No 2,192

#### T. J. A. CHAMBERS, Plaintiff and Respondent, *v.*JOHN SATTERLEE *et al.,*Defendants and Appellants.

Pbivate Pbofebty taken fob Public Use. — Constitutional Constbuction. The last clausa of Section 8, Article l,of the Constitution, which provides that no “ property shall he taken for public use, without just compensation,” has no application to assessments for street work, in the City and County of San Eranciseo, under the Consolidation Act as amended in 1862 and 1863.

Idem. — Assessment fob Stbeet Woek not “ Taxation.” — An assessment for ■street work in the City and County of San Eranciseo, under the Consolidation Act, is not “ *taxation, "*within the meaning of the 13th Section of Article 11 of the Constitution.

Idem. — Consolidation Act. — It is competent for the Legislature to provide for the expenses of public improvement, either by general taxation upon the property of all the inhabitants of the county or town in which they are made, or upon property adjacent thereto, and specially benefitted thereby; and in these respects, the constitutionality of the Consolidation .Act must be considered definitely established.

ClTX and Countx of San Eeancisco. — Altebation of Steeet Gbadm. — It did not require the signatures of the persons composing the Board of Engineers, to be attached to the maps and profiles prepared under the Statute of 1863-4, to establish the lines and grades of streets in the City and County of San Eranciseo in order that they should become valid. Their approval by the Board of Supervisors was sufficient for that purpose.

*498Idem.-Board op Supervisors.-Publication op Notice op Intention to order Street Wobk. — A resolution of the Board of Supervisors, directing a publication of a notice of intention for street -work, for ten days from and after a particular date, the publication of which was not in fact commenced until two days after the time fixed in the resolution, but was then made for the legal period of ten days, was a substantial compliance with the provisions of the law.

Idem.-Street contracts. — Assessment to “Unknown Owneks.” — An assessment on property for street work, made by the Superintendent of Streets to “ unknown owners, ” amounts to an official certificate by the proper officer, that the owner of the particular lot designated was unknown to him. The certificate is conclusive of the truth of the fact so certified and cannot be collaterally ealledin questionin anaction broughtupon the assessment.

Idem. — Stbebt Oontbact. — Remedy op Aggrieved Party. — Where a contract for street work, entered into by the Superintendent of Streets, is not in compliance with the resolution of the Board of Supervisors, by which it is authorized, the remedy for the aggrieved party is by appeal to the Board, and failing to avail himself of that remedy, he cannot, afterward, set up such irregularity as a defense to an action to recover the amount of the assessment.

Idem. — Statutory Construction. — Jurisdiction under Consolidation Act. It was the intention of the statute authorizing street improvements i n the City and County of San Francisco, to leave open for judicial inquiry all questions of a jurisdictional character, and to submit all other questions to the decision of the Board of Supervisors.

Per Temple, J., concurring;

Idem. — Publication op Notice op Intention to obdee Street Wobk. — The provisions of the statute which authorizes the Board of Supervisors to order street work to be done after notice of their intention to order the work has been published for ten days, requires the notice to be given by the Board itself, and the publication required can only be made by their authority.

Idem. — Exercise op Power by the Board op Supervisors. — After the Board has acquired jurisdiction to act, by due publication of the resolution of intention, they must still exercise their power in the mode prescribed by law.

Idem. — Statutory Constbuction. — Taking Private Pkoperty por Public Use. — In proceedings to divest individuals of their estates for public use, statutes must be construed strictly in favor of individual right; yetinthe exercise of the powers conferred, which are to be used for the public good, they should be construed liberally, so far-asitis necessary to render their execution practicable.

Per Crockett, J., concurring:

Idem. — Contract por Street Work. — Special Agency. — In entering into a written contract for the performance of street work, ordered by resolu*499tion of the Board of Supervisors, the Superintendent of Streets becomes *pro hac vice,*the special agent of the Board, with authority to execute the contract which has been awarded, and no other or different contract.

Idem. — Seeciad Agent. — Act or. — In Excess oe Authority. — -An Act performed by a special agent in excess of his authority, which is divisible in its nature, so that the part which he was authorized to perform can be separated from the rest, without injury to the principal; the latter will be bound by it so fax as he authorized it, and it will be void only for the excess.

Idem. — Contract eor Street Work. — A contract entered into by the Superintendent of Streets, under a resolution of the Board of Supervisors, ordering a street to be graded to the official grade, but which provided, in addition, that the roadway should be graded one foot below the official grade, is divisible in its nature, and is valid to the extent that it is authorized by the resolution of the Board.

Appeal from tbe Twelfth District Court,. City and County of Sitn Francisco,

Defendants appeal from tbe judgment and from the order denying a new trial. Action to recover an assessment for alleged improvements on Yan Ness Avenue, in the city of San Francisco, from Clay street to Pacific street-

The complaint alleges that the Board of Supervisors passed a resolution of intention to grade the avenue as above named, wbicb resolution was signed and published for ten days, etc. Tbe resolution was passed July 29th, 1867, the publication began July 31st, 1867. August 12th a resolution providing for the work was passed; August 14th notice inviting sealed proposals was given; September 2d, 1867, the contract was awarded to B. the lowest bidder, and notice of tbe award was duly published September 19th, 1867, tbe Superintendent of Streets entered into a written contract witb B. with specifications, etc., to do the work. It specified .that the work was to be done in a good and workmanlike manner, to tbe satisfaction and under tbe direction of tbe Superintendent, and that the Superintendent shall make an assessment, and attach a warrant as provided by law for tbe expenses of tbe work. It was specified tbat tbe City should not b.e held liable for tbe work, nor for any delinquency of the persons or property assessed; nor should the Superintendent or his bondsmen in any event be liable.

*500Tbe specifications were as follows: *“Specifications*— Tor grading Van Ness Avenue, from Clay to Pacific street. Tbe above named portion of Van Ness Avenue to be graded to tbe official beigbt and line, except tbe roadway, wbicb is to be graded 12 inches below tbe official grade, and wben completed, is to bave a crown to tbe centre of eighteen (18) inches from tbe bottom of tbe gutterways. Tbe work is to be commenced within (20) twenty days, and completed within two hundred (200) days from tbe date of contract.”

Tbe complaint then alleges that B. did and completed all tbe work according to tbe terms of tbe contract and specifications, and under tbe direction and to tbe satisfaction of tbe Superintendent, who approved tbe work, assessed and apportioned tbe whole amount of tbe expense, upon tbe lots and tbe lands fronting on said work, and upon each lot separately in proportion to its frontage on said work *”*and on said main street, wbicb assessments briefly referred to tbe contract, tbe work contracted for and performed, and showed tbe amount to be paid therefor, tbe incidental expense, tbe rate per foot assessed, tbe amount of each assessment, tbe name of tbe owner of each lot assessed wben known, and wben tbe name was unknown, tbe word ‘unknown5 was written opposite tbe number of tbe lot, and said assessment was signed by tbe Superintendent, and bad a diagram attached thereto showing tbe street crossings, etc. "Wbicb assessment was attached to tbe warrant, etc.

That tbe lots described in tbe complaint were assessed to “ unknown ” owners, etc. That defendants were, and are tbe owners of such lots in fee.

October 7th, 1868, tbe Superintendent issued bis warrant and delivered it with tbe assessment and diagram to B., “wbicb warrant was signed by said Superintendent, and countersigned by H. M. Hale,” City Auditor in bis official capacity. October 7th, 1868, demand for payment was made upon tbe land. February 17th, B. assigned to Me-in who in turn assigned to plaintiff, March 14.

*501That no person appealed to the Board of Supervisors concerning any of the acts of the Superintendent.

