parent that plaintiff's showing was quite meagre. His diagram was not produced at the trial, nor, of course, introduced in evidence. It simply represents his deductions from the testimony of his own attorney and has been submitted in his brief for the inspection of this court. It is apparent that, according to the diagram which was made by the city engineer and upon which the assessment was based, the starting point of the description was located on the southerly line of San Carlos Street. This point was deemed to be 160.45 feet "westerly" from the intersection of said line with the westerly line of Market Street. Respondent, however, claims that this point is not due west from said intersection, but that to satisfy said call you must go across San Carlos Street to obtain the starting point as indicated on his diagram.

Following strictly the language of the description, we would probably have to agree with respondent's contention, although we consider it a fair conclusion from the whole record that the intention was to select said point in the southerly line of said San Carlos Street as the starting point for the description of the district. We may add, further, that if an error was made in the description as claimed by respondent, it is, at least, doubtful whether it was of a prejudicial nature.

[1] But, be that as it may, the finding as to the description is outside of the issues and is contrary to the allegation of plaintiff's complaint. While the complaint does not allege that the district was described so as to be capable of identification, we deem it susceptible of no other construction. Such is the necessary implication from the averment "that said resolution described the district."

[2] While the finding of a fact not in issue is sometimes upheld upon the theory that the parties have waived the point by their failure to object to the evidence, in other words, because they have treated the case as though it were a material finding, the rule cannot be extended to the justification of a finding in favor of a party contrary to his allegation, which allegation is not denied by his adversary.

[3] 2. Appellants attack the finding of the court that the sum of $25 "for making said assessment" was not legally chargeable upon the district. The evidence disclosed that the item "was paid to the San Jose Abstract Company for search of record on the property to ascertain the exact frontage of the lots." It is not disputed that respondent's portion of this

was one dollar and such amount was added to his assessment. Several contentions in reference to it are made by appellants, but we may refer to one only, which is, that respondent cannot question the validity of the assessment on this ground, for the reason that he did not present it to the council on his appeal to that body. In said appeal he urged seven different and distinct grounds, but did not even suggest that the assessment was too large or that it contained any improper or illegal item. Of course, it must be presumed that if he had called the attention of the council to the fact that his assessment was thus excessive to the extent of one dollar, that tribunal would have relieved him from the burden of his charge. Such appeals contemplate the correction of errors like this, and it is entirely just and right that if a property owner fails to avail himself of this privilege thus accorded him by the law, he should thereafter be precluded from urging the objection.

The point is, indeed, covered by the decision of the supreme court in Boyle v. Hitchcock, 66 Cal. 129, [4 Pac. 1143], where it was held that "an objection to a street assessment in San Francisco, that it included an amount, as incidental expenses, for engraving and printing, was waived by a failure to appeal to the board of supervisors."

[4] 3. Another point made in favor of the judgment is that a lot in the district was omitted from the assessment and for this reason the whole assessment was void. There is no specific finding as to this, the court basing its judgment upon the ground, substantially, that no district was created since it could not be identified from the description. But if the point may be considered at all, it is sufficient to say that there is no such allegation in the complaint nor is there any evidence to support it. It is true that plaintiff's said diagram includes apparently a lot that was not assessed, but this diagram, as we have said, constitutes no part of the record. Besides, if such error was committed, the remedy was by appeal to the council. (Buckman v. Landers, 111 Cal. 347, [43 Pac. 1125].) [5] It is true that an appeal was taken to said council and in support thereof it was alleged: "That various parcels of property within the district upon which said work has been made a charge, have not been assessed to pay their proportionate share of the cost of said work," but respondent should have specified and designated the lot or lots which he claimed were thus omitted. Moreover, the record does not show that

he offered any evidence in support of this claim, the transcript simply showing that "the proceedings relative to the Market Street paving was offered in evidence on appeal to the council. That said proceedings included all the records and proceedings in the office of the superintendent of streets connected with the assessment and were offered in evidence without argument." Manifestly, we cannot assume that any of those proceedings showed that any lot was improperly omitted from said assessment. In a matter of this kind it is as much incumbent upon the property owner to present evidence to the council to support his claim as it is to make the appeal. If he does not offer any such evidence he must abide by the finding against him.

4. Another point urged in the briefs is as to whether the Bond Act of February 27, 1893 (Stats. 1893, p. 33), under which admittedly the bonds involved herein were issued, is applicable to the city of San Jose.

