provides a tribunal for the litigation of this question,namely the city council-and as the statute expressly states that the decision of such tribunal upon such a question, shall be final and conclusive, it is therefore held that an appeal is the only remedy of a lot owner dissatisfied because a lot, liable to assessment, has been omitted, and that the decision of the council upon such question is final and conclusive. An error in the assessment roll is an error capable of correction by the council on appeal if the work has been properly done under a valid contract therefor. And it seems that, if the error or irregularity complained of is capable of correction by the council on appeal, the appeal to the council is the only remedy. [See opinion of Temple J., in Chambers . Satterlee 40 Cal. 524. See post section 11 of the act, and the notes thereto.]

IV. General Principles of Street Assessments.

(a.) Legislature can not Directly Exercise Power of Assessment. The legislature can not directly exercise the power of assessment within an incorporated city, but may empower the municipal authorities to do so. In cities the power of assessment can only be exercised through the medium of the corporate authorities. [People v. Lynch, 51 Cal. 15; Taylor e. Palmer, 31 Cal. 240; Brady v. King, 53 Cal. 44; Schumacker v. Toberman, 56 Cal. 508.]

(b.) Owner not Personally Liable. The owner of the land, bordering upon an improved street, can not be made liable for the cost of the improvement beyond the value of his land. The legislature can not impose a personal liability upon the owners of the property assessed, and any statute purporting to impose such personal liability is, in this respect, unconstitutional and void. [Taylor v. Palmer, 31 Cal. 240; Guerin v. Reese, 33 Cal. 296; Coniff v. Hastings, 36 Cal. 292; Gaffney v. Donohue, 36 Cal. 104; Himmelmann v. Steiner, 38 Cal. 175, 178; Randolph v. Bayue, 44 Cal. 366; Gillis v. Cleveland, 87 Cal. 214; Manning v. Den, 90 Cal. 610.] Nor can the property owner be held liable upon the ground of a contract. [Dyer v. Barstow, 50 Cal. 652.]

(c.) Not an Exercise of Power of Eminent Domain. Street assessments do not take private property for public use. [Emery . S. F. Gas Co., 28 Cal. 316; Chambers v. Satterlee, 40 Cal. 497.]

(d.) Contract Not Affected by Subsequent Changes in the Law. Improvement begun under a law, after execution of the contract, makes that law a part of the contract as to mode of assessment, which subsequent amendment of the law does not affect. [Houston v. McKenna, 22 Cal. 550.] The same is true as to changes in the constitution made

Mar. 31, 1891.

after the contract is made. If, after the contract is made, the constitution is changed so as to provide a new method of assessment, it will not affect the contract, and the granting of an extension of time for the completion of the work will not constitute a new contract. The provisions of the law under which a contract is made enter into and become a part of the contract, including all provisions for extensions of time, and a valid contract can not be abrogated by the adoption of a new constitution, any more than it can by the enactment of a new law by the legislature. If it did it would impair the obligation of the contract and thus controvene the provision of section 10, article I of the federal constitution, providing that no state shall pass any law impairing the obligation of contracts. [Oakland Pvg. Co. v. Barstow, 79 Cal. 45; Ede v. Cogswell, 79 Cal. 278; Ede v. Knight, 93 Cal. 159.]

The contractor is entitled to have the improvement opposite a lot assessed to the whole lot without regard to subsequent sales of portions. The lien attaches to the whole lot in the hands of a subsequent purchaser. After the expiration of the notice of intention that is posting and publication of the resolution of intention and of notice of its passage-the council acquires jurisdiction of the subject matter of the improvement, and the contractor acquires a right, under his contract, to have the assessment made upon the lots fronting the improvement as they existed at the time the jurisdiction of the council over the subject matter attached under the statute, and the owner of a lot cannot defeat this right by subsequently conveying a portion of the lot. The whole lot, as it existed when the jurisdiction of the council over the subject matter of the improvements attached, is liable to be assessed upon completion of the work, no matter who owns it, or what subdivisions may subsequently have been made by the owner. [Dougherty v. Miller, 36 Cal. 83.]

(e) The Property Owner Cannot set up a Counter Claim for Damages. An assessment for the improvement of streets is a municipal tax, levied by the corporation upon the property adjacent to the street, to defray the expenses of the improvement, and therefore the property owner in a suit to recover the amount assessed against his lot cannot set up a counter claim for damages to his land. "The origin, obligatory force and whole nature of a tax, is such that it is impossible to conceive of a demand that might be set off against it, unless expressly so authorized by statute." [Himmelmann v. Spanagel, 39 Cal. 389. ]

(f) Sale for Taxes Extinguishes Assessment Lien. A valid

tax deed extinguishes the prior lien of a street assessment. For, as a general rule, a sale and conveyance in due form for taxes extinguishes all prior liens, whether for taxes or otherwise, and therefore where, pending an action to enforce the collection of a street assessment, a third party procures a valid tax deed, the tax deed extinguishes the lien of the assessment. [Dougherty v. Henarie, 47 Cal. 10; Chandler v. Dunn, 50 Cal. 15.1

(g) Public Property Exempt from Street Assessment. Public property is exempt from street assessments and such property may be exempted from the assessment although situated within an assessment district declared to be benefited by the improvement; and such exemption will not reuder the assessment violative of the principle that all assess ments must be equal and uniform. [Doyle v. Austin, 47 Cal. 353.]

(h.) Assessment need not be Presented to Administrator. An assessment made after the death of a property owner need not be presented to his estate for allowance. It is a municipal tax, and the rule is that taxes assessed against the property of an estate, pending administration, are not claims against the estate which must be presented to the administrator for allowance. [Hancock v. Whittemore, 50 Cal. 522; People v. Olvera, 43 Cal. 492.]

