execute the contract 
 therfor, to the satisfaction and under the supervision of the street superin- 
 tendent of said city at the following prices, viz. 
 
 DOLLARS. CENTS. 
 
 Grading per lineal foot 
 
 Paving per square foot 
 
 Macadamizing per square foot 
 
 Curb per lineal foot 
 
 Sidewalk per square foot 
 
 Sewer complete per lineal foot 
 
 Manholes complete each 
 
 Flushtanks complete each 
 
 Lamp holes complete each 
 
 .00 
 
 .50 
 
 CHARLES F. MUXSON, 
 
 Contractor. 
 
 BOND. 
 
 Know all men by these presents : That we Charles F. Munson, (or ii the bid- 
 der is a corporation, a corporation having its office and principal place of 
 business in said city of Los Angeles) as principal, and Conrad Scheerer and 
 Martin C. Marsh as sureties, are held and firmly bound unto the mayor of 
 the city of Los Angeles, state of California, in the just and full sum of five 
 hundred dollars, for the payment whereof we hereby bind ourselves, (if a 
 corporation, successors,) heirs, executors and administrators, jointly and 
 severally, firmly by these presents. 
 
 Given under our hands and sealed with our seals, on this 10th day of 
 December, A. D., one thousand eight hundred and ninety-fwo (if by a cor- 
 poration said company subscribing and setting its corporate seal hereto by 
 its thereto authorized.) 
 
 The condition of the foregoing obligation is such that, whereas the above 
 bounden Charles F. Munson is about to hand in and submit to the coun- 
 cil of the city of Los Angeles, the foregoing bid or proposal, for the perform- 
 ance of the work therein mentioned, which includes the furnishing of all 
 materials in compliance with the specifications therefor, under an invita- 
 tion of said council contained in the notice or advertisement attached to 
 said bid or proposal : Now if the bid or proposal of the said Charles F. Mun- 
 son shall be accepted, and the said work awarded to him thereupon by said 
 council, and if the said Charles F. Munson shall fail or neglect to enter into 
 a contract therefor, and to execute an adequate bond to the satisfaction of 
 the mayor and superintendent of streets of said city, with two or more good 
 
FORMS UNDER THE VROOMAN ACT 
 
 and sufficient sureties, conditioned for the faithful performance of such 
 contract on his part, in such case required by statute, then in that case the 
 above named obligors will pay to the mayor of said city of Los Angeles the 
 full sum of five hundred dollars as liquidated damages for such failure and 
 neglect. 
 
 CHARLES"f. MUNSON, [SEAL.] 
 
 WITNESS: CONRAD SCHEERER, [SEAL.] 
 
 FRED. HARKNESS. MARTIN C. MARSH. [SEAL.] 
 
 State of California, ) 
 
 County of Los Angeles, f 
 
 Conrad Scherer and Martin C. Marsh, being severally duly sworn each for 
 himself and not one for the other, says that he is one of the sureties named 
 in the foregoing bond, and that he executed the same, and is worth double 
 the sum mentioned therein over and above all statutory exemptions. 
 
 CONRAD SCHEERER, 
 MARTIN C. MARSH. 
 
 Subscribed and sworn to before me this 10th day of December, 189.2. 
 [SEAL.] FRED. HARKNESS, 
 
 Notary Public. 
 
 No. 6. RESOLUTION OF AWARD. 
 
 Resolved, That the city council of the city of Los Angeles, having in open 
 session on the 20th day of 'December, 189,2 opened, examined, and publicly 
 declared all sealed proposals or bids offered for the following work, to wit: 
 
 The construction of a redwood curb along each line of the roadway of Lyell 
 street, in said city, from the southerly curb line of Mozart street to the northerly 
 curb line of Kuhrts street, (excepting along such portions of the line of said road- 
 way upon which a redwood, granite or cement curb has already been constructed 
 and accepted,) in accordance with specifications in the office of the cily clerk of 
 said city, for constructing redwood curbs, hereby rejects all of said bids 
 except that next herein mentioned and hereby awards the contract for 
 said work to the lowest regular responsible bidder, to wit: to Frick Bros., 
 at the price specified in their proposal on file for said work, to wit : $1.50 
 per lineal foot on each side. 
 
 The city clerk is hereby directed to post notice of this award conspicu- 
 ously for five days on or near the council chamber door of this council, 
 and also publish said notice for two days in the Los Angeles Herald, a 
 daily newspaper published and circulated in this city, and hereby desig- 
 nated for that purpose by this council. 
 
 Passed by the council of the city of Los Angeles, December 27, 189#, by 
 the following vote : 
 
 Ayes, Messrs. Rhodes, Strohm, Campbell, Innes, Munson, and President 
 Teed. 
 
 Noes, Messrs. Gaffey, Nickell and Pessell. 
 
 FREEMAN G. TEED, President. 
 C. A. LUCKENBACH, City Clerk. 
 
 Approved this 28th day of December, 1892, 
 
 HENRY T. HAZARD, Mayor. 
 
52a STREET WORK LAW FORMS 
 
 No. 7. NOTICE OF AWARD OF CONTRACT. 
 
 Pursuant to statutes and to the resolution of award of the city council of 
 the city of Los Angeles, passed December 27, 189#, directing this notice, 
 notice is hereby given that the said city council, in open session, on the 
 20th day of December, 189^, opened, examined, and publicly declared all 
 sealed proposals or bids offered for the following work, to wit: The construc- 
 tion of a redwood curb, along each line of the roadway of Lyell street, in said 
 city from the southerly curb line of Mozart street to the northerly curb line of 
 Kuhrts street, (excepting along such portions of the line of said roadivay upon 
 which a redwood, granite, or cement curb has already been constructed and 
 accepted, in accordance with specifications in the office of the city clerk of *<ihl 
 city for constructing redwood curbs. And thereafter to wit, on the 27th day 
 of December, 1892, awarded the contract for said work to the lowest regular 
 responsible bidder, to wit, to Fr-ick Bros., at the prices named for said 
 work in their proposal on file, to wit, $1.50 per lineal foot on each side', and 
 that the said award has been approved by the mayor. 
 Clerk's office, Los Angeles, Oal., January 3, 1895. 
 
 'c. A. LUCKENBACH, 
 City clerk cf the city of Los Angeles. 
 
 No. 8. CONTRACT. 
 
 Street contract, No. 1000. 
 
 This agreement, made and entered into this 1st day of November, 1895, by 
 and between Conrad Scheerer, of the city of .Los Angeles, state of California, 
 party of the first part, and Drury A. Watson, street superintendent of the 
 city of Los Angeles, state of California, under and by virtue of the authority 
 granted to him as such by an act entitled "An act to provide for the 
 improvement of streets, lanes, alleys, courts, places and sidewalks, and the 
 construction of sewers within municipalities," approved March 18th, 1885, 
 and all acts amendatory thereto, party of the second part. 
 
 Whereas, the said part?/ of the first part, (as will more fully appear by 
 reference to the record of the proceedings of the city council of said city on 
 the 18th day of October, 1895,) has been awarded the contract for the work 
 hereinafter mentioned ; 
 
 Now, therefore, these presents witnesseth, that the said party of the first 
 part, for the consideration hereinafter mentioned, promises and agrees 
 with said Drury A. Watson, as said street superintendent, and not other- 
 wise, that he will do and perform, or cause to be done and performed in 
 a good and workmanlike manner, under the direction and to the satis- 
 faction of the street superintendent of said city, and furnish the neces- 
 sary materials required for the execution and completion thereof, all the 
 following work in the said city of Los Angeles to wit : Grading and graveling 
 Cummings street in said city, from the south curb line of First street to a point 350 
 feet south of the south line of Fourth street, including all intersections of streets, 
 (excepting such portions of said street and intersections as are required by law to 
 be kept in order or repair by any person or company having railroad tracks 
 thereon, also excepting such portions as have already been graded, graveled and 
 accepted.) 
 
FORMS UNDER THE VROOMAN ACT 
 
 Said work shall be according to, and the materials used shall comply 
 with the plans and profile on file in the office of the city engineer, and 
 the specifications on file in the office of the city clerk of said city, for 
 graveled streets, said specifications being known as specification No. 5, and 
 hereby made part of this contract; and all the materials used shall be 
 to the satisfaction of the street superintendent of said city. Said Drury 
 A. Watson, acting in his official capacity as such street superintendent, 
 and not individually, hereby fixes the time for the commencement of said 
 work to be within ten days from date hereof, and for its completion to be 
 within thirty days from the date hereof, and promises and agrees that 
 upon the performance of the covenants aforesaid, by the said party of 
 the first part, he will duly make and issue an assessment and diagram, 
 and attach a warrant thereto, as provided for in the aforementioned act, 
 for the expenses of the work aforesaid, at the following prices, in lawful 
 money of the United- States, to wit: For grading and graveling, three dollars 
 per lineal foot. 
 
 And it is agreed and expressly understood by the parties to this agree- 
 ment, that in no case (except where it is otherwise provided in the act 
 aforementioned and referred to) will the said city of Los Angeles, or any 
 officer thereof, be liable for ar.y portion of the expense of the work afore- 
 said, nor for any delinquency of persons or property assessed. 
 
 It is further understood and agreed that eight (8) hours labor shall 
 constitute a day's work, and that the said party of the first part will not 
 contract for, receive or require more than eight (8) hours labor for a day's 
 work of any person employed upon said work. * 
 
 In witness whereof, the parties to these presents have hereunto set 
 their hands and seals the day and year first herein written. 
 
 CONRAD SCHEERER. [SEAL.] 
 
 Contractor. 
 
 DRURY A. WATSON, [SEAL.] 
 Street Superintendent City of Los Angeles. 
 Signed, sealed and delivered in the presence of 
 FRANK C. HANNON. 
 
 STREET CONTRACTOR'S BOND. 
 
 Know all men by these presents-, that we, Conrad Scheerer, as principal, and 
 Charles F.Munson and Martin C. Marsh, as sureties, residents of the city of Los 
 AiKji'les, county of Los Angeles, state of California, are jointly and severally 
 bound unto the city of Los Angeles in the state of California, in the sum of 
 One Thousand dollars, lawful money ot the United States of America, to be 
 paid to the city of Los Angeles, for which payment well and truly to be 
 made, we bind ourselves, our, and each of our heirs, successors, executors, 
 administrators, or assigns, jointly and severally by these presents. 
 
 Sealed with our seals, and dated this 1st of November, A. D. 1893. 
 
 The condition of this obligation is such, that if the above bounden Conrad 
 Scheerer, his heirs, successors, executors, administrators, or assigns, shall in 
 all things stand to and abide by, and well and truly keep and faithfully 
 perform the covenants, conditions and agreements in that certain contract 
 
54a STREET WORK LAW FORMS 
 
 made between said Conrad Scheerer, as contractor, and Drury A. Watson, 
 as street superintendent of the city of Los Angeles, state of California, of 
 even date herewith, for furnishing materials in compliance with specifica- 
 tions and performing the following work, to wit: 
 
 [Here insert the description of the work in the contract.] 
 
 or cause the same to be kept and performed in the manner and form 
 therein specified, then the above obligation to be void, else to remain in 
 full force and virtue. 
 Sealed and delivered in presence of 
 
 FRED. HARKNESS. CONRAD SCHEERER, [SEAL.] 
 
 CHARLES F. MUNSON, [SEAL.] 
 MARTIN C. MARSH, [SEAL.] 
 
 State of California, ) 
 
 County of Los Angeles. } 
 
 Charles F. Munson and Martin C. Marsh, whose names are subscribed 
 as sureties to the above bond, being severally duly sworn, each for himself, 
 deposes and says he is worth double the sum mentioned therein, to wit, is 
 worth the sum of $%000.00in fixed property and real estate, situated in said 
 state of California, over and above his just debts and liabilities, exclusive 
 of property exempt from execution, and over and above all sums for which 
 he is already liable or in any manner bound, whether as principal, indorser 
 or security, and whether such prior obligation or liability be conditional or 
 absolute, liquidated or unliquidated, certain or contingent, due or to 
 become due. 
 
 CHARLES F. MUNSON, [SEAL.] 
 MARTIN C. MARSH, [SEAL.] 
 Subscribed and sworn to before me, this 1st day of November, A. D. 1895. 
 
 FRED. HARKNESS, 
 
 Notary Public in and for the county of Los Angeles, State of California. 
 Approved this 1st day of November. 1895. 
 
 DRURY A. WATSON, 
 
 Street Superintendent of the city of Los Angeles. 
 
 The sum mentioned in the above bond is by me deemed to be adequate, 
 is the sum fixed by me for that purpose, and said bond is hereby approved 
 by me this 1st day of November, 1895. 
 
 T. E. ROWAN, 
 
 Mayor of the city of Los Angeles. 
 
 * The above clause in the contract relative to eight hours constituting a day's 
 labor is required by section 3245 of the Political Code. 
 
FORMS UNDER THE VROOMAN ACT 55<X 
 
 No. 9. RESOLUTION OF EXTENSION. 
 
 Resolved, by the city council of the city of Los Angeles, in open session 
 on this 28th day of November, 1895, that the superintendent of streets of 
 said city be, and he hereby is authorized and directed to extend, by ten days, 
 the time fixed by him in that certain contract numbered No, 1000, entered 
 into by him with Conrad Scheerer, to do certain street work, viz : To grade 
 and gravel certain portions of Cummings street. 
 
 I hereby certify that the foregoing resolution was passed by the city 
 council of the citv of Los Angeles, on the 28th day of November, 1895, by 
 the following vote: 
 
 Ayes : Messrs. Campbell, Innes, Gaffey, Munson, Nickell, Pessell, Rhodes, 
 Slrohm, and President Teed. 
 
 Noes: None. 
 
 C. A. LUCKENBACH, 
 City clerk and ex officio clerk of the city council of the city of Los Angeles 
 
 No. 10. EXTENSION OF TIME. 
 
 Under the direction of the city council of the city of Los Angeks, by its 
 resolution, passed November 28th, 1895, and by virtue of the authority vested, 
 by statute, in me as street superintendent of said city, I hereby extend by 
 ten days the time fixed by me in the within contract, numbered 1000, for 
 the work therein specified. 
 
 Office of the street superintendent, city of Los Angeks, this 28th, day of 
 November, A. D., 1895. 
 
 DRURY A. WATSON, 
 Street Superintendent of the city of Los Angeles. 
 
56a STREET WORK LAW FORMS 
 
 No. 11. ASSESSMENT. 
 
 In the matter of Requena street from the east line of Los Angeles street to the 
 west line of Alameda street. 
 
 ASSESSMENT NUMBER 1. 
 
 Pursuant to statute, I, D. A. Watson, as superintendent of streets of the 
 city of Los Angeles, in the county of Los Angeles and state of California, do 
 hereby assess and apportion, as shown hereinafter and in the diagram 
 attached hereto, upon certain lots, portions of lots, and parcels of land, 
 fronting on Requena street in said city, from the east line of Los Angeles 
 street to the west line of Alameda street and on streets intersecting it 
 between said lines, the sum oifive thousand two hundred and seventy-one and 
 44-100 dollars, ($5271 44-100} to be paid to The Porphyry Paving Company its 
 agents or assigns, to cover the sum- due (including incidental expenses) 
 for the work of macadamizing and curbing with cement said Requena street 
 between said lines, as said work is more particularly specified in my official 
 contract therefor with said Porphyry Paving Company, dated the 21st day of 
 July, A. D. 189.Z. 
 
 All of said work has been performed and materials furnished complying 
 with the specifications and under my direction and to my satisfaction and 
 acceptance. And because the names of the owners of said assessed prop- 
 erty are unknown to me, I herein write the word ''unknown" opposite the 
 number of the lot and the amount assessed thereon and the number of each 
 lot, portion of a lot, or parcel of land assessed. 
 
 Total cost of the work is $5271 44-100, as follows : 
 
 33,668.5 square feet of macadam at 14 cents per square foot $4713.59 
 
 743.37 lineal feet of cement curb at 40 cents per foot $297.35 
 
 Total contract cost $5010.94 
 
 INCIDENTAL EXPENSES. 
 
 City engineer's official fees $ 76.90 
 
 Printing and advertising $ 38.60 
 
 Special paving, superintendent's compensation @ $2.50 per day $ 145.00 
 
 Incidental expenses $ 260.50 
 
 Contract cost $ 5010.94 
 
 Total cost, including incidental expenses $ 5271.44 
 
 DIVIDED AS FOLLOWS ! 
 
O o 
 
 I 3 
 
 
 S te-| 
 
 O N n- 
 
 '~ h K. O* 
 
 ^ ^ QD' 
 
 fD ta 
 
 O (J s^ 
 
 ^ 8 & 
 
 o o '^ 
 
 ! ^ o 
 
 5 c S 
 s 
 s s s 
 
 
 
 i 
 
 H 
 
 i*,. 
 
 o"2 % 
 
 ' "^ X 
 
 ASSESSED LIPO/M 
 
 to to to 
 
 Block 
 
 III 
 
 8g 
 
 a s a 
 sea 
 
 Tractor Subdivision 
 
 *.** 
 
 Lot 
 
 ** 
 
 "**$ 
 
 31 
 
 il 
 
 Front Feet on 
 
 
 = - 
 
 r 
 - 
 
 
 Feet 
 Oi pofiito 
 Term. 
 
 
 II s 
 
 Oi Oi ? 
 
 1 ts ^ v? 
 
 Dollars 
 
 Frontage 
 Assessment 
 
 Oi K* Oi 
 
 ^NJ Kfc K* 
 
 ? 
 
 
 Dollars 
 
 Termination 
 Assessment 
 
 
 c 
 
 
 Dollars 
 
 Opposite 
 Termination 
 Assessment 
 
 
 g 
 
 
 7 
 
 ('rossino; 
 Assessment 
 
 \2 
 
 1 
 
 <ia 
 
 Oi Oi ^ 
 
 Dollars 
 
 Total ' 
 Assessment 
 
 Oi Ki Oi 
 l^ Ki Ki 
 
 C 
 X 
 
 
 3 
 
 H 
 
 
 $ 
 
 ftc 
 x 
 
 I? 
 
 Bg" 
 
 ft 1-1 
 
 2- 1 
 
 2 
 o 
 
No. 12. DIAGRAM, 
 
 I I 
 
 LEA-VEN WORTH STREET. 
 
 12 25 
 
 27 26 
 
 So co 
 12 25 
 
 25 
 
 25 
 
 S 
 
 25 
 
 23 25 25 
 
 24 23 9 
 
 :o ^o ^ ^ 
 2n 25 25 
 
 < 
 JH 
 
 a 
 H 
 
 H 
 
 CO 
 
 55 
 
 O 
 
 o 
 a 
 
 W 
 
 OQ 
 ^ 
 ^ 
 
 JO 'JO 
 
 8 
 
 5 S I 55 
 
 7 
 
 = t ;o ^ 
 
 ? 6 
 
 C>0 
 
 SJ ^ ?. 
 60 
 
 60 * 
 
 REED STREET. (**) 
 
 1:17 
 
 3 
 
 1C 
 
 137 
 
 20 20 
 
 "o JH tft 
 
 19 20 
 
 20 
 
 20 
 
 21 S 
 
 20 
 
 20 -, 57 iO- 
 
 <N IV 
 
 o7 
 
 22" " " - : 
 
 11 0. 
 
 i:;7 
 
 2 
 
 A 
 
 137 
 
 40 
 o lO S 
 
 40 
 
 20 
 lo 
 
 17 
 
 20 
 
 20 * 
 * 5? 
 
 1 - 12 57 ^ 
 
 20 C 57 
 
 PRIEST STREET. (15) 
 
 60 
 
 \V 
 
 I 
 
 i j. s >: 
 
 E i 
 
 60 
 
 137 
 
 1S 
 
 187 
 
 JONES 
 
 STREET. 
 
FORMS UNDER THE VROOMAN ACT 
 
 The above is a diagram exhibiting Washington street in the city and county 
 of San Francisco, state of California, and its intersecting streets, from the 
 west curb line of Jones street to the east curb line of Leavenworth street, on 
 whicli work has been done under m\ official contract, dated the 27th day 
 of October, 1888, and executed by me as superintendent of streets 
 of said city and county, with the Pacific Paving Company, a cor- 
 pora I ion, for paving said Washington street from said line of 
 Jones street to said line of Leavenworth street, as will more 
 fully appear from said contract, to which reference is hereby made 
 for further particulars. Said diagram shows the relative location of each 
 district, lot, portion of lot and parcel of land assessed, to the work done; 
 is numbered to correspond with the numbers in the assessment attached 
 hereto. said numbers being in red; and shows the number of feet front- 
 ing assessed for said work contracted for and performed. The figures in 
 the diagram in black ink, represent feet and fractions of feet. Those next 
 to property lines show, each, the length of said lines in feet. The figures 
 in red ink show the numbers of the lots. 
 
 In witness whereof, I have hereto set my hand at said city and county 
 <>f Sun Francisco, this 16th day of January, 1889. 
 
 THOMAS ASHWORTH, 
 Superintendent of streets of the city and county of San Francisco. 
 
 Recorded this 16th day of January, 1889. 
 
 THOMAS ASHWORTH, 
 Superintendent of streets of the city and county of San Francisco. 
 
 [XOTK: It' any abbreviations are used, such as "No.," "ft.," "in.," etc., 
 their meaning should be stated. Thus, it may be proper to insert some- 
 thing like the following: Herein, "No." is used for the word "number;" 
 "ft." for the word "feet;" "in." for the word "inches." The marks 
 ' and ff means respectively "feet" and "inches."] 
 
 No. 13. WARRANT. 
 
 By virture hereof, I, Drury A, Watson, superintendent of streets, of the 
 city of Ao* Aniji'lfn, county of Los Angel's, and state of California, by virtue 
 of the authority vested in me as said superintendent of streets, do authorize 
 and empower the Porphyry Paving Company, its agents or assigns, to 
 demand and receive the several assessments upon the assessment and 
 diagram hereto attached, and this shall be its warrant for the same. 
 Dated at Los Angeles, this 28th day of October, 189.Z. 
 
