cretion of the superintendent of streets was exercised, perhaps erroneously, but the property owner did not seek the protection of the council. In effect, she permitted a default judgment to be entered against her by a tribunal having jurisdiction of her cause.

[6] On the trial, over the objection of the plaintiff, evidence was received showing that the appellant's four lots were assessed for taxes in the aggregate of $1,650. Evidence was also introduced showing that the superintendent of streets levied the assessment upon the lots by the exercise of a discretion in a manner which may have been erroncous but which involved the examination and determination of the comparative benefits he believed would flow to the respective lots by reason of the work. This examination and determination was essentially judicial in its nature. If either his method or conclusions were erroneous, the statute furnished a means for the property owners to protect themselves. At any time within thirty days after the date of the warrant issued upon the making of the assessment, the owners aggrieved may in writing state their objections to the assessments. Thereafter, and upon notice, the council is required to hear such objections and may remedy and correct any of the acts or determinations of the superintendent of streets, confirm, amend, set aside, alter, modify, or correct the assessment in such manner as to it shall seem just, directing the superintendent of streets to correct the warrant, assessment, or diagram in any particular or to make and issue a new warrant, assessment, or diagram to conform to the decision of the council. All decisions and determinations of the council upon notice and hearing in this regard are made final and conclusive upon all persons entitled to appeal under the provisions of the section as to all errors and irregularities which the council might have avoided or remedied or which it can then remedy. The section continues: "No assessment, warrant, diagram or affidavit of demand and nonpayment, after the issue of the same, and no proceedings prior to the assessment, shall be held invalid by any court for any error, informality, or other defect in the same, "where the resolution of intention shall have been passed and posted in such manner as to give the council jurisdiction to order the work to be done. (Street Improvement Act of 1911, sec. 26, Stats.

1911, p. 745.) [7] If an appeal to the council had been made and it had fraudulently or arbitrarily affirmed an erroneous assessment or had refused the property owner a hearing, the courts would have been open for a direct attack on the action of the council, or on suit being brought to enforce the assessment, the rule in the Los Angeles case might have been applied. In this case it does not appear from the face of the assessment that it was void, or not in entire accord with the law. It was sought to show by the evidence on the trial that the superintendent of streets erred in his judgment. This evidence would have been proper and might have been conclusive upon an appeal to the council. The fact that it was relied upon here shows the assessment was not void on its face, else it would have been unnecessary in support of the appellant's position. The case is akin to one where a collateral attack is made on a judgment regular on its face. If in a suit in ejectment the court should give such a judgment as could only be given in a suit in unlawful detainer, the judgment would be void because of matters appearing on the face of the record. If, in such a case, a judgment was entered regular on its face, after it became final it could not be invalidated by evidence that the court had mistaken the facts or misapplied the law.

The defaulting defendant in a civil action, after his property has been taken on execution of a judgment regular on its face and rendered after jurisdiction had been perfected, could not be heard in a federal court to say the taking was in violation of the provisions of the constitution of the United States regarding due process of law. To support such a suit it would be necessary for the plaintiff to allege and prove that he was not in default, and that the judgment was invalid by reason of fraud or such a gross abuse of judicial power apparent on the face of the record as to amount to fraud. [8] Similarly, 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. [9] As the violation of the law by a referee to take evidence would not invalidate a judgment entered by a court on his report, neither would an erroneous, arbitrary, or even a fraudulent assessment render it void after the council approved it, either actually upon hearing or impliedly because no protests were made. The failure to protest to the council in the one case has the same effect as the failure to object to the referee's report in the other. The law helps those who are vigilant. Silence under such circumstances amounts to a consent to the act. (Civ. Code, secs. 3515, 3516.) It is possible a case may arise where an appeal to the council from the nature of things might be futile and the assessment void, as, for instance, if an assessment should be levied to pay for work not included within the resolution, or to pay for work which had never been done, but no such conditions confront the court in this case.

[10] The mere fact that the amount assessed against the appellant's four lots, situated as they are, exceeded the amount at which they had theretofore been appraised for taxation does not necessarily lead to the conclusion that the assessment was confiscatory. In support of the regularity and honesty of the action of the municipal authorities and of the judgment of the trial court, it might well be presumed that the improvement in the block, in which the appellant's four lots occupied the entire frontage on both sides of the street, and the improvement in the crossing, upon which two of the appellant's corner lots abutted, so benefited them as to warrant an increased valuation more than equal to the amount of the assessment to be placed upon them. It is not necessary for the determination of this appeal to rest the decision upon any inferences in support of the judgment. The appellant, by reason of her failure to appeal to the local council for the correction of the assessment, neither pleaded nor proved facts sufficient to warrant a judgment in her behalf. Because of this failure of both pleading and proof in the matter essential to support a judgment adverse to the assessment, the evidence concerning the method in which the superintendent of streets exercised the function intrusted to him and the evidence in regard to the assessed

42 Cal. App. 43

valuation for taxation purposes of the appellant's lots had no considerable weight.

The judgment is affirmed.

Langdon, P. J., and Haven, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 9, 1919.

Shaw, J., Melvin, J., Lawlor, J., and Wilbur, J., concurred.

[Civ. No. 2880. First Appellate District, Division Two.-August 14, 1919.]

FRED BECK et al., Respondents, v. RANSOME-CRUMMEY CO. (a Corporation), et al., Appellants.

[1] STREET LAW-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.

[2] ID.-INVALIDITY APPARENT ON FACE-APPEAL TO 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.

[3] ID.—DEFINITION OF DUE PROCESS OF LAW.-While it is impossible to define with precision “due process of law," it is the exact equivalent of the law of the land as used in the Magna Carta, and, broadly speaking, it means that before a man's life or liberty or property may be taken by the state, he must be given notice of the proceedings which may terminate in the taking, and be given an opportunity to be heard in his own defense. It means further that the notice shall be a real and reasonable one, and the hearing, such as ordinarily or at least reasonably, is given in similar cases.

1. Validity of special assessment as affected by unlawful invasion of property rights, note, L. R. A. 1915D, 772.

3. Definition of due process of law, note, 122 Am. St. Rep. 904.

[4] ID. SUFFICIENCY OF COMPLIANCE WITH STATUTE.-The law of the land does not necessarily mean simply statutory law, for no state can make everything due process of law, which by its own legislation it declares to be such. On the other hand, if the statute requires as the initial step in the process of depriving a man of his property the performance of a specifically defined act, unless the act be performed substantially, no jurisdiction-power-exists for further action in that proceeding against him.

[5] ID. IMPROVEMENTS UNDER VROOMAN ACT-NOTICE TO 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 publication, and it must be substantially the same in all similar cases. [6] ID. 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.

[7] ID.-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. [8] ID. 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.

[9] ID. 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

5. Land owner's right to notice and hearing of assessment for public improvements, note, 28 L. R. A. (N. S.) 1201.