of the notice of intention. * * * The jurisdiction when it once attached [that is attached to the subject matter of the improvement] extended through all subsequent proceedings regularly had, till the assessment was made and collected. That jurisdiction could not be ousted by the act of a lot owner. ** The whole lot as it existed when the jurisdiction of the board of supervisors attached, is liable to be assessed upon the completion of the work, no matter who owns it, or what subdivisions, fraudulent, fanciful or otherwise, may subsequently have been made. by the owner." * But while jurisdiction of the subject matter of the improvement in the sense used by the court in this case of Dougherty v. Miller, may attach to the subject matter of the improvement, upon the due passage and publication of the resolution of intention, nevertheless jurisdiction or power to execute a valid contract and make a valid assessment, so that the contractor shall have a valid lien upon the property of the lot owner, does not exist unless the contract and assessment are preceded by a due performance of all of the jurisdictional prerequisites, which include the due performance of a large number of necessary acts. Thus, as held in Dougherty v. Hitchcock, 35 Cal. 512, and many other cases, the superintendent of streets has no jurisdiction or power to execute a valid contract unless the council has previously made an award of the contract, and the formal written contract must correspond with the award. It is often difficult to draw the line of demarkation. between the necessary jurisdictional prerequisites to a valid contract or a valid assessment, and those mere irregularities which do not effect substantial rights. This question. frequently arises where the question is: Was the irregularity complained of waived by a failure to appeal to the council? Section eleven authorizes the property owner to appeal to the council, and by section three he is authorized to file a petition of remonstrance at any time before the issuance of the assessment roll, wherein he can specify his grievances and "such petition or remonstrance shall be passed upon by the city council, and its decision therein shall be final and conclusive." The San Francisco street law act of 1862, [Statutes 1862, page 392] contained similar provisions, and it was said in Emery v. Bradford, 29 Cal. 86, that "this conclusive determination on on appeal doubtless refers to those matters upon which the superintendent is required. in the discharge of his duties to exercise his judgment-those matters in which his errors are to be revised and corrected. There are acts to be performed of a jurisdictional character essential to the validity of any assessment. It is not to be supposed that the conclusiveness of the decision of the board of supervisors is to extend to that class of acts. The provisions in section twelve [Section 11 of the Vrooman Act] indicate the kind of errors upon which the decisions of the board are to be final. It is that 'all the decisions and determinations of said board, upon notice and hearing aforesaid, shall be final and conclusive upon all persons entitled to an appeal under the provisions of this section, as to all errors and irregularities which said board could have avoided." " The last clause of section eleven of the Vrooman act (post) seems to make, or attempt to make, all proceedings of the council, subsequent to the passage and publication of the notice of intention, unimpeachable, unless an appeal has been taken to the council as provided in that section. It seems, however, from recent decisions of our Supreme Court that a failure to appeal to the council is not a waiver, under this act, of the right to attack the proceedings in court, for failure to comply with those jurisdictional requirements which are to be performed subsequently to the publication of the notice of intention. In Perine . Forbush, 97 Cal. 305, the proceedings were had and the work done under the act of March 18, 1885. There was no objection made to the resolution of intention or to the regularity of its publication. It was held that the contract was void because not entered into within fifteen days after the first posting of the notice of award, as required by section 5 of the act. It was claimed, however, by the plaintiff that, even if the contract were void for this reason, the property owner could not complain and the assessment could not be held invalid, because the property owner had failed to appeal to the city council from the action of the superintendent in entering into the contract after the expiration of fifteen days from the posting of the notice of award. Held, that the property owner is not required to appeal to the council when the assessment is based upon an invalid contract. The same ruling was made in McBean v. Redick, 96 Cal. 191, where the proceedings were had and work done under the act of March 18, 1885. In Manning v. Den, 90 Cal. 610, the question was directly considered. In that case the proceedings and work were performed under the act of March 18, 1885. It was held that the contract executed by the superintendent of streets was void because it was entered into prior to the expiration of ten days after the first posting of notice of the award; held, also, that the property owner, notwithstanding the provisions of section 11 of the act, does not waive his right to object to the proceedings by reason of his failure to appeal to the council. The court, quoting from Dougherty v. Hitchcock, 35 Cal. 524, said: "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. 