 DRURY A. WA TSON, 
 
 Superintendent of streets of the city of Los Angeles. 
 Countersigned by: T. E. ROWAN, 
 
 Mayor of the city of Los Angeles. 
 Recorded this 2Sth day of October, 1897. 
 
 DRURY A. WATSON, 
 Superintendent of streets of the city of Los Angeles. 
 
60& STREET WORK LAW- FORMS 
 
 No. 14. CONTRACTOR'S RETURN. 
 
 STATE OF CALIFORNIA, 
 
 County of Los Angeles 
 City of Los Angeles. 
 
 \ 
 
 H. A. Palmer being duly sworn, says that he is the secretary of the Pof 
 phyry Paving Co., contractor named in the annexed assessment, diagram 
 and warrant ; that said assessment for the total cost of certain street work 
 upon Requena street between Los Angeles and Alameda streets in said city, 
 as more fully described therein, and in the contract for said work with said 
 Porphyry Paving Company made by the superintendent of streets of said 
 city, dated the 21st day of July, A. D. 189.?, levied as therein described 
 upon certain lots, portions of lots, or parcels of land, and the unknown 
 owners thereof for the sum of five thousand two hundred and seventy-one 
 and 44-100 dollars, ($5271.44-100}, payable to Porphyry Paving Company, 
 its agents or assigns, was made, and with the city engineer's certificate of 
 said work, was recorded and delivered by said superintendent of streets on 
 the 88th day of October, 189.?, to affiant in behalf of said contractor; that 
 there were attached to the same and delivered to the same in the same 
 behalf at the same time by the said superintendent of streets, his diagram 
 hereto attached, and a warrant in favor of Porphyry Paving Company for 
 collecting said assessment, upon which warrant this return is endorsed 
 that in the case of all assessments therein described, but not included in 
 the following table, affiant has, since the date last aforesaid, in the manner 
 hereinafter described and in behalf of said contractor, made demand upon 
 and received full payment from the owners of each and all such assessed 
 lots and lands; and that besides all personal demands, affiant did, where- 
 ever the name of the owner of the lot is stated as "unknown" on the 
 assessment, on the 27th day of November, A. D. 189.7, within thirty days 
 from the date of said warrant, and between the hours of 9 A. M. and 5 p. M. T 
 in behalf of said contractor enter upon each of the corresponding lots r 
 portion of lots, and parcels of land assessed, and with said certificate, 
 assessment, diagram and warrant, and in a loud, audible voice, publicly 
 make separate demands for the payment of each of said assessments from 
 the unknown owners thereof, upon each lot, portion of lot, or parcel of 
 land, for each of its own assessments as specified in said assessment; and 
 that wherever he found a building, tenant or occupant upon any of said 
 premises, besides the public demands as aforesaid, he, at the same time y 
 in the same behalf, presenting and exhibiting said certificate, assessment, 
 diagram and warrant in each instance, demanded from each tenant, or 
 occupant, for the unknown owners, separately, the payment of each of said 
 assessments upon said premises; and in the following table he states the 
 name of such demandee, as "tenant" or "occupant," with the word 
 "unknown;" but that, notwithstanding said demands, the following totals 
 of said assessed sums, each separately demanded, and also the total, remain 
 unpaid, to wit: 
 
 
FORMS UNDER THE VROOMAN ACT 
 
 61a 
 
 DEMAND 
 MADE UPON AS 
 OWNERS. 
 
 Assessment 
 Number. 
 
 DATE 
 
 OF 
 
 DEMAND. 
 
 Assessment Due 
 and Unpaid. 
 
 Subsequent Payments. 
 
 Dollars. 
 
 Cents. 
 
 Unknown. 
 Unknown. 
 Unknown. 
 
 1 
 
 2 
 3 
 
 Nov. 27 J 91 
 Nov. 27 '91 
 Nov. 21 '91 
 
 817 
 
 60 
 62 
 
 61 
 11 
 
 62 
 
 
 H. A. PALMER, 
 
 Subscribed and sworn to before me this 27th day of November, 189.7. 
 
 FRED. HARKNESS, 
 
 Notary Public. 
 Filed this 27th day of November, 189J, 
 
 D. A. WATSON, 
 
 Superintendent of streets of the city of Los Angeles. 
 Recorded this 27th day of November, 1891, 
 
 D. A. WATSON, 
 Superintendent of streets of the city of Los Angeles. 
 
 No. 15. CERTIFICATE OF RECORD. 
 
 I hereby complete and sign the foregoing record, from page 84 to page 
 44, both inclusive, of the assessment, diagram, warrant, certificate of the 
 city engineer, contractor's return; and also in the book of "contracts and 
 bonds," the recorded contract and bond, each numbered No. 1000, all for 
 the work therein described upon Requena street, from the east line of Los 
 Angeles street, to the west line of Alameda street, in the city of Los Angeles, 
 state of California. 
 
 Office of the superintendent of streets of the city of Los Angeles, state of 
 
 California, this 27th day of November, 1891. 
 
 D. A. WATSON, 
 
 Superintendent of streets of the city of Los Angeles. 
 
 The n^essment. diagram, warrant and certificate of the city engineer must be 
 recorded by tin- superintendent of streets before delivery to tbe contractor, and, to constitute a 
 record, the ivord thereof must be authenticated by the signature of the street superintendent. 
 See tH-i'tion '.) and the notes thereto. 
 
 No. 16. COMPLAINT TO FORECLOSE A STREET ASSESSMENT LIEN. 
 [TITLE OF COURT AND CAUSE.] 
 The plaintiff complains and alleges: 
 
 That the defendant is, and at all the times herein mentioned was, the 
 
 owner of the following described property, fronting on street, in 
 
 the city of Los Angeles, county of Los Angeles, state of California, between 
 
 the line of street and the line of street, and 
 
 more particularly described as follows, to wit: 
 
 [Here insert description of the property sought to be charged with the 
 assessment lien.] 
 
62a STREET WORK LAW FORMS 
 
 II. 
 
 That on the 13lh day of January, 1890, at the city of Los Angeles, state of 
 California, the city council of said city duly passed and adopted a resolu- 
 tion in writing, wherein and whereby said city council duly resolved and 
 determined that it was the intention of said city council to order the 
 following described street work to be done, to wit: 
 
 [Here insert the description of the work contained in the resolution 
 of intention.] 
 
 NOTE: It is not necessary to aver that the city hy which the work was done, was a 
 municipal corporation, nor is it necessary to aver that the street upon which the work 
 was done was an open public street. The court will take judicial notice that the city 
 in question was a municipal corporation, and the averment ol the passage of a resolution 
 of intention to do work upon a certain street is tantamount to m averment that it was aii 
 open public street in said city. Bituminous Lime Rock Paving and Imp. Co. v. Fulton, 
 33 Pac.Rep. 1117. Courts will take judicial notice of the streets of San Francisco, of their 
 relation to each other and their location. Brady v. Page, 59 Cal. 52; Williams v. Savings 
 and Loan Hoc., 97 Cal. 122. 
 
 In common law pleading, in counting upon the judgment or determination of an 
 iuterior court or body, it was necessary to state the facts which conferred jurisdiction, 
 both of the subject matter and over the person. Himmellman v. Danos, 35 Cal. 441. 
 Under section 456 of the Code of civil Procedure, it is sufficient, in pleading the judg- 
 ment, or determination of an office or board, to merely state that such judgment was 
 duly made or given. This provision of the Code is applicable to the judgments and 
 determinations of city councils in street work proceedings, and it is sufficient to aver 
 that the judgment or determination of the council was duly made or given. Such an 
 averment is a statement in legal effect that everything necessary to be done to give the 
 order or resolution validity has been done. Pacific Paving Company v. Bolton, 97 
 Cal. 8; Bituminous Lime Rock Paving and Imp. Co. v. Fulton, 33 Pac. Rep. 1117. See 
 notes to section 12 of the Vrooman Act, supra page 151, et. seq. An allegation that the 
 resolution or order was "duly passed and adopted," is sufficient under the pr 'Visions of 
 section 456 of the Code of Civil Procedure. Lf>s Angeles v.Waldron, 65 Cal. 282. 
 
 "In pleading the existence of ti e resolution or order,the complaint.in stating that the 
 council 'duly passed and adopted it,' is sufficient as stating in legal effect, that every- 
 thing necessary to be done by the council, or under its direction, to give the order or 
 I* solution validity, had been done, without stating each particular thing or act." Los 
 Angeles v. Waldron, 65 Cal. 282. 
 
 III. 
 
 That thereafter, to wit, on the 10th day of March, 1890, at said city of Los 
 Angeles, said city council, deeming that the public interest and convenience 
 required it, duly passed and adopted a resolution in writing, wherein and 
 whereby said city council duly gave and made its order and determination 
 ID writing ordering said street work to be done. 
 
 NOTE : This is a sufficient allegation under section 456 of the Code of Civil Procedure, 
 that everything necessary to give validity to the order had been properly done. Pacific 
 Paving Company v. Bolton, 97 Cal. 8; Bituminous Lime Rock Paving and Imp. Co. v. 
 Fulton, 33 Pac. Rep. 1117; Los Angeles v. Waldron, 63 Cal. 282. 
 
 IV. 
 
 That thereupon, and before awarding the contract for doing said work, as 
 hereinafter alleged, said city council, by order duly given and made, and 
 contained in said resolution ordering said street work to be done, duly 
 ordered and directed the city clerk of said city to publish, in the manner 
 required by law, said resolution ordering said work to be done, for two 
 days in the Los Angeles Herald, and to post and keep posted for five succes- 
 sive days, in the manner and form required by law, on [or near] the council 
 chamber door of said city council, a written notice, with specifications, 
 inviting sealed proposals or bids for doing said work; and also to publish, 
 in the manner and form required by law, in the said Los Angeles Her aid, for 
 two days, consecutively, a notice of said work inviting said proposals, and 
 referring to the specifications posted and on file. 
 
FORMS UNDER THE VROOMAN ACT 
 
 v. 
 
 That said Los Angeles Herald is, iind at all the times herein mentioned 
 was, a daily newspaper, printed, published and circulated in said city of 
 Ln* Anyi-Ir*. and was the newspaper designated by said city council for 'the 
 purpose of said publications, and of each of them. 
 
 VI. 
 
 That thereupon, and before the award of said contract, said city clerk, 
 pursuant to the terms and directions of said order, and in his official 
 capacity as such city clerk, duly caused said resolution, ordering 
 said work to be done, to be published by two insertions for and on two 
 consecutive days in said newspaper, and the same was duly published 
 by two insertions for and on two consecutive days in said news- 
 paper, as ordered and directed by said city council, to wit, on the llth and 
 Utli days of March, 1890. 
 
 VII. 
 
 That before passing said resolution ordering said work to be done, speci- 
 fications were required by said city council for the construction of said 
 work, and, pursuant to said requirement, were duly furnished to said city 
 council by the city engineer of said city, acting in his official capacity. 
 
 VIII. 
 
 TJhut thereafter, and before the awarding of said contract, and pursuant to 
 the terms and directions of said order of said city council, ordering and 
 directing him so to do as aforesaid, said city clerk, in his official capacity, 
 on the J'ttti day of March, 1890, posted, and for five successive days, to wit, 
 the 15th, 16th, 17th, 18th and 19th days of March, 1890, kept posted, con- 
 spicuously on [or near ] the council chamber door of said council, a printed 
 notice, with the specifications, inviting sealed proposals or bids for doing 
 said work. 
 
 IX. 
 
 That, pursuant to the said order and direction of said city council, duly 
 given and made, and contained in said resolution ordering said work to be 
 done, ordering and directing him so to do, said city clerk, in his official 
 capacity as such, published in said Los Angeles Herald by two insertions 
 for two days, consecutively, as often as said newspaper was issued, to wit, 
 on the 15th and 16th days of March, 1890, a printed notice of said work, 
 describing the same, inviting sealed proposals or bids, and referring to 
 the specifications so posted as aforesaid, and to the specifications on file. 
 
 x. 
 
 That thereafter, to wit, on the 20th day of March, 189(9, plaintiff delivered 
 to the clerk of said city council a sealed proposal to do said work, signed by 
 plaintiff, by which said proposal plaintiff proposed and offered to do said 
 work fully in all respects as required by said specifications, and at the fol- 
 lowing prices, viz : [Here insert the prices for which each piece of work 
 was proposed to be done.] Said proposal was then and there accompanied 
 by a check payable to the order of the mayor of said city, certified by a 
 
STREET WORK LAW FORMS 
 
 responsible bank, to wit, the Los Angeles National Bank, a bank incorpora- 
 ted under the national banking laws of the United States of America, for an 
 amount equal to ten per cent, of the aggregate amount of said proposal, [or 
 by a bond, payable to the order of the mayor of said city, for an amount 
 equal to ten per cent, of the aggregate amount of said proposal, signed by 
 plaintiff and by two sufficient sureties, each of whom justified in said 
 city of Los Angeles in double the said amount, and over and above all statu- 
 tory exemptions, before Fred. Harkness, a notary public duly commis- 
 sioned and appointed as such in and for the countv of Los Angeles, in said 
 state, and acting as such in said city of Los Angeles] and plaintiff then 
 and there became and was and continued to be a responsible bidder for 
 said work, until the award to him of the contract for said work, as herein- 
 after alleged. 
 
 XI. 
 
 That other sealed proposals to do said work were delivered to said clerk 
 by other persons, and, on the 24th day of March, 1890, said city council, in 
 open session, in its council chamber in said city, opened all of said pro- 
 posals, and then and there duly examined and publicly declared the same. 
 
 XII. 
 
 That thereafter, to wit, on the 31st day of March, 1890, said city council, 
 in open session, and at the same place aforesaid, considered all of said pro- 
 posals, and then and there rejected each and all of said proposals or bids, 
 other than plaintiff's said proposal, and that plaintiff's said proposal was 
 the lowest regular proposal or bid of any responsible bidder, and plaintiff's 
 said proposal was then and there found to be that of the lowest responsible 
 bidder. 
 
 XIII. 
 
 That said city council at its said session on said 31st day of March, 1890, 
 at its said council chamber, duly passed and adopted a resolution in writing, 
 wherein and whereby said city council duly awarded the contract for said 
 work to the plaintiff, who was the lowest responsible bidder therefor, and 
 at the said prices named in his said bid, and rejected all other proposals 
 and bids. Said resolution was approved by the mayor of said city, acting 
 in his official capacity as such [or, was passed and approved by a three- 
 fourths vote of said city council.] 
 
 NOTE: If the order for the work to be done be the "judgment or determination" of a 
 board, within the meaning of section 456 of the Code of Civil Procedure, and if, under 
 thai section, an allegation that such order was duly given or made, or an allegation that 
 the resolution ordering the work to be done was "duly passed and adopted," be equiva- 
 lent, in legal effect, to a specific allegation of each and everything uece-sary to be done 
 to give such order or resolution validity as was held in Pacific Paving Co. v. Bolton, 97 
 Cal. 8 then there does not seem to be any reason why an allegation that the resolution 
 awarding the contract was duly passed and adopted, should not be held sufficient, and 
 equivalent to a specific allegation of each and every thing preceding the resolution of 
 award, and necessary to give it validity. For, if the resolution of construction, or order 
 fortheworktobedone.be the "judgment or determination" of a board, within the 
 meaning of said section of the code, then the resolution awarding the contract seems to 
 be just as much a "judgment or determination" of a board. However, in the absence of 
 an authority directly in point, it was deemed best, in the form of complaint given 
 above, to allege specifically each of the necessary jurisdictional prerequisites intermedi- 
 ate between the resolution of construction, or order for the work to be done, and the res- 
 olution awarding the contract. 
 
FORMS UNDER THE VROOMAN ACT 
 
 XIV. 
 
 That, at the same time and place, by order duly given and made, con- 
 tained in said resolution awarding said contract, the said city council duly 
 ordered and directed said city clerk to post notice of said award for five 
 days in the manner and form required by law, and duly ordered and 
 directed said city clerk to publish notice of said award for two days, in the 
 manner and form required by law, in the Evening Express* 
 
 xv. 
 
 That said Evening Express was the newspaper designated by said city 
 council for the purpose of said publication, and, at all the times herein 
 mentioned was a .daily newspaper printed, published and circulated in said 
 city of Los Angeles. 
 
 XVI. 
 
 That thereafter, to wit, on the 2nd day of April, 1890, the said city clerk, 
 pursuant to the terms of said order and direction, ordering and directing 
 him so to do, posted such notice of said award, conspicuously, on [or near] 
 the council chamber door of said council, and kept the same posted for five 
 successive days, to wit, the 2nd, 3rd,4th. 5th and 6th days of April, 1890, and 
 at the same time, and pursuant to the terms of said order and direction, 
 said city clerk caused a like notice of said award to be published for two 
 successive days in said Keening Express, and, pursuant to said order, the 
 same was published in said newspaper by two insertions for two successive 
 days, as often as the same was issued, to wit, on the 2nd and 3rd days of 
 April, 1890. 
 
 XVII. 
 
 That the owners of three-fourths of the frontage of the lots and lands 
 upon said street, wherein said work was ordered to be done as aforesaid, to 
 
 wit, street, between the line of street and the line 
 
 of street, did not, either in themselves or in their own names, or by or 
 through their agents, or otherwise, elect, at any time, to take said work, or 
 any part thereof, or to enter into any contract to do the whole, or any part 
 of said work, at the prices at which the same had been awarded as afore- 
 said, or at any other prices, but, said owners wholly failed, either them- 
 selves or by or through their agents, or otherwise, or at all, to elect to take 
 said work or to enter into any contract therefor. 
 
 XVIII. 
 
 That thereafter, to wit, on the -14th day of April, 1890, at said city, the 
 superintendent of streets of said city, pursuant to said award, and in his 
 ollicial capacity as such superintendent of streets, duly entered into, made, 
 and executed to and with plaintiff a contract for said work, at the prices 
 specified in plaintiff's said bid. Said contract was then and there duly 
 signed, entered into and executed by plaintiff. 
 
 XIX. 
 
 That the plaintiff, at the time of executing said contract, executed a 
 bond to the satisfaction and approval of the said superintendent of streets, 
 
STREET WORK LAW FORMS 
 
 with two good and sufficient sureties, and payable to said city, in the sum 
 of three thousand dollars, coin of the United States of America, conditioned 
 for the faithful performance of said contract. Said sum of three thousand 
 dollars, was the sum deemed adequate by the mayor of said city and fixed 
 by him for that purpose. Said sureties, each for himself, justified in double 
 the said amount mentioned in said bond, over and above all statutory 
 exemptions, before Fred Harkness, a notary public, duly commis- 
 sioned and appointed in and for the county of Los Angeles, in said state, 
 and competent to administer oaths. Said bond was thereupon duly 
 accepted by said superintendent of streets, and placed on file and recorded 
 in his office. 
 
 That said contract and bond were in the words and figures of the copies 
 thereof, which are hereto attached, marked exhibits "A" and "B", and 
 made a part of this cause of action and complaint. 
 
 NOTE: If the pleader does not choose to plead the contract in haec verba, but elects to 
 plead it according to its legal effect, he must be careful to see that he alleges that the contract 
 contained each of those provisions which, by section of the act it is 'required to contain, i. e., 
 for example, a clause that the work shall be done under the direction and to the satisfaction 
 of the superintendent of streets, etc. 
 
 That, before the execution of said contract, and after said award, the 
 plaintiff advanced to and deposited with the said superintendent of streets, 
 for payment by him, the cost of the publication of all notices, resolutions, 
 orders, and all other incidental expenses and matters required under the 
 proceedings prescribed in an act of the legislature of the state of California, 
 entitled "An act to provide for work upon streets, lanes, alleys, courts, 
 places and sidewalks, and for the construction of sewers within municipal- 
 ities," approved March 18, 1885, and likewise the cost of such other 
 notices as might thereafter be deemed requisite by the said city council, 
 viz, the sum of fifty dollars. 
 
 XXI. 
 
 That thereafter, and within the time fixed by said superintendent of 
 streets, and by said contract for the completion of the same, the plaintiff 
 did all the work in said contract and specifications mentioned, and duly 
 performed all the conditions therein contained, on his part to be performed, 
 under the direction and to the satisfaction of said superintendent of 
 streets, and with the materials required by him and called for by said 
 specifications, and duly fulfilled said contract to the satisfaction of said 
 superintendent of streets, 
 
 XXII. 
 
 That, pursuant to the terms of said contract, the total contract cost of the 
 work performed thereunder by plaintiff, at the prices stated in said contract, 
 
 amounted to the sum of $ j that the incidental expenses incurred in 
 
 connection therewith and paid by plaintiff, viz., the expenses of printing 
 and publishing said resolutions and orders, special inspector's fees (and 
 such other incidental expenses as may have been incurred,) amounted to 
 
 the sum of $ , making a total of $ , assessable against the lots 
 
 and lands liable to assessment. 
 
FORMS UNDER THE VROOMAN ACT 
 
 XXIII. 
 
 . That thereafter, to wit, on the 23rd day of August, 1890, the said super- 
 intendent of streets duly made and issued an assessment to cover the sum 
 due for the work performed and specified in said contract, including all 
 incidental expenses, to wit. the said sum of dollars. Said assessment 
 assessed said sum of - dollars upon all the lots and lands fronting 
 
 upon said street, from said line of street to said line 
 
 of street, and assessed each lot and portion of a lot separately, in pro- 
 portion to the frontage of each such lot and portion of a lot, at a rate per 
 front foot sufficient to cover the total expense of the work, to wit, at 
 dollars and cents per front foot. 
 
