the omission might have been remedied or corrected by the council when the time to appeal arrived, and provided, also, that the property owner was a party to the assessment. [See the subject of "Appeal by Lot Owners" for irregularities in the assessment, pages 94-97, in the notes to section 8 of the act.]

On page 123 supra, the language of Mr. Justice Harrison in the case of Shipman v. Forbes, 97 Cal. 572, is quoted for the purpose of showing what requirements are deemed to be jurisdictional. As the decision in that case might seem to conflict with the statement made above, to the effect that even some jurisdictional requirements, i. e., requirements having the semblance of benefit to the owner, may be waived by the property owner's failure to appeal, if it was possible for the omission, error or irregularity complained of to be remedied cr corrected by the council on appeal, when the time for appeal arrived, so as to restore or preserve to the property owner every requirement of the statute having the semb lance of benefit to him,-it is deemed proper, in this connection, to give a little further consideration to this case of Shipman v. Forbes. In that case the work had been done under a contract made pursuant to the provisions of the San Francisco street improvement act of 1872. [Statutes 1872, p. 804.] A warrant had been issued by the superintendent of streets after the assessment roll had been made up. This warrant was not dated. It was held that if the warrant be not dated so as to show the day of the month and the year, it cannot serve as the foundation of proceedings for the collection of the assessment. Mr. Justice Harrison, rendering the opinion for the court, held that the omission of such date from the warrant was a jurisdictional defect. Still, if the deductions from the opinions given in the decisions cited supra, upon the various street improvement acts, be correct, even the omission of a jurisdictional requirement is not fatal, if the property owner was a party to the assessment and the mischief might have been remedied by the council on appeal. And, while a failure to date the warrant may be a jurisdictional defect, as held by Mr. Justice Harrison, still the case of Shipman v. Forbes does not seem to be determinative of the question as to whether, under the present street improvement act,-the Vrooman act of March 18, 1885,an appeal to the council is the property owner's exclusive remedy for any jurisdictional defect in the warrant. Because, (1.) the decision in that case was under a different act, the San Francisco street improvement act of April 1,

1872; and (2.) the question as to whether or not an appeal to the council was the exclusive remedy does not seem to have been raised in Shipman v. Forbes, or, if it was, it was not considered by the court in its opinion.

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The present street work act, in section 11, expressly authorizes the council, on appeal, to "instruct and direct the superintendent of streets to correct the warrant, in any particular, or to make and issue a new warrant." The act of April 1, 1872, under which Shipman v. Forbes was decided, did not contain such express provisions in relation to the correction of the warrant or the issuance of a new one, although it did authorize the council on appeal to "make any order or decision in relation to any of the acts of the said superintendent of public streets," etc. [Sec. 12 of act of April 1, 1872, statutes 1872, p. 815.] This clause of the act of 1872 seems to be broad enough to include any correction in the warrant. However, under the said act of 1872, the appeal had to be taken "within fifteen days after the issuance of said assessment." It is possible that under that act the warrant need not have been issued until more than fifteen days after the issuance of the assessment, and, if the act be capable of such a construction, then the provisions for an appeal would not seem to contemplate jurisdictional defects in the warrant, since such defects might occur after the time to appeal had expired; and if such construction of the act be correct, the decision in Shipman v. Forbes must have remained unchanged even if the question had been raised as to whether or not an appeal to the board of supervisors was the property owner's exclusive remedy for a failure to date the warrant.

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But, under the present street improvement act,―the Vrooman act of March 18, 1885,-the appeal need not be taken until "within thirty days after the date of the warrant," and on such appeal the council "may instruct and direct the superintendent of streets to correct the warrant, in any particular, or to make and issue a new warrant." And therefore it is possible that, as to some defects in the warrant,an appeal to the council is the property owners' exclusive remedy, even though the defect be of a jurisdictional character, i. e., even though the defect complained of consists in the omission of some requirement of the statute having the semblance of benefit to the property owner. But it is probable that an appeal is the exclusive remedy only as to "some" jurisdictional defects of the warrant, because there is one jurisdictional defect, at least, which even under the present street improvement act,

would not be waived by a failure to appeal, and that is

the very defect which existed in Shipman v. Forbes, viz., an omission to date the warrant. Because, under the present street improvement act, the right of appeal does not spring into existence until the warrant is dated. The appeal may be taken at any time "within thirty days after the date of the warrant," and, therefore, until the warrant is dated no appeal need be taken. The expression "date of an instrument," as commonly used, does not mean the time when the instrument was actually executed, but the time of its execution as given or stated in the instrument itself. [Bement v. Trenton L. & M. Co., 32 N. J., L. 515.]

