who were owners of frontage of the property described in section 4, above referred to, as said owners were named on the assessment roll referred to in section 5 of the said act.

On the presentation of this petition to the mayor, he made and attached it to a certificate that it had been signed by the names of a majority in frontage of the property, as required by the act of 1872. This certificate bore date on the nineteenth day of June, 1872, and on the next day the board of public works was organized by the officials above named. This board subsequently proceeded to the performance of the duties required by the act, made up the report required by the sixth section, which remained in the office of the board for the period of time required by the act, for the free inspection of all persons interested, and notice that the report was so open for inspection was published as required by the said sixth section. On the second day of November, 1872, the report was presented to the county court above named, with a petition to said court that it do approve and confirm said report, and no objections then appearing to the report, it was, on the fourteenth day of November, 1872, approved and confirmed.

It is contended that the proceedings taken by the board of public works, and had in the county court, were without jurisdiction and void, for the reason that the names of a majority in frontage of the property described in section 4 of the act of 1872, required by section 5 of the same act, did not sign the petition to the mayor of the city and county of San Francisco.

That a petition signed by a majority of the owners designated above was necessary to give the board of public works jurisdiction to organize and proceed under the act, we have no doubt. This point was fully considered and determined in Mulligan v. Smith, 59 Cal. 206. This ruling we approve and adhere to. We also approve of the ruling made in the case cited, that the mayor was

not charged with the duty of determining whether the petition was signed by the required majority, and that his decision to that effect did not conclude or estop any one from disputing and showing that, in fact, the petition was not signed by the required majority.

The question whether the petition was in fact signed by such majority is here presented for decision. We have examined the evidence and weighed the arguments on this question, and are of opinion that the petition was not signed by such majority as the provisions of the act required.

The learned counsel for the petitioner has presented in an elaborate brief his view of the question. He estimates the entire frontage of the district to be 424,096 feet, one half of which is 212,048. The majority required in this view would be 212,049 feet. According to the contention of the learned counsel, the owners of 212,965.714 feet of frontage did sign the petition.

But there are included in this contention of counsel certain signatures, which will be found in the record on pages 147, 148. These signatures are set forth in a table designated by the letter G, printed on the pages of the record just above given. This table sets forth the signers of the petition, whose names are other than those to whom the property was assessed on the assessment roll mentioned in the fifth section of the act of 1872.

It will be observed that the act (section 5) requires that the petition to the mayor shall be signed by the "owners of a majority in frontage of the property described in section 4 of this act, as said names are or shall be named in the last preceding annual assessment roll for the state, city, and county taxes."

The requirement of the above is, that the same persons who are assessed on the assessment roll designated by the act shall sign the petition. This is the nature of the legislative requirement, and the courts are not at liberty to disregard it. We are bound to heed this

legislative mandate, and the plain and manifest meaning of the language employed inhibit us from holding that the signers whose names are set forth in table G are such as are required by the act referred to.

These signers, which are included in the view of petitioner's counsel, and which go in his contention to make up the majority required, represent 6,0503⁄4 feet, and deducting these from the number of signers, according to his calculation, the result would be that the number of feet signed for would fail of a majority by over five thousand (5,132.52). The signatures by executors, administrators, and agents, counted to make the majority by petitioner's counsel, must also be excluded. We hold that they must not be counted, for the reasons given in the opinion of Mr. Justice McKee in Mulligan v. Smith, 59 Cal. 206. In relation to these signers of the petition, the following language, which we adopt, is used in the opinion:

"Executors and administrators are but the legal personal representatives of the decedents whom they represent. They are but agents of their constituents, created by law, whose duties and powers are prescribed by law, whatever they do must be done according to law, and within the authority of the law; for the acts of an agent. are binding only when done within the scope of the authority conferred upon him. In any transaction in which executors or administrators pretend to act as such, they cannot create any liability on the estate of which they are the representatives. They have no power to charge, or encumber, or sell and convey the real property of the estate, unless authorized by the law under which they are acting. In favor of such an act there is no legal presumption. If it purports to be done by authority, the authority should be produced. The signatures of the executors, administrators, and agents to the petition were, therefore, ineffectual as signatures of the frontage for which they signed.”

We are also of opinion that the signature of the North San Francisco Homestead, and Railroad Association, the frontage of which amounted to 41,510.7, should be stricken out. This was signed for by the president and secretary, as we are convinced by the evidence, without competent authority. In the face of the evidence in the record, we cannot presume that the parties signing had authority so to sign. We see no ground in the evidence for presuming that the presi dent and secretary of the corporation had authority to affix the signature of the corporation to the petition. The affixing a signature to such a paper as the petition was no part of the duties devolved on the president and secretary of the corporation. No such duties appear by the evidence to have appertained to the officers mentioned. Under these circumstances the power to authorize the affixing of the name of the corporation to the petition rested with the board of directors, as managing agents of the corporation, to be exercised by their direction.

We are of opinion that in any view which we are justified in taking of the question that the petition was not signed by the owners of the majority of the frontage, as required by the act of the legislature.

But it is argued that the county court having decided as it did, that the required majority of owners had signed the petition, such determination is conclusive on all parties concerned, and cannot be again controverted.

This point was made and decided by this court in Mulligan v. Smith, supra, and we do not feel inclined to disturb that decision.

It is unnecessary to discuss the question again, as we are satisfied with the conclusion there reached, and are willing to adhere to the ruling there made.

We cannot see that it should make any difference in our rulings on the questions just passed on, that the action in Mulligan v. Smith was brought against a prop

erty owner and tax-payer by a purchaser at a sale made for non-payment of the tax claimed under the provisions of the act of 1872, while here the action is brought by a bond-holder.

The question of jurisdiction was to be alike looked to by the tax-payer and the bond-holder, and the same facts were to be examined by each. The same record was to be considered by bond-holder and tax-payer. If the facts did not show jurisdiction as to the tax-payer, we cannot see how they showed jurisdiction as to the bondholder. The legislature intended that in every case the jurisdiction to exercise the powers conferred by the act of 1872 should depend on the existence of the jurisdictional fact, viz., that the petition was signed by the required majority of owners, and if the petition was petition was not so signed, the board of public works should have no jurisdiction to proceed. Nor should this jurisdiction be held to attach, whatever court may have ruled that the petition was signed by a majority, when, in fact, it was signed only by a minority of the owners designated by the statute.

Jurisdiction exists in the superior court to grant letters of administration on the estate of a deceased person. When its power to grant such letters is invoked, the court must necessarily pass on the question of the death of the party whose estate is sought to be administered. The court by its grant of letters necessarily decides that such party has died. But should the party be, in fact, alive, its judgment is not conclusive that he is or was dead. It being made to appear to the court that the person alleged and held to be dead is in fact alive, the judgment of the court is void, and must be so held. Such is the decision of this court in Stevenson v. Superior Court, 62 Cal. 60. In deciding that case, it was said in the opinion of Ross, J.: "Administration may lawfully be had upon the estate of a dead man, but not upon that of one in life. Until death occurs there is no 'subject