 That s'lid assessment briefly referred to said contract, the work con- 
 tracted for and performed, and showed the amount to be paid for said work 
 under said contract, together with all incidental expenses, likewise the 
 rate per front foot assessed, and the amount of each assessment. The 
 name of each and every owner of each lot and of each portion of a lot, so 
 assessed as aforesaid, was unknown to the said superintendent of streets, 
 and the word "unknown" was written opposite the number of each lot, 
 portion and portions of a lot, assessed as aforesaid. Said assessment like- 
 wise showed the amount assessed upon each lot and portion of a lot 
 assessed, also the number of each lot, portion and portions of a lot assessed. 
 Said assessment was signed by said superintendent of streets, and had 
 attached thereto a diagram exhibiting each street, street crossing, avenue, 
 lane, alley, place and court on which any of said work was done, and 
 showing the n-lative location of each district, lot and portion of lot assessed, 
 to the work done, and numbered to correspond with the said numbers in 
 said assessment, and showing, likewise, the number of lots assessed for 
 said work contracted for and performed, and the number of feet fronting 
 
 upon said street, from said line of street to said line 
 
 of street, to wit, feet. 
 
 xxv. 
 
 That by said assessment and diagram the lot owned by defendant, and 
 described in paragraph number I of this com plaint, was separately assessed, 
 in proportion to the frontage, and at a rate per front foot sufficient to cover 
 the total expense of said work, viz : at $ per front foot. That the 
 
 frontage of said lot is feet, and the total amount so assessed against 
 
 said lot and shown by said assessment to be assessed thereon, is the sum 
 
 of $ . Said lot was assessed as the property of ''unknown," the name 
 
 of the owner of said lot being then and there unknown to said superin- 
 tendent of streets. The word "unknown" was written opposite the num- 
 ber of said lot. The number of said lot is number , and said number 
 
 was shown by said assessment to be the number of said lot. 
 
 XXVI. 
 
 That, to said assessment and diagram was attached a warrant, dated the 
 23rd day of August, 189(9, duly issued and signed by the superintendent of 
 
68(Z STREET WORK LAW FORMS 
 
 streets of said city, in his official character as such, and duly countersigned 
 by the mayor of said city, in his official character as such. Said warrant 
 was in the words and figures following, to wit: 
 [Here insert warrant.] 
 
 XXVII. 
 
 That thereafter, to wit, on the 23rd day of August 189(9, said warrant, 
 assessment and diagram, together with the certificate of the city engineer 
 of said city, relating to said work, were duly recorded by the said superin- 
 tendent of streets in his office in a book kept by him for that purpose, viz., 
 volume page of the assessment records, and said record was duly 
 authenticated with his certificate of recordation signed and subscribed by 
 the said superintendent of streets in his own name. 
 
 XXVIII. 
 
 That thereafter, to wit, on the 23rd day of August, 189#, and after the 
 payment to said superintendent of streets of all incidental expenses not 
 previously paid by plaintiff or his assigns, said warrant, assessment, dia- 
 gram, and certificate, after the recording of the same as aforesaid, were 
 duly delivered by said superintendent of streets to plaintiff, contractor as 
 aforesaid, on his demand therefor. 
 
 XXIX. 
 
 That thereafter, to wit, on the 21st day of September, 1890, between the 
 hours of 9 o'clock A.M. and 5 o'clock P.M. of that day, one JohnJ. 
 O'Brien, as the agent of this plaintiff, thereunto duly authorized by 
 plaintiff, with the said warrant, assessment, diagram and certificate, did 
 publicly, for and on behalf of this plaintiff, and as such agent, go upon the 
 said premises owned by defendant and assessed as aforesaid, viz., the 
 premises described in paragraph number I of the complaint, and did then 
 and there, while upon said premises, between the hours aforesaid, and as 
 such agent, publicly and in a loud and audible voice, demand payment of 
 the said amount so assessed upon and against said premises as aforesaid? 
 to wit, said sum [of dollars. 
 
 XXX. 
 
 That thereafter, to wit, on the 21st day of September, 1890, and within 
 thirty days from the date of said warrant, the said warrant was duly 
 returned to the said superintendent of streets, with a return endorsed 
 thereon ; said return was signed by said John J. O'Brien on behalf of this 
 plaintiff, and was verified by him, in the said city of Los Angeles upon his 
 oath taken and sworn to before Fred. Harkness, a notary public duly 
 appointed and commissioned in and for the said county of Los Angeles. 
 Said return stated whether any of the said assessments remained unpaid, 
 in whole or in part, and the amount thereof, and stated the nature and 
 character of the demand as set forth above, namely, that the same was 
 made by said John J. O'Brien, as agent of this plaintiff, publicly, and on 
 said above described premises, and for the amount so assessed upon said 
 premises as aforesaid, and at the time aforesaid, and that said sum of 
 
FORMS UNDER THE VROOMAN ACT 69a 
 
 money so assessed on the lot above described as aforesaid remained unpaid, 
 though demand was made therefor ab aforesaid. 
 
 XXXI. 
 
 That thereupon and thereafter, to wit, on said 21st day of September, 
 1890, said superintendent of streets duly recorded the said return in the 
 margin of the said record of said warrant and assessment, and authentica - 
 ted said record with his certificate of recordation signed and subscribed in 
 his name l>y himself. At the same time and place, said superintendent 
 likewise duly recorded the original contract, referred to in said assessment, 
 at full length in a book kept by him for that purpose in his office, and 
 authenticated said record of said contract with his certificate of recordation 
 signed and subscribed in his name by himself. 
 
 XXXII. 
 
 That more than thirty-five days have elapsed from the day of the date of 
 said warrant, and no person whatever has appealed to said city council 
 from or concerning any act of said contractor, or concerning said work, or 
 from or concerning any act, proceeding or determination of said superin- 
 tendent of streets in relation to said work, contract, diagram, assessment, 
 or warrant, or either or any of them, or concerning any other act, proceed- 
 ing or determination of said superintendent of streets whatever, or con- 
 cerning any proceeding or proceedings prior to said assessment, or in the 
 matter of or relating to said warrant, assessment, diagram or work, and 
 that no written or other objection to said acts or proceedings, or to either 
 or any of them, or to any part thereof, has ever at any time been filed with 
 the clerk of said city council. 
 
 XX. VIII. 
 
 That each and every act heretofore alleged to have been done or per- 
 formed by the superintendent of streets, the mayor or the city clerk of said 
 city, was duly done and performed by the duly elected, qualified and acting 
 upcrmtt'inli'nt, mayor and city clerk, respectively, of the city of Los 
 s, state of California, acting in his official capacity as such, and that 
 each and every act, order, resolution or determination hereinbefore alleged to 
 have been given, made, done or performed by the city council of said city, 
 was duly given and made, done and performed by the duly elected, quali- 
 fied and acting city council of the city of Los Angeles, state of California. 
 
 xxxiv. 
 
 That all the several acts and proceedings required to be done by said city 
 council, said superintendent of streets, said mayor, said city clerk and this 
 plaintiff, have been duly done, made and performed by it and them in the 
 manner and at the times and in the form required by law, under the pro- 
 visions of the act of the legislature of the state of California entitled "An 
 act to provide for work upon streets, lanes, alleys, courts, places and side- 
 walks, and for the construction of sewers within municipalities," approved 
 March 18, 1885, as the said act had been amended by all amendatory and 
 supplementary acts thereto passed by said legislature and in force at the 
 
70& STREET WORK LAW FORMS 
 
 time when said acts and proceedings of said city council, superintendent of 
 streets, mayor and plaintiff were made, done or performed. 
 
 NOTE: Paragraph XXXIV is taken from the complaint passed upon by the Supremo 
 Court in the case of Bituminous Lime Rock Paving and Imp. Co. v. Fulton, 33 Pac. Rep. 
 1117, where it was held that certain defects in the allegations in regard to certain 
 jurisdictional pierequisites, such as publication of notices, etc., were cured by the 
 twelfth paragraph of the complaint in that case, which was in all respects substantially 
 the same as paragraph XXXIV supra. And, although the general sweeping allegation 
 in paragraph XXXIV may not be regarded as a model of neatness or of concise and sci- 
 entific pleading, yet, as it seemed to rescue the complaint filed in the case just referred 
 to, the practitioner who adopts it as a part of his pleading may not go very far amiss in 
 doing so especially in view of the many pitfalls which seem to lie in the path of those 
 whose duties require them to proceed under the street improvement acts. 
 
 xxxv. 
 
 That the said sum of dollars, so assessed by said superintendent of 
 streets upon said above described lot and parcel of land, as aforesaid, viz., 
 the premises owned by defendant and described in paragraph number I of 
 this complaint, has not been paid, nor any part thereof, but, although 
 demand for the payment of said sum has been made as aforesaid, the whole 
 thereof still remains and is due and unpaid, with interest thereon at the 
 rate of ten per cent, per annum from the said 21st day September, 1890, the 
 date of the said return of said warrant and assessment. 
 
 XXXVI. 
 
 That before this suit was commenced, to wit, on the day of , 1890, 
 
 at said city, the plaintiff made a personal demand upon the defendant, for 
 
 the payment of said sum of dollars, assessed, upon the lots and 
 
 lands described in paragraph I of this complaint, as aforesaid, but, not- 
 withstanding such personal demand, said defendant then and there refused 
 to pay said sum, or any part thereof, and still refuses to pay the same, or 
 any part thereof. 
 
 NOTE: Where the property is assessed to "unknown," no personal demand is neces- 
 sary; in fact, it i unavailing, in such case as a means of perfecting plaintiff's right of 
 action upon the assessment. For that purpose, a demand made publicly upon the 
 premises is indispensable, where the property has been assessed to "unknown." 
 Macadamizing Co. v. Williams, 70 Cal. 534. But, by section 12 of the act, it is provided 
 that "When a suit has been brought, after a personal demand has been made and a 
 refusal to pay such assessment so demanded, the plaintiff shall also be entitled to have 
 and receive said sum of fifteen dollars as attorney's fees, in addition to all taxable costs, 
 notwithstanding that the suit may be settled or a tender be made before a recovery in 
 said action, and he may have judgment therefor." 
 
 Wherefore plaintiff prays: 
 
 1. For a judgment for the sum of dollars, with interest thereon at 
 
 the rate of ten per cent, per annum from the 21st day of September, 1890, 
 until entry of judgment. 
 
 2. That said sum with such interest to the date of entry of judgment, 
 together with costs and $15.00 for attorney's fees, be adjudged to be a lien 
 upon the lot of land described in paragraph number I of this complaint, 
 and liable for the payment of the same. 
 
 3. That a decree in due form may be made for the sale of said lot by the 
 sheriff of the county of Los Angeles, state of California, according to law 
 and the practice of this court, and the proceeds of the sale be applied in 
 payment of the amount found due to the plaintiff, with costs, and 
 attorney's fees, and costs of sale. 
 
FORMS UNDER THE VROOMAN ACT 
 
 4. That the defendant and all persons claiming under him, subsequent 
 to the commencement of this action, either as purchasers, incumbrancers 
 or otherwise, be barred and foreclosed of all right, claim or equity of 
 redemption in the said premises, and every part thereof. 
 
 5. That any party of this suit may become a purchaser at such sale. 
 
 6. That plaintiff be allowed $15.00 in .addition to the taxable costs, as 
 attorney's fees. 
 
 7. That plaintiff may have such other and further relief as the case may 
 require, and as to the court may seem just and equitable. 
 
 Attorney for Plaintiff. 
 No. 17. ORDINANCE OF INTENTION TO CHANGE GRADE. 
 
 ORDINANCE NO. 1921, (new SERIES.) 
 
 An ordinance declaring the intention of the mayor and city council of 
 the city of Los Angeles to change and establish the grade of Grand Avenue 
 from Fourth street to Fifth street, and describing and establishing the dis- 
 trict to be benefited by such change of grade, and to be assessed to pay the 
 cost, damages and expenses thereof. 
 
 The mayor and council of the city of Los Angeles do ordain as follows: 
 
 SECTION 1. That it is the intention of the city council of the city of Los 
 Angeles to change and establish the grade of Grand Avenue in said city from 
 Fourth street to Fifth street, as follows : 
 
 At the intersection of Fourth street the grade shall be 115.50 on the south- 
 east corner and 118.00 on the southwest corner; at a point 270 feet south from 
 the southeast corner of Fourth street 93.80 on the east side and 94-00 on the west 
 side; at a point 474 feet south from the southeast corner of Fourth street 58.00 on 
 the east side; at the intersection of Fifth street, 38.00 on the northeast corner 
 and 45.00 on the northwest corner. 
 
 And at all points between said designated points the grade shall be estab- 
 lished so as to conform to a straight line drawn between said designated 
 points. 
 
 The numbers used above, where their meaning is not shown to be other- 
 wise by their immediate context, mean the number of feet which the points 
 designated, in the proposed new grade, shall be above the city datum plane. 
 
 SEC. 2. The district to be benefited by said change of grade and to be 
 assessed to pay the cost of the same, is hereby designated and established 
 as follows : 
 
 Beginning at the northeast corner of Fifth street and Grand avenue, thence 
 easterly along the northerly line of Fifth street to the southeast corner of lot 11, 
 block 107, Bellevue Terrace tract; thence to the northeast corner of lot 7, block N, 
 Afott tract; thence westerly along the southerly line of Fourth street to the north- 
 west corner of lot 5, block 3/, of the Mott tract; thence to the present southwest 
 corner of lot 2, block 108, of the Bellevue Terrace tract; thence easterly along the 
 northerly line of Fifth street to the northwest corner of Fifth street and Grand 
 avenue; thence across Grand Avenue to the point of beginning, excepting there- 
 from any public street or alley that may lie within the above described 
 district. 
 
72a STREET WORK LAW FORMS 
 
 SEC. 3. The city clerk shall certify to the passage of this ordinance, and 
 shall cause the same to be published for ten days in the^os Angeles Herald, 
 a daily newspaper published and circulated in said city, and hereby design- 
 ated for said purpose, in the manner required by law, in every regular 
 issue of said newspaper, during said period of ten days. Said Los Angeles 
 Herald is the newspaper in which the official notices of this city council 
 are usually printed and published. 
 
 SEC. 4. The superintendent of streets is hereby ordered and directed, 
 within five days after the first publication of this ordinance, to cause to be 
 conspicuously posted, in the manner and form required by law, within the 
 said district, notices of the passage of this ordinance. 
 
 I hereby certify that the foregoing ordinance was adopted by the council 
 of the city of Los Angeles, at its meeting of November 13, 1893, by the fol- 
 lowing vote : 
 
 Ayes : Messrs. Gaffey, Innes, Munson, Nickell, Pessell and President Teed. 
 Noes : Messrs. Campbell, Rhodes and Strohm. 
 
 C. A. LUCKENBACH, 
 
 City Clerk. 
 Approved this 17th day of November, 1895. 
 
 T. E. ROWAN, 
 
 Mavor. 
 
 No. 18. NOTICE OP PASSAGE OF ORDINANCE OF INTENTION TO CHANGE GRADE. 
 
 NOTICE OF STREET WORK. 
 
 Notice is hereby given that on Monday the 13th day of November, A. D. 
 1895, the city council of the city of Los Angeles did, at its meeting on said 
 day, pass an ordinance of intention, numbered 1921 (new series,) to change 
 and establish the grade of Grand Avenue in said city from fourth street to 
 Fifth street, as follows : 
 
 [Here insert the description in ordinance of intention, Form No. 17.] 
 The district declared by said ordinance to be benefited by said change of 
 grade and to be assessed to pay the cost of the same, is described as fol- 
 lows, to wit: 
 
 [Here insert the description in ordinance of intention. Form No. 17.] 
 Reference is hereby made to said ordinance of intention for further par- 
 ticulars. 
 
 D. A. WATSON, 
 Superintendent of streets of the city of Los Angeles. 
 
 No. 19. ORDINANCE CHANGING AND ESTABLISHING GRADE. 
 
 ORDINANCE NO. 2000, (new SERIES.) 
 
 An ordinance declaring the grade of Grand Avenue to be changed from 
 Fourth street to Fifth street, and establishing the grade of the same. 
 The city council of the city of Los Angeles, having on the 13th day of 
 
FORMS UNDER THE VROOMAN ACT 
 
 November, 1895, duly passed an ordinance to change and establish the grade 
 of said Grand Avenue from Fourth street to Fifth street, and describing and 
 establishing the district to be benefited by such change of grade and to be 
 assessed for the cost of the same, and the superintendent of streets having 
 caused notices of the passage of said ordinance of intention to be conspicu- 
 ously posted within said district, in the manner and form required by law, 
 and no objection to said proposed change or changes or modifications of 
 grade having been filed with the clerk of the council, and the petition of 
 the owners of a majority of the property affected by said proposed change 
 of grade having been duly filed with the clerk and presented to this city 
 council, 
 
 The mayor and city council of said city of Los Angeles do now ordain as 
 follows : 
 
 The grade of Grand Avenue from Fourth street to Fifth street is declared 
 to be and the same hereby is changed and established, in conformity with 
 said ordinance of intention, as follows: 
 
 At the intersection of Fourth street, etc. [Follow description in form 17.] 
 
 I hereby certify that the foregoing ordinance was passed by the city 
 council of the city of Los Angeles, on the 20th day of December, 1895, by 
 the following vote: 
 
 Ayes : Messrs. Gaffey, Innes, Munson, Nickell, Pessell, and President Teed. 
 
 Noes : Messrs. Campbell, Rhodes and Slrohm. 
 
 C. A. LUCKENBACH, 
 City clerk and ex officio clerk of the city council of the city of Los Angeles. 
 
 Approved this 20th day of December. 1895. 
 
 T. E. ROWAN, 
 Mayor of the city of Los Angeles. 
 
 OF THE 
 
 UNIVERSITY 
 
74a STREET WORK LAW FORMS 
 
 FORMS USED UNDER THE BOND ACT. 
 
 No. 1. KESOLUTION DIRECTING ENGINEER TO FURNISH ESTIMATES. 
 RESOLUTION NO. 1938, (new SERIES.) 
 
 Resolved, by the city council of the city of Los Angeles, state of California, 
 that the city engineer of said city be, and he hereby is, directed to furnish 
 to this city council estimates of the cost per front foot of 
 the following street work along each line of Omar avenue 
 in said city, from the southerly, line of Third street to the north- 
 erly line of Fourth street, including the cost of intersection work assessable 
 upon said frontage, viz: Grading and graveling said Omar avenue 
 from said southerly line of Third street to said northerly line 
 of Fourth street, including all intersections of streets, (excepting such 
 portions of said street and intersections as are required by law to be kept 
 in order or repair by any person or company having railroad tracks there- 
 on, and also excepting such portions as have been graded, graveled and 
 accepted) in accordance with the plans and profile on file in the office of 
 the city engineer and specifications on file in the office of the city clerk of 
 said city for graveled streets, said specifications being numbered five. 
 
 Said estimates to be thus furnished in accordance with the provisions of 
 an act of the legislature of the state of California, approved February 27, 
 1893, authorizing the issuance of serial bonds to represent the cost of cer- 
 tain street, work or improvements, for the purpose of enabling this city 
 council to determine whether bonds may be issued to represent the cost of 
 the above described wo^k or improvement. 
 
 I hereby certify that the foregoing resolution was passed by the city 
 council of the city of LosAngeles, on the 13th day of November, 1895, by the 
 following vote : 
 
 Ayes: Messrs. Campbell, Gaffey, Innes, Munson, Nickell, Pessell, Rhodes, 
 Strohm, and President Teed. 
 
 Noes: None. 
 
 C. A. LUCKENBACH, 
 City clerk and ex officio clerk of the city council of the city of Los Angeles. 
 
 No. 2. RESOLUTION OF INTENTION. 
 
 A resolution of the city council of the city of Los Angeles, declaring its 
 intention to improve a portion of Omar avenue, and that bonds shall be 
 issued to represent the cost thereof. 
 
 RESOLUTION NO. 737. (riW SERIES.) 
 
 Resolved, by the city council of the city of Los Angeles, state of Califor- 
 nia, that it is the intention of this city council to order the following street 
 work to be done in said city, to wit : That Omar avenue in said city, 
 from the southerly line of Third street to the northerly line of Fourth street, 
 including all intersections of streets, (excepting such portions of said street 
 
FORMS UNDER THE BOND ACT 75& 
 
 and intersections as are required by law to be kept in order or repair by 
 any person or company having railroad tracks thereon, and also excepting 
 such portions as have been graded, graveled, and accepted,) be graded and 
 graveled in accordance with the plans and profile on file in the office of the 
 city engineer and specifications on file in the office of the city clerk of the 
 city of Los Angeles for graveled streets, said specifications being numbered 
 fire. 
 
 The city engineer of said city having estimated that the total cost of said 
 improvement will be greater than one dollar per front foot along each line 
 of said portion of said street so proposed to be improved as aforesaid, includ- 
 ing the cost of intersection work assessable upon said frontage, it is hereby 
 determined and declared in pursuance of an act of the legislature of the 
 state of California, approved February 27, 1893, that serial bonds shall be 
 issued to represent the expenses of said proposed improvement. Said bonds 
 shall be serial, extending over a period of ten. years from their date ; and 
 shall be issued in the manner and form provided by said act approved Feb- 
 ruary 27, 1893; an even annual proportion of the principal sum thereof 
 shall be payable by coupons on the second day of January of each year after 
 their date, until the whole is paid, and said bonds shall bear interest at the 
 rate of 7 per cent, per annum on all sums unpaid, until the whole of said 
 principal and interest are paid; said interest shall be payable semi-annu- 
 ally on the second days of January and July respectively, of each and every 
 year. 
 
 The Los Angeles Herald, a daily newspaper published and circulated in 
 said city, is hereby designated as the newspaper in which this resolution 
 of intention and notice of the passage thereof shall be published in the 
 manner and by the persons required by law. 
 
