to the police powers delegated to the municipalities by the state; and, as an exercise of police powers, they are constitutional, even to the extent of imposing a personal liability upon the property owner to improve the street in front of his property, after notice from the superintendent, or to pay the expense thereof, if done by some one else under a contract with the superintendent of streets.

SECTION 14. If the expenses of the work and material for such improvements, after the completion thereof, and the delivery to said contractor of said certificate, be not paid to the contractor so employed, or his agent or assignee, on demand, the said contractor, or his assignee, shall have the right to sue such owner, tenant, or occupant, for the amount contracted to be paid; and said certificate of the superintendent of streets shall be prima facie evidence of the amount claimed for said work and materials, and of the right of the contractor to recover for the same in such action. Said certificate shall be recorded by the said superintendent of streets in a book kept by him in his office for that purpose, properly indexed, and the sum contracted to be paid shall be a lien, the same as provided in section nine of this act, and may be enforced in the same manner. [Statutes 1885, page 158.j

[Section 14 never has been amended.]

SECTION 15. In addition, and as cumulative to the remedies above given, the city council shall have power, by resolution or ordinance, to prescribe the penalties that shall be incurred by any owner or person liable, or neglecting, or refusing to make repairs when required, as provided in section (13) thirteen of this act, which fines and penalties shall be recovered for the use of the city by prosecution in the name of the people of the state of California, in the court having jurisdiction thereof, and may be applied, if deemed expedient by the said council, in the payment of the expenses of any such repairs not otherwise provided for. [Statutes 1885, page 158.] [Section 15 never has been amended.]

SECTION 16. The person owning the fee, or the person in whom, on the day the action is commenced, appears the legal title to the lots and lands, by deeds duly recorded in the county recorder's office of each county, or the person in possession of lands, lots or portions of lots or buildings under claim, or exercising acts of ownership over the same for himself, or as the executor, administrator or guardian of the owner, shall be regarded, treated and deemed to be the "owner" (for the purpose of this law), according to the intent and meaning of that word as used in this act. And in case of property leased, the possession of the tenant or lessee holding and occupying under such persons shall be deemed to be the possession of such owner. [Statutes 1885, page 159.]

[Section 16 never has been amended.]

Section 17 of the San Francisco street work act of 1872 [statutes 1872, page 818,] is similar to section 16 of the present general street improvement act. Section 17 of the

act of 1872 came before the Supreme Court in Phelan v.

Dunne, 72 Cal. 229, and in Parker v. Bernal, 66 Cal. 113. In the latter case,-an action to recover on street assessment, -it was held that this provision of the statute made an executrix an owner for all the purposes of the action, and that therefore the action might be brought against the executrix, even though the heirs of the deceased former owner should be in fact the owners. On the other hand, in Phelan v. Dunne, 72 Cal. 229, it was held that the heirs or devisees of a deceased person are in fact the owners of the property, subject to the liens of the creditors, etc., and that, since they are in fact such owners, they alone need be made parties defendant, even though under this section of the act the executors are, for the purposes of the act, to be deemed owners. It was held that while the executors might be proper parties they were not necessary parties, and therefore the plaintiff need not make them parties unless he so desires. Mr. Justice Patterson, delivering the opinion said: "It may be that under these provisions [i. e., sections 13 and 17 of the act of April 1, 1872; sections 12 and 16 of the present street improvement act,-the Vrooman act of March 18, 1885,] persons other than the heirs and devisees are proper parties to the action, and that their rights cannot be foreclosed unless they are made defendants, but as to that we express no opinion. It is sufficient to say that the defendant [the devisee under the will of the deceased former owner] is the owner in fee, that he is the only necessary party; and that plaintiff is entitled, under this act, to a decree of foreclosure, whatever may be the rights of other parties interested, who are not joined by defendants." [See supra, pages 146-8.] Of course the careful practitioner will not fail to make parties to the action those who are proper parties defendant, merely because they may not be necessary parties. The conclusion deducible from these decisions is that the executor or administrator of an estate might be made the sole party defendant, as was done in Parker v. Bernal, 66 Cal. 113, since the act makes him for all purposes of the act an "owner." By a fiction he is made the owner for the purposes of the act. Or the heirs or devisees, in whom the title is in fact vested, may alone be made parties defendant, as was the case in Phelan v. Dunne, 72 Cal. 229, since in such case the "owners" in fact are made defendants.

