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said board shall cause to be prepared and issued bonds in sums of not less than one thousand dollars each, for such an amount as shall be necessary to pay and discharge all said damages, costs and expenses." By section 11 of that act it was provided that "There shall be levied, assessed and collected, annually, at the same time and in the same manner as other taxes are levied, assessed and collected in said city and county, a tax upon lands described in section. 4 of this act, sufficient to pay the interest upon said bonds as the same mature. There shall be levied, assessed and collected annually, commencing with the year 1880, at the same time and in the same manner, and upon the same lands, and in accordance with the same rule of assessment upon enhanced values, a tax of one per cent. upon each one hundred dollars valuation, which shall constitute a sinking fund for the redemption of said bonds." Section 4 of the act described a certain district; and by section 3, it was provided that the lands in this district should be assessed to pay the value of the land taken, the damages to the improvements, and all other expenses, in proportion to the benefits accruing to the several lots in said district. By section 24 it was provided that "the city and county of San Francisco shall not in any event whatever be liable for the payment of the bonds, nor any part thereof." After deciding that the act provided for an "assessment" to defray the expenses, and not for a "tax," in the strict sense, the court, per Crockett, J., page 358, continued: "It is next objected that it is not competent for the legislature to impose upon the property to be benefited, a greater burden than will be sufficient to defray the cost of improvement, and it is said that under this act the property is charged not only with the actual cost of improvement, but with an additional sum sufficient to cover the interest to accrue on the bonds, and such discount as may be suffered in converting them into cash. But instead of requiring the cost of the improvement to be paid in cash during the progress or on the completion of the work, the act provides for raising the money by the sale of bonds, payable at a future day, the annual interest on which, and the ultimate redemption of the principal, are provided for by an assessment of the property to be benefited. We do not see on what theory it can be claimed that by this process the property is charged with anything more than the cost of the improvement. The interest on the bonds, and the discount, if any, on the sale of them, are incidental expenses incurred in providing a sufficient fund for the accomplishment of the work, without exacting in cash from the property owners the

necessary sum.

It is a provision for their benefit, which enables them to pay the cost of the improvement in easy installments, instead of paying the whole sum on the completion of the work. As they will have the benefit of the credit, it is but just that they should pay the accruing interest, and any discount which may be suffered in the sale of bonds. As before stated, the interest and discount are but incidental expenses of the enterprise, and, upon principle, stand upon the same footing as the compensation of the officers who superintend it."

SECTION 2. Whenever the city council of any municipality in this state shall find, upon estimates of the city engineer, that the cost of any proposed work or improvement authorized by said street work act will be greater than one dollar per front foot along each line of the street so proposed to be improved, including the cost of intersection work assessable upon said frontage, it shall have the power, in its discretion, to determine that serial bonds shall be issued to represent the cost of said work or improvement in the manner and form hereinafter provided. Said serial bonds shall extend over a period not to exceed ten years from their date, and an even annual proportion of the principal sum thereof shall be payable, by coupon, on the second day of January every year after their date, until the whole is paid, and the interest shall be payable semi-annually, by coupon, on the second days of January and July, respectively, of each year, at the rate of not to exceed ten per cent. per annum on all sums unpaid, until the whole of said principal and interest are paid. Said bonds and interest thereon shall be paid at the office of the city treasurer of said municipality, who shall keep a fund designated by the name of said bonds, into which he shall receive all sums paid him for the principal of said bonds and the interest thereon, and from which he shall disburse such sums upon the presentation of said coupons; and under no circumstances shall said bonds or the interest thereon be paid out of any other fund. Said city treasurer shall keep a register in his office, which shall show the series, number, date, amount, rate of interest, payee and indorsees of each bond, and the number and amount of each coupon of principal or interest paid by him, and shall cancel and file each coupon so paid. [Statutes 1893, p. 33.]

SECTION 3. When said city council shall determine that serial bonds shall be issued to represent the expenses of any proposed work or improvement under said street work act, it shall so declare in the resolution of intention to do said work, and shall specify the rate of interest which they shall bear. The like description of said bonds shall be inserted in the resolution ordering the work, in the resolution of award, and in all notices of said proceedings required by said street work act to be either posted or published; and also a notice that a bond will issue to represent each assessment of fifty dollars or more remaining unpaid for thirty days after the date of the warrant, or five days after the decision of said council upon an appeal, and describing the bonds, shall be included in the warrant provided for in section nine of said street work act. [Statutes 1893, p. 34.]