 The superintendent of streets of said city is hereby directed to post 
 notices of the passage of this resolution in the manner and in the form 
 required by law, and to cause a similar notice to be published for six days 
 in said newspaper, in ihe manner required by law. Said notices, posted 
 and published, shall describe said bonds and specify said rate of interest , in 
 the manner required by law in such cases. 
 
 The city clerk of said city is hereby directed to post this resolution of 
 intention conspicuously for two days on or near the council chamber door 
 of this council, and to cause the same to be published by two insertions, 
 in the manner required by law, in said daily newspaper. 
 
 I hereby certify that the foregoing resolution was passed by the council 
 of the city of Los Angeles, at its meeting of November Z7, A. D. 1895, by the 
 following vote : 
 
 Ayes: Messrs. Campbell, Gaffey, Innes, Munson, Pessell, Rhodes and 
 Strohm7. 
 
 Noes t None. 
 
 C.A.LUCKENBACH, 
 
 City clerk and ex officio clerk of the city council of the city of Los Angeles. 
 
76a STREET WORK LAW FORMS 
 
 No. 3. NOTICE OF PASSAGE OF RESOLUTION OF INTENTION. 
 
 NOTICE OF STREET WORK. 
 
 Notice is hereby given that on Monday, the 27tli day of November, A. D. 
 1895, the city council of the city of Los Angeles did, at its meeting on said 
 day, pass a resolution of intention, numbered 1338, (new series,) to order the 
 following street work to be done, to wit : 
 
 That Omar avenue in said city, from the southerly line of, etc. [Here insert 
 description of the work, as in preceding form.] 
 
 The city engineer of said city having estimated that the total cost of said 
 improvement will be greater than one dollar per front foot along each line 
 of said portion of said street, so proposed to be improved as aforesaid, 
 including the cost of intersection work assessable upon said frontage, it was 
 by said city council determined in and by its said resolution of intention* 
 in pursuance of an act of the legislature of the state of California, approved 
 February 27, 1893, that serial bonds shall be issued to represent the expen- 
 ses of said proposed improvement. Said bonds will be serial, extending 
 over a period of ten years from their date, and will be issued in the manner 
 and form provided for by said act of the legislature ; an even annual pro- 
 portion of the principal sum thereof shall be payable, by coupon, on the 
 second day of January of each year, after their date, until the whole is paid, 
 and said bonds will bear interest at the rate of seven per cent, per annum 
 on all sums unpaid, until the whole of said principal and interest are paid. 
 Said interest will be payable semi-annually by coupon on the second days 
 of January and July respectively of each and every year. 
 
 Reference is hereby made to said resolution of intention for further par- 
 ticulars. 
 
 D. A. WATSON, 
 Superintendent of Streets of the city of Los Angeles. 
 
 No. 4. RESOLUTION ORDERING THE WORK. 
 
 [Same as torm No. 3, under the Vrooman act, except that the same 
 description of the bonds and specification of the interest that is contained 
 in the resolution of intention under the bond act is to be inserted in the 
 resolution ordering the work.] 
 
 No. 5. NOTICE INVITING SEALED PROPOSALS. 
 
 [Same as form No. 4, under the Vrooman act, except that the same 
 description of the bonds and specification of the interest that is contained 
 in the notice of the passage of the resolution of indention under the bond 
 act, is to be inserted in the notice inviting sealed proposals.] 
 
 No. 6. CONTRACTOR'S PROPOSAL WITH BOND. 
 [Same as form No. 5, under the Vrooman act.] 
 
FORMS UNDER THE BOND ACT 
 
 No. 7. RESOLUTION OF AWARD. 
 
 [Same as form No. 6, under the Vrooman act, except that the same 
 description of the bonds and specification of the interest that is contained 
 in the resolution of intention, under the bond act, is to be inserted in the 
 resolution of award.] 
 
 No. 8. NOTICE OF AWARD. 
 
 [Same as form No. 7, under the Vrooman act, except that the same 
 description of the bonds and specification of the interest that is contained 
 in the notice of the passage of the resolution of intention, under the bond 
 act, is to be inserted in the notice of award.] 
 
 No. 9. CONTRACT AND CONTRACTOR'S BOND. 
 [Same as form No. 8 under Vrooman act.] 
 
 No. 10. ASSESSMENT AND DIAGRAM. 
 
 [Same as forms Nos. 11 and 12, under the Vrooman act.] 
 In the margin of the assessment as recorded there should be appropriate 
 headings to enable the street superintendent to endorse upon the margin 
 of the record of the assessment, to the credit of which the same is paid, all 
 coupon payments of principal upon the bonds reported to him by the city 
 treasurer, as provided for by section 4 of the bond act. 
 
 No. 11. WARRANT. 
 
 By virtue hereof, I, Drury A. Watson, superintendent of streets of the 
 city of Los Angeles, county of Los Angeles, and state of California, by 
 virtue of the authority vested in me as said superintendent o? streets, do 
 authorize and empower Martin C. Marsh, his agents or assigns, to demand 
 and receive the several assessments upon the assessment and diagram 
 hereto attached, and this shall be his warrant for the same. Serial bonds, 
 bearing interest at the rate of seven per cent, per annum and extending 
 over a period of ten years from their date, are to be issued to represent the 
 cost and expenses of the work described in the assessment, and in the man- 
 ner and form provided by an act of the legislature of the state of California, 
 approved February 27, 1893; and notice is hereby given that a bond 
 in such series will issue to represent each assessment of fifty dollars or 
 more remaining unpaid for thirty days after the date of this warrant, or 
 
STREET WORK LAW FORMS 
 
 five days after the decision of the city council of this city upon an appeal. 
 Dated Los Angeles, November 1st, A. D. 1895. 
 
 DRURY A. WA TSON, 
 
 [SEAL.] Superintendent of streets of the city of Los Angeles. 
 
 Countersigned by: T. E. ROWAN, 
 
 Mayor of the city of Los Angeles. 
 Recorded November 1st, A. D. 1895. 
 
 DRURY A. WATSON, 
 Superintendent of streets of the city of Los Angeles. 
 
 No. 12. CONTRACTOR'S KETURN. 
 [Same as form No. 14, under Vrooman act.] 
 
 No. 13. CERTIFICATE OF RECORD. 
 [Same as form No. 15, under the Vrooman act]. 
 
 No. 14. 
 
 STREET SUPERINTENDENT'S CERTIFIED LIST OF UNPAID 
 
 ASSESSMENTS. 
 
 TREASURER'S LIST OF ASSESSMENTS. 
 H. J. Shoulters, City Treasurer of the City of Los Angeles: 
 
 I hereby certify to you that the following list of assessments, dated 
 October 30th, 1893, "amounting to fifty dollars or over," each upon their 
 respective assessment or diagram numbers, and being for the improve- 
 ment of Georgia Bell street, between the south line of Eighteenth street and 
 the north line of Washington street, are unpaid. You will therefore issue 
 bonds therefor, as provided by law to Conrad Scheerer, contractor, extend- 
 ing over a period of ten years, and bearing interest at the rate of seven per 
 cent per annum until paid. 
 
 ASSESSED UPON. 
 
 Total Assessm'tou 
 
 
 
 
 Assessme nt and 
 Diagram Number 
 
 Dnte of 
 Delinquency 
 
 REMARKS 
 
 Assess- 
 
 
 
 
 1 
 
 Tract 
 
 No. 
 
 
 -j 
 
 
 
 
 Dollars 
 
 Cents 
 
 
 
 1 
 
 Unknown 
 
 1 
 
 B 
 
 Bell Tract 
 
 159 
 
 70 
 
 Nov'r 30, 1895 
 
 
 2 
 
 Unknown 
 
 2 
 
 B 
 
 Bell Tract 
 
 167 
 
 59 
 
 Nov'r 30, 1895 
 
 
 Los Angeles, December 1st, 1895. 
 
 D. A. WATSON, 
 
 Street Superintendent of the City of Los Angeles. 
 
FORMS UNDER THE STREET OPENING ACT 
 
 FORMS USED UNDER THE STREET OPENING ACT. 
 
 No. 1. RESOLUTION DECLARING INTENTION. 
 
 RESOLUTION OF INTENTION, NO. 1896, (nW SERIES.) 
 
 Resolved, by the city council of the city of Los Angeles, state of California : 
 1st. That it is the intention of the said city council to order the follow- 
 ing street work to be done, in said city, to wit: 
 To widen First street in said city of Los Angeles. 
 
 2nd. That the land which is by this council deemed necessary to be 
 taken therefor, and which this council intends to take therefor, is described 
 as follows, to wit : 
 
 All that certain land situated, lying and being in said city of Los Angeles. 
 and particularly described as follows : 
 
 Beginning at a point on the northerly line of First street, saidpoint being the 
 southwest corner of lot 4 of the subdivision of the garden of J. Murat, recorded 
 in book 10, page 8, miscellaneous records of Los Angeles county, thence easterly 
 along the northerly line of First street 50 feet and 6 inches to a point, thence 
 northerly on a line parallel with and six inches easterly of the easterly line of 
 said lot 4, 8.81 feet to a point on the new line of First street, thence westerly to 
 a point on the westerly line of said lot 4, said point being 7.13 feet northerly 
 from the south irest corner of said lot 4, thence southerly along the westerly line of 
 said lot 4, to the point of beginning; being all of that portion of lot 4 and of the 
 y .s/.r inches of lot 5 of said Murat garden subdivision, which lies between 
 the old northerly line of First street and the new northerly line of First street, 
 as shown by a map adopted by said city council at its meeting of December 16, 
 1889, and now on file in the office of the city clerk of said city. 
 
 3rd. That the exterior boundaries of the district hereby established, and 
 the exterior boundaries of the district of lands hereby declared to be 
 affected and benefited by said work or improvement, and to be assessed to 
 pay the damages, cost and expenses thereof, are described as follows, 
 to wit : 
 
 Beginning at a point on the east line of Los Angeles street, in the city of Los 
 Angeles, said point being 10 feet northerly from the new northerly line of First 
 street, as shown by said map adopted by the city council Lecember 16, 1889, 
 and now on file in the office of the city clerk, thence easterly on a line parallel 
 with the new northerly line of First street as shown by said map to a point on 
 the westerly line of Vine street, thence easterly on a line parallel with said new 
 northerly line of First street to a point in the westerly line of Alameda street, 
 thence southerly along said westerly line of Alameda street to a point 10 feet 
 distant southerly from the new southerly line of First street, as shown by said map, 
 thence westerly on a line parallel with the new southerly line of First street to a 
 point in the easterly line of San Pedro street, thence northerly to the southwest 
 corner of the Valla block, thence to the point of beginning- excepting therefrom 
 the land in section 1 hereof, described as the land to be taken for widening said 
 First street, and excepting also any land within said boundaries contained, 
 which is now part of a public street or alley. 
 
80a STREET WORK LAW FORMS 
 
 The Los Angeles Herald, a daily newspaper published and circulated in 
 said city, is hereby designated as the newspaper in which the street super- 
 intendent of said city shall cause to be published, in the manner and form 
 required by law, notice of the passage of this resolution, and the said 
 street superintendent is hereby directed to cause notices of the passage of 
 this resolution to be posted in the manner and form required by law, and 
 to cause a notice, similar in substance, to be published in said newspaper 
 for a period of ten days, in the manner required by law. 
 
 I hereby certify that the foregoing resolution was passed by the city 
 council of the city of Los Angeles, on the 30th day of October, 1893, by the 
 following vote : 
 
 Ayes : Messrs. Campbell, Innes, Munson, Nickell, Pessell, and President 
 Teed. 
 
 Noes : Messrs. Gaffey, Rhodes and Strohm. 
 
 C. A. LUCKENBACH, 
 City clerk and ex officio clerk of the city council of the city of Los Angeles. 
 
 No. 2. NOTICE OF PASSAGE OF EESOLUTION DECLARING INTENTION. 
 
 NOTICE OF PUBLIC WORK. 
 
 Notice is hereby given that on Monday, the 30th day of October, A. D. 
 1893, the city council of the city of Los Angeles, state of California, did, at 
 its meeting on said day, pass a resolution, number 1896, (new series) declar- 
 ing its intention to order the following street work to be done, to wit : To 
 widen First street in said city of Los Angeles. 
 
 That the land which was by said city council deemed to be, and by its 
 said resolution was declared to be necessary, to be taken for said work or 
 improvement, is described as follows, to wit : 
 
 [Here insert description as in preceding resolution, form No. 1.] 
 
 That the exterior boundaries of the district of lands established, and 
 declared by said resolution to be affected and benefited by said work or 
 improvement, and to be assessed to pay the damages, cost and expenses 
 thereof, are described as follows : 
 
 [Here insert description of boundaries as in preceding resolution, form 
 No.l. ]* 
 
 Reference is hereby made to said resolution of intention for further par- 
 ticulars. D. A. WATSON, 
 
 Superintendent of streets of the city of Los Angeles. 
 
 * The statute does not in terms expressly provide that the notice shall contain 
 a description of the district of the lands deemed to be benefited by the work or 
 improvement, and to be assessed to pay the damages, cost and expenses. Section 3 
 says "said notice shall * * * state (1) the fact of the passage of the resolution, (2; 
 its date, and '3) briefly the work or improvement proposed, and (4) refer to the resolution 
 for furtner particulars." A statement that First street, in the city of Los Angeles, for 
 example, is to be widened, would doubtless be a compliance with the requirement of the 
 statxite that the notice shall state briefly the work or improvement proposed. But this, 
 even though coupled with a reference to the resolution on file for further particulars, 
 and a statement of the date thereof could hardly be construed as giving to the property 
 owners, whose property is to be assessed to pay the cost of the improvement, that notice 
 which is required by the requirement of the constitution that "no pers >n shall be 
 deprivedof * * property without due process of law." And, if the act requires the notice 
 
FORMS UNDER THE STREET OPENING ACT 81 a 
 
 to contain no more than this, then there would seem to be great weight in the language 
 of Chief Justice Beatty in his dissenting opinion in Davies v. City of Los Angeles, 86 Cal. 
 57, where he says that in his opinion the stntiite is unconstitutional upon the ground 
 that "it does not, when tested by the libt-al doctrine of Lent v. Tillsou, 72 Cal. 414, pro- 
 vide for any proper notice to owners of property afiected." But it is stated in Lent v. 
 Tillsou, 72 Cal. 421, that "the constitution is to be read in connection with laws of this 
 character, and if no hearing is expressly provided by the statute, still, if the con.^titution 
 guarantee* it. the statute is to be properly construed so as to allow it, if possible, and 
 not to deny it. The constitution and the statute will be construed together as one law." 
 If, 1 herefofe, this statement, in effect, that the constitution is to be read into the statute 
 be the correct doctrine, and if some description of the lands liable to be assessed must 
 be contained in a notice posted or published, to satisfy the constitutional requirement 
 that no person shall be deprived of property without due proc?s of law, then, even 
 though the statute may not in express terms require it, still it seems that the notice 
 shoxild contain a description of the district of lands deemed to be benefited by the work 
 or improvement, and liable to be assessed to pay the damages, cost and expenses 
 thereof. And for this reason a description of the district of lauds to be assessed is 
 inserted in the form of notice given above. 
 
 The statute, station 3, says that the street superintendent shall cause to be posted and 
 published "notices of the passage of the resolution." To give notice of the passage of 
 the resolution, the notice must describe the resolution. To describe it accurately, the 
 notice should describe all of its material provisions and contents. One of these material 
 parts of the resolution IB the description of the district to be assessed. Therefore, the 
 provision of the statute thut the s'reet superintendent shall cause to be posted and pub- 
 lished "notices of the passage of the resolution," when read in connection with the 
 requirements of the constitution, as, according to the opinion of Mr. Justice Temple, in 
 Lent v. Tillsou, should be done, may be construed as tantamount to a provision that the 
 posted and published notices shall contain a description of the lands liable to be assessed 
 to pay the damages, cost and expenses ol the work or improvement. 
 
 No. 3. RESOLUTION ORDERING WORK TO BE DONE. 
 
 Resolution No. 1867, (new series, ordering the work of opening and 
 extending Pri/n.rose avenue between Pasadena avenue and Johnson street, 
 and appointing commissioners to assess the benefits and damages, and have 
 general supervision of said work. 
 
 Resolved, by the city council of the city of Los Angeles, state of California 
 that the public interest and convenience require, and that the said city 
 council hereby order to be done the work of opening and extending Primrose 
 avenue, in said city, between Pasadena avenue and Johnson street, in 
 accordance with resolution of intention No. 1270, (new series) declaring the 
 intention of said city council to order said work to be done, and it is 
 hereby ordered that said work be done in accordance with said resolution 
 of intention. 
 
 Resolved that, subject to removal by said city council at any time for cause, 
 M.G. Willard, W. G. Scarborough and Geo. R. Griffin be and they are hereby 
 appointed commissioners to assess the benefits and damages, and have 
 general supervision of said work until the completion thereof, in compli- 
 ance with an act of the legislature of the state of California, approved 
 March 6, 1889, and entitled "An act to provide for laying out, opening, 
 extending, widening, straightening, or closing up, in whole or in part, any 
 street, square, lane, alley, court or place within municipalities, and to con 
 demn and acquire any and all land and property necessary or convenient 
 for that purpose." For their services said commissioners shall receive as 
 compensation the sum of $4.00 per diem for the days upon which they are 
 actually engaged in performing said services. Said commissioners shall, 
 every two weeks, report their progress in said work to this council. Belore 
 proceeding with the performance of their duties, each of said commission- 
 ers shall file with the clerk of this city council an affidavit and a bond to 
 the state of California in the sum of $5000.00 to faithfully periorm the duties 
 of his office, in the manner and form required by law. 
 
82a STREET WORK LAW FORMS 
 
 I hereby certify that the foregoing resolution was passed by the city 
 council of the city of Los Angeles, on the 20th day of June, 1895, by the fol- 
 lowing vote : 
 
 Ayes : Messrs. Campbell,, Gaffey, lanes, Munson, Nickell, Pessell, Rhodes, 
 Strohm and President Teed. 
 
 Noes: None. 
 
 C. A. LUCKENBACH, 
 City clerk and ex officio clerk of the city council of the city of Los Angeles. 
 
 No. 4. REPORT OF COMMISSIONERS. 
 
 Los Angeles, Cal., June 29, 189#. 
 To the Honorable, the City Council of the City of Los Angeles: 
 
 We, the undersigned, commissioners appointed by your honorable body 
 to open and widen Third street, in the city of Los Angeles from Los Angeles 
 street to San Pedro street, do hereby make a written report as follows : 
 
 That we carefully viewed the lands described in that certain resolution 
 of intention No. 1896, (new series) passed by your honorable body on the 
 30th day of October, 189#, declaring your intention to open and widen said 
 street, and that we have carefully viewed the land to be taken for said 
 work, and the improvements and property affected thereby; that, having 
 done so, we proceeded with all diligence to determine, and did determine, 
 the value of the land to be taken for said work or improvement, and the 
 damage to the improvements and property affected thereby, and also the 
 amount of expenses incident to said work or improvement; that, having 
 determined the same, we proceeded to assess, and did assess, the same 
 upon the district of lands declared benefited, the exterior boundaries of 
 which were fixed by said resolution of intention. 
 
 We proceeded to determine, and did determine, the proportionate amount 
 of benefit to be derived by each piece and parcel of land within said dis- 
 trict from said proposed work or improvement, and said assessment was 
 made upon the lands within said district in proportion to the benefit to be 
 derived from said work or improvement, so far as we could reasonably esti- 
 mate the same, including in such estimate the property of any railroad 
 company within said district. 
 
 That the total amount of the value of the said land taken for said work 
 or improvement, together with the damage to said improvements and 
 property affected thereby, and the expenses incident to the same, as the 
 said total amount has been assessed by us, is the sum of $26,835.32, as will 
 more fully appear from the schedule hereunto attached and made a part of 
 this report. 
 
 That we have assessed the said sum of $26,835.32 upon the lands within 
 said district in proportion to the benefit to be derived by said lands from 
 said work or improvement, so far as \ve can reasonably estimate the same, 
 including in such estimate the property of any railroad company within 
 said district. 
 
 That we have made, and accompany this report with, a plat of the 
 assessment district, showing the land taken or to be taken for said wcrk or 
 improvement, and the lands assessed, showing the relative location of each 
 
FORMS UNDER THE STREET OPENING ACT 83fl 
 
 district, block, lot, or portion of lot, and its dimensions, so far as we can 
 reasonably ascertain the same. Each block and lot, or portion of lot, taken 
 or assessed, is designated and described in said plat by an appropriate 
 number. Said plat is hereto attached and marked " Exhibit A." 
 
 That the amount of $97.11, mentioned as subsequent expenses, is intended 
 to cover any subsequent expense after the filing of this report, to wit, for 
 recording deeds, advertising, etc., which may hereafter be necessary in the 
 course of the proceedings to complete said work or improvement. 
 Respectfully submitted, 
 
 JOHN MclLMOILL, } 
 
 N. E DA VIDSON, [ Commissioners. 
 
 JOHN MORI ARTY, 
 
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FORMS UNDER THE STREET OPENING ACT 
 
 No. 5. RESOLUTION DIRECTING CLERK TO PUBLISH NOTICE OF FILING REPORT 
 OF COMMISSIONERS. 
 
 RESOLUTION NO. 1.^0, (new SERIES.) 
 
 Resolved, by the city council of the city of Los Angeles, state of California, 
 that the clerk of this city council be, and he hereby is, authorized and 
 directed to give notice of the filing of the report of the commissioners here- 
 tofore appointed by this city council by resolution, No. 1367,(new series) to 
 assess the benefits and damages and have general supervision of the work 
 of opening and extending Primrose avenue in said city from Pasadena avenue 
 to Johnson street, by publication of such notice, in the manner and form 
 required by law, for ten days in the Los Angeles Times, a daily newspaper 
 printed, published and circulated in said city, and hereby designated for 
 that purpose, requiring all persons interested to show cause, if any, on or 
 before Saturday, the 24lh day of September, 1892, why said report should not 
 be confirmed, before said city council. 
 