The answer denies that publication of the resolution of intention was made; denies that it declared an intention to grade to the *official grade,*“but only to the grade.” That the order of the Board did not say “ official grade. That the Avenue was not graded to any official grade.”

That there never was, nor is there now any declared or established official grade of or for the Avenue named. That the assessment was fraudulent as against defendants, and the property described.

That the Superintendent knew the defendants were own-ners of the land, and the.ownership of one at least was of public repute.

That when the work was accepted, and the warrants issued, B. the plaintiff, and the Superintendent knew, that the Avenue had not been graded to any official grade; and that the acceptance and the issuance of the warrant were and are fraudulent. May 12, 1869, plaintiff by order of Court took judgment against the defendants.

The cause was tried by the Court without a jury.

Defendants moved for a new trial, which was denied.

The agreed statement shows that at the trial the plaintiff offered in evidence the warrant, assessment, diagram and return on the warrant. The return showed that demand was made on the property only and not on any one personally. Plaintiff rested.

Defendants moved for a nonsuit, because, 1st. The contract, etc., called for a grade one foot below the official grade, whereas the order authorizing the grading and the law permitted grading to the official grade only. 2d. That the real name of the plaintiff does not appear. The Court denied the motion.

Defendants proved that the assessment was not made upon any personal knowledge of the Superintendent, but was based on the certificate of the City and County Survey- or, which certificate was made only on the knowledge of a Deputy-Surveyor, who furnished the data to another Deputy *502Surveyor, wbo made the calculations, etc., and reported the same to the Surveyor upon which he gave the certificate.

It was admitted that the property assessed to unknown owners by the Superintendent, was assessed by the City and County Assessor for the City and County of San Francisco to the estate of William S. Reese, deceased, for the years 1866, 1867 and 1868, and that during all that time John Satterlee, one of the defendants, was, and still is, administrator of said estate.

It was admitted by defendants that at the date of the assessment, there was a suit pending between the said administrator of Reese, deceased, and other parties respecting the property to be assessed in the present action as to its ownership; that at the time this suit was commenced,' at the request of the administrator various persons were named as claimants of said property, and were made defendants in the present action, and that the suit above referred to has since been decided in favor of John Saterlee, and that the latter is the administrator and devisee of the property, and the owner of the fee

Defendants proved that the order of the Board, directing publication of notice of intention was for *grading*the Avenue, and that it was ordered that the notice be published ten days *‘from and after its*passage.” That the order was passed July 29th, 1867, and was not published until July 31st, 1867. That the order on which the warrant assessment, etc., is based called for the grading of Yan Ness Avenue. That the profile establishing the lines and grades of streets, (Stats. 1863-4, p. 460) was not, and never had been signed by one Thaddeus R. Brooks, one of the “Board of City Engineers.”

The defendants moved to vacate the findings for the following causes. 1. Insufficiency of the evidence etc. 2. The evidence shows the plaintiff not entitled to recover. 3. That the decision is against law because; (a) There is no official grade of the Avenue; (b) The profile was never signed by Brooks; (c) The notice of intention was not published for ten days from and after its passage; (d) That *503the notice and order and the law called for, and authorized the grading to the official grade only; while the contract called for, and the grade was made, one foot below the official grade; (e) That the assessment to unknown owners was erroneous; (f) It was not sufficient to make demand upon the land alone; (g) The grading of the Avenue was not authorized, because there was no official grade established; (h) That the *prima facie*character of the evidence furnished by the warrant, assessment and diagram, is destroyed by the proofs and admissions that the assessment was made by the Superintendent on other than his personal knowledge; (i, lastly) That the “Act of the Legislature ” and the laws and orders thereunder, were and are unconstitutional.

*Nathaniel Bennett,*of Counsel for Appellants.

*Eirst*— The contract was for grading a street *one foot below the official grade;*the law authorized grading *to the official grade only.*The work done under such a contract therefore was without authority, and hence void; will refer to our argument of the same question in *Himmelman*v. *Byrne <& Brodie,*in this Court.

A resolution by the Board of Supervisors, that a street be *graded,*is equivalent to a resolution that it be graded to the *official grade.*So held in *Emery*v. *San Francisco Gas Company,*(28 Cal. 376-7).

The resolution to *grade,*gave notice to property-owners only to that effect and extent, of the intent of the Board of Supervisors to have the street *graded*to the grade *established by laxo.*

The Superintendent of Streets can, contract only for work ordered by the Board; if he exceed the order his authority is wanting, his acts are void. The Board having never declared its intention to grade one foot *below*the official grade, any contract entered into by the Superintendent so to do was null.

*504The Superintendent cannot be allowed to overstep tbe line prescribed by tbe Supervisors. *(Smith*v. *Davis,*30 Cal. 536; and cases cited on p. 537.)

Tbe contract is unauthorized, and bence void, also because it provides for a *“*crown in tbe center of fourteen inches, from tbe *bottom*of tbe *gutterways.”*Tbe official grade gives no such authorization, being a dead level from one side to tbe other. Tbe position we take cannot come under tbe doctrine of *de miminis.*

We submit tbe contract is void, for want of authority in tbe Superintendent to make it. (Blackwell, 161-2, 2d, Ed,, 1864; *People*v. *McOreery,*34 Cal. 432; *Dougherty*v. *Hitchcoch,*35 Id. 512.)

It may be said our remedy is gone because we did not appeal to tbe Board. Appeals by Sec. 12 of tbe Amendment of .1863, provides for an appeal to tbe Board *“ as to all errors and irregularities which said Board could have remedied and avoided.”*This is neither *error*nor *irregularity.*It is a want of power.

Tbe Board could not have remedied or avoided it. Tbe failure to appeal then, will not vitalize a void proceeding for want of power. *(Himmelmann*v. *Steiner,*Oct. T. Sup. Court, Cal. 1868; *Doherty*v. *Me Alpine,*Same Term; *Dougherty*v. *Hitchcoch,*35 Cal. 512.)

The second branch of our first point is fully sustained by tbe last cited case. See, also, *Emery*v. *Bradford,*(29 Cal. 86); on tbe points that tbe work was done and tbe mischief past remedy when tbe time for appeal came.

It follows, tbe contract is void on account of excess of power in making it, and bence all subsequent proceedings are void.

Tbe Board never *attempted*to authorize tbe variation in tbe contract, and if it did so attempt, it was illegal, for it cannot delegate discretionary power, nor depart from tbe very *marh*prescribed in tbe resolution of intention. (See cases above cited; also *Thompson*v. *Schemerhorn,*2 Seld. 92.)

*505*Second*— Tbe assessment was made to “unknown owners.” Satterlee and Eeese at least were well known. Tbe lots bad for two years previous been assessed to Eeese on tbe City and County Assessor’s books. For tbis reason tbe assessment was void.

Tbe Statute (1862, p. 397,) contemplates that when tbe name of tbe owner — or claimant, as in tbis case — of a lot is known to tbe Superintendent, or may by tbe exercise of at least slight diligence be ascertained, be shall put such name down “ opposite tbe lot assessed ” etc.

It was never intended to leave it to tbe Siiperintendent alone, to determine tbe question whether tbe name was known to him or not.

Tbis Court has held that an assessment, to be valid, must be made to tbe owner if known. *(Blatner*v. *Davis,*32 Cal. 328.)

*Third*— Tbe map or profile of tbe street was not signed by Brooks, one of tbe Board of Civil Engineers, as required by the statute, and hence there was no official grade established for tbe street.

Tbe common law rule is that where several are to do an act under authority, a majority may decide, etc., unless tbe statute otherwise directs. *(Dougherty*v. *Hope, '*3 Denio, 253, and cases cited.)