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 [property owners!, and, (2.) To estop them from complaining of it.” In Capron v. Hitchcock, decided June 3, 1893, the Supreme Court said: "The provision authorizing 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." In Dougherty v. Hitchcock, 35 Cal. 520, counsel for appellant said: "These provisions [that is provisions for appeal] cannot be regarded as furnishing an exclusive remedy in respect to proceedings invalid for want of jurisdiction. Such a construction would place the board on a higher footing than any other tribunal in the state, and enable it to act independent of the law from which it derives its power. Its proceedings could never be collaterally assailed, and whatever it chose to do the courts would be compelled to accept as valid and binding. The objection we make is, not that the board proceeded irregularly, but that it acted. without jurisdiction." (See this same subject of appeal considered in notes to section eleven of the act, post.) From the foregoing it appears: 1. That an assessment is not valid unless all the jurisdictional prerequisites or jurisdictional acts are performed by the proper persons, i. e., all the acts required by the statute to be done, and which affect substantial rights, must be done, and if any one of them is omitted or is not done as required by the act the omission is fatal. 2. That if any one of the necessary jurisdictional acts is not done as required, the property owner may defeat an action upon the assessment, or what purports to be the assessment, even though he has not appealed to the council. He is not a party "aggrieved" within the meaning of the act, and therefore need not appeal, and he may thus, without appealing to the council, defeat an action upon the assessment, where one of the jurisdictional prerequisites has been omitted, notwithstanding the fact that a resolution of intention in due form has been passed and published in the manner required by the statute. II. Jurisdictional Prerequisites. There are ten things required by the act to be done before there is a valid contract, each one of which is jurisdictional and without any one of them there is no valid contract under which the contractor may proceed. An omission of any one of these jurisdictional prerequisites to a valid contract is fatal. (There are likewise certain jurisdictional prerequisites to a valid assessment, to be done after the written contract has been entered into, and after the completion of the work under the same by the contractor. These jurisdictional acts subsequent to the execution of the contract are considered in the notes to sections. eight, nine and ten (post). The ten jurisdictional prerequisites to a valid contract are: (1.) Resolution of intention, passed by the council. (2.) Posting and publication of the resolution of intention. (3.) Posting and publication of notices of the passage of the resolution of intention. (4.) Order for the work to be done, or resolution for construction passed by council. (5.) Publication of order for work to be done. (6.) Publication and posting of notices inviting sealed proposals. (7.) Consideration of bids. (8.) Award of contract to lowest responsible bidder. (9.) Publication and posting of notices of award. (10.) Execution of written contract by the superintendent of streets. The first five of these ten jurisdictional prerequisitesone to five inclusive-are provided for by the above section. of the act (section 3) and will therefore be considered in these notes to that section. The last five of these ten jurisdictional acts-six to ten inclusive-are provided for by section 5 of the act, and will therefore be considered in the notes to that section. In addition to the said ten jurisdictional prerequisites to a valid contract, it is also required by section 2 of the act, as amended in 1893, that "whenever the grade of a street, avenue, etc., shall hereafter be changed, the petition of the owners of a majority of the feet fronting thereon, asking for grading the same to the new grade, shall be a condition precedent to the ordering of such grading to be done." Mar. 31, 1891. The above division of the jurisdictional prerequisites, precedent to the existence of a valid contract, into ten in number-or eleven, where the work to be done is grading and the grade has been changed since the amendment of 1893 to section 2-is not to be deemed as inclusive of all the acts which circumstances might make necessary to the existence of a valid contract. Thus, for example, a petition of remonstrance might, under section 3 of the act, be filed by the property owners. In such case the council must hear and pass upon such petition of remonstrance before it can proceed further. Again, some of the said ten jurisdictional acts might be generic and include one or more other acts. Thus, for example, the second jurisdictional act given above is the publication and posting of the resolution of intention. But this includes also, and as a part thereof, the passage or adoption of an order or resolution by the council, directing the resolution of intention to be posted and published. Therefore, the above division of the necessary jurisdictional acts into ten in number, might be thought to be more or less arbitrary. But it is adopted because it includes all these generic acts, which are necessary, in any event, to the existence of a valid contract. Circumstances may or may not, in the course of the proceedings, develop a necessity for other acts. 1. Resolution of Intention. By subdivision 11 of section 7 of the act it is expressly provided that "the council may include in one resolution and order any of the different kinds of work mentioned in this act, and it may except therefrom any of said work already done upon the street to the official grade." The power to include different kinds of work in one resolution has frequently been upheld under this and other acts. [See Emery v. S. F. Gas Co., 28 Cal. 346; Dyer v. Hudson, 65 Cal. 374.] The resolution, to give the council jurisdiction, must describe the work to be done. [Brady v. King. 53 Cal. 44.] It sufficiently describes the work to be done if it declares that the street will be graded and macadamized from one designated point to another. [Emery v. S. F. Gas Co., 28 Cal. 346.] It must specify the work to be done. It is not sufficient to declare the council's intention to cause certain repairs to be made "where necessary." [Randolph v. Gawley, 47 Cal. 458; Himmelman v. McCreery, 51 Cal. 562; Richardson v. Heydenfeldt, 46 Cal. 68.] Publication of the resolution of intention, describing the property affected, is in the nature of constructive service by publication of summons in an ordinary action at law, and as some such con |