 I hereby certify that the foregoing resolution was passed by the city 
 council of the city of Los Angeles, on the 20th day of August, 389#, by the 
 following vote: 
 
 Ayes : Mrssrs. ('uinplit'll, Gaffey, Innes, Munson, Nickell, Pessell, Rhodes, 
 Strohin and Pn'^iaent Teed. 
 
 Noes: 
 
 C. A. LUCKENBACH, 
 
 City clerk and ex officio clerk of the city council of the city of Los Angeles. 
 
 No. 6. NOTICE OF FILING REPORT OF COMMISSIONERS WITH CITY CLERK. 
 
 Notice of filing report of commissioners appointed to open and extend 
 PiimroKt' avenue, from Pasadena avenue to Johnson street. 
 
 Notice is hereby given that the commissioners appointed by the city 
 council of the city of Los Angeles, state of California, to assess the benefits 
 and damages and to have general supervision of the proposed work of open- 
 ing and extending Primrote avenue in said city, from Pasadena avenue to 
 Johnson street, having made their assessment of benefits and damages, 
 have made and filed in the office of the undersigned, their written report, 
 together with a plat of the assessment district. 
 
 All persons interested are hereby notified and required to show cause, if 
 any they have, on or before Saturday the 24th day of September, 189#, why 
 said report should not tie confirmed by the said city council. 
 
 All objections must be in writing and filed with the clerk of said city 
 council. 
 
 Each person signing an objection will attach thereto his or her postoffice 
 address. 
 Office of citv clerk,) 
 
 Aug. 24, m*. j FREEMAN G. TEED, 
 
 City clerk and ex officio clerk of the city of Los Angeles. 
 
STREET WORK LAW FORMS 
 
 No. 7. CERTIFICATE OF CITY OLERK CERTIFYING TO COPY OF REPORT, ETC. 
 
 State of California, ) 
 
 City of Los Angeles, f 
 
 I, Freeman G. Teed, city clerk of the city of Los Angeles, do hereby 
 certify the foregoing to he a full, true and correct copy of the report, assess- 
 ment and plat made and filed by the commissioners appointed by the city 
 council of the city of Los Angeles, state of California, to assess the benefits 
 and damages, and to have general supervision of the proposed work of 
 opening and widening Third street in said city, from Los Angeles street to 
 San Pedro street, as finally confirmed and adopted by said city council. 
 
 In testimony whereof I have hereunto set my hand and affixed the cor- 
 porate seal of said city, at my office, this 31st day of August, A. D. 1892. 
 " [SEAL.] FREEMAN G. TEED, 
 
 City clerk and ex officio clerk of the city council of the city of Los Angeles. 
 
 No. 8. NOTICE BY SUPERINTENDENT OF STREETS THAT HE HAS RECEIVED 
 THE ASSESSMENT ROLL. 
 
 Notice of receipt of assessment roll in the proceeding to open and widen 
 Third street, from Lis Angeles street to San Pedro street. 
 
 Notice is hereby given that the assessment roll in the proceeding to 
 open and widen Third street in the city of Los Angeles, state of California, 
 from Los Angeles street to San Pedro street, viz., a certified copy of the report, 
 assessment and plat made and filed by the commissioners appointed by 
 the city council of said city to assess the benefits and damages, and to 
 have general supervision of the proposed work of opening and widening 
 said Third street from Los Angeles street to San Pedro street, as finally con- 
 firmed and adopted by said city council, and certified by the city clerk 
 and ex officio clerk of said city council, has been forwarded to, and filed in 
 the office of the undersigned, the superintendent of streets of said city. 
 
 All sums levied and assessed in and by said assessment roll are due and 
 payable immediately. The payment of said sums is to be made to me 
 within thirty days from the date of the first publication of this notice. All 
 assessments not paid before the expiration of said thirty days will be 
 declared to be delinquent, and thereafter the sum of five per cent, upon 
 the amount of each delinquent assessment, together with the cost of adver- 
 tizing each delinquent assessment, will be added thereto. 
 Office of street superintendent,) 
 
 this 28th day of October, 1892.} E. H. HUTCHINSON, 
 
 Superintendent of streets of the city of Los Angeles. 
 
 No. 9. CERTIFICATE OF SUPERINTENDENT OF STREETS AT FOOT OF 
 ASSESSMENT ROLL. 
 
 I hereby certify that all the assessments not marked "paid" in the fore- 
 going assessment roll, are still unpaid, and have become and are now 
 delinquent, and five per cent, is hereby added to the amount of each 
 assessment so delinquent. 
 
 E. H. HUTCHINSON, 
 Superintendent of streets of the city of Los Angeles. 
 
INDEX. 
 
 INTRODUCTION. 
 
 Amendments to Vrooman act of March 18, 1885. xl 
 
 Bond act of February 27, 1893 .'.'.'.'.'.'.' xxii 
 
 Classification of Street Laws xx i 
 
 Constitution, amendment of section 19 of article XI, requiring the 
 assessment to be levied and collected prior to letting the 
 contract xxxviii 
 
 effect 01 section 19, article XI, requiring the assessment to be 
 
 levied and collected prior to letting the contract xxxvi 
 
 Charter provisions, how far superseded by provisions of general laws xxxii 
 General laws, how far controlling over provisions of charters and 
 
 general municipal incorporation act. xxxii 
 
 History of the street improvement acts xxiii 
 
 of street improvement acts in San Francisco, prior to the new 
 
 constitution xxiv 
 
 of the street improvement acts passed since adoption of new 
 
 constitution xxix 
 
 of street opening acts prior to the new constitution xlix 
 
 of street opening acts since the adoption of the new constitution 1 
 
 McClure charter xxix 
 
 Municipal incorporation act of March 13. 1883 xxx 
 
 Municipal indebtedness act of March 19, 1889 xxii, Hi 
 
 " Opening," meaning of xxi 
 
 Private contract xlii 
 
 San Francisco, history of street improvement acts in, prior to the 
 
 new constitution xxiv 
 
 Sanitary district art of March 31, 1891 xxii, xlviii 
 
 " Street improvement acts" xxi 
 
 history of xxiii 
 
 history of, since adoption of new constitution xxix 
 
 in San Francisco prior to the new constitution xxiv 
 
 Street opening act of March 6, 1889 xxii, xlviii 
 
 constitutionality of li 
 
 Street opening act of March 23, 1893 xxiii, li 
 
 Street opening acts prior to new constitution, history of xlix 
 
 since the adoption of the new constitution, history of 
 
 Street opening or street widening acts xxi 
 
 "Street work," meaning of xxi 
 
 Tree planting or shade tree act of March 11, 1893 xxii, xlvii 
 
 Vrooman act of March 6, 1883 xxxv 
 
 Vrooman act of March 18, 1885 xxii, xxxvii 
 
 amendments to xl 
 
 outline of provisions of xliv 
 
 VROOMAN ACT OF MARCH 18, 1885. 
 
 Absent owner, service on, sec. 12 142 14a 
 
 Acceptance, expenses before, sec. 7 sub. 2 64 la 
 
 expenses after, sec. 7 sub. 2 ; 64 7a 
 
 of streets, prerequisites to and their subsequent improve- 
 ment, sec. 20 176 17a 
 
 of streets, when and how to be made, and effect of, sec. 20. 176 17a 
 
88a STREET WORK LAW INDEX 
 
 Acceptance, partial or conditional, sec. 20 176 
 
 record of streets accepted, how kept, sec. 20 176 
 
 streets, register of, sec. 20 176 
 
 Act to be liberally construed, sec. 52 216 
 
 when takes effect, sec. 37 190 
 
 Action, jurisdictional prerequisites to right of, sec. 10 108 
 
 Actions, joinder of, sec. 12 154, 161 
 
 Administrators, sec. 12 146 
 
 assessment need not be presented to, sec. 7 76 
 
 may be owners, sec. 16 174 
 
 Aggrieved, who is party, sec. 11 128 
 
 Alleys 5 
 
 Alleys, terminations of, assessments for, sec. 7 64 
 
 Allowances to lot owners for previous grading, sec. 7 sub. 10 65 
 
 to lot owners for previous work, sec. 7 sub. 10 66 
 
 Answer, sec. 12 155 
 
 Appeal, sec. 11 116 
 
 assessment for too much, and severable, sec. 11 136 
 
 by contractors, sec. 11 140 
 
 by contractors for irregularities in assessment, sec. 8 97 
 
 by lot owner for irregularities in assessment, sec. 8. . . .94, 97 
 
 council cannot dismiss, sec. 11 141 
 
 council may hold an assessment to be invalid, sec. 11 .... 116 
 decision of council conclusive as to certain errors, sec. 11. 116 
 
 effect of failure to, sec. 11 117 
 
 extension of time to perform contract, sec. 11 180 
 
 fraudulent side agreement, sec. 11 131, 136 
 
 from decision that contract fulfilled, sec. 11 130 
 
 if unsuccessful, not estoppel, sec. 11 141 
 
 is not remedy if contract executed prematurely, sec. 11 ... 140 
 is not remedy if contract is for less work than is described 
 
 in the resolution of intention, sec. 11 139 
 
 is not remedy if demand is for more than amount charge- 
 able, sec. 11 140 
 
 is not remedy when lot not assessed to unknown owners or 
 
 owner in hi? true name, sec. 11 138 
 
 is not remedy when lot not liable to assessment, sec. 11 . . 138 
 is not remedy when written contract gives more time for 
 
 completion than the award, sec. 11 140 
 
 only remedy for purely technical omission in diagram 
 
 sec. 11 137 
 
 only remedy when a lot chargeable with a portion of the 
 
 expenses is omitted from the assessment, sec. 11 138 
 
 only remedy when second contract let during existence 
 
 " of another, sec. 11 137 
 
 powers of council upon, sec. 11 116 
 
 practice on, sec. 11 , 141 
 
 publication of notice of, sec. 11 116 
 
 to council, sec. 11 116 
 
 to council, sec. 3 15, 17 
 
 under present act, principles governing, sec. 11 128 
 
 under prior street improvement acts, principles governing, 
 
 sec. 11 119, 128 
 
 when assessed to only one of several joint owners, sec. 11 .. 130 
 
 Approval of award, sec. 5 42 
 
 Assessment, sec. 5 54 
 
 attestation of, sec. 8 92 
 
 description of property, sec. 8 92. 94 
 
 delivery of to contractor, sec. 9 99, 105 
 
 districts, sec. 3 9 
 
INDEX TO THE VROOMAN ACT 89a 
 
 Assessment districts, sec. 7 sub. 12 66 10a 
 
 districts, cost of work, sec. 7 sub. 1 64 7a 
 
 districts, objection to extent of, sec. 3 10 4 a 
 
 for cost of regrading and repaying in proceedings to change 
 
 grade, sec. 47 210 27a 
 
 for crossings of main and subdivisional sts., sec. 7 sub. 5. . 64 8a 
 
 for cul de sac, sec. 7 sub. 5 64 8a 
 
 for improvements after acceptance, sec. 20 176 17a 
 
 for main street crossings, sec. 7 sub. 3 64 7a 
 
 for sewers under one sidewalk, sec. 7 sub. 8 65 8a 
 
 for subdivisional street crossings, sec. 7 sub. 6 64 8a 
 
 for terminations, sec. 7 sub. 4 , 64 la 
 
 for terminations of alleys or subdivisional streets sec. 7 
 
 sub. 7 64 8a 
 
 for work on one side of centre line, for one block or less, 
 
 sec. 7 sub. 8 65 8a 
 
 for too much, if severable, appeal only remedy, sec 11 ... 136 
 
 form of, sec. 8 85 
 
 front foot, sec. 7 sub. 1 64 la 
 
 front foot mode, sec. 7 69-80 
 
 front foot mode constitutional, sec. 7 70, 74 
 
 general principles, sec. 7 74, 79 
 
 how made, sec. 8 85, 88 10a 
 
 if void cannot be validated by ratification, sec. 7 76, 78 
 
 if a lot chargeable with a portion of the expense is omitted 
 if severable may be severed and recovery had on valid 
 
 part, sec. 7 ." 78 
 
 from the assessment, appeal only remedy, sec. 11 .... 138 
 in proceedings to change grade, error in name of owner, 
 
 sec. 45 209 26a 
 
 legislature cannot directly exercise power of, sec. 7 74 
 
 made after fulfillment of "contract, sec. 8 87 
 
 of property exempt under other acts, sec. 7 sub. 9 65 8a 
 
 public property exempt, sec. 7 76 
 
 roll, sec. 8.. .." 84,101 lOa 
 
 roll, how r made and what to contain, sec. 8 84 10a 
 
 roll, in proceedings to change grade, sec. 48 211 27a 
 
 roll, in proceedings to change grade, notice of, sec. 49. ... 211 28a 
 
 recording, sec. 9 99, 102, 105 lla 
 
 supplementary in proceedings to change grade, sec. 51 .... 213 29a 
 
 time within which to make, sec. 8 92 
 
 to be made by street superintendent, sec. 8 88 
 
 to true owner in his true name, sec. 8 90 
 
 to unknown owners, sec. 8 90, 92 
 
 what to be assessed, sec. 7 64 la 
 
 when a now assessment may be made, sec. 9 99 lla 
 
 when delinquent, in proceedings to change grade, sec. 49.. 211 28a 
 Assessments, allowances for previous work other than grading, 
 
 sec. 7 sub. 10 66 9a 
 
 before completion of work, sec. 12^ 162 14a 
 
 by district, sec. 3 33 
 
 . grading, allowances to lot owners for previous grading, 
 
 sec. 7 sub. 10 65 8a 
 
 Assignment of contract, sec. 5 60 
 
 Authority to improve streets, sec. 1 1 la 
 
 Award, approval of, sec. 5 42 5a 
 
 of contract, sec. 5 42 5a 
 
 sec. 3 18 
 
 sec. 5 ...44,48,51,57 
 
 sec. 9... 100 
 
90a STREET WORK lAW INDEX 
 
 Award of contract, notices of, sec. 3 18 
 
 sec. 5 44, 48, 57 
 
 sec. 9 100 
 
 posting and publishing, notice of sec. 5 43 5a 
 
 Bar to proceedings, none in case of sewers, gutters, manholes, 
 culverts, cesspools, crosswalks, sidewalks, or drainage, 
 
 sec. 24. '178 18a 
 
 Barring work by written objection, sec. 3 8 2a 
 
 Benefits, district assessments to be made by, sec. 7 66 10a 
 
 Bids, certified check or bond with, sec. 5 42 4a 
 
 consideration of, bee. 3 18 
 
 sec. 5 42, 44, 48, 57 5a 
 
 sec. 9 100 
 
 opening, sec. 5 42 5a 
 
 re-advertisement for, sec. 5 . . 58 
 
 rejection of, sec. 5 42 5a 
 
 ''Blocks," meaning of, sec. 34. subdiv. 7 189 22a 
 
 Bond, sec. 5 59 
 
 forfeiture of 43 5a 
 
 Bonds of municipality to pay for sewer construction, sec. 29 186 20a 
 
 of municipality to pay for sewer construction, sale of, sec. 
 
 30 186 20a 
 
 of municipality to pay for sewer construction, sale if at par, 
 
 sec. 31 187 20a 
 
 of municipality sold to pay for sew r er construction, pro- 
 ceeds of sale, how deposited and used, sec. 32. 187 20a 
 
 of superintendent of streets, sec. 22 '. 177 18a 
 
 proceeds of sale of, sec. 32 187 2Qa 
 
 sale of, sec. 30. 186 20a 
 
 sale of, sec. 31 187 20a 
 
 to secure municipal indebtedness, issuance of, sec. 29 186 20a 
 
 with bids, sec. 5 42 4a 
 
 with contract, sec. 5 43 6a 
 
 Certified checks, disposal of, sec. 5 43 5a 
 
 Certificate of city engineer, sec. 9 99, 102, 105 lla 
 
 of city engineer, delivery of to contractor, sec. 9 99, 105 lla 
 
 of repairs, sec. 13 162 14a 
 
 Cesspools, not stayed by objections, sec. 24 178 18a 
 
 . powers of council over, sec. 24 , 178 18a 
 
 Changing grade 8, 18, 100 
 
 Change of grade, assessment of damages, etc., sec. 40 208 25a 
 
 petition to council necessary, sec. 2 6 la 
 
 assessment for regrading and repaving, sec. 47 210 27a 
 
 assessment roll, sec. 48 211 27a 
 
 assessment to unknow r n owners, sec. 45 , 209 26a 
 
 commissioners, oath of, sec. 41 208 25a 
 
 constitutionality of provisions for. . 204-208 
 
 condemnation proceedings, sec. 51 213 29a 
 
 damages for, sec. 38 199 24a 
 
 damages for, burden of proof, sec. 38 202 
 
 damages for, petition showing amount of damages, etc., 
 
 sec. 38 202 
 
 sec. 39 208 25a 
 
 mode of assessment, sec. 43 208 25a 
 
 petition of property owners, showing damages, etc., sec. 39. 208 25a 
 
 power of commissioners to subpoena witnesses, sec. 42. ... 208 25a 
 
 powers of council over, and proceedings for, sec. 38 191 24a 
 
 regrading and repaving in proceedings for change of grade, 
 
 sec. 46 209 26a 
 
 report of commissioners, sec. 43 . 208 25a 
 
INDEX TO THE VROOMAN ACT 91 a 
 
 Change of grade, report of commissioners, contents of, sec. 44. . 208 25a 
 
 supplementary assessment, se'c. 51 213 29a 
 
 what provisions of the act are applicable, sec. 52. ... 214 30a 
 
 Check, certified, with bids, sec. 5 . . 42 4 a 
 
 disposal of, sec. 5, '.I'.'.!!.'!.'.".'.'.'. 43 5a 
 
 forfeiture of 43 5 a 
 
 City council, what is, sec. 34, sub. 9 189 22a 
 
 City not liable for damages consequent upon dangerous condi- 
 tion of graded street, sec. 23 177 38a 
 
 City to be exempt from all liability, sec. 6 61 la 
 
 City, what is, sec. l>4, sub. 5 : 188 22a 
 
 Clerk, who is, sec. 34, sub. 11 189 23a 
 
 Commencement of work, time for, sec. 6 61 6a 
 
 Complaint, general principles, sec. 12 151 
 
 some special rules applicable to, sec. 12 154 
 
 what must allege, sec. 12 151 
 
 Completion of work, assessments before, sec. 12) 162 14 
 
 time for, sec. 6 61 6 
 
 Condemnation suit in proceedings to change grade, sec. 5.1 213 29a 
 
 Construction of act to be liberal, sec. 53 216 30a 
 
 Constitutionality of front foot mode of assessment, sec. 7 70 
 
 of section thirteen, sec. 13 169 
 
 of sections 38-53 ' 204 
 
 Contents of contract, sec. 6 62 
 
 Contingent fund, sec. 25 179 18a 
 
 Contract, assessment made after fulfillment of, sec. 8 87 
 
 assignment of, sec. 5 60 
 
 award of, sec. 5 42 5a 
 
 bond with, sec. 5 43 6a 
 
 contents of, sec. 5 * 50, 52, 55 
 
 contents of, sec. 6 62 
 
 execution of, sec. 3 11, 18 
 
 sec. 5 44, 49, 52, 57 
 
 sec. 9 100 
 
 execution of, with original bidder, sec. 5 43 6a 
 
 jurisdiction, prerequisites of, sec. 3 18 
 
 sec. 5 44, 56 
 
 lot owners taking, sec. 5 59, 61 
 
 not affected by subsequent changes in the law, sec. 7 74 
 
 property owners, election to take, sec. 5 43 5a 
 
 recording, section 10 107, 114 12a 
 
 reletting, sec. 5 58 
 
 time within which to commence and complete, sec. 6. ... 62 
 
 to be fulfilled to satisfaction of superintendent, sec. 8 86 
 
 what must contain, sec. t> 61 la 
 
 when complete, sec. 3 11 
 
 Contractors' authority to collect, sec. 9 99 lla 
 
 demand and acknowledgment of payment, sec. 10 107 12a 
 
 Cost of any work may be paid out of the treasury, sec. 26 179 19a 
 
 Cost of publishing notices, sec. 5 44 6a 
 
 Council, when and what kinds of work may order done, sec. 2. . 5 la 
 
 Counter claim, property owner cannot set up, sec. 7 75 
 
 Crossings, assessment for, sec. 7 64 la 
 
 of main and subdivisional streets, assessment for, sec. 7. . 64 la 8a 
 
 Cross walks not stayed by objections, sec. 24 178 18a 
 
 powers of council over, sec. 24 178 18 
 
 Cul-de-sac, assessment for, sec. 7, sub. 5 64 8a 
 
 Culverts not stayed by objections, sec. 24 178 18a 
 
 powers of council over, sec. 24 178 18a 
 
92a STREET WORK LAW INDEX 
 
 Damages for defective streets, sec. 23 177 18a 
 
 in consequence of damages on condition of graded streets, 
 
 who liable, sec. 23 177 18a 
 
 powers of council over, sec. 24 178 18a 
 
 for change of grade, sec. 38 199 
 
 Decree, sec. 12 160 
 
 Dedication , 5 
 
 Defective streets, damages resulting from, sec. 23 177 
 
 Defendants, sec. 12 146 
 
 Defenses, sec. 12 155 
 
 Definitions, part III ot act 188 21a 
 
 Definition of "clerk" and "city clerk," sec. 34. sub. 11 189 23a 
 
 of city council, sec. 34, sub. 9 189 22a 
 
 of "irregular blocks," sec. 34, sub. 12 189 23a 
 
 of "mayor," sec. 34, sub. 10 189 23a 
 
 ^ of "municipality" and "city," sec. 34, sub. 5 188 22a 
 
 of "paved," and "repaved," sec 34, sub. 6 188 22a 
 
 of "quarter blocks," sec. 34, sub. 12 189 23a 
 
 of "street," "main street" and "blocks," sec. 44, sub. 7,. . . 189 22a 
 
 of "street superintendent," sec. 34, sub. 8 189 22a 
 
 of "work," "improve." "improved," "improvement," 
 
 sec. 34, sub. 2' ' 7 188 21a 
 
 of "year," sec. 34, sub. 13 189 23a. 
 