*.Fourth*— The resolution of intention to grade was not published according to law, and tbe proceedings are null and void for that reason. On tbis point we refer to our argument in *Himmelman*v. *Byrne & Broide,*in this Court.

Tbe statutes (1863, p. 525,) provides that the resolution shall be published for “ *a period of ten days,”*etc., but it does not say when tbe publication shall commence. Tbis is left to tbe Board of Supervisors to determine, and tbis they do in tbe resolution; “tbis resolution is to be published for a period of ten days, (Sundays excepted), *from and after its passage,”*etc. Persons objecting, are to do so, “within ten days after tbe *first publication*thereof,” etc.

Tbe first publication should be' at least on tbe next day after its passage; if not, then it may be commenced any *506time *after,*and no point of time for commencing will be fixed upon. The words “from and after,” must mean that the ten days are to begin to run on tbe next day succeeding to the passage of the resolution.

Objectors have ten days to file objections “after the *first publication.*” The object is to give notice. By our construction notice is given; by our opponent’s construction no notice is given, for how are the property holders to know when the publication began ? The resolution being dated, the published advertisement, should, on its face, show when it began, and this it does *only*when it begins on the *next day*after the passage of the resolution.

But if it is said, that the call of the resolution is really for a publication of *eleven*days, we reply: the resolution called for a publication of *ten*days, Sundays included in the ' period, but excepted from the publishing days, that is, the statutory publication.' *(Haslcell*v. *Bartlett,*34 C. B. 281.)

If however the *eleven*days be taken as intended, then the the resolution ordered a publication different from that provided for by law; *i. e. ten*days. This would invalidate the resolutipn, and create a charge against the property owner not authorized by law. (Blackwell on Tax Titles 194, 261, and 68-82.)

The publication was not made pursuant to the order. The clerk has no inherent power to advertise. *([Menser*v. *Bisdon,*36 Cal. 239; Blackwell on Tax Titles, 61.)

It makes no difference if the order is construed for *ten*or *eleven*days publication; it is invalid because not made either ten or eleven days “ from and after its passage.”

*Fifth*— The *prima facie*character of the evidence furnished by the warrant, assessment and diagram, is destroyed by the proofs and admissions, that the assessment of the Superintendent of Streets was made by him upon data or assumed facts of which he had no personal knowledge.

The statute contemplates that the Superintendent shall make the assessment; it was never intended by the Act that he might delegate his powers. *Delegatus non delegare protest.*

*507The warrant is but a power or authority to the contractor to collect the amounts specified on the assessment and the diagram which forms part of the assessment.

No assessment was in truth made by the Superintendent, and it and the diagram and warrant were illegal and void. (See Blackwell Ed. of 1864, p. 39; *Dougherty*v. *Hitchcock,*35 Cal. 511.) ' It is held in *Himmelmann*v. *Jan-son,*(34 Cal.); *Taylor*y. *Doner,*(31 Id. 480); that if there was no contract, there could be no assessment; we have shown the contract to be unauthorized and void. This defect being fatal, there was no obligation on the defendants to appeal to the Board, for its action would not reach the disease.

*Sixth-*— 'The Act under which the work was done, and all the steps taken thereunder are unconstitutional, being repugnant to the last clause of Sec. 8, Article 1, of the Constitution.

We do not claim the Act in *-all*its parts as open as these parts prescribing the rule of assessment. Subdivision 1, of Sec. 8, gives an insight into the general character of the rule adopted. It provides that the expense for the work shall be assessed' upon lots and lands fronting thereon, *“*except as hereinafter specially provided, each lot or portion of lot, being separately assessed, *in proportion to its frontage, at a rate per front foot sufficient to cover the total expense of the work.”*No consideration of benefit or injury is here permitted to be considered. The Act is unconstitutional also because it provides for assessments to be made by an officer other than the one who is designated by the Constitution for that purpose.

The principle of the assessment is unconstitutional. The Legislative power sought to be exercised, is that of *taxation*not of *eminent domain. (Emery*v. *S. F. Gas Go.*28 Cal. 346; *People*v. *Mayor of Brooklyn,*4 Comst., 420.)

The question in this aspect has not been squarely presented ” *to,*or decided *by,*this Court. No eases, that we find, uphold the practice as constitutional of assessing the cost of grading, in proportion to the number of front feet *508of such lots respectively; and we do not overlook. *(Emery*v. *S. F. Gas Go. (supra); Emery*v. *Bradford,*29 Cal. 75; nor *Taylor*v. *Palmer,*81 Id. 241.)

In tbe cases decided formerly in tbis Court affecting tbis point, tbe assessments were, or were supposed to be, graduated to some extent by benefits received and damages sustained; in tbis case sucb is not tbe fact, as appears. No case bas in terms beld that a statute could be upheld wbicb disregarded tbis principle of benefit.

In *Greighton*v. *Mansoio,*(27 Cal. 614,) wbicb arose under tbe Act of 1862, it was beld that tbe “municipal governments act under tbe legislative authority conferred, wbicb is a *portion of the sovereignty*delegated for tbe purposes of municipal government.” Tbe municipal government, “issub-ject to all tbe constitutional restraints and limitations imposed on tbe Legislature.” It bas “no higher power than the Legislature,” and can do no act “that tbe Legislature might not do if it should act directly in tbe matter.” In that case, it is also beld that “ tbe assessment is not a tax.”

It is there beld also, that tbe exercise of' tbe right of assessment, “ cannot well be supported,” upon tbe sovereign power of *eminent domain.*Again, as to tbe principle of benefits, it is beld “that.tbe assessment must not exceed tbe value of tbe benefit conferred by tbe improvement.” See tbe cases cited on tbis point, in that case.

Tbe Court in that case then condemns as unconstitutional, tbe practice of levying assessments, irrespective of considerations of *benefit*or *injury.*

In *Hart*v. *Gavan,*(12 Cal. 476), tbe point was not made. Id *Burnett*v. *Gity of Sacramento,*(12 Cal. 76,) tbe case proceeds manifestly on tbe assumption that tbe *burdens*bad been imposed on tbe recipient of tbe *benefits.*

In *Emery*v. *S. F. Gas Go., (supra,)*we think tbe Court was led into error, and that tbe authorities cited do not, sustain tbe judgment of tbe Court; but tbe case settles tbe doctrine in tbis State, that tbe power in question is to be deduced from tbe constitutional power of *taxation,*and not of *eminent domain.*A critical analysis of tbe cases cited by *509tbe Court, lead to tbe conclusion tbat tbe analogy supposed to exist between them, and tbe case *(Emery*v. *8. F. Gas Go.)*decided does not exist; and tbis we say witb tbe bigbest respect and admiration for tbe Justice delivering tbe opinion, and tbe members of tbe Bench concurring.

Counsel tben referred to tbe following authorities cited: in tbe case of *Emery*v. *The San Francisco Gas Go.,*(28 Cal. 346); and commented on tbem at length, in support of bis positions on tbis point; *Scoville*v. *Oity of Gleaveland,*(1 Ohio St. Bep. 134); *Hill*v. *Heyden,*(5 Ohio St. Bep. 243); *Beeves*v. *The Treasurer of Wood County,*(8 Ohio St. Bep. 333); *Northern Indiana Bail Boad Go.*v. *Gon-nelly,*(10 Ohio St. Bep. 159; *Maloy*v. *Oity of Manelta,*(11 Ohio 636); *Egyptian Levee Go.*v. *Hardin,*(27 Missouri, 495); *City of St. Joseph*v. *Anthony,*(30 Missouri, 537); *Inhabitants of Palmyra*v. *Martin,*(25 Missouri, 593); *WeeJcsY. City of Mihoauhie,*(10 Wis. 242); *Woodbridge*v. *The Gity of Detroit,*(8 Mich. 274); *Municipality No.*2 v. *White,*(9 Louisiana Bep. 446.)

