STATUTORY CONSTRUCTION. See Criminal Law, 13; Instructions; Public Officers, 1-3, 8, 12; STOCKHOLDERS' LIABILITY. See Banks and Banking. STREET LAW. 1. SAN FRANCISCO IMPROVEMENT OF ACCEPTED STREET.-The city and county of San Francisco has authority, under its charter, to improve an accepted street under the direction and control of its board of public works. (Warren Brothers Co. v. Boyle, 246.) 2. DUTY TO KEEP IN REPAIR AND IMPROVE.-The duty to keep in repair and improve its duly accepted streets, or portions thereof, is imposed upon the city and county of San Francisco by its charter. (Id.) 3. ORDERING OF WORK BY SUPERVISORS - WRITTEN RECOMMENDATION BY BOARD OF PUBLIC WORKS.-Application for the doing of any street work, or improvement, must, in the first instance, except as otherwise provided in the charter, be made by the proper parties to the board of public works, which may in turn recommend that the work be done. No street work, or improvement of any kind, can be ordered by the supervisors to be done unless a written recommendation to do the same has been made to them by the board of public works, except that in case an application is made for any work or improvement the expense of which is to be paid by the city and county, and the board of public works shall not approve of the application, and it shall report to the supervisors its reasons for such disapproval, the supervisors may then, after having obtained from the board of public works an estimate of the expense of the work or improvement, by ordinance passed by the affirmative vote of not less than fourteen members of the board, order that the work be done. (ld.) 4. WHEN BOARD OF PUBLIC WORKS MAY RECOMMEND-ESTIMATE OF EXPENSE.-Under the charter of the city and county of San Francisco, the board of public works may recommend any improvement the expense of which is to be paid by the city and county, though no application may have been made therefor, but 42 Cal. App.-57 STREET LAW (Continued). must make, with such recommendation to the supervisors, an estimate of the expense. (Id.) 5. IMPROVEMENT OF STREETS-PAYMENT OF EXPENSES.-Under the charter of the city and county of San Francisco, the expense of all work, or improvement, done on streets, crossings, and intersections of streets, that have been accepted by the city and county, after the acceptance of the same, and all repairs and improvements deemed of urgent necessity that may be made upon the public streets, shall be borne and paid for out of the general fund of the city and county. The expense of all other street work and improvement, except certain emergency repairs done at the expense of the owner of the property, shall be assessed upon the lots and lands fronting on the street improved, according to the nature and character of the work. (Id.) 6. MANNER OF HAVING WORK DONE-PURCHASE OF MATERIALSDISCRETION OF BOARD OF PUBLIC WORKS.-The board of public works of the city and county of San Francisco, after having made its recommendation to the board of supervisors that a certain accepted public street be reconstructed and improved in a given manner and the latter board has ordered that the work be done, may do such work under contract, or by and through its own organization, purchasing the materials therefor. (Id.) 7. APPROPRIATION OF MONEY TO DEFRAY EXPENSE - INSUFFICIENT ORDER THAT WORK BE DONE.-Neither the action of the board of supervisors in carrying an item into the annual budget for the estimated cost of certain work, nor its later action in making direct appropriation of the sums of money needed to defray the expense thereof, constitutes an order that the work be done. (Id.) 8. RIGHT ΤΟ USE PATENTED MATERIALS.-Patented composition, or mixture, may be used in the improvement of accepted streets in the city and county of San Francisco, if called for by proper jurisdictional procedure. (Id.) 9. CHARTER PROVISIONS APPLICABLE ΤΟ ALL WORK.-The provisions of section 26, chapter 2, article VI, of the charter of the city and county of San Francisco, relating to the use of patented pavements in the improvements of streets, is not confined to street work on unaccepted streets. (Id.) 10. EFFECT OF ORDINANCE OF RATIFICATION.-An ordinance passed by the board of supervisors of the city and county of San Francisco ratifying, approving, and confirming the purchase by the board of public works of certain patented paving material used in the improvement of an accepted public street, has the effect to cure the omission of the board of supervisors, in the first instance, to order the work of improving the street, and the laying thereon of such patented material. (Id.) STREET LAW (Continued). 11. USE OF MATERIALS-FAILURE TO COMPLY WITH CHARTER PROVISIONS-LIABILITY-ESTOPPEL. Where a municipal corporation, through its duly authorized representatives, enters into a contract with the owner of a patented paving material for the purchase and use of a quantity of such material in the improvement of an accepted street, and such material is so furnished and used, such municipality, having received the benefit, will be estopped from relying on the plea that in making the contract it has not proceeded in strict conformity with some part of the complicated internal machinery of its complex corporate organization. (Id.) 12. ASSESSMENT PROCEEDINGS FINALITY OF DECISIONS. - Such rule and the rule that if there is fraud, or arbitrary action in excess of the jurisdiction of the court, either may be shown in a proper proceeding, unless the injured party has waived his rights by consent to the act or in some other way, apply as well to assessment proceedings as to judgments of court. (Hutchinson v. Coughlin, 664.) 13. OPPORTUNITY TO BE HEARD-FINALITY OF JUDGMENT OF LOCAL GOVERNING BODY-CONSTITUTIONAL LAW.-Where an individual has been given an opportunity to present to the local governing body his objections to an assessment levied for local public improvements, its decision, in the absence of fraud, or arbitrary action amounting to fraud, may be as conclusive as the judgment of a court in a civil action. The constitutional guaranty of the right to be heard does not necessarily require a determination in a court proceeding. (Id.) 14. FRAUD PRESUMPTION FAILURE TO APPEAL-BAD FAITH NOT TO BE ASSUMED.