 Delinquent assessments, sale of property for in proceedings to 
 
 change grade, sec. 49 211 28a 
 
 Delivery of warrant, assessment, diagram and certificate of 
 
 engineer to contractor, sec. 9 99, 105 
 
 Demand, sec. 5 54 
 
 sec. 10 107 12a 
 
 amount of, sec. 10 * 107, 112 
 
 by whom made, sec. 10 107, 112 
 
 evidence of, sec. 12 160 
 
 how made, sec. 10 107 12a 
 
 on premises, sec. 10 107, 110, 112 
 
 return as evidence of, sec. 10 114 
 
 upon agent, sec. 10 107, 109 
 
 upon persons assessed, sec. 10 107, 109 
 
 Description of property, sec. 8 92 
 
 Diagram, sec. 8 * 93, 98 
 
 sec. 9 : 101 
 
 annexed to assessment, contents of, sec. 8 85 10a 
 
 delivery of to contractor, sec. 9 99, 105 
 
 of district, sec. 7, sub. 12 66 10a 
 
 recording, sec. 9 99, 102, 105 
 
 District assessments, sec. 3 '9, 33 3a 
 
 District assessment cost of work, sec. 7, sub. 1 64 7a 
 
 for sewer construction, sec. 27 179 19a 
 
 objection to extent of, sec. 3 10 4a 
 
 Districts, how assessed, sec. 7, sub. 12 66 10a 
 
 Drainage, sec. 24 178 18a 
 
 Effect, when act takes, sec. 37 190 24a 
 
 Election to authorize a municipal indebtedness to pay for sewer 
 
 construction, sec. 28 185 19a 
 
 Eminent Domain, sec. 7 74 
 
 Engineer's certificate, recording, sec 9 99 lla 
 
 Engineer, duties and compensation of, sec. 34, sub. 1 188 21a 
 
 Establish grade 7 
 
 Evidence, sec. 12 157 
 
 of demand, sec. 12 160 
 
 of grade, sec. 12 159 
 
 
INDEX TO THE VROOMAN ACT 93a 
 
 Evidence, parol, sec. 12 159 
 
 return as, of demand, sec. 10. 114 
 
 warrant etc. prima facie of rig'ut to recover, sec. 12 142 14a 
 
 what plaintiff must prove, sec. 12 157 
 
 Executors, sec. 12 146, 148 
 
 may be owners, sec. 16 17 \Q a 
 
 Expense of any work may be ordered payable out of any fund, 
 
 sec. 26 ." 179 19^ 
 
 of improvements after acceptance, sec. 20 176 17a 
 
 incidental, sec. 5 44 Qa 
 
 Extension of time, sec. 6 62 6a 
 
 Fines and penalties imposed on persons failing to make repairs, 
 
 sec. 15 174 16a 
 
 Forfeiture of checks or bonds 43 5a 
 
 Fraudulent side agreement, sec. 5 55 
 
 remedy for, sec. 11 131 
 
 Front-foot assessment, sec. 7 64 7a 
 
 Front-foot mode of assessment, sec. 7 69 
 
 is the general rule, sec. 7 69 
 
 is constitutional , sec. 7 70 
 
 Fund, expense of any work may be ordered paid out of any, sec. 
 
 20 179 19a 
 
 Fund, street contingent, sec. 25 179 18a 
 
 General principles of assessments, sec. 7 74 
 
 Grade, after change of, petition to council necessary, sec. 2 6 la 
 
 Grade, change of, sec. 2 8 
 
 sec. 3 18 
 
 sec. 9 100 
 
 change of, constitutionality of provisions for 204 
 
 change of, petition of property owner showing amount of 
 
 damages, etc., sec. 39 : 208 25 
 
 change of, powers of council, sec. 38 191 24a 
 
 change of, when assessment delinquent, sec. 48 211 28a 
 
 damages for change of, sec. 38 199 
 
 establishment of, what is 193 
 
 evidence of establishment of, sec. 2 7 
 
 sec. 12 159 
 
 proceedings to change, assessment for regrading and re- 
 paying, sec. 47 210 27a 
 
 proceedings to change, assessment roll, sec. 48 211 27a 
 
 proceedings to change, condemnation proceedings, sec. 51. 213 29a 
 proceedings to change, damages to property owners, war- 
 rants for, sec. 50 213 29 
 
 proceedings to change, error in name of owner in assess- 
 ment, sec. 45 209 26a 
 
 proceedings to change, filing report, notice of, sec. 45 209 26a 
 
 proceedings to change, hearing on commissioners' report, 
 
 sec. 46 209 26a 
 
 proceedings to change, notice of assessment roll, sec. 49. . . 211 28a 
 proceedings to change, regrading and repaving, how bids 
 
 let, etc., sec. 46 209 26a 
 
 proceedings to change, what provisions of the act are 
 
 applicable, sec. 52 214 30a 
 
 resolution of intention to change, sec. 38 191 24a 
 
 Grading.. 7,100 
 
 sec. 10 108 
 
 allowa .ces to lot owners for previous, sec. 7 65 8a 
 
 regrading and repaving in proceedings to change grade, 
 
 sec. 46 209 26o 
 
 Guardian, may be owner, sec. 16 174 16a 
 
STREET WORK LAW INDEX 
 
 Gutters, not stayed by objections, sec. 24 178 18a 
 
 powers of council over, sec. 21 178 18a 
 
 Highway 2 
 
 Homestead, liable for assessment, sec. 12 162 
 
 Incidental expenses, sec. 5 44 6a 
 
 what are, sec. 34, sub. 3 188 21a 
 
 Indebtedness, special election authorizing, sec. 28 186 91a 
 
 Injunction, sec. 12 14:] 
 
 Interest, sec. 10 108, 115 
 
 on unpaid assessments, sec. 10 107 12 
 
 Irregular blocks, what are, sec. 34, sub. 12 189 23a 
 
 Judgment, sec. 12 160 
 
 no personal judgment, sec. 12 161 
 
 what decreed, sec. 12 142 14a 
 
 Jurisdiction , sec. 3 10, 37 
 
 and appe al, sec. 3 15 
 
 meaning of, sec. 11 123, 132 
 
 of subject matter of the improvement, sec. 3 14 
 
 power of council to determine its own, sec. 3 13 
 
 to order work, when acquired, sec. 3 9 3a 
 
 what streets, etc., are subject to the jurisdiction of the act, 
 
 sec. 1 1 la 
 
 Jurisdictional prerequisites, sec. 3 18, 44 
 
 requirements, meaning of, sec. 11 123, 132 
 
 Justification of sureties, sec. 5 42 5a 
 
 Lessee, sec. 16 174 16a 
 
 may pay the assessment, or may redeem the property after 
 
 sale, sec. 17 " 176 16a 
 
 Lien, decree, sec. 12 142 14a 
 
 extinguished by sale for taxes, sec. 7 75 
 
 loss of by contractor, sec. 10 107 12a 
 
 release of, sec. 10 107 12a 
 
 what establishes, sec. 9 99 11 a 
 
 what necessary to valid, sec. 9 99 lla 
 
 Lot, each lot independently liable, sec. 7 79 
 
 whole of liable for assessment, sec. 12 62 
 
 Lot owner, not personally liable, sec. 12 161 
 
 taking contract, sec. 5 59, 61 
 
 Main street crossings, assessments for, sec. 7 64 7 a 
 
 "Main street," meaning of, sec. 34, sub. 7 189 22a 
 
 Manholes not stayed by objections, sec. 24 178 18a 
 
 powers of council over, sec. 24 178 18a 
 
 Materials, sec. 6 61 la 
 
 Mayor, who is, sec. 34, sub. 10 189 23a 
 
 Miscellaneous provisions of the act, part III 188 21a 
 
 Municipality, what is, sec. 34, sub. 5. 188 22a 
 
 Notice of award, posting and publishing, sec. 5 43 5a 
 
 of intention, sec. 4 '40 
 
 service of, and its verification, sec. 19 176 17a 
 
 Notices, ho\v published and posted, sec. 34, sub. 4 188 22a 
 
 inviting sealed proposals, sec. 3 18 
 
 sec. 5 42,44,56 4a 
 
 sec. 9 100 
 
 in writing, by whom may be served, sec. 19 176 17a 
 
 in writing, record of service of to be kept, sec. 19 176 17a 
 
 in writing, service of, how verified, sec. 19 176 17a 
 
 of award of contract, sec. 5 48 
 
 of passage of resolution of intention, sec. 3 8, 18, 24 2a 
 
 sec. 5 44, 56 
 
 sec. 9 100 
 
INDEX TO THE VROOMAN ACT 95fl 
 
 Oaths, superintendent of streets may administer, sec. 19 176 17a 
 
 Objections, sec. 3 -. 8, 28, 30 2a 
 
 sec. 4 37 
 
 in writing, shall not stay construction of sewers, gutters, 
 manholes, culverts, cesspools, crosswalks or sidewalks, 
 
 see. 24 178 iSa 
 
 to extent of assessment districts, sec. 3 10 4a 
 
 Official grade, sec. 2 7 
 
 One resolution of intention, all kinds of work included in, sec. 7. 66 9a 
 
 Opening proposals, sec. 5 42 5a 
 
 Order for work to be done, sec. 3 9, 18, 26 3a 
 
 sec. 5 44, 56 
 
 sec. 9 100 
 
 for work to be done, publication of, sec. 3 18, 27 
 
 sec. 5 44, 56 
 
 sec. 9 100 
 
 for work to be done when jurisdiction acquired, sec. 3 9 3d 
 
 to do work, sec. 3 9 3a 
 
 to do work, petition for, sec. 4 37, 42 
 
 Owner, sec. 12 146 
 
 defined, sec. 16 ]74 16a 
 
 Part I of Yrooman act 1 la 
 
 Part II of Vrooman act, specially enabling provisions 179 19a 
 
 Part III of Yrooman act, definitions and miscellaneous provisions 188 21a 
 
 Parties, sec. 12 146, 161 
 
 Patented article, sec. 5 52 
 
 Paved, meaning of, sec. 34, sub. 6 188 22a 
 
 Payment to street superintendent, sec. 10 107 12a 
 
 Payments, how acknowledged, sec. 10 107 12a 
 
 Personal liability, owner not personally liable, sec. 7 74 
 
 Petition for work to be done, sec. 4 37 4a 
 
 of remonstrance, sec. 3 8, 28 2a 
 
 of remonstrance, sec. 11 117, 128 
 
 to council to order work done, sec. 4 37 4a 
 
 Plaintiffs, sec. 12 146 
 
 Planking, sec. 3 '. . 8 
 
 Plans and specifications, sec. 3 9 3a 
 
 and specifications of sewer construction, sec. 33 187 21a 
 
 Ph>;i<lin-s, sec. 12 148 
 
 Posting and publishing notice of passage of resolution of inten- 
 tion, sec. 3 18, 24 2a 
 
 sec. 5 44, 56 
 
 sec. 9 100 
 
 how and when to be made, sec. 34, sub. 4 188 22a 
 
 notice of award, sec. 5 48 5a 
 
 resolution of intention, sec. 3 20 2a 
 
 sec. 5 44 
 
 sec. 9 100 
 
 Procedure, general principles of, sec. 12 143 
 
 Proof of publication and posting, sec. 34, sub. 4 188 22a 
 
 Property owners election to take contract, sec. 5 43 5a 
 
 Proposals, notices inviting, sec. 3 18 
 
 sec. 5 44, 56 4a 
 
 sec. 9 100 
 
 opening, sec. 5 42 5a 
 
 re-advertisement for, sec. 5 : 58 
 
 Public property exempt, sec. 7 76 
 
 Publication and posting of notices inviting sealed proposal, sec. 3 18 
 
 sec. 5 44,48 56 
 
 sec. 9 -.100 
 
96a STREET WORK LAW INDEX 
 
 Publishing and posting of notices of award, sec. 3 18 
 
 sec. 5 44, 57 4a 
 
 sec. 9 100 
 
 and posting notices of passage of resolution of intention, 
 
 sec. 3 8 2a 
 
 and posting, proof of, how made, sec. 34, sub. 4 188 22a 
 
 of order for work to be done, sec. 3 18 3a 
 
 sec. 5 44, 56 
 
 sec. 9 100 
 
 of resolution of intention, sec. 3 21, 24 2a 
 
 sec. 5 44, 56 
 
 sec. 9 100 
 
 Publishing and posting resolution of intention, sec. 3 8 2a 
 
 notice of award, sec. 5 43, 49 5a 
 
 notice inviting sealed proposals, sec. 3 18 
 
 sec. 5 42,44 4a 
 
 notice of passage of resolution of intention, sec. 3 25 
 
 sec. 5 44, 56 
 
 sec. 9 100 
 
 Publishing order for work to be done, sec. 3 9, 18, 27 3a 
 
 Quarter block?, sec. 7 81 
 
 what are, sec. 34, sub. 12 188 23a 
 
 Railroads, street, cost of work done between tracks, etc., sec. 7. 64 7 a 
 tracks, cost of improving if included in assessment, bur- 
 den of proof is on defendant, sec. 12 158 
 
 Ratification of void assessment, sec. 7 76 
 
 Re-advertising, sec. 5 43, 57 6a 
 
 Re-assessment, sec. 8 92 
 
 sec. 9 99, 10 
 
 when may be made, sec. 9 .' 99 lla 
 
 Re-awarding, sec. 5 43, 57 6a 
 
 Reconstruction by lot owner, sec. 13 162 14a 
 
 Record of notices to be kept, sec. 19 176 17a 
 
 what constitutes, sec. 9 103 
 
 Recording assessment, sec. 9 99, 105 lla 
 
 certificate of city engineer, sec. 9 99, 105 lla 
 
 certificate of repairs, sec. 14 174 15a 
 
 contract, sec. 10 107, 1 14 
 
 diagram, sec. 9 .99, 105 11 
 
 engineer's certificate, sec. 9 99 lla 
 
 return of warrant, sec. 10 107, 114 12a 
 
 warrant, sec. 9 ..99, 105 lla 
 
 Records kept by superintendent of streets, force and effect of. how 
 
 kept, sec. 18 '. 176 16a 
 
 of street superintendent, sec. 18 176 16a 
 
 Recurbing, what property liable for expense of, sec. 2 5 la 
 
 sec. 25 179 18a 
 
 References to other sections of the act, refer to sections of what 
 
 act, sec. 34, sub. 14 189 23a 
 
 Regrading, sec. 2 6 
 
 what property liable for expense of, sec. 2 5 la 
 
 sec. 25 179 18a 
 
 Release of lien of assessment, sec. 10 107 12a 
 
 Reletting contract, sec. 5 58 
 
 Remonstrance, sec. 3 8, 28, 30 2a 
 
 no bar to sewers, gutters, manholes culverts, cesspools, 
 
 crosswalks, sidewalks or drainage, sec. 24 178 
 
 Remacadamizing, what property liable for expense of, sec. 2. . 5 la 
 
 sec. 25. 179 18a 
 
INDEX TO THE VROOMAN 
 
 Repair and reconstruct, no primary duty on property owner to, 
 
 sec. 13 , 166 
 
 Repairs, sec. 13 162 14a 
 
 after acceptance of streets, sec. 20 176 17a 
 
 and reconstruction by lot owner, sec. 13 162 14a 
 
 authority of superintendent of streets to make, sec. 13 163 15a 
 
 sec. 23 .... 177 18a 
 
 cost of, how collected, sec. 14 174 15a 
 
 fines and penalties imposed on persons failing to make, 
 
 sec. 15 174 16a 
 
 or reconstruction, certificate of, sec. 13 162 14a 
 
 under sec. thirteen, recording certificate of, sec. 14 174 15a 
 
 under sec. thirteen, how contractor may collect for, sec. 14 174 15a 
 
 under sec. thirteen, penalty for neglecting to make, sec. 14 174 16a 
 
 Repairing streets, paid out of street fund, sec. 25 179 18a 
 
 Repaved, meaning of, sec. 34 188 22a 
 
 Repaying streets, sec. 25 179 18a 
 
 what property liable for expense of, sec. 2 5 la 
 
 sec. 25 179 18a 
 
 Repeal of conflicting acts, sec. 37 190 24a 
 
 of Vroonmn act of 1883, sec. 36 190 23a 
 
 Repiling, what property liable for expense of, sec. 2 5 la 
 
 sec. 25 179 18a 
 
 Replanking, sec. 2 7 
 
 what property liable for expense of, sec. 2 5 la 
 
 sec. 25 179 18a 
 
 Report of commissioners in proceedings to change grade, filing, 
 
 notice of, sec. 45 209 26a 
 
 of commissioners to assess damages for change of grade, 
 
 contents of, sec. 44 208 25a 
 
 Resolution of construction, sec. 3 9 3a 
 
 Resolution of intention, sec. 3 8, 19 2a 
 
 sec. 5 44 
 
 sec. 9 100 
 
 of intention, all kinds of work included in one, sec. 7 66 9a 
 
 of intention, notices of passage of, sec. 3 24 
 
 sec. 5 44,56 
 
 sec. 9 100 
 
 of intention to be published and posted, sec. 3 8 2a 
 
 of intention, posting and publication of, sec. 3 18, 20 2a 
 
 sec. 5 44, 56 
 
 sec. 9 100 
 
 Return of warrant, sec. 10 107 12a 
 
 of warrant as evidence of demand, sec. 10 114 
 
 of warrant, how recorded, sec. 10 ^ 107 12a 
 
 of warrant, recording, sec. 10 107, 114 
 
 Roadway, sec. 1 2 
 
 vSale of property for delinquent assessments in proceedings to 
 
 change grade, sef. 49 211 28a 
 
 Sealed proposals, notices inviting, sec. 5 42 4a 
 
 Section one 1 ltt 
 
 scope of 1 
 
 Section two ' * a 
 
 two. scope of " 
 
 three 8 2a 
 
 four 37 4a 
 
 five 42 4a 
 
 six 61 6a 
 
 seven. 64 /a 
 
 seven, sub. 1 64 > 67 > 
 
98a STREET WORK LAW INDEX 
 
 Section seven , sub. 2 64, 80 
 
 seven, sub. 3 .64, 81 
 
 seven , sub. 4 64, 82 
 
 seven, sub. 8 . . (>5, 83 
 
 seven, sub. 9 65, 84 
 
 eight 84 10a 
 
 nine 99 lla 
 
 ten 107 12a 
 
 eleven 116 13a 
 
 twelve 141 13ct 
 
 twelve and one-half. 162 14a 
 
 thirteen 162 14a 
 
 thirteen, constitutionality of 169 
 
 fourteen 174 15a 
 
 fifteen 174 l(>a 
 
 sixteen 174 16a 
 
 seventeen 176 1 Qa 
 
 eighteen 1 76 16a 
 
 nineteen 176 17a 
 
 twenty 176 17 a 
 
 twenty-one 177 1 la 
 
 twenty-two . . . 177 18a 
 
 twenty-three 177 18a 
 
 twenty-four 178 18a 
 
 twenty-five 179 ISa 
 
 twenty-six 179 lOa 
 
 twenty-seven 179 19a 
 
 twenty-eight 185 19a 
 
 twenty-nine 186 20a 
 
 thirty 186 20a 
 
 thirty-one 187 20a 
 
 thirty-two 187 20a 
 
 thirty-three 187 21a 
 
 thirty-four 188 21a 
 
 thirty-five 189 23a 
 
 thirty-six 190 23a 
 
 thirty-seven 190 24a 
 
 thirty-eight 191 24a; 
 
 thirty-eight to fifty-three, constitutionality of, 204 
 
 thirty-nine 208 25a 
 
 forty 208 25a 
 
 forty- one 208 25a 
 
 forty-two 208 25a 
 
 forty-three 208 25a 
 
 forty-four 208 25a 
 
 forty-five 209 26a 
 
 forty-six 209 26a 
 
 forty-seven 210 27a 
 
 forty-eight 211 27a 
 
 forty-nine 211 28a 
 
 fifty 213 29a 
 
 fifty-one 213 29a 
 
 fifty-two 214 30a 
 
 ' fifty-three ^ : 216 30a 
 
 Service of notice and its verification, sec. 19 176 17a 
 
 of notice, by whom, sec. 19 176 17a 
 
 on absent owners, sec. 12 142 I4a 
 
 Severable contract, sec. 5 54 
 
 Severable, if assessment severable, recovery may be had on valid 
 
 part, sec. 7 78 
 
INDEX TO THE VROOMAN ACT 99^ 
 
 Sewer assessments, sec. 27 179 ig a 
 
 Sewer construction and district assessments, sec. 3 35 3a 
 
 sec. 27 .".!'..'. 179 19a 
 
 construction, cost of assessed on a district, sec. 27....- 179 19 
 construction may be paid for out of street contingent fund 
 
 sec. 27 179 19a 
 
 construction, plans and specifications for. when paid for 
 
 out of contingent fund or by issuance of bonds, sec. 33, 187 20a 
 construction, special election to incur an indebtedness for, 
 
 sec. 28 185 19a 
 
 construction, special enabling provisions provided by 
 
 part II of act 179 ig a 
 
 cost may be paid by assessment on district or out of street 
 
 contingent fund , sec. 27 179 19 
 
 Sewers, etc., cleansing, sec. 24 178 18a 
 
 expense of repairing and cleaning paid out of street fund, 
 
 sec. 25 179 18a 
 
 etc., not barred by objections, sec. 3 9 2a 
 
 not stayed by written objections or remonstrance, sec. 24. 178 18a 
 
 power of council to construct, sec. 24 178 18a 
 
 under one sidewalk, assessments for, sec. 7 65 8a 
 
 Sidewalks not stayed by objections, sec. 24 178 18a 
 
 powers of council over, sec. 24 178 18a 
 
 Specifications, sec. 3 9 3a 
 
 sec. 5 52 
 
 Street contingent fund, may be used for sewer construction 
 
 sec. 27 179 19a 
 
 department fund, sec. 7 64 7a 
 
 meaning of, sec. 1 2 
 
 what includes, sec. 34, sub. 7 189 22a 
 
 Streets, damages resulting from detects in, sec. 23 177 
 
 what arc public streets, etc., sec. 1 1 la 
 
 what subject to the jurisdiction of the act, sec. 1 1 la 
 
 Street railroads, sec. 7 67 
 
 .Street superintendent, appointment of, w r hen none, sec. 34, sub. 8 189 22a 
 
 records of, sec. 18 176 16a 
 
 who is, sec. 34, sub. 8 189 22a 
 
 Street work, when and what kinds of may be ordered, sec. 2.. . . 5 la 
 
 Subdi visional street, crossings, assessments for, sec. 7 94 8a 
 
 Subject matter, jurisdiction of, sec. 3 14 
 
 Sureties, justification of, sec. 5 42 5a 
 
 Suit, sec. 12 141 13a 
 
 by contractor, sec. 12 141 13a 
 
 general principles of procedure, sec. 12 143 
 
 lien decreed, sec. 12 142 14a 
 
 service on absent owners, sec. 12 142 14a 
 
 what may be recovered by, sec. 12 141 13a 
 
 warrant, etc., prima facie evidence of right to recover, sec. 12 142 14a 
 Superintendent of construction, appointment, duties and com- 
 pensation of, sec. 35 189 23a 
 
 Superintendent of streets, contract to be fulfilled to satisfaction 
 
 of, sec. 8 86 
 
 authoritv to compel lot owner to repair or reconstruct, 
 
 sec. "13 162 14o 
 
 bond of, sec. 22 177 18a 
 
 duties of, sec. 21 177 17a 
 
 sec. 22 177 18a 
 
 office of, sec. 21 177 17a 
 
 or deputy may serve notices, sec. 19 176 17a 
 
STREET WORK LAW INDEX 
 
 Superintendent of streets, payment to, sec. 10 107 12a 
 
 powers of, sec. 6 . 61 Ga 
 
 records of, how kept, force and effect of, sec 18 176 16a 
 
 to assess benefits upon lands in a district, sec. 7 66 10a 
 
 to execute contract, and extend time, sec. 6 62 
 
 to make assessment, sec. 8 85, 89 10a 
 
 Superior Oonrt, suit in, sec. 12 142 14a 
 
 Supplementary assessment in proceedings to change grade, sec. 
 