Finally, we conclude tbat tbe general drift of tbe opinion in *Emery*v. *8. F. Gas Company,*(which, being tbe leading case, has been so largely dwelt upon,) carries tbe power of the Legislature no farther than to authorize assessments, which shall in some way, and to some extent, *be apportioned according to benefits received,*and it does not concede to tbe Legislature tbe power to authorize an assessment, which shall entirely destroy tbe value of one man’s land, while, at tbe same time, it greatly enhances tbe value of tbe land of adjoining proprietor.

*O. H. Parker,*for Bespondent.

*First*— Tbe point concerning tbe assessment to unknown owners is not well taken. See *Himmelmann*v. *Steiner,*No. 1525. After rehearing granted July Term, 1868.

*Second*— Tbe point is not well taken tbat tbe map or profile was not signed by Brooks. Section *three*of tbe Act referred to by appellant, provides: tbat if tbe maps and pro*510files are approved by tbe Board of Supervisors tbey shall stand as tbe legal and valid official plan, etc.

It is not until after tbey bave become *“■*legal and valid ” tbat tbey are to be certified to by tbe Engineers, as required by section six. Tbe omission to certify cannot bave any retroactive effect to nullify tbe approval of tbe Supervisors. Tbe certificate is required for *identity,*not to establish their validity. *('Himmelman*v. *Janson,*No. 1404, Oct. T. 1868.)

*Third*— Tbe point tbat tbe resolution of intention was not published according to law is without substantial foundation. Publication was required for ten days, but not ten days from any particular time. *(Taylor*v. *Palmer,*31 Cal. 244.)

*Fourth*— Tbat tbe *prima facie*character of tbe evidence of plaintiff was destroyed by tbe admission, etc., being tbe fifth point made by appellant, a complete answer will be found in tbe statutes. A Deputy-Superintendent can do everything tbat tbe Superintendent can do, except tbat of accepting work. Tbe deputy may make tbe assessment.

And tbe same may be said of tbe Surveyor, and bis deputies. (Hittel’s Digest, paragraphs 7040, 7042.)

It follows, tbat whatever tbey do, severally or jointly, is legal, so far as tbe questions of *power*are concerned.

No error, it is to be observed, is claimed to bave been made by tbe Deputies,

Tbe issues present nothing material, involving tbe good faith of tbe Superintendent or Surveyor.

*Fifth*— A complete answer to all these objections, is found in cases already adjudicated in this Court.

Tbe irregularity, if any existed, could bave been corrected before tbe Board.

Tbe objection to tbe grade-one foot below tbe official line, comes too late on tbe *trial*of tbe case; appeal to tbe Board was tbe true remedy. Any interested person, may appeal to tbe Board, who feels aggrieved by any act of tbe Superintendent. (See Sec. 12 of tbe Act.)

Tbe whole subject resolves itself into one of power, on tbe part of tbe Supervisors, to compel tbe Superintendent and tbe contractors to comply with tbe award.

*511The Supervisors order the work to be done; they advertise for bids; the contractors offer to do the work at certain prices; the city accepts the offer, and manifests such acceptance by an award. Thus the contract is complete. All acts after the order are ministerial. *{Dougherty*v. *Foley,*32 Cal. 405; 16 Cal. 279, 280.)

In *Dougherty*v. *Hitchcoclc,*the point claimed, as decided, is, that “when the time for the appeal came, the work was done and the mischief past remedy.”

It is common for the Board to set aside assessments, acceptances, etc., and to require work to be done according to the contract and award. All the acts of the Superintendent are under complete control of the Board; there is no limitation upon his acts. All the objections to regularity of proceeding, and to non-conformance with the law, could have been raised before the Board, and all have been adjusted. As to the contract, that was but a ministerial act on the part of the Superintendent, of which the Board had complete control, for the bid, acceptance and award, completed the contract, before anything was required of the Superintendent. (16 Cal. 279, 280.)

The macadamizing Of the street was being advertised for, which fact the Superintendent of Streets knew, and therefore he made the contract as he did, for a grade one foot below the official grade. This was for the interest of the property owners, and to save putting *on*one foot,, to be immediately taken *off*for macadamizing purposes, thus saving a double expense.

Counsel for respondent drafted the law of 1862, and kept in view the principles laid down in 33 Barb. 150. It is expressly provided that the Board acquires jurisdiction on publication of the notice of intention, and after that notice there is no period when objection to any proceeding, during the whole course of the proceedings, may not be made on appeal to the Board of Supervisors.

All persons, it is settled, are charged with a knowledge of the proceedings of the Board, who are interested therein.

These principles have been universally applied by the *512Courts in this State. If tbe “ contract bas not been performed,” the remedy is by appeal to tbe Board of Supervisors. *(Cochrane*v. *Collins,*29 Cal. 129; *Emery*v. *Bradford,*29 Id. 75.)

So, where tbe assessment is made to “one of several owners.” *(Taylor*v. *Palmer,*31 Id. 241.) So, where tbe assessment is made against a “person not living,” and is therefore *void. (Smithy. Cofran,*34 Id. 314.) So, when the Superintendent “improperly enlarges the time” for the performance of tbe contract. *(Conlin*v. *Seaman,*22 Id. 546.) So, when tbe Mayor “countersigns a warrant when he is disqualified to act.” *(Beaudry*v. *Valdez,*32 Id. 277; and in tbe case of *Nolan*v. *Reese,*Id. 487.)

The Court says (all tbe judges concurring) that the right of tbe plaintiff cannot be “ *subjected to the test*” of common-law principles. And assuming that tbe facts stated in that case constituted a *positive fraud,*still they held that the remedy was by appeal, and the methods pointed out for reviewing the decisions of the Board and the acts of the Superintendent, “ *excluded all others by positive*provisions.”

At. common law, where a right exists, and a new remedy is given by statute, the latter is cumulative, and either remedy may be pursued, but where right and remedy are both given by statute, the remedy provided by statute *alone*can be pursued. (2 Cal. 243; 7 Id. 129; 16 Id. 524; 5 Id. 210; 9 Id. 267; 1 Clutty Plead, (10 Am. Ed. 143.) See specially *Dougherty*v. *Foley,*(32 Cal. 405); that when the work is ordered it amounts to a judgment, and all subsequent acts are ministerial merely.

I invite attention to the cases to be found in the 12 Abb. P. Pep., at pages 118, 121, 124 and 127, and in 51 Barb. Pep. 82, wherein the Courts manifest a determination to sustain proceedings of this character when work has been faithfully performed under the guidance of the public authorities. And our Legislature at its last session manifested the same liberal policy, and has prohibited any defence to a street assessment, except upon these grounds: *firstly,*want of jurisdiction; *secondly,*payment; *thirdly,*fraud in any of *513the proceedings; thus wisely cutting off defenses such as are raised in this case, which if sustained, constitute a moral fraud on the contractor.

WALLACE, J.,

delivered the opinion of the Court, Temple, J., and Crockett, J., specially concurring. Rhodes, C. J., dissenting. Sprague, J., expressed no opinion.

The plaintiff recovered upon an assessment for grading a portion of Yan Ness Avenue, in San Francisco, under the Consolidation Act, as amended in 1862-and 1863. This ap'peal is taken from judgment and order denying a new trial.