-Fraud is never to be presumed, and where a person complaining of a local assessment did not appeal from the action of the superintendent of streets, who levied the assessment, to the city council, it cannot be assumed that if such person had just cause of complaint, the council would not upon appeal have ordered the assessment corrected. (Id.) OF BENEFITS NATURE 15. DISTRICT ASSESSMENT - DETERMINATION OF PROCEEDINGS RIGHT TO APPEAL- FINALITY OF DECISION OF COUNCIL.-Under the Street Improvement Act of 1911, where the expense of the improvement is chargeable upon a district, the examination and determination of the comparative benefits by the superintendent of streets is essentially judicial in its nature. If his methods or his conclusions are erroneous, the property owners aggrieved have an opportunity to protect themselves by an appeal to the city council; and all decisions and determinations of the council upon notice and hearing in this regard are final and conclusive as to all errors and irregularities which the council might have avoided or remedied or which it could then remedy. (Id.) STREET LAW (Continued). 16. ERRONEOUS ASSESSMENT AFFIRMED HEARING DENIED - REMEDIES OF PROPERTY OWNER.-If an appeal to the city council is made and that body fraudulently or arbitrarily affirms an erroneous assessment or refuses the property owner a hearing, the courts are open for a direct attack on the action of the council, or on suit being brought to enforce the assessment, such matter may be interposed in defense. (Id.) - ESTOPPEL 17. FAILURE TO APPEALΤΟ ATTACK VALIDITY. — If a property owner, having a right to defend against an erroneous assessment for work ordered after jurisdiction has been established, fails to assert that right in an administrative tribunal which is vested with power to correct the error, he may not be heard, either as a plaintiff or defendant, in any litigation involving the assessment, to assert its invalidity, without showing either fraud or the exercise of arbitrary and harmful power on the part of the administrative tribunal. (Id.) 18. APPROVAL OF ERRONEOUS ASSESSMENT BY COUNCIL-EFFECT OF.— An erroneous, arbitrary, or even a fraudulent assessment will not render it void after the council has approved it, either actually upon hearing or impliedly because no protests are made. (Id.) 19. CONFISCATION OF PROPERTY ASSESSED VALUATION IMMATERIAL. The mere fact that the amount assessed against certain lots for street improvements exceeds the amount at which they have theretofore been appraised for taxation does not necessarily lead to the conclusion that the assessment is confiscatory. (Id.) 20. FAILURE TO ACQUIRE JURISDICTION CONSTITUTIONAL GUARANTY OF DUE PROCESS ASSERTION OF EQUITIES BY CONTRACTOR.— When a street assessment is attacked on the ground that the local board failed to acquire original jurisdiction, the owner may rest on the constitutional guaranty that his property may not be taken without due process of law. If jurisdiction is lacking, no equities asserted by the contractor can prevail. (Beck v. RansomeCrummey Co., 674.) 21. INVALIDITY APPARENT ON FACE APPEAL то COUNCIL NOT NECESSARY. If the invalidity of the initial resolution of intention is apparent on its face, the owner is not required to seek its correction by appeal to the council. He may stand upon his rights whenever an attempt is made to assert any claim based on an assessment void on its face. (Id.) 22. IMPROVEMENTS UNDER VROOMAN ACT NOTICE ΤΟ PROPERTY OWNERS. In proceedings under the Vrooman Act there is no provision for personal service. Notice, as distinguished from knowledge, is the essential thing and is implied from publication. It must be the notice required by the statute, not some other publica STREET LAW (Continued). tion, and it must be substantially the same in all similar cases. (Id.) 23. BURDEN OF PROOF. In the matter of jurisdiction with respect to proceedings under the Vrooman Act the individual is not required to show that he has not had knowledge, but the burden is on the state and those claiming under it adversely to the individ ual to show that he has had notice. (Id.) 24. CONTENTS OF RESOLUTION OF INTENTION-PROVISIONS OF STATUTE MANDATORY.-The requirements of the Vrooman Act that when the council, under the circumstances therein prescribed, desires to make the expense of the improvement chargeable upon a district, the resolution of intention shall "describe the said district and refer to a plat or map approved by the city council, which shall indicate by a boundary line the extent of the territory to be included in said assessment district, which plat or map shall be on file in the office of the city engineer, before said superintendent of streets shall proceed with the publication and posting of notices of street work," are mandatory and jurisdictional. (Id.) 25. OMISSION OF STATUTORY REQUIREMENT-SUBSTANTIAL COMPLIANCE QUESTION FOR COURT.-Where a clear statutory requirement is omitted from the initial resolution or process which is the means of imparting notice of adverse proceedings, the rule of liberal construction must yield to the constitutional guaranty of due process of law; but if there is not an entire omission of a statutory requirement, but merely a defect, a court may properly determine there has or has not been a substantial compliance dependent upon the facts of the particular case. (Id.) 26. DETERMINATION OF TRIAL COURT CONTROLLING.-The judgment of what is a substantial compliance with the statute is to be exercised in the first instance by the trial court, and if the case is one where a requirement of the statute has not been entirely disregarded, its determination of the question of substantial compliance ought to be controlling in the absence of an abuse of discretion. (Id.) 27. SCOPE OF SECTION 5% OF VROOMAN ACT-JURISDICTIONAL REQUIREMENTS NOT WAIVED. The provision of section 5% of the Vrooman Act that all objections to any act or proceeding prior to the date of the notice of award not made in writing within ten days from the date of the first publication of notice of award of contract shall be deemed to have been waived does not refer to matters which directly affect the jurisdiction of the council to order the work, such matters being by the last clause of said section expressly excepted from its provisions. (Id.) 28. ABSENCE OF SUPERINTENDENT OF STREETS PERFORMANCE OF DUTIES BY ASSISTANT VALIDITY OF ACTS.Where, during the absence of the superintendent of streets on leave, his as |