 51 . ." 213 29a 
 
 Tenant, sec. 16 1 74 16a 
 
 may pay assessment for landlord, sec. 17 176 16a 
 
 may pay the assessment or may redeem the property after 
 
 "sale, sec. 17 " 176 16a 
 
 Termination, sec. 7 82 
 
 Terminations, assessments for, sec. 7 64 la 
 
 of alleys or suhdivisional streets, assessments for, sec. 7 . . 64 Sa 
 
 Time, extension of, sec. 6 61 i\a 
 
 for commencement of work, sec. 6 61 6a 
 
 for completion of work, sec. 6 61 6a 
 
 within which to make assessment, etc., sec. 8 92 
 
 Treasury, council may pay cost of any work out of, sec. 26 179 19a 
 
 Unaccepted streets, improving after work in first instance, sec. 
 
 25 179 18a 
 
 Unknown owner, assessment to, sec. 8 90 
 
 assessment to in proceedings to change grade, sec. 45 209 26a 
 
 Vrooman act of 1883, repeal of, sec. 36 190 23a 
 
 Warrant, sec. 9 99 lla 
 
 delivery of to contractor, sec. 9 99, 105 
 
 form of, sec. 9 99 lla 
 
 omission of date of, appeal does not afford a remedy for, 
 
 sec. 11 125 
 
 prima facie evidence of right to recover, sec. 12 142 14a 
 
 recording, sec. 9 99, 105 lla 
 
 recording return of, sec. 10 107, 114 12a 
 
 return of, sec. 10 107 12a 
 
 signing and countersign! -jr, sec. 9 99 lla 
 
 Warrants in favor of owners where property is condemned in 
 
 proceedings to change grade, sec. 50 213 29a 
 
 Watering streets, paid out of street fund, sec. 25 179 18a 
 
 Work, petition for, sec. 4 37 4a 
 
 what kinds of and when may be ordered, sec. 2 5 la 
 
 Written objections, sec. 3 8, 28, 30 2a 
 
 sec. 4 , . . 37 4a 
 
 Year, definition of, sec. 34, sub. 13 189 23a 
 
 INDEX TO BOND ACT. 
 
 Act takes effect on passage, sec. 9 235 36a 
 
 Assessment for the bond is first lien upon the lot, sec. 4 227, 228 32a 
 
 Assessments less than $50 not bonded, but collected otherwise, 
 
 sec. 4 228 33a 
 
 Bond act, comments upon certain provisions of, sec. 1 217 
 
 Bond act, constitutionality of, sec. 1 220 
 
 Bond act of 1891, repealed, sec. 8 235 36a 
 
 Bond, assessment for, is first lien upon the lot, sec. 4 227, 228 33a 
 
 conclusive evidence of regularity of all proceedings up to 
 
 listing unpaid assessments, sec. 4 228 34a 
 
 form of, sec. 4 227 32a 
 
 lot owner may prevent issuance of by giving notice, etc., 
 
 sec. 4.. .228 33a 
 
INDEX TO THE BOND ACT lOla 
 
 Bond, term of, sec. 4 227 33a 
 
 to be issued representing amount of assessment upon each 
 
 lot, sec. 4 227 32a 
 
 what fund payable from, sec. 4 227 33 
 
 Bonds, conclusive evidence of regularity of proceedings, effect of, 
 
 sec.^1 ^ 219 
 
 description of, must he in resolution of intention, resolu- 
 tion ordering the work, resolution of award, and all 
 
 notices, sec. 3 226 32rt 
 
 features of, sec. 2 226 31a 
 
 interest and principal of to be paid by coupons, sec. 2. ... 226 31a 
 
 payable by city treasurer from a fund, sec. 2 226 31 a 
 
 representing cost of street railway improvement, sec. 6. . . 230 34a 
 
 to whom payable, sec. 4 228 34a 
 
 Collection of amount due by sale as for taxes, sec. 5 229 34a 
 
 Comments upon certain provisions of the act, sec. 1 217 
 
 Conclusive evidence of regularity of proceedings, bond is up to 
 
 listing unpaid assessments, sec. 4 228 34a 
 
 Constitutionality of bond act, sec. 1 220 
 
 Cost of work, minimum, sec. 2 226 31a 
 
 Coupons, annual payments by, upon principal of bond, sec. 4. . . 227 33a 
 
 interest, and principal to be paid by, s?c. 2 226 31a 
 
 for semi-annual interest, sec. 4 227 33a 
 
 Default, upon, lot may be sold as for taxes, sec. 4 227 33a 
 
 sec. 5 229 34a 
 
 upon, in payment of principal or interest, bond becomes 
 
 immediately due if holder so demands, sec. 5 229 34a 
 
 Definition of certain words and phrases uf?ed in the act, sec. 1. . 217 31a 
 
 Description of lot, sec. 4 ~ 227 32a 
 
 Engineer, estimates by, sec. 2 226 31a 
 
 Evidence, bond conclusive, of regularity of all proceedings up 
 
 to listing unpaid assessments, sec. 1 219 
 
 ' sec. 4 228 34 
 
 Estimates, by city engineer, sec. 2 226 31a 
 
 Features of bonds, sec. 2 226 31a 
 
 Form of bond, sec. 4 227 32a 
 
 Fund, what bond payable from, sec. 4 227 33a 
 
 Interest coupons, sec. 4 ' 227 33a 
 
 upon default in payment of, bond becomes clue if holder 
 
 demands, sec. 5 229 34a 
 
 Lien of assessment for the bond. sec. 4 227 33a 
 
 Listing unpaid assessments of $50 or over, sec. 4 227 32 
 
 Lot, description of, sec. 4 227 32a 
 
 Minimum cost of work, sec. 2 226 31 a 
 
 Notice given by lot owner to prevent issuance of bond, sec-. 4. . . 228 33 
 
 Notices, must contain description of the bonds, sec. 3 226 32a 
 
 ( hvner, by giving notice, etc., may prevent issuance of bond, sec. 4 228 33a 
 
 Payments, annual, by coupons upon principal, sec. 4 227 33a 
 
 of interest and principal by coupons, sec. 2 226 31 a 
 
 Railroad, improvements by, sec. 6 230 34a 
 
 improvements by, constitutionality of provisiors for, sec. 6 231 
 
 Register of city treasurer, sec. 2 226 31 a 
 
 Resolution of award, sec. 3 226 32a 
 
 of intention, sec. 3 226 32a 
 
 ordering the work, sec. 3 226 32a 
 
 Sale of lot upon default, sec. 4 227 33a 
 
 sec. 5 229 34a 
 
 Section one 217 31a 
 
 two 226 31o 
 
 three.. 226 32a 
 
102a STREET WORK LAW INDEX 
 
 Section four 227 32a 
 
 five 229 34a 
 
 six 230 34a 
 
 seven 234 3<>a 
 
 eight 235 36a 
 
 nine 235 3(ia 
 
 "Street work act," meaning of, sec. 1 217 31a 
 
 Treasurer, city, denned, sec. 7 234 36a 
 
 city, to pay bonds out of bond fund, sec. 2 226 31 a 
 
 Warrant, notice that bond will issue, etc., must be included in, 
 
 sec. 3 -. 226 32a 
 
 INDEX TO SHADE TREE A*CT. 
 
 Act, when takes effect, sec. 14. 240 
 
 Assessment, sec. 9 239 
 
 Assessments, proceedings to collect, sec. 10 2.10 
 
 Award, sec. 5 ' 238 
 
 Bids, advertising for, sec. 5. 237 
 
 rejecting, sec. 5 238 
 
 requisites in, sec. 5 237 
 
 Bond to accompany contract, sec. 6 238 
 
 Care of trees, sec. 12 240 
 
 Certified check, sec. 5 238 
 
 Collection of assessments, proceedings for, sec. 10 240 
 
 Contract, sec. 5 238 
 
 Council, powers of, sec. 11 240 
 
 Demand, sec. 10 240 
 
 Diagram, sec. 9 239 
 
 Duties of superintendent of streets, sec. 7 238 
 
 Election necessary to bring any municipality within the provi- 
 sion of the act, sec. 13 240 
 
 Expenses of publication of notices, etc., to be paid before execu- 
 tion of contract, sec. 6 238 
 
 Incidental expenses to be paid before execution of contract, sec. 238 
 Installments, all sums due to contractor to be paid by, sec. 8. . . 239 
 Jurisdiction to order work to be done, when acquired, sec. 4. . . < 237 
 
 Lien of assessment, when attaches, sec. 9 239 
 
 Notice of award, sec. 5 238 
 
 Notice, posting and publication, sec. 2 236 
 
 with specification, posting, sec. 5 237 
 
 Nuisances, powers oi city council to condemn, sec. 11 240 
 
 Objection of owners of major frontage, sec. 3 237 
 
 Order for work to be done, sec. 4 237 
 
 Payments of sums due to contractors, to be by installments, sec. 8. 239 
 
 Posting and publishing notice, sec. 2 236 
 
 Powers of council to plant and maintain shade trees, and regu- 
 late hedges, sec. 1 236 
 
 Publication of order for work to be done, sec. 4 237 
 
 Re-advertising, sec. 5 238 
 
 Recording warrant, assessment and diagram, sec. 9 239 
 
 Re-letting, sec. 5 238 
 
 Resolution of intention, sec. 2 236 
 
 Section one 236 
 
 two 236 
 
 three 237 
 
 four 237 
 
 five 237 
 
 six.. . 238 
 
INDEX TO THE SHADE TREE ACT 
 
 Section seven 238 
 
 eight ^ ...'.'.'.'.'.'.'.'.'.'.'.'. 239 
 
 nine 239 
 
 ten 240 
 
 eleven 240 
 
 twelve 240 
 
 thirteen 240 
 
 fourteen 240 
 
 Superintendent of streets, duties of, sec. 7 238 
 
 Trees, duty of council to replace missing trees, sec. 12 240 
 
 Trimming trees, sec. 12 240 
 
 Vote of electors necessary to cause act to apply to any munici- 
 pality, sec. 13 240 
 
 Warrant, sec. 9 '. 239 
 
 INDEX TO STREET OPENING ACT OF 1889. 
 
 Act, how to be construed, sec. 25 271 45a 
 
 Assessment, all hind in district must be assessed, sec. 9 256 
 
 commissioners may be ordered to make new, sec. 14 260 40o. 
 
 interest of a railroad in a street is subject to, sec. 1 252 
 
 of damages to owners whose property is taken or damaged, 
 
 how made, sec. 9 257 
 
 supplementary, when and how made, sec. 20 289 43a 
 
 when becomes a lien, sec. 15 260 40ci 
 
 h<\v collected, sec. 16 261 41a 
 
 power of courts over, sec. 1 252 
 
 to hi- madr by commissioners upon lands in district in pro- 
 portion to benefits received, sec. 9 256 39a 
 
 when delinquent, sec. 16 261 41a 
 
 Assessment roll, notice of receipt of to be published by superin- 
 tendent of streets, sec. 16 260 40a 
 
 Assessment roll, what constitutes, sec. 15 260 40a 
 
 liciu'iita to portion of land not taken may be deducted from the 
 
 damages, sec. 9 259 
 
 Boundaries of assessment district must be]specified in the resolu- 
 tion of intention, sec. 2 254 
 
 Buildings, the benefits accrue to the lands and not the buildings, 
 
 sec. 1 253 
 
 Certificate of delinquency, sec. 16 261 41a 
 
 Certified copy of report, assessment and plat, sec. 15 260 40a 
 
 ''City clerk/' who is, sec. 23 271 44a 
 
 "City council," what is, sec, 23 270 44a 
 
 City not liable for failure to collect any assessment, sec. 8 258 39ot 
 
 "City treasurer," who is, sec. 23 ." 271 44a 
 
 "City," what is, sec. 23 270 44i 
 
 "Clerk," who is, sec. 23 271 44a 
 
 Collection of delinquent assessments, sec. 16 261 41a 
 
 Commissioners, appointment of and compensation, sec. 6 255 3Sa 
 
 powers of. sec. 7 256 38a 
 
 power to set aside assessments by, sec. 1 252 
 
 Compensation of commissioners part of the expenses of the work 
 
 sec. 6 255 38a 
 
 Complaint in action to condemn, provision regulating form of, 
 
 constitutional, sec. 18 264 
 
 Condemnation, in action for, irregularities in prior proceedings 
 
 must be alleged by defendant in his answer, sec. 18. . 266 
 
104a STREET WORK LAW INDEX 
 
 Condemnation necessary where private property is taken r sec. 1 250 
 
 proceedings, form of complaint in, sec. 18 264 
 
 proceedings, none can be taken until council has acquired 
 
 jurisdiction, sec. 18 f 263 
 
 proceedings, when and how prosecuted, sec. 18 262 42a 
 
 when action of council is final and conclusive of necessity 
 
 for, sec. 18 264 
 
 Constitutionality of street opening act of 1889, sec. 1 246 
 
 Construction, how act to be construed, sec. 25 271 44a 
 
 Conveyance by property owners, sec. 17 262 42a 
 
 Damages, to land taken or damaged, amount of and evidence of, 
 
 sec. 18 266 
 
 Decisions under prior street opening acts, sec. 1 250 
 
 Dedication, evidence of not admissible in action to condemn, 
 
 sec. 18 264 
 
 Deed of conveyance by property owners, sec. 17 262 42a 
 
 of street superintendent conclusive evidence of necessity of 
 taking or damaging lands, and of the correctness of 
 
 compensation, sec. 16 261 41a 
 
 of street superintendent prima facie evidence of regularity, 
 
 sec. 16 261 41a. 
 
 Definitions, sec. 23 270 44a 
 
 Delinquent, when assessments become, sec. 16 261 41a 
 
 District, specifying exterior boundaries, sec. 2 254 
 
 whole city may be included in, sec. 22 270 43a 
 
 Expense, legislature may determine how the expense shall be 
 
 borne, sec. 1 250 
 
 Expenses, incidental, sec. 7 256 38a 
 
 includes compensation of commissioners, sec. 6 255 38a 
 
 what deemed to be, sec. 8 256 39a 
 
 Fee does not pass to city unless necessary, sec. 18 263 
 
 Hearing objections to report, sec. 14 260 40a 
 
 Improvement, meaning of, sec. 23 270 44a 
 
 upon a street, what is, sec. 1 244 
 
 Incidental ex penses, include what, sec. 7 256 38a 
 
 Jurisdiction, power of council to determine its own, sec. 1 251 
 
 to order work to be done, when deemed to be acquired, 
 
 sec. 5 255 38a 
 
 Lands, the benefits accrue to and not to the buildings, sec. 1 ... 253 
 
 Lessee, assessing benefits to, sec. 1 253 
 
 Lien, when assessment lien attaches, sec. 15 . . . 260 40a 
 
 Market value, how proved, sec. 18 266 
 
 Miscellaneous provisions and definitions, sec 23 270 44a 
 
 "Municipality," what is, sec. 23 270 44a 
 
 Newspapers, sec. 23 270 44a 
 
 Notice by publication that the superintendent of streets has 
 
 received the assessment roll, sec. 16 260 40a 
 
 of filing report and plat to be published, sec. 13 260 40a 
 
 of passage of resolution of intention, sec. 3 254 37a 
 
 to objectors, sec. 14 260 40a 
 
 to property owners that warrants have been drawn for 
 
 payments, sec. 17 262 42a 
 
 what necessary, sec. 23 271 44a 
 
 Notices, in what newspapers to be published, sec. 23 270 44a 
 
 Objections, hearing by council, sec. 5 255 38a 
 
 in writing to report and plat to be filed, sec. 14 260 40a 
 
 Objections in writing may be filed by interested parties objecting 
 
 to the work or to the district, sec. 4 254 38a 
 
INDEX TO STREET OPENING ACT OF 1889. 105a 
 
 Opening a street does not include ''improvement" upon a street, 
 
 and the act does not authorize "grading", etc., sec. 1 244 
 
 a street, what is, sec. 1 ' 243 
 
 streets, power of is legislative and not judicial, sec. I. '. '.'.'. 250 
 Order for work to be done, when jurisdiction to pass deemed to 
 
 be acquired, sec. 5 255 38a 
 
 to do work, passage of, sec. 6 255 38a 
 
 Outline of the provisions of street opening act of 1889, sec. 1 1 ... 241 
 
 Owner, benefits accrue to the owner of the fee, sec. 1 253 
 
 Owners, error in designation of, does not affect validity of assess- 
 ment or of the condemnation, sec. 12 260 40a 
 
 if unknown, the land may be set down as belonging to 
 
 unknown owners, sec. 12 260 40a 
 
 Payment, when owner is entitled to, sec. 18 264 
 
 Payments for land and improvements taken or damaged, when 
 
 and how made, sec. 17 262 42a 
 
 to be paid by city treasurer upon warrants, sec. 8 256 39a 
 
 sec. 16 261 41a 
 
 Petition, sec. 1 251 
 
 Plat, copy of,, to be filed with county recorder, sec. 10 259 39o 
 
 to accompany report of commissioners, sec. 10 259 39a 
 
 to be filed in clerk's office, sec. 13 260 40a 
 
 Powers of council to open, extend, widen, straighten or close 
 
 street, sec. 1 241 37a 
 
 Prior acts, proceedings commenced under, may be continued 
 
 under this, "sec. 24 " 271 44a 
 
 Proof of publication and posting, how made, sec. 23 270 44a 
 
 Publication and posting, proof of, sec. 23 270 44a 
 
 what necessary, sir. 2. 1 5 271 44a 
 
 Railroad's interest in a street is an easement and subject to 
 
 assessment, sec. 1 252 
 
 Re-assessment , sec. 14 ... 260 40a 
 
 Redemption of property sold for delinquent assessments, sec. 16. 261 41a 
 
 Report, confirmation, correction or modification of, sec. 14 260 40a 
 
 of commissioners to council, sec. 10 259 39a 
 
 of commissioners, what must specify, sec. 11 . 259 39a 
 
 to be filed in clerk's office, sec. 13 260 40a 
 
 Resolution of intention, sec. 2 254 37a 
 
 notice of passage of, sec. 3 254 37 
 
 Sale of property for delinquent assessments, sec. 1(3 261 41a 
 
 Section one . . .' 241 37a 
 
 two 254 37a 
 
 three.. 254 37a 
 
 four 254 38a 
 
 five 255 38a 
 
 six 255 38a 
 
 seven 256 38a 
 
 eight . " . , 256 39a 
 
 nine 256 39a 
 
 ten 259 39a 
 
 eleven 259 93a 
 
 twelve 260 40a 
 
 thirteen 260 40a 
 
 fourteen 260 40a 
 
 fifteen 260 40a 
 
 sixteen 260 40a 
 
 seventeen 262 42a 
 
 eighteen 262 42a 
 
 nineteen 269 43a 
 
 twenty 269 43a 
 
106a STREET WORK LAW INDEX 
 
 Section twenty-one 270 43a 
 
 twenty-two 270 43a 
 
 twenty-three 270 44a 
 
 twenty-four 271 44a 
 
 twenty-five 271 45a 
 
 Streets, including more than one in one proceeding, sec. 1 252 
 
 Street opening act of 1889, constitutionality of, sec. 1 246 
 
 Street opening act of 1889, outline of provisions of, sec. 1 241 
 
 Street opening acts do not provide for "improvements" upon 
 
 existing streets, sec. 1 244 
 
 Superintendent of streets must publish notice of receipt of assess- 
 ment roll. sec. 16 260 40 
 
 who is, sec. 23 270 44 
 
 Supplementary assessment, sec. 18 262 42a 
 
 when and how made, sec. 20 269 43a 
 
 Surplus, how divided, sec. 20 269 43a 
 
 Title, commissioners to assess damages have no jurisdiction to 
 
 determine, sec. 1 251 
 
 Treasurer, who is, sec. 23 271 44a 
 
 Value of land taken, evidence of, sec. 18 266 
 
 Warrant drawn for payments for land or improvements taken 
 
 or damaged, sec. 17 262 42a 
 
 Warrants for payments, contents of, sec. 8 256 39 
 
 sec. 16 261 41a 
 
 order of payment of, sec. 19 269 43 
 
 out of what fund payable, sec. 19 269 43 
 
 "Work," meaning of, sec/23 270 44a 
 
 INDEX TO STREET OPENING ACT OF 1893. 
 