The first point presented by the appellant for our consideration assails the constitutionality of the statute under which the proceedings were had. It is argued that the leading principle of the Act (vicious in itself as it is said)' which directs that each lot shall be assessed in proportion to its frontage, and at a rate per foot front upon the street to be graded, is at war with both the letter and spirit of the Constitution. In support of this view the last clause of Section 8, Article I, of that instrument is cited: “Nor shall property be taken for public use without just compensation.” It is, however, scarcely necessary to remark that this clause merely fixes a limitation upon the otherwise unrestrained power of eminent domain inherent in the State Government, and that neither the power itself nor its limitation is involved in the proceeding now in question.

It is next urged that the statute is unconstitutional, because, as it is said, it .imposes a tax to be levied, not upon an *ad valorem*principle, and in aid of the point Section 13, Article II, of the Constitution is appealed to: “Taxation shall be equal and uniform throughout the State. All property in this State shall be taxed in proportion to its value, to be ascertained as • directed by law; but assessors and collectors of town, county and State taxes shall be elected by the qualified electors of the district, county or town in which the property taxed for State, county or town purposes is situated.” The aim really had in view by the framers of the Constitution in adopting this clause, and the jealousies *514it was designed to allay, are yet fresh in the recollection of most of us, and these were in no wise connected with the mere local proceedings of a municipality. The conclusive answer, however, to this last objection is, that the burden in question here is an assessment merely; and though its imposition is an exercise of the taxing power, it is not in itself that “taxation” mentioned in the Constitution and there required to be laid upon property “ in proportion to its value.” The distinction in this respect between such an “assessment” upon the one hand, and such “taxation” upon the other, may be said to have already become firmly fixed in the constitutional jurisprudence of the State, and we think it too late to question its soundness now, even if we really entertained a doubt of its correctness in the abstract, which we do not.

It was directly asserted by this Court more than ten years ago, in the case of *Burnett*v. *The City of Sacramento,*(12 Cal. 76), in which case Mr. Justice Field, with the concurrence of both his associates, speaking with reference to the levy of an assessment upon property to pay for grading the adjacent street, said: “The thirteenth section of Article XI of the Constitution does not cover the case. * * * For the expenses of such improvements it is competent for the Legislature to provide, either by general taxation upon the property of all the inhabitants of the county or town in which they are made, or upon property adjacent thereto and specially benefitted thereby.”

This distinction, as applied to the present Consolidation Act, was pointed out and maintained with marked ability, and upon the most elaborate research, in the case of *Emery*v. *The San Francisco Gas Co.*(28 Cal. 345); it was again expressly recognized in the subsequent cases of *Emery*v. *Bradford,*(29 Cal. 82), and *Walsh*v. *Matthews,*(Id. 123). At a still later period, in *Taylor*v. *Palmer,*(31 Cal. 240), the question again came under , review in this Court, and this distinction was pointed out and maintained with great clearness and force. Since the decision in *Taylor*v. *Palmer, (supra)*until now, the constitutionality of the Act *515lias not been seriously questioned, so far as we know, but bas been assumed as the basis of decision in the numerous street assessment cases which, have in the meantime been determined in the Courts. We think, therefore, that the constitutional validity of the Act (at least to the extent to which it was maintained by the majority of the Court in *Taylor*v. *Palmer,)*must be considered as definitively established here.

The validity of the proceedings resulting in the assessment is, however, questioned upon other grounds.

It is said that there was no official grade already determined for Van Ness Avenue, when the Board resolved to grade it. But it'is evident that the appellant is mistaken in this proposition. It did not, as he supposes, require the signature of the persons composing the Board of Engineers to be attached to the maps and profiles, prepared under the statute (Acts 1863-4. p. 460,) in order that these maps and profiles should become valid. Section 3 provides that the approval of the Board of Supervisors, shall impart validity to them. Besides, if the signatures of the engineers were ever material for that purpose, they clearly ceased to be so, upon the passage of the Act to ratify and confirm certain or-inances, etc, (Acts 1865, p. 166.)

It is next objected, that the resolution which was passed by the Board, expressing their intention to grade Van Ness Avenue, was not “published according to law.” A more accurate statement of the position of the appellant on this point would be, that it was not published according to the order of the Board. It will be .seen by reference to the statute) that the publication is required to be made for “ a period of ten days.” It appears that the Board in this instance, made an order that the resolution be published, for a period of ten days, from and after Monday, the 29th clay of July, 1867. It is not denied that publication for “a period of ten days,” was had before the Board proceeded further; but the point is, that the notice was not published for the particular period of ten days defined in the order— the publication not having commenced until July 31, 1867. *516It will be admitted, we think, that if there be a conflict between the statute and the order, the latter must give way. The jurisdiction of the Board of Supervisors in the premises-is derived wholly from the statute, and is vested in them, not absolutely or generally, but only in special cases, and under certain conditions, prescribed by the statute itself. There must be notice of the intention of the Board to order certain work to be done: the work itself must be such as is authorized by Section 3 of the Act; the notice must take on the form of a resolution, and no other kind of notice will be sufficient; it must describe the work to be done; it must be signed by the Clerk of the Board, and it must be published for a period of ten days. It is obvious, that if there be a substantial failure or omission, in any one of these several prerequisites, the jurisdiction of the Board to order the particular work will not have attached. And it is equally clear, that upon a concurrence of all these several conditions, the grant of jurisdiction to the Board becomes absolute to order the proposed work to be done

If the Board have authority, by its own order, to alter at its pleasure, in the slightest particular, any one of these prescribed prerequisites to the vesting of its own jurisdiction, we have not discovered whence such authority is derived. As we read the statute, the mere passage of the resolution here, had, for the time being, exhausted the whole power of the Board in the premises, and it could at that time proceed no further in that direction. Especially it could not assume to itself to make an order by which a new rule of publication should be put in force, and essentially differing from that one which the statute had theretofore provided. Eor instance; it could not require by its order, that the publication should be had for the period of eleven days, instead of the ten provided for by the statute. If it should enter an order to that effect, and the publication should proceed, it is clear that the jurisdiction, so far as it depended on publication, would attach at the expiration of ten days’ publication, .and without reference to the publication on the eleventh day. Otherwise the Board must be said to have *517derived its authority, from the observance of the terms of its own order, and not from a compliance with the directions of the statute — a proposition for which no one, of course, would contend.

If it should be asked why the Board could not be permitted to require the publication to be continued for the period of eleven days, a sufficient answer would be found in the fact that the statute had already dispensed with the necessity of eleven, when it fixed upon ten days as the proper period. As we have seen, its language is: “Published for a period of ten days,” etc. A period of ten days means any such period after the passage of the resolution and signature by the Clerk. The substitution of the adjective pronoun for the indefinite article used in the statute, would not make its import plainer in this respect. The exclusion, then, of that period of ten days, which commenced on July 31st, as a proper period of publication, has no countenance in the statute itself, which neither excludes it or authorizes the Board to do so. Such power, if it exist, renders the Board superior to the Act which created it, and set limit of its authority. It would be, in fact, a power in the Board to repeal the statute itself in this respect; for there is no practical difference between an order which should repeal the words of the statute, and one which would alter their essential meaning.

Nor do Aye see that it devolves upon the Board to undertake the direction of the publication of their resolution of intention in any case. That is provided for by the same statute which has empowered the Board to pass the resolution itself, and which then required both signature of the Clerk, and publication for a fixed period. Undoubtedly if the Board should think proper upon the passage of such a resolution to make an order that the Clerk should sign it, and that it should be published for the period of ten days, or simply published, which, as we have seen, means publication for ten days — in other words, if the Board choose to reenact the statute — no harm would result; but even then the required acts when done, would be referred for their validity *518to tbe statute, and not to tbe order of tbe Board. In so far as they would appear to have pursued tbe statute in these respects tbey would be beld valid, otherwise not.