There is no dispute that said city is operating under a freeholders' charter (Stats. 1897, p. 592); that this charter pro. vides a system of street improvements and the collection of the costs thereof; that the improvement of streets is a municipal affair (Byrne v. Drain, 127 Cal. 663, [60 Pac. 433]), and that municipal affairs are regulated and controlled by the charter where it provides therefor and not by general laws passed by the legislature. (Cal. Const., art. XI, sec. 6; Byrne v. Drain, supra.) Said charter provides: "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 municipalities, approved March 18, 1885, as since amended, and as hereafter shall be amended, is hereby adopted as a part of this charter and shall have the same force and effect as if incorporated at length herein, except where the provisions of said act conflict or are inconsistent with the provisions of this charter.'" Said act of 1885, commonly known as the Vrooman Act, as it existed at the date of the adoption of the San Jose charter, did not provide for the issuance of bonds for the payment of street assessments, although this scheme. was thereafter included therein by amendment. The contention of respondent is, therefore, that the provisions of the Vrooman Act as they existed on March 5, 1897, became a part of said charter as though they had been expressly incor

porated therein (Ramish v. Hartwell, 126 Cal. 443, [58 Pac. 920]; 2 Lewis' Sutherland on Statutory Construction, 787), but that subsequent amendments to said Vrooman Act cannot be so regarded, notwithstanding the said language of the charter, for the reason that the charter cannot be amended in that manner (art. XI, sec. 8), and the provision in the statute must yield to the rule laid down in the constitution. The conclusion is reached that said Bond Act as a part of the general law is no part of said charter. (Byrne v. Drain, supra; Fritz v. San Francisco, 132 Cal. 373, [64 Pac. 566]; Sunset Telephone Co. v. Pasadena, 161 Cal. 265), [118 Pac. 796].)

It is further claimed that said Bond Act was not adopted as a part of the charter by virtue of the reference in section 4, chapter 1, article VIII, as follows: "If bonds are to be issued pursuant to an act of the Legislature entitled 'An act to provide a system of street improvement bonds to represent certain assessments for the cost of street work and improvements within municipalities, and also for the payment of such bonds' approved February 27, 1893, and any assessment less in amount than $50. remains unpaid for thirty days from the date of the warrant, or for five days after final decision on appeal, as provided in section 11 of said act, the Mayor and Common Council may, by resolution, order such assessment paid from the street contingent fund, and the superintendent of streets shall thereafter release said assessment on the books of his office, as upon payment in other cases.' There is force in the contention that such reference to the Bond Act is not sufficient to make it a part of the charter. There is certainly no clearly expressed intention to adopt it, such as is found in reference to the Vrooman Act. Moreover, if the reference thereto be deemed sufficient to constitute it a part of the charter, then it would include said act as it stood in 1897. Said act at that time authorized the issuance of bonds only upon a finding by the council upon estimates of the engineer that the cost would be greater than one dollar per front foot along each line of the street (Stats. 1893, p. 33). The complaint alleges that there was no such estimate or finding and this was not denied. It would seem, therefore, that justification is not shown for the issuance of the bonds.

[6] However, we are satisfied that the plaintiff is in no position to complain of the issuance of the bonds. Section 4

:

of said Bond Act provides a simple procedure whereby the property owner may prevent the issuance of any bond for the assessment on his lot. This course was not pursued. As stated in German S. & L. Soc. v. Ramish, 138 Cal. 126, [69 Pac. 92] "The bond creates no new liability and in effect provides for what by some would be regarded as more favorable payment, because in installments and after a period of years. However this may be, the lot owner cannot complain since he may pay the assessment and prevent the issuance of the bond." Of course, if plaintiff had made this objection, his land would still be subject to the assessment under the other provisions of the Vrooman Act.

It would be an unjust construction of the law that would permit the property owner to escape his obligation to pay for the improvement altogether, because a mistake may have been made in granting him the favor of payment for the benefit in installments. He is at least put to his election to choose which method of collection shall be pursued.

5. We have not noticed specifically the finding of the court that said Market Street had been previously "constructed, repaired, and fully improved to the satisfaction of the mayor and common council," and accepted by an ordinance duly passed with a provision that it should thereafter be "kept open and in repair by said city," for the reason that respondent at the oral argument disclaimed reliance upon that finding.

[7] We may add that the finding that "no sufficient legal resolution" of intention was passed is manifestly a conclusion of law and it requires no specific consideration.

The proceedings awarding the contract were in all respects regular and there is no claim of fraud of any kind. The Paving Company performed its contract fully and justly; it improved and regraded the street to the satisfaction of the city, and it hardly seems right that it should lose any compensation for its services by reason of the technical objections that have been made to the assessment.

We think the judgment and order should be reversed. It is so ordered.

Buck, P. J., pro tem., and Hart, J., concurred..

A petition for a rehearing of this cause was denied by the district court of appeal on April 21, 1919, and a petition to