 Act of March 6, 1889, limited to cities of less than forty thousand 
 
 inhabitants, sec. 23 ." 293 
 
 Act to be liberally construed, sec. 24 294 
 
 Assessment for grading and filling lots, sec. 9 289 
 
 how collected, sec. 16 291 
 
 how made, sec. 9 289 
 
 lien, when attaches, sec. 15 290 
 
 supplementary, when authorized, sec. 20 292 
 
 when new assessment ordered, sec. 14 290 
 
 Assessments, when delinquent, sec. 16 290 
 
 Assessment, roll notice of receipt of by superintendent of streets 
 
 to be published, sec. 16 290 
 
 what is, sec. 15 290 
 
 Bar to proceedings, if objections sustained, sec. 5 287 
 
 Board of audit, report of, final and conclusive as to amounts 
 
 allowed, sec. 22 2,)3 
 
 who constitute and duties of, sec. 22 293 
 
 Board of public works, shall constitute the board of commission- 
 ers, sec. 6 288 
 
 Boundaries of assessment district, sec. 2 287 
 
 Certificate of delinquency, sec. 16 291 
 
 Certified copy of report, etc., for warded to street superintendent, 
 
 sec. 15 290 
 
 Cities of forty thousand inhabitants or over, subject to provisions 
 
 of this act, sec. 1 272 
 
 sec. 23 293 
 
 City, what is, sec. 21 293 
 
 
INDEX TO STREET OPENING ACT OF 1893 107a 
 
 City attorney, duty to render services to commissioners, sec. 6 288 
 
 member of board of audit, sec. 22 ' 293 
 
 clerk, who is, sec. 21 . 293 
 
 council, what is, sec. 21 293 
 
 treasurer, who is, sec. 21 293 
 
 Clerk, who is, sec. 21 293 
 
 Collection of delinquent assessments, sec. 16 '. 291 
 
 Commission, life of existing, may be extended, sec. 23. ........ . 293 
 
 Commissioners, appointment of, sec. 6 288 
 
 bond of, sec. 6 288 
 
 compensation of , sec 6 .,....].. 288 
 
 duties of, in viewing land, etc., sec. 9 289 
 
 office of, sec. 7 \' m 288 
 
 removal of, sec. 6 288 
 
 report of. sec. 10 289 
 
 report of, what shall specify, sec. 11 289 
 
 secretary and clerks to, sec. 7 288 
 
 Condemnation proceedings, when and how prosecuted, sec. 18. . 292 
 
 Conflicting claims to title, sec. 12 289 
 
 Construction of the act to be liberal, sec. 24 294 
 
 Constitutionality of the street opening act of 1893 272 
 
 Conveyance by property owners, sec. 17 291 
 
 Deed of conveyance by property owners, sec. 17 291 
 
 Deed of street superintendent conclusive evidence of necessity of 
 
 taking or damaging lands, etc., sec. 16 291 
 
 Deed of street superintendent prima facie evidence of regularity, 
 
 sec. 16 291 
 
 Definitions of terms used, sec. 21 292 
 
 Delinquent, when assessment becomes, sec. 16 290 
 
 Expenses, incidental, what included in, sec. 8 288 
 
 Filing report and plat, sec. 13 290 
 
 (Jrading ami filling lots, assessment for, sec. 9 289 
 
 Hearing objections, sees. 4 and 5 287 
 
 objections to confirmation of report, sec. 14 290 
 
 Incidental expenses, what included in, se*c. 8 288 
 
 Improvement, what is, sec. 21 292 
 
 Judgment in condemnation proceedings, sec, 18 292 
 
 Jurisdiction to order work, when deemed acquired, sec. 5 287 
 
 Lien of assessment, when attaches, sec. 15 290 
 
 Mayor member of board of audit, sec. 22 293 
 
 Miscellaneous provisions, sec. 21 292 
 
 Municipality, what is, sec. 21 293 
 
 New report, plat and assessment, sec. 14 290 
 
 Newspapers, "what newspaper notices to be published in, sec. 21 292 
 
 Notice of filing report and plat, sec 13 290 
 
 to property owners that warrants have been drawn for 
 
 payments, sec. 17 291 
 
 to objectors, objecting to report, sec. 14. . 290 . 
 
 of passage of resolution of intention, posting and publish- 
 ing, sec. 3 287 
 
 by publication that street superintendent has received the 
 
 "assessment roll, sec. 16 290 
 
 Objections filed by owners of land affected, sec. 4 287 
 
 hearing, sec. 5 287 
 
 if sustained bar proceedings for twelve months, sec. 5. ... 287 
 
 time for hearing, sec. 4 287 
 
 to confirmation of report, sec. 14. . . 
 
 Office of commissioners, sec. 7 288 
 
 Order for work to be done, sec. 6 288 
 
108a STREET WORK LAW INDEX 
 
 Payment by warrants, sec. 8 289 
 
 sec. 16 291 
 
 for land and improvements taken or damaged, when and 
 
 how made, sec. 17 291 
 
 of amounts allowed by board of audit, sec. 22 293 
 
 Plat showing land taken, etc., sec. 10 289 
 
 Powers of council to open, extend, widen, straighten', diverge, 
 
 curve, contract or close np any street, etc., sec. 1. ... 272 
 
 Priority in warrants, sec. 19 292 
 
 Proof of publication, sec. 21, sub-div. 2 292 
 
 Publication, sec. 21, sub-div. 2 292 
 
 Recorder, report and plat when approved to be filed with, sec. 10. 289 
 Redemption of property sold for delinquent assessments, sec. 16. 291 
 
 Report and plat, filing of, sec. 13 . 290 
 
 and plat when approved to be filed with recorder, sec. 10. 289 
 
 confirmation, correction or modification of, sec. 14 21)0 
 
 filing objection to confirmation of, sec. 14 290 
 
 of board of audit, sec. 22 293 
 
 of commissioners, sec. 10 289 
 
 of commissioners, what shall specify, sec. 11 289 
 
 when new report ordered, sec. 14 290 
 
 Resolution of intention, sec. 2 287 
 
 Sale of property for delinquent assessments, sec. 16 291 
 
 Section one 272 
 
 two 287 
 
 three 287 
 
 four 287 
 
 five 287 
 
 six 288 
 
 seven .".. . 288 
 
 eight 288 
 
 nine 289 
 
 ten 289 
 
 eleven ' 289 
 
 twelve 289 
 
 thirteen 290 
 
 fourteen 290 
 
 fifteen 290 
 
 sixteen 290 
 
 seventeen 291 
 
 eighteen 292 
 
 nineteen 292 
 
 twenty 292 
 
 twenty-one 292 
 
 twenty-two 293 
 
 twenty-three 293 
 
 twenty-four 294 
 
 Street superintendent, who is, sec. 21 293 
 
 Superintendent of streets must publish notice oi receipt of assess- 
 ment roll, sec. 16 290 
 
 who is, sec. 21 293 
 
 Supplementary assessment, sec. 20 292 
 
 Tax collector, member of board of audit, sec. 22 293 
 
 Title, conflicting claims to, sec. 12 289 
 
 when defective title acquired, proceedings may be again 
 instituted, sec. 20 292 
 
INDEX TO SANITARY DISTRICT ACT 109 
 
 Treasurer, who is, sec. 21 293 
 
 Warrants, all payments to be by7 sec. 8 289 
 
 see. 16 ....... 291 
 
 drawn for payments for land or improvements taken or 
 
 damaged, sec. 17 291 
 
 order of payment of, sec. 19 292 
 
 "Work", what is, sec. 21 292 
 
 INDEX TO SANITARY DISTRICT ACT. 
 
 Act takes effect immediately, sec. 24 307 
 
 Acts, conflicting, repealed, sec. 23 307 
 
 Assessor, duties of, sec. 8 301 
 
 election of, sec. 7 301 
 
 vacancy in office of, sec. 7 301 
 
 Assessment list, sec. 8 301 
 
 sec. 11 302 
 
 Board of equalization, sanitary board to sit as, sec. 11 302 
 
 Bond, election, how conducted, sec. 15 304 
 
 Bonds, election to determine whether bonds shall issue, sec.14. 304 
 
 procmls of sale of, sec. 16 305 
 
 sale of, &ec. 16 305 
 
 when and how payable and form of, sec. 16 305 
 
 when may be issued, sec. 15 304 
 
 Collection of tax. sec. 12 303 
 
 sec. 17 , 305 
 
 Constitutionality of sanitary district act 295 
 
 Dissolution of district, sec. 21 307 
 
 Distiict, order declaring district established, sec. 4 300 
 
 District Attorney, duty of, sec. 20 306 
 
 Election for establishment of district, how conducted, sec. 4. ... 300 
 
 for establishment of district, order for, sec. 2 300 
 
 of members of sanitary board, sec. 9 '. . 302 
 
 to deterniire whether bonds shall issue, sec. 14 304 
 
 to determine whether bonds shall issue, how conducted, 
 
 sec. 15 304 
 
 Fund, how moneys to be paid from, sec. 13 303 
 
 of sanitary district, sec. 13 303 
 
 running expense fund, sec. 13 303 
 
 Lien, sec. 11 302 
 
 Meetings of sanitary board, sec. 10 302 
 
 Minutes of sanitary* board, sec. 10 302 
 
 Moneys collected to be turned over to treasurer, sec. 13 303 
 
 how paid from fund, sec. 13 303 
 
 Officers of district 301 
 
 Order declaring district established, sec. 4 300 
 
 for election, posting and publishing copy of, sec. 3 300 
 
 Orders of board establishing any general regulation to be posted 
 
 and published, sec. 19 306 
 
 Petition for formation of district, sec. 1 299 
 
 Posting and publishing copy of order for election, sec. 3 300 
 
 Powers of district, sec. 5 . . " 300 
 
 of sanitary board, sec. 10. . 302 
 
 President of board must sign all documents, sec. 10 302 
 
 ot sanitary board, sec. 10 302 
 
 Principal and interest to be paid within twenty years, sec. 17. .. 305 
 
 Proceeds of sale of bonds, sec. 16 305 
 
 Regulations, general, sec. 19 306 
 
 Repeal, what acts repealed, sec. 23 307 
 
 Running expense fund, sec. 13 303 
 
STREET WORK LAW INDEX 
 
 Sale of bonds, sec. 16 305 
 
 of bonds, proceeds, sec. 16 305 
 
 Sanitary board, classification of members of, sec 9 302 
 
 election of members of, sec. 9 302 
 
 no compensation for members of, sec. 9 302 
 
 powers of, sec. 10 302 
 
 to sit as board of equalization, sec. 11 302 
 
 Sanitary district act, constitutionality of 295 
 
 fund, sec. 13 303 
 
 Section one 299 
 
 two 300 
 
 three 300 
 
 four 300 
 
 five 300 
 
 six 301 
 
 seven 301 
 
 eight 301 
 
 nine 302 
 
 ten 302 
 
 eleven 302 
 
 twelve 303 
 
 thirteen 303 
 
 fourteen 304 
 
 fifteen 304 
 
 sixteen 305 
 
 seventeen 305 
 
 eighteen 306 
 
 nineteen 306 
 
 twenty 306 
 
 twentv-one 307 
 
 twenty-two 307 
 
 twenty-three 307 
 
 twenty-four 307 
 
 Secretary of sanitary board must countersign all documents, 
 
 sec. 10 302 
 
 Sewers, cost of, how borne, sec. 22 307 
 
 powers of board to construct, sec. 22 307 
 
 Signing documents, president must sign and secretary counter- 
 sign, sec. 10 302 
 
 Special proceedings in court to determine the right to issue 
 
 bonds and the validity thereof, sec. 18 306 
 
 Suits for taxes, sec. 12 303 
 
 Tax, collection of, sec. 17 305 
 
 lien, sec. 11 302 
 
 to pay irterest and principal of bonds, sec. 17 305 
 
 when and how levied, sec. 17 305 
 
 Taxes, collection of, sec. 12 303 
 
 suits for sec. 12 303 
 
 Taxation, rate of, sec. 11 302 
 
 Vacancy in office of assessor, sec. 7 t 301 
 
 INDEX TO MUNICIPAL INDEBTEDNESS ACT. 
 
 Act, takes effect from and after passage, sec. 13 .* 312 
 
 Acts, what repealed, sec. 12 
 
 Advertising for sealed proposals, sec. 10 312 
 
 Bidder, bond of, sec. 10 
 
 Bids, rejection of, sec. 10 312 
 
INDEX TO THE MUNICIPAL INDEBTEDNESS ACT Ilia 
 
 Board of public works shall do and perform all acts required to 
 
 be done by legislative branch of municipality, sec. 9. . 312 
 
 sec. 10 312 
 
 Bond act and municipal indebtedness act compared sec. 1 309 
 
 of successful bidder, sec. 10 312 
 
 Bonds, form and character of, sec. .311 
 
 of treasurer, sec. 11 312 
 
 place of payment, sec. 7 311 
 
 proceeds of sale of, sec. 6 '][[ ,[[. 311 
 
 rate of interest, sec. 7 311 
 
 sale of, sec. 311 
 
 signing and countersigning, sec. 7 311 
 
 what vote requisite to authorize issuance of, sec. 3 310 
 
 when and how payable, sec. 6 31 1 
 
 Contracts to be let to lowest responsible bidder, sec. 10 312 
 
 Election, notice of, to be published, sec. 3 310 
 
 ordinance calling to be published, sec. 3 310 
 
 to determine whether bonds shall issue, how conducted, 
 
 sec. 2 310 
 
 to determine whether bonds shall issue, ordinance call- 
 ing, sec. 2 310 
 
 Engineers, sec. 9 312 
 
 Estimates of cost, sec. 4 311 
 
 Form and character of bonds, sec. 6 311 
 
 History of general municipal indebtedness acts, sec. 1 308 
 
 Indebtedness, limit to amount of, sec. 5 311 
 
 power of city, town or municipal incorporation to incur 
 
 for municipal improvement, sec. 1 308 
 
 Improvements, rules and regulations for carrying out and main- 
 taining, sec. 9 ' 31-2 
 
 Interest, rate of, sec. 7 311 
 
 Limit to amount of indebtedness that may be incurred, sec. 5. . 311 
 
 Municipal indebtedness act and bond act compared, sec. 1 309 
 
 Notice of special election to be published, sec. 3 310 
 
 Ordinance calling special election to be published, sec. 3 310 
 
 calling a special election to determine whether bonds 
 
 shall issue, sec. 2 310 
 
 determining that the public interest, etc., demands the 
 acquisition, etc., of any municipal improvements, etc., 
 
 sec. 2 310 
 
 publication of, sec. 2 310 
 
 Payment, place of, sec. 7 311 
 
 Plans and estimates of cost, sec. 4 311 
 
 Power of city, town or municipal incorporation to incur indebt- 
 edness, sec. 1 308 
 
 Proceeds of sale of bonds, sec. 6 311 
 
 Proposals, sealed, to be advertised for, sec. 10 312 
 
 Publication of ordinance determining that the public interest, 
 etc., demands the acquisition, etc., of any municipal 
 
 improvements, etc., sec. 2 310 
 
 Rejection of bids, sec. 10 312 
 
 Repeal of acts of March 9, 1885, March 15, 1887, and all conflict- 
 ing acts, sec. 12 312 
 
 Rules and regulations for carrying out and maintaining improve- 
 ments, sec. 9 312 
 
 Sale of bonds, sec. 6 311 
 
 Section one . . 308 
 
 two 310 
 
 three.. 310 
 
112a STREET WORK LAW INDEX 
 
 Section four ; 1 1 
 
 five 311 
 
 six 311 
 
 seven 311 
 
 eight :;il 
 
 nine 312 
 
 ten 312 
 
 eleven 312 
 
 twelve 312 
 
 thirteen 312 
 
 Superintendents, sec. 9 312 
 
 Tax to pay interest and principal of bonds, sec. 8 311 
 
 how levied and collected, sec. 8 311 
 
 Treasurer, additional bonds of, sec. 11 312 
 
 Vote, what requisite to authorize issuance of bonds, sec. 3 310 
 
 INDEX TO FORMS USED UNDER VROOMAN ACT OF 
 MARCH 18, 1885. 
 
 Assessment 56a 
 
 Award 51a 
 
 notice of 52a 
 
 Bond of contractor 53a 
 
 Certificate of record 61 a 
 
 Change of grade, ordinance of intention 7la 
 
 Complaint in action to foreclose a street assessment lien 61a 
 
 Contract r>2 
 
 Contractor's bond 53 
 
 proposal with bond ... . 50a 
 
 return 60a 
 
 Diagram 58a 
 
 Extension by superintendent of streets , 55a 
 
 resolution authorizing 55a 
 
 Grade, ordinance changing and establishing 72a 
 
 ordinance of intention to change 71 a 
 
 Notice inviting sealed proposals 49a 
 
 of award of contract 52a 
 
 of passage of resolution of intention 48a 
 
 of passage, of ordinance of intention to change grade 72a 
 
 Ordinance changing and establishing grade 72a 
 
 of intention to change grade 71a 
 
 Order for work to be done ~ 48a 
 
 Proposal with bond 50a 
 
 Record, certificate of ' 61a 
 
 Resolution of award 51a 
 
 of extension 55a 
 
 of intention 47a 
 
 ordering work to be done 48a 
 
 Return (>0a 
 
 Sealed proposals, notice inviting 49a 
 
 "Warrant 59a 
 
 INDEX TO FORMS USED UNDER THE BOND ACT. 
 
 Assessment 77a 
 
 Award 77a 
 
 notice of 77a 
 
 Certificate of record 78a 
 
 Certified list of unpaid assessments ...., 78a 
 
 Contract and bond 77a 
 
INDEX TO THE MUNICIPAL INDEBTEDNESS ACT 113a 
 
 Contractor's proposal with bond .............................. 76a 
 
 return ................................................ 78a 
 
 Diagram ..... ---- ^ ............... ". ........................... 77a 
 
 Estimates, resolution directing engineer to furnish ............. 74a 
 
 List of unpaid assessments .................................. 78a 
 
 Notice inviting sealed proposals, .............................. 76a 
 
 of award .................................. - ............. 77a 
 
 of passage of resolution of intention ..................... 76rc 
 
 Order for work to be done .................................... 76a 
 
 Proposal with bond ........................................... 76a 
 
 Proposals, notice inviting ..................................... 76a 
 
 Record, certificate of .......................................... 78a 
 
 Return ..................................................... 78a 
 
 Resolution directing engineer to furnish estimates ............. 74a 
 
 of award .............. ................................ 77a 
 
 of intention .......................................... 74rt 
 
 ordering the work .................................... 76a 
 
 Warrant ................................................... 77a 
 
 INDEX TO FORMS USED UNDER THE STREET OPENING 
 ACT OF 1889. 
 
 Assessment roll, certificate of superintendent of streets, at foot 
 
 of .................................................. 86a 
 
 notice of receipt of by superintendent of streets .......... 86a 
 
 Certificate of city clerk certifying to copy of report, etc ......... 86a 
 
 of superintendent of streets at foot of assessment roll ..... 86a 
 
 Notice by superintendent of streets that he has received the 
 
 assessment roll .................................... 86a 
 
 of filing report of commissioners, resolution of council 
 
 directing publication of ............................. 85a 
 
 of filing report of commissioners with city clerk .......... 85a 
 
 of passage of resolution of intention ..................... 80a 
 
 Order for work to be done ..................................... 81a 
 
 Report of commissioners ..................................... 82a 
 
 Resolution declaring intention ................................ 79a 
 
 directing clerk to publish notice of filing report of com- 
 missioners ......................................... 85a 
 
 ordering work to be done ........ .^^ ..... . . ^^. . ........ 81a 
 
 OF THE 
 
 UNIVERSITY 
 
ERRATA. 
 
 (/.) Through an oversight, thirteen words were omitted from the first 
 sentence of the notes to section 7 of the Vrooman act of March 18, 1885, 
 page 67, thus changing the meaning completely. It should have read as 
 follows : 
 
 Subdivision 1. Subdivision 1 of section 7 provides: (1) That the expense 
 incurred for any work authorized by this act, and which is to be paid for by 
 the front-foot plan of assessment, shall not include the cost of any work done 
 in such portion of any street as is required by law to be kept in order or 
 repair by any person or company having railroad tracks thereon, etc. 
 
 The words thus inadvertently omitted are in italics. 
 
 (#.) In the form of an assessment given on page 56a, certain words are 
 abbreviated. In the manuscript these words were all written out in full, 
 but the printer, for his own convenience in setting it up, not knowing how 
 particular the courts have been where abbreviations have been used in 
 assessments, used abbreviation? in some places. Superintendents of streets 
 who do not wish to encourage litigation will not follow the printer's exam- 
 ple, or, if abbreviations are used, he will see that they are accompanied by 
 an explanatory note. 
 
 UNIVERSITY 
 
TO 
 
 U. C. BERKELEY LIBRARIES