In the absence of provisions such as those contained in section 16 of the act, declaring that executors, administrators and others shall, for all the purposes of the act, be regarded, treated and deemed to be the "owner" according to the intent and meaning of that word, such persons could

not be treated as owners for any of the purposes of the act. [Mulligan v. Smith, 59 Cal. 206, 225; Kahn v. Board of Supervisors, 79 Cal. 388.]

SECTION 17. Any tenant or lessee of the lands or lots liable may pay the amount assessed against the property of which he is the tenant or lessee under the provisions of this act, or he may pay the price agreed on to be paid under the provision of section thirteen of this act, either before or after suit brought, together with costs, to the contractor, or his assigns, or he may redeem the property, if sold on execution or decree for the benefit of the owner, within the time prescribed by law, and deduct the amount so paid from the rents due and to become due from him, and for any sums so paid beyond the rents due from him, he shall have a lien upon and may retain possession of the said land and lots until the amount so paid and advanced be satisfied, with legal interest, from accruing rents, or by payment by the owner. [Statutes 1885, page 159.] [Section 17 never has been amended.]

SECTION 18. The records kept by the superintendent of streets of said city, in conformity with the provisions of this act, and signed by him, shall have the same force and effect as other public records, and copies therefrom, duly certified, may be used in evidence with the same effect as the originals. The said records shall, during all office hours, be open to the inspection of any citizen wishing to examine them, free of charge [Statutes 1885, page 159.]

[Section 18 never has been amended.]

SECTION 19. Notices in writing which are required to be given by the superintendent of streets under the provisions of this act, may be served by any person with the permission of the superintendent of streets, and the fact of such service shall be verified by the oath of the person making it, taken before the superintendent of streets, who for that purpose and for all other purposes, and in all cases where a verification is required under the provisions of this act is hereby authorized to administer oaths, or other person authorized to administer oaths, or such notices may be deliv ered to the superintendent of streets himself, who must also verify the service thereof, and who shall keep a record of the fact of giving such notices, when delivered by himself personally, and also of the notices and proof of service when delivered by any other person. [Amendment approved March 14, 1889. Statutes 1889, p. 170.]

[Section 19 was amended by the act of March 14, 1889. Statutes 1889, p. 170.]

SECTION 20. Whenever any street, or portion of a street has been or shall hereafter be fully constructed to the satisfaction of the superintendent of streets and of the city council, and is in good condition throughout, and a sewer, gas pipes, and water pipes are laid therein, under such regulations as the city council shall adopt, the same shall be accepted by the city council, by ordinance, and thereafter shall be kept in repair and improved by the said municipality; the expense thereof, together with the assessment for street work done in front of city property, to be paid out of a fund to be provided by said council for that purpose; provided, that the city council shall not accept of any portion of the street less than the entire width of the roadway (including the curbing), and one block in

length, or one entire crossing; and provided further, that the city council may partially or conditionally accept any street, or portion of a street, without a sewer, or gas pipes, or water pipes, therein, if the ordinance of acceptance expressly states that the council deems such sewer, or gas pipes, or water pipes, to be then unnecessary, but the lots of land previously or at any time assessable for the cost of constructing a sewer, shall remain and be assessable for such cost and for the cost of repairs and restoration of the street damaged in the said construction, whenever said council shall deem a sewer to be necessary, and shall order it to be constructed, the same as if no partial or conditional acceptance had ever been made. The superintendent of streets shall keep in his office a register of all streets accepted by the city council under this section, which register shall be indexed for easy reference thereto. [Statutes 1885, p. 160.] [Section 20 never has been amended.]