It results from, these views, that tbe Board, to use tbe language of tbe statute, “acquired jurisdiction,” to order tbe work in question to be done.

It is next objected, that tbe assessment was made by tbe Superintendent of Streets to owners unknown — when, in fact, tbe proof showed that tbe officer *did know*who was tbe owner, etc.

Tbe statute provides (Section 9), that the Superintendent shall make an assessment which shall show tbe amount to be paid, etc., “tbe owner of each lot or portion of a lot, (if known to tbe Superintendent), if unknown, tbe word ‘unknown ’ shall be written opposite tbe number of tbe lot and tbe amount assessed thereon,” etc. Tbe word “unknown” was in this instance written opposite tbe number of tbe lot of appellant upon tbe assessment.

We lately bad occasion in tbe case of *Hewes*v. *Reis*to define tbe import of the word “unknown,” when thus endorsed by tbe Superintendent upon tbe assessment, and we then beld that it amounted to an official certificate by tbe proper officer, that in point of fact tbe owner of tbe particular lot designated, was unknown to him. We think that when such a ceidificate has been given by tbe officer, it is conclusive of tbe fact so certified, and cannot be collaterally called in question in- an action brought upon tbe assessment upon which it is officially entered. A party who relies for recovery upon such an assessment, is not to be called upon Ijo embark in an inquiry as to tbe probabilities of tbe actual state of knowledge possessed by tbe officer at tbe time that tbe certificate was made but may rely upon it as conclusive, that in point of fact such ownership was unknown to tbe officer. This we understand to be tbe general rule as to tbe effect of such certificates, when collaterally assailed, and if such certificate be false in fact and damage has ensued, tbe party injured must seek bis redress by an action against tbe officer, directly alleging its untruth.

*519The nest objection is that the assessment is void because, while the order of the Board directed the street here to be graded — which of course means to the official grade — the specification actually annexed to the contract provided that the street should be “graded to the official height and line, 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 of eighteen inches from the bottom of the gutter-ways.”

The conclusive answer to this objection, however, is that the appellant might have appealed to the Board of Supervisors, and it would have been their duty, if the objection had been well taken (a point upon which it is not necessary for us to express an opinion), to have directed the Superintendent to proceed to make a- contract in conformity with the order of the Board.

The statute (Sec. 12) provides for an appeal to the Board by any party “feeling aggrieved by any of the acts or determinations aforesaid of the said Superintendent;” etc. j!iow, one of the acts * * aforesaid, of the said Superintendent (as provided by Section 7), is to enter into all written contracts authorized by the Act; and the statute provides that, upon such appeal, the decision of the Board shall be final “ as to all errors and irregularities which said Board could have remedied and avoided.” The Board having obtained jurisdiction regularly in the first instance to order the work to be done; retains that jurisdiction until it is finally completed in the manner pointed out by law. This principle Was applied in this Court, in the case of *Dougherty*v. *Foley*(32 Cal. 402), where the Board having regularly acquired jurisdiction to order certain work done, a contract was awarded to a person who subsequently failed to comply with it on his part, and it was held that the Board, having acquired jurisdiction in the first place to order the work done, and having made the order, “the subsequent steps were ministerial in their character,” and that consequently the Board might re-let the contract without commencing *de novo.*

*520So, too, *in Emery*v. *Bradford,*(29 Cal. 75) an appeal was held to lay to the Board, from an erroneous determination made by the Superintendent, to the effect that the contractor had fulfilled his contract. Accordingly the owner of the lot, in a suit against him upon the assessment, was not permitted to prove ‘ *‘*facts showing that the work was not done in accordance with the said ordinance,” because he might have had that question determined by the Board. If, on such an appeal, the Board might have relieved a party from the assessment, on the ground that the work did not fulfill the contract, might it not relieve also in a case where the contract, in accordance with which the work was d'one, did not itself comply with the order of the Board under which it purported to have been made ? In either case, the real and ultimate point of inquiry is, as to whether or not the work had been, or was about to be, in fact, done, which the Board determined was necessary, andhad accordingly ordered to be done.

So, in the case of *Nolan*v. *Reese,*(32 Cal. 486), it was held that neither a fraud which affected “ the award of the work,” nor one which affected the “legality of the assessment,” could be shown in defence of an action against the lot-owner in the assessment, because these matters might have been decided by the Board on appeal.

We think 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 submit all other questions to the decision of the Board itself. It is well enough for the appellant to come here to say that the Board had no jurisdiction to order the work done at all, but when he comes only to say that it was not well or sufficiently done, the Superintendent in the first instance, and the Board on the last resort, would seem to have been considered by the statute, and wisely considered, we think, as most likely to correctly determine that matter. It may be that in the understanding of the. Board and others who deal with these matters, a street graded in accordance-with the specifications here is up to the official grade; that the “officialgrade ” is *521defined, by usage and practice uniformly prevailing, to mean a crown in tbe center of tbe roadway and sloping to tbe gutterways; tbat those wbo enacted tbe law of 1862 so understood it; and it might be absurd to say tbat it could only be satisfied by a level surface extending from curb to curb, and it may be tbat an appeal, if taken to tbe Board upon this point, would have been, therefor, ineffectual.

However tbat may be, tbe jurisdiction of tbe Board over such questions is clear.

Tbe judgment and order denying a new trial are affirmed.

Rhodes, C. J.,

I dissent from tbe judgment and from tbe opinion of Mr. Justice Wallaoe, except on tbe constitutional question.

By

Temple, J.,

concurring:

In this case I agree with Mr. Justice "Wallace in bis conclusions, but in some respects I do not agree with tbe process of reasoning adopted by him, nor with bis statement of tbe rules of construction by which tbe statute is to be interpreted.

Tbe first question which I propose to notice, is tbat in reference to tbe publication of tbe resolution of intention. Tbe statute says tbe Board may order tbe work to be done, after notice of their intention to do so (signed by tbe Clerk), has been published for ten days. As I understand this statute, it requires notice to be given by tbe Board itself. At tbat time therewereno parties to tbe proceeding, and consequently tbe notice can be given by no one save tbe Board. Tbe power to grade streets is in them, but tbe very first step in tbe exercise of tbe power, is to give tbe notice, or rather this is a condition precedent to their exercising tbe power at all. Tbe requirement tbat tbe resolution shall be signed by tbe Clerk is addressed to tbe Board, and not to tbe Clerk. He is tbe mere servant of tbe Board, and has no power except as their servant. Tbe provision only directs tbe mode of attestation by tbe Board. Tbe manner of giving notice is by publishing tbe resolution; and it seems to me it must inevitably follow that tbe publication must be *522made by tbe Board. Otherwise the duty of causing the publication is not imposed upon any one, for the Clerk certainly is not required to do it independently of their directions. The publication is official. The work is done primarily for the city and county. 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.

In this case the Board did direct the publication of the resolution, but it is contended, that as they directed it to be published for ten days from and after its passage, and it was not published until the second day after the day upon which it was passed, it was not published in accordance with the directions of the Board, and the publication was, therefore ineffectual to vest the Board with the power to order the work to be done.

There is no doubt that a statute which provides that it shall take effect from and after its passage, will be in full operation on the following day. It is also well settled, that when a contract fixes the commencement of a period, within which certain acts are to be done, as commencing from the date or the day of the date, the time commences to run as early as the following day; but in these cases the expressions are used for the purpose of fixing a definite time when a law shall begin to be operative, or a limit within which certain things are to be done. The time is of the essence of the thing. "Where, however, in the execution of a statutory power, time is mentioned, unless it is a limitation upon the power, the power may be exercised after that time; in other words, the provision as to time is directory. In the present case the direction is from the Board to its servant. The matter is between them so far as the particular language, in which their instructions are given, is concerned.