The conclusion deducible from the above is, therefore, that as to some defects in the warrant an appeal is the exclusive remedy, even though they be jurisdictional, i. e., consist in the omission of some requirement of the statute having the semblance of benefit to the property owner, provided the property Owner was a party to the assessment, and the error or irregularity complained of is capable of correction upon appeal so as to restore or preserve to the property owner all benefits secured to him by the statute. But these remediable defects do not include a failure to date the warrant, as the right to appeal does not spring into being until the warrant is dated, and Shipman v. Forbes does not, in any respect, militate against those cases cited supra, which hold that an appeal is the exclusive remedy where the error or irregularity complained of is capable of correction on appeal, and it will be seen infra, under the caption: "Cases in which it has been held that an appeal is the only remedy," that the Supreme Court in the later case of Dowling v. Altschul, 33 Pac. Rep. 495, has fully sustained the proposition that an appeal is the exclusive remedy in all such cases. [See supra, pages 94-97, "Appeal by lot owners for errors in the assessment."]

The term "jurisdictional requirements," as used in the statement of the foregoing conclusions, is used synonymously with the expression "requirements of the statute having the semblance of benefit to the owner." As thus used there can be no doubt that there are some jurisdictional requirements, the omission of which is waived, if an appeal to the council be not taken by the property owner. In other words, an appeal to the council is the exclusive remedy for some of said defects, and the test in each case seems to be: Was the property owner a party to the assessment? and, if he was, was the omission or irregularity complained of capable of correction by the council on appeal so as to preserve

or restore to the property owner all the rights and benefits secured to him by the statute? As to those jurisdictional defects which occur prior to the award of the contract, an appeal does not seem to afford any remedy; the property owner is, therefore, not a party "aggrieved," and may avail himself of such defects to defeat an action upon the assessment. Nor would a "petition of remonstrance" afford a remedy in such case. The provision authoriizng "a petition of remonstrance" against the acts and proceedings of the city council was intended to be applicable only to acts and proceedings within the power of the council. [Capron v. Hitchcock 33 Pac. Rep. 431.] As to what constitutes a property owner a stranger to the assessment roll, so as to exempt him from the provisions relative to "appeal," see supra pp. 94-97.

The decisions cited above were cited for the purpose of exemplifying the principles which were held to govern the right of appeal, and the extent of the remedy thereby afforded, under street improvement acts passed prior to the passage of the present street improvement act, the Vrooman act of March 18, 1885. Those statutes were, in most respects, similar to the present street improvement act, except that the last clause of the present act adds a provision to the effect that if notice of intention has been duly published,-"no assessment shall be held invalid, except upon appeal," etc. However, the recent decisions under the present act do not seem to have altered the principles declared in the decisions under the former street improvement acts, and these principles remain the same now as under the former acts. [See supra pp. 16-17.]

IV. Principles Governing Appeal under Present Street Improvement Act.

In Manning v. Den, 90 Cal. 610, the contract was void, because entered into by the superintendent prematurely. The proceedings were had, and the work done, under the present street work act-act of March 18, 1885. It was held that a failure to appeal did not cure the defect, nor would the owner be estopped if he had taken an appeal, and the appeal had been decided by the council against him. The court, per Harrison J., pages 615-616, said: "Any objections to the correctness of the proceedings by reason of the foregoing defects were not waived by the defendant by his failure to appeal to the city council. Section 11 of the statute in question provides for an appeal to the city council by those who feel aggrieved or have any objection to any act, determination, or proceeding of the superintendent of streets, and after authorizing the city council to remedy and

correct any error or informality in the proceedings, declares that the decisions and determinations of said city council upon such appeal shall be final and conclusive, 'as to all errors, informalities and irregularities which said city council might have remedied and avoided.' It is evident, however, that the foregoing defects in the proceedings could not have been remedied or avoided by the city council upon any appeal from the assessment. At that time the work had been done, and there was no occasion for any contract to be entered into, and any direction from the city council to the superintendent of streets to enter into a contract would have been nugatory as to anything that had taken place prior thereto. A contract entered into by the superintendent at that date would not validate an assessment for work that had been done prior thereto. Unless the superintendent had entered into a contract in pursuance of the award at a time when by the provisions of the statute, he was authorized to do so, there was no foundation for any of the subsequent proceedings, and the person who did the work acquired no rights thereby against the owner. A contract authorized and executed in the mode prescribed by the act is indispensable to the validity of the assessment. This defect is not cured by the failure of the lot holders to appeal to the board, because, had an appeal been taken, the defect could not have been remedied by the board.' [Dougherty v. Hitchcock, 35 Cal. 524.] The premature action of the superintendent was one which affected his power or jurisdiction. His action was void, and that which was void does not become valid by reason of a failure to appeal. The property owners were not aggrieved, and the failure of the contractor to appeal did not operate, (1.) To create a grievance on the part of defendants, and (2) to estop them from complaining of it.' [Burke v. Turney, 54 Cal. 487.] The provision, in the latter part of section 11, that 'no assessment shall be held invalid except upon appeal to the city council,' etc., has no application to a case in which an appeal is not authorized, or in which, even if taken, the city council could not have remedied the defect. The legislature did not intend to declare that the owner should be deprived of his defense to any claim upon an assessment, where the assessment was void by reason of incurable defects, because he had failed to invoke the aid of a tribunal which was powerless to grant him any relief. Nor would the owner be estopped from presenting any such defects because he had appealed to the city council, and that body had denied him relief. Their denial of relief may have been based upon the express ground that the