When a street has been accepted by the city council, the expense of constructing and repairing the sidewalks must be paid by the municipality. The provisions of section 20 apply to "sidewalks" as well as to "roadways." [Bonnet v. San Francisco, 65 Cal. 230.]

SECTION 21. The superintendent of streets shall keep a public office in some convenient place within the municipality, and such records as may be required by the provisions of this act. He shall superintend and direct the cleaning of all sewers, and the expense of the same shall be paid out of the street or sewer fund of said city. [Statutes 1885, p. 160.] [Section 21 never has been amended.]

SECTION 22. It shall be the duty of the superintendent of streets to see that the laws, ordinances, orders, and regulations relating to the public streets and highways be fully carried into execution, and that the penalties thereof are rigidly enforced. He shall keep himself informed of the condition of all the public streets and highways, and also of all public buildings, parks, lots, and grounds of said city, as may be prescribed by the city council. He shall, before entering upon the duties of his office, give bonds to the municipality, with such sureties and for such sums as may be required by the city council; and should he fail to see the laws, ordinances, orders and regulations relative to the public streets or highways carried into execution, after notice from any citizen of a violation thereof, he and his sureties shall be liable upon his official bond to any person injured in his person or property in consequence of said official neglect. [Statutes 1885, p. 160.]

[Section 22 never has been amended.]

SECTION 23. If, in consequence of any graded street or public highway improved under the provisions of this act, being out of repair and in condition to endanger persons or property passing thereon, any person while carefully using said street or public highway, and exercising ordinary care to avoid the danger, suffer damage to his person or property, through any such defect therein, no recourse for damages thus suffered shall be had against such city; but if such defect in the street or public highway shall have existed for the period of twenty-four hours or more after notice thereof to the said superintendent of streets, then the person or persons on

whom the law may have imposed the obligations to repair such defect in the street or public highway, and also the officer or officers through whose official negligence such defect remains unrepaired, shall be jointly and severally liable to the party injured for the damage sustained; provided, that said superintendent has the authority to make said repairs, under the direction. of the city council, at the expense of the city. [Statutes 1885, p. 161.] [Section 23 of the act never has been amended.]

Section 24 of the San Francisco street work act of 1862, as amended in 1863 [statutes 1863, p. 532], is the section of that act corresponding to section 23 of the present street improvement act, and in Eustace v. Jahns, 38 Cal. pp. 18-19, Mr. Justice Sprague spoke of this section of the act of 1862, as follows: "This is the section containing the law which seems to be especially relied upon by respondent as fixing the liability of defendant in this case. But we cannot discover that, with respect to private citizens or individuals, it creates any new liability or imposes any duty. The manifest design and only effect of the section is to exempt the city and county, in its corporate capacity, from the liability which, at common law, would otherwise attach, by reason of the absolute and exclusive control of the streets and public highways delegated to the corporation by the provisions of its charter, and transfer such responsibility to individual officers, agents and employés of the corporation whose personal neglect or malfeasance may have occasioned the injury. These streets and public highways are public property, opened, constructed, controlled, improved and repaired for public use and benefit, by the city and county government, and no private individual possesses any exclusive right to occupy, use or control any portion thereof, by reason of his ownership or occupancy of adjacent lots and premises, by virtue of any statute of the state, and we are unable to comprehend by what process of ratiocination the duty to repair a public street or highway is devolved upon an individual from the fact that he is liable to be notified by the superintendent of streets to make specific repairs, or owns or occupies a lot liable to be assessed to defray the expenses of repairs, when made by another at the instance of the superintendent."

SECTION 24. The city council of such city shall have full power and authority to construct sewers, gutters, and manholes, and provide for the cleaning of the same, and culverts or cesspools, or crosswalks or sidewalks, or any portion of any sidewalk,upon or in any street avenue, lane, alley, court or place in such city; and also for drainage purposes, over or through any right of way obtained or granted for such purposes, with necessary and proper outlet or outlets to the same, of such materials, in such a manner, and upon such terms as it may be deemed proper. None of the work or improvements described in this section shal! be stayed or prevented by