The essential thing to the public was that the resolution be published officially. The language was probably not selected with any great care, and I think should receive a liberal construction, with a view to give effect to the intention *523of tbe Board. Under tbe circumstances of tbis case, I have no doubt tbat by tbe words “ from and after its passage,” tbe Board simply intended to direct tbe Clerk to proceed to publish immediately. Had they used tbis language, there is no question tbat we could have construed tbe meaning to be as soon as practicable, and I think it would be unfair to tbe Board and to all parties, to give the language used a more rigid construction. It would manifestly be giving it a more literal meaning than was intended, and would be on a par with tbe old case of punishing a surgeonfor bleeding a patient under a law which condemned blood-letting in tbe streets. I therefore think tbe publication sufficient. (See Butler’s Case, 3 Bep. 34.)

But it is said, if tbe Board acquired jurisdiction to order tbe work to be done, by tbe publication of tbe resolution, still tbe contract made by tbe Superintendent of Streets is void, because it is not for tbe work 'mentioned in tbe resolution. Tbe resolution, in legal effect, is said to call for grading tbe street to tbe official grade. All tbe preliminary proceedings in tbe Board are of like import; but tbe Super-tendent entered into a contract “to grade to tbe official height and line, except the roadway, which was to be graded one foot below tbe official grade.” Tbe answer to tbis objection, as I understand it, is two-fold. First, it is said tbe contract is substantially in accordance with tbe resolution of intention — tbat is, it is graded to tbe official grade, allowing for pavement, macadamizing or planking — one of of which must be done before tbe street is fit for use. There is no evidence tbat tbe street was to be finished in either of these modes. There is nothing in tbe proceedings of tbe Board indicating such an intention. If tbe question be one of definition, it seems to me, there should have been some evidence tbat tbe language, in tbe connection in which it was used, has tbis unusual signification. Tbe phrase “official grade,” has a well understood meaning, and there is nothing in tbe case to indicate tbat it has any different signification when used with reference to contracts for grading streets.

*524The other answer to the objection is that the remedy of the defendants was by an appeal to the Board of Supervisors from the assessment. That the Board, if the work was not done in accordance with the resolution, would set aside the assessment; that they could compel the contractor to amend his contract so as to conform to the resolution of intention and his bid, and refuse to allow an assessment to provide for his payment until he had made the grade of the street conform to his contract as corrected; that this is a special remedy provided by the statute, and is exclusive of any other. I think this is a good answer to the objection, though the position is somewhat in conflict with the case of *Dougherty v. Hitchcock,*(35 Cal. 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, however, impliedly admitted that if the mischief could have been remedied, the answer to the objection would have been good.

It is true, as said in *Smith*v. *Davis,*(30 Cal. 536), in these proceedings “ the various Acts prescribed by the Legislature must, in all essential particulars, be strictly performed." It is the exercise of a naked statutory power, in which the prescribed mode is a limitation upon the power. It is a proceeding to divest individuals of their estates, and the statute must be strictly construed in favor of individual rights; and yet the statutes confer powers which are to be used for the public good, and the officers-charged with their execution are necessarily intrusted with a large discretion. Such statutes are of a mixed character, partly penal and partly remedial, and should be liberally construed, so far as it is necessary to render their execution practicable. It is an old rule that the language in which the legislator has expressed his will is not to be so used as to defeat that will. Even statutes wholly penal are not to be so-strictly construed as to defeat the obvious intent of the Legislature.

The desired end in the construction of these statutes, as applied to this class of cases, is that individuals should be deprived of no safeguards which the Legislature has pro*525vided for tbeir protection, and at tbe same time a proper exercise of tbe powers granted, shall not be unnecessarily obstructed, and tbat tbe contractor, wbo bas in good faitb performed labor, should have certain and speedy means of collecting bis money. Tbe interests of tbe property-holders, as well as of tbe public, require tbe streets to be graded, and it is for tbe interest of all, so tbe rights of none are jeopardized, tbat tbe contractor should have tbe most certain means of prompt collection. Litigation in tbe collection necessitates higher prices, and these again provote to litigation, and so tbe canter spreads and deepens.

I do not tbint, however, tbat there is any magic in tbe fact, tbat after notice of intention, tbe Board acquire “jurisdiction,” which will excuse to any extent, a compliance with tbe requirements of tbe statute. Tbe word jurisdiction of course means power, for there is nothing of a judicial nature in tbat portion of tbe proceedings, which relates to ordering tbe work and letting tbe contract.

There is nothing peculiar in this statute in this respect. It is generally, if not always tbe case in statutes conferring tbe power to divest vested rights, tbat notice is given to tbe parties, whose rights are affected, as a condition precedent to tbe exercise of tbe power. Tbe statutes in regard to laying out or changing highways provide for notice, which must be given before tbe Board bas jurisdiction to act; but I never beard tbe proposition advanced tbat this dispensed with a full compliance with tbe statute, in the exercise of tbe power, after tbe jurisdiction bad been acquired. Tbe same is true of all proceedings for tbe condemnation of lands, and even in tbe assessment and collection of tbe general taxes, in which case tbe assessment roll is, upon notice, laid open for tbe inspection of tbe tax-payers; and an appeal provided from tbe action of tbe assessor to tbe Board of Equalization.

It is not to be supposed tbat tbe Legislature bas provided, with tbe greatest minuteness, tbe mode which tbe Board is to adopt in these proceedings, and then excused them from pursuing tbe mode, except at tbeir option. I therefore think, *526notwithstanding the resolution of intention has been regularly published and the Board has acquired jurisdiction to act, they must still exercise their power in the mode prescribed by law — as much so, as in laying out a public road after due notice. The effect of the right to appear before the Board and object to the proceedings, as a special remedy provided for the tax-payer, was discussed in the recent case of *Hewes*v. *Reis,*and to the views there expressed after a thorough examination, I still adhere. The right to pro-' test against a threatened injury is not a remedy for it.

The contract is really between the Board -of Supervisors, as the agents of the city and county, and the contractor. The work for which bids are made, and which the contractor agrees to do, is that described in the resolution of intention. The agreement is complete when the bid is accepted, and it is the contract made by the Board, which the Superintendent is. required to reduce to writing. As said in *Emery*v. *Bradford,*the tax-payer is not a party to the contract; and it is reasonable and proper that the Board of Supervisors, which represents the city and county, should determine whether the work has been done in accordance with the contract, and that their decision should be final. The taxpayer, however, though not of a party to the contract, is allowed to object that the work has not been done in accordance with the contract and to appeal from the determination of the Superintendent accepting it. I have no doubt but that this right is exclusive of any other remedy as to all matters which can .be revised and corrected on such an appeal.

In this case the written contract did not correctly describe the work which the Board had ordered to be done, and which the contractor had agreed with the Board to do. The error was in the written memorandum made by the Superintendent. The statute providing an appeal is broad enough to include an appeal from the determination of the Superintendent, and I see no reason why a complete remedy is not afforded by it. The Board, as already stated, could order the contract to be reformed and refuse to allow an assessment until the work was made to conform to it. *527Tbe contractor could not complain of tbis for be ought to have executed no contract not in accordance witb tbe agreement made between himself and tbe Board, and be contracted witb a view of tbe right to appeal from tbe acts of tbe Superintendent, and of tbe right of tbe Board to make bis contract conform to bis real agreement, and be is not injured bj being compelled to do tbe work as be agreed to do it. By failing to pursue tbis remedy, I think tbe defendant lost bis right to object, that tbe grading has not been done as ordered by tbe Board.

On tbe other questions discussed, I concur witb Mr. Justice WALLACE. I also concur in tbe judgment.