(i) Can Only be Made Pursuant to Terms of a Statute. An assessment can only be made according to the terms of the statute, and where the statute does not provide for an assessment for doing a particular kind of work, or does not provide for an assessment for work done upon some particular place, the assessment is void. [Bassett v. Enwright, 19 Cal. 636; Kelly v. Luning, 76 Cal. 311.]

(j) A Void Assessment Cannot be Validated by Ratification. The doctrine of ratification has no application to street assessments, and, so far as the lot owner is concerned, the city cannot, by any act on its part, ratify proceedings taken to improve a street and impose an assessment on the lot for the same, so as to make the same valid, when they were invalid in the first instance. So far as the lot owner is concerned, these proceedings are but steps taken for the purpose of imposing upon him a tax for a specific purpose, and to such proceedings the doctrine of ratification has no application. The power of ratification, if it exits at all, is in the legislature. [Meuser v. Risdon, 36 Cal. 239.] And the power of the legislature to ratify the proceedings, if it exists at all in the case of assessments for municipal improvements, is limited to dispensing with those things which it might have dispensed with in the first place. That is to say, if the

thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity of which the legislature might not have dispensed with by prior statute, then it is beyond the power of the legislature to dispense with it by subsequent statute. [People v. Lynch, 51 Cal. 15.] In this case of People v. Lynch, the "thing wanting" in the original proceeding was "uniformity" in the assessment. If the assessment is void the legislature cannot validate it, nor can it make an assessment within an incorporated city. [Brady e. King, 53 Cal. 44; Schumacker v. Toberman, 56 Cal. 508, 511; Kelly . Luning, 76 Cal. 309.]

In San Francisco v. Certain Real Estate, 42 Cal. 513, it was said that it is competent for the legislature, by subsequent enactment, to cure defects in the original proceeding. But in People v. Lynch, supra, Mr. Justice McKinstry seems to be of the opinion that since, according to the decision in Taylor v. Palmer, 31 Cal. 242, the legislature cannot exercise the power of assessment directly within municipalities, that therefore it cannot, in any case, ratify an assessment proceeding.

In Reis v. Graff, 51 Cal. 86, the court, through Mr. Justice Rhodes, stated that validating a void assessment is equivalent to making an assessment in the first instance. In that case Judge Rhodes said: "Assuming that the legislature may itself make the assessment, or, what amounts to the same thing, validate a void assessment, does the act have the effect to make the assessment valid, by relation, as of the date of the invalid assessment," etc. If, therefore, validating an assessment amounts to making an assessment, and if the legislature may not make an assessment within a municipality, it would seem to follow, necessarily, that the legislature cannot in any case validate an assessment within municipalities. In this case of Reis v. Graff it was held that even if the legislature may validate a void assessment within municipalities, the assessment can only become valid at the date when the curative act takes effect, and the curative act can not, by relation, make the assessment valid as of the date when it was levied. [See also People v. McCain, 51 Cal. 360.]

In Fanning v. Schammel, 68 Cal. 428, the work was not completed within the time limited by the contract. Subsequently the board of supervisors extended the time, but as it had no jurisdiction to extend the time after the life of the contract, (see notes to sec.6 of the act, pages 62-63 supra) the order of extension was unauthorized and void. Nearly a year after this void order of extension, the legislature passed

an act purporting to validate, ratify and confirm "all orders and resolutions heretofore from time to time passed by said board of supervisors * * * in relation to street work," etc., and it was contended that this act cured said defect in the proceedings, and validated said order of extension, but the court said: "So far as the statute attempts to vitalize a dead contract and validate a void assessment for street work, it is unconstitutional and void."

The validity of an assessment does not depend upon the validity of the remedy for its enforcement. [Appeal of N. B. and M. R. R. Co., 32 Cal. 520.] An assessment to pay for prior work under an abortive contract is invalid. [In the Matter of Market Street, 49 Cal. 546.]

(k) Severable Assessments Severed and Recovery had on Valid Part. If an assessment be severable, and part be void and part valid, the total assessment may be severed and recovery had upon the valid part, provided there be a proper demand for the part that is valid. That is to say, where there are two assessments-one void and the other validas, for example, where several assessments are made to pay the expenses of different kinds of work contracted to be done pursuant to a resolution of intention and order, ordering several kinds of work to be done, these assessments may be severed and separate demands made, and in such case the contractor is entitled to recover the amount of the valid assessment. [Parker v. Reay, 76 Cal. 103; Ede v. Knight, 93 Cal. 159, 165.]

In Frick v. Morford, 87 Cal. 576, an excess of work was done outside of the limits fixed by the resolution of intention. That is, the plans and specifications required eight feet more of sewer to be laid, than was authorized by the resolution of intention. These faulty plans and specifications were a part of the contract, and the contractor laid this extra eight feet of sewer, being an excess of eight feet outside of the limits fixed by the resolution of intention. Held: (1) That the work done outside of the limits fixed by the resolution was unauthorized, and the contractor was not entitled to an assessment for the work in excess. (2.) That if the lot assessed wholly fronts upon the work done in excess of authority, it cannot be held liable for any assessment. (3.) That if it fronts in whole or in part upon the work authorized by the resolution of intention, the assessment against it will not necessarily be rendered void by the fact that the entire assessment purports to make a charge upon lots not within the limits fixed by the resolution of intention. (4.) That if it is in part within the excess, the contractor is not entitled to an assessment against that part