By

Ceockett, J.,

concurring:

I concur witb Justices Wallace and Temple in tbe opinion that tbe order denying tbe motion for a new trial ought to be affirmed, and I also concur witb Justice Temple on tbe first point discussed in tbe opinion. I think tbe publication of tbe notice of intention was sufficient, for tbe reasons stated by him. Tbe notice being sufficient there appears to have been no irregularity in tbe proceeding, down to and including tbe award of tbe contract by tbe Board of Supervisors. Tbe work ordered to be done was to grade tbe street, which was equivalent to an order to grade it to tbe official grade, as we have several times decided. Tbe contractor put in bis bid to do tbe work, and tbe contract was awarded to him at a stipulated price per cubic yard. It then became tbe duty of tbe Superintendent of Streets to enter into a written contract witb tbe contractor binding the latter to tbe performance of tbe work ordered by tbe Board, at tbe agreed prices and within tbe stipulated time. In performing tbis duty, tbe Superintendent of Streets was, *pro hac*■vice, tbe agent of tbe Board witb authority to execute tbe contract which bad been awarded, and no other or different contract. He occupied towards tbe Board in tbis respect tbe relation of a special agent, having a limited authority to execute tbe contract for tbe particular work specified in tbe order of tbe Board, which was to grade tbe street to tbe official grade. But it appears that, in tbe contract which *528was entered into, tbe contractor was required and undertook not only to grade tbe street to tbe official grade, but also to grade tbe roadway to tbe depth of one foot below tbe official grade; and tbe defendants claim that; for tbis reason, tbe contract was absolutely void, as wholly unauthorized and in excess of tbe power of tbe Superintendent of Streets, who bad no lawful authority to enter into a contract different from that ordered by tbe Board. But, in my opinion, the contract was not wholly void, even though it be *conceded*that in requiring tbe roadway to be excavated to tbe depth of one foot below tbe official grade, be exceeded *pro iamto,*tbe authority conferred upon him. It does not necessarily result, that tbe act of a special agent, acting under a limited authority, is wholly void, because in some particulars he has exceeded bis authority. If he has done what be was authorized to do, and something more, tbe act may be either wholly void or good so far as it was authorized, and void only for the excess, according to tbe nature of tbe act performed. If tbe act in its nature, be indivisible, tbe execution of tbe power will be wholly bad if the agent exceed bis authority. If, for example, an agent be authorized to purchase or sell a particular horse, he could not, under this authority, bind his principal for tbe purchase or sale of one half of tbe horse. On tbe other band, if tbe act performed be divisible in its nature, so that tbe part which be was authorized to perform, can be separated from tbe rest, without injury to tbe principal, the-latter will be bound by it, so far as be authorized it, and it will be void only for the excess. Thus if an agent have authority to purchase a particular farm at a specified price, and if be not only purchases that farm, at the price limited, but, in addition thereto, another farm for a further stipulated sum, tbe principal will be bound for tbe first purchase, but not for tbe last. In all tbis class of cases, tbe liability of tbe principal depends upon tbe fact whether the act of tbe agent can be so separated as to give due effect to tbe execution of tbe power without prejudice to tbe rights of tbe principal. It is obvious that tbe principal will not be damaged, if he derives, from the act of *529tis agent, all the benefit he anticipated, even though the agent attempted to bind him, in some particulars, beyond Ms authority. In other words he will have no right to complain if the act which he authorized to be done was performed according to his authority, notwithstanding the agent attempted to bind him in excess of his authority., .These are familiar principles and are fully discussed in Story on Agency, (Sections 166 to 171). Applying these principles to the case at bar, and treating the Superintendent of Streets as a special agent, acting under a limited authority, it remains to be considered whether the contract which he entered into was in its nature divisible, so that it can be upheld so far as it was authorized, and should be declared void only for the excess; or whether it is of such a nature, Mat if void in part is void *in toto.*The only vice in the contract is, that it required the roadway to be excavated one foot below the official grade. All the work which the Board ordered to be done was provided for in the contract, and at the price and manner agreed upon, between the Board and the contractor. But the written contract called for some additional work, to be paid for at the same rate, which the Board had not authorized to be done.

In Story on Contracts (Sec. 21), the rule by which to ascertain whether a contract is divisible in its nature or is to be deemed an entirety, is thus stated: The criterion of a divisible contract is, that the extent of the consideration on either side, is indeterminate until the contract is performed. Neither party to such a contract can claim more than an equivalent for the actual consideration on his part No specified entirety of consideration on either side constitutes a condition of the bargain, but only a certain relation and proportion between the consideration on both sides, to be ascertained on the completion of the contract.” Tested by this rule, the contract in this case is clearly divisible in its nature, and the consideration to be paid is capable of apportionment. The work to be performed was to be paid for at a certain rate per cubic yard and it was a matter easily to be ascertained, how much excavation was required *530to reduce tbe roadway one foot below tbe official grade, and bow mucb to grade tbe street to tbe official grade. Tbat part of tbe work wbicb tbe Board of Supervisors authorized to be done could readily bave been ascertained and tbe cost of it determined; and tbat part of tbe contract wbicb was valid, be tbus severed from tbat wbicb was void.

If, however, tbe contract bad related to a building wbicb tbe Board bad ordered to be erected under a contract awarded to tbe lowest bidder, who was to do tbe work according to tbe plans and specifications, for a gross sum to be paid on tbe completion of tbe building, and if tbe Superintendent in entering into tbe contract bad materially varied tbe plan of tbe building, and increased tbe gross sum to be paid, it is evident tbe contract would bave been wholly void because of its entirety, and because it was wholly incapable of apportionment. In tbe case of *Dougherty*v. *Hitchcock,*(35 Cal. 512), tbe work ordered to be done was tbe grading of a street and tbe crossings for tbe distance of several blocks, to be let out under one contract for tbe whole; but tbe Superintendent divided tbe work into several sections, and entered into a separate contract for tbe grading of each section; and this Court properly, I think, pronounced tbe contract void. No one of tbe contracts provided for all tbe work wbicb tbe Board bad ordered to be done under one contract, and tbe question of apportionment, and of tbe divisible nature of tbe contract could not therefore arise. Each of tbe contracts was void for tbe obvious reason tbat it did not include all, but only a small portion of tbe work wbicb was ordered to be done under one contract. For satisfactory reasons tbe Board bad deemed it best to let out tbe whole work under one contract, and tbe Superintendent has no authority to frustrate this purpose by cutting up tbe work into sections and letting it under separate contracts. But tbe case at bar is wholly different. All tbe work wbicb was ordered to be done was included in tbe contract, but in addition thereto, it provides for additional work to be paid for at tbe same rate. Tbe additional work, as we bave seen, and its costs, may readily be ascertained by computation *531and measurement, and tiras separated from that portion of tbe work which the Board ordered to be done, and which *was*done by the contractor in strict accordance with the proposal and the contract. The contract was therefor clearly severable and capable of apportionment, and was not void *in toto,*but only for the excess. But, in embracing in the contract additional work, not ordered to be done, the Superintendent committed an irregularity which, by the express terms of the statute, could be corrected on an appeal to the Board from the assessment. On the facts being made to appear to the Board, it might have set aside so much of the contract as provided for reducing the roadway one foot below the official grade, and have set aside the assessment, and refused to order a new one until the contractor had restored the street to the official grade. In my opinion, this was the only remedy for the property owner, and the only remedy by which the irregularity could be corrected; and the defendants, having omitted to avail themselves of this mdide of redress, are concluded by the assessment and other proceedings.

I concur with Justice 'Wallace on the points discussed in his opinion, other than those already noticed.