SECTION 4. After the full expiration of thirty days from the date of the warrant, or if an appeal be taken to the city counci', as provided in section eleven of said street work act, then five days after the final decison of said council, and after the street superintendent shall have recorded the return as provided in section 10 of the same act, the street superintendent shall make and certify to the city treasurer a complete list of all assessments unpaid, which amount to fifty dollars or over upon any assessment or diagram number; and said treasurer shall thereupon make out, sign and issue to the conractor or his assigns, payee of the warrant and assessment, a separate bond, representing upon each lot or parcel of land upon said list the total amount of the assessments against the same, as thereon shown. And if said lot or parcel of land is described upon said assessment and diagram by its number or block, or both, and is also designated by its number or block, or both, upon the official map of said municipality, or upon any map on file in the office of the county recorder of the county in which said municipality is situated, then it shall be in said bond a sufficient description of said lot or parcel of land to designate it by said number or block, or both, as it appears on said official or recorded map. Said bond shall be substantially in the following form:

STREET IMPROVEMENT BOND.

Series (designating it), in the city (or other form of the municipality) of (naming it).

100

No.

Under and by virtue of an act of the legislature of the state of California (title of this act), I, out of the fund for the above designated street improvement bonds, series will pay to —, or order, the interest at the rate of

sum of

($

-), with

per annum, all as is hereinafter specified, and at the office of the
treasurer of the
of

per cent.

state of California. This

bond is

issued to represent the cost of certain street work upon

of

number

in the -, as the same is more fully described in assessment issued by the street superintendent of said after his acceptance of said work, and recorded in his office. Its amount is the amount assessed in said assessment against the lot or parcel of land numbered therein, and in the diagram attached thereto, as number and which now remains unpaid, but until paid, with accrued interest, is a first lien upon the property affected thereby, as the same is described herein, and in said recorded assessment with its diagram, to wit: the lot or parcel of land in said state of California,

of

county of

This bond is payable exclusively from said fund, and neither the municipality nor any officer thereof is to be holden for payment otherwise of its principal or interest. The term of this bond is —

years from

its date, and at the expiration of said time the whole sum then unpaid shall be due and payable; but on the second day of January of each year after its date an even annual proportion of its whole amouut is due and payable, upon presentation of the coupon therefor, until the whole is paid, with all accrued interest at the rate of per centum per annum.

The interest is payable semi-annually, to wit, on the second days of January and of July in each year hereafter, upon presentation of the coupons

therefor, the first of which is for the interest from date to the next second day of and thereafter the interest coupons are for semi-annual interest, except the last, which is for interest from the semi-annual payment next preceding and to the date of the final maturity of this bond. Should default be made in the annual payment upon the principal, or in any payment of interest, from the owner of said lot or parcel of land, or any one in his behalf, the holder of this bond is entitled to declare the whole unpaid amount to be due and payable, and to have said lot or parcel of land advertised and sold forthwith, in the manner provided by law for sale of land assessed for state and county taxes delinquent in the payment thereof. in the year

At said one thousand

of

-, this hundred and

day of

Provided, that in case the amount of unpaid assessments upon any lot or parcel of land shall be less than fifty dollars, then the same shall be collected as is herein before provided in part one of said street work act.

Provided, also, that if any person, or his authorized agent, shall at any time before the issuance of the bond for said assessment upon his lot or parcel of land, present to the city treasurer his affidavit, made before a competent officer, that he is the owner of a lot or parcel of land in said list, accompanied by the certificate of a searcher of records, that he is such owner of record, and with such affidavit and certificate, such person notifies said treasurer, in writing, that he desires no bond to be issued for the assessments upon said lot or parcel of land, then no such bond shall be issued therefor, and the payee of the warrant, or his assigns, shall retain his right for enforcing collection, as if said lot or parcel of land had not been so listed by the street superintendent. The bonds so issued by said treasurer shall be payable to the party to whom they issue, or order, and shall be serial bonds, as is herein before described, and shall bear interest at the rate specified in the resolution of intention to do said work. They shall have annual coupons attached thereto, payable in annual order, on the second day of January in each year after the date of the bond, until all are paid, and each coupon shall be for an even annual proportion of the principal of the bond. They shall have semi-annual interest coupons thereto attached, the first of which shall be payable upon the second day of January or July, as the case may be, next after its date, and shall be for the interest accrued at that time, and the last of which shall be for the amount of interest accruing from the second day of January or July, as the case may be, next preceding the maturity of said bonds to the maturity thereof. The city treasurer shall, in addition to his other duties in the premises, report all coupon payments of principal upon said bonds to the street superintendent, who shall forthwith indorse the same upon the margin of the record of the assessment to the credit of which the same is paid, and said assessment shall be a first lien upon the property affected thereby, until the bond issued for the payment thereof, and the accrued interest thereon, shall be fully paid. Said bonds, by their issuance, shall be conclusive evidence of the regularity of all proceedings thereto under said street work act and this act, previous to the making of the certified list of all assessments unpaid to the amount of fifty dollars or over by the

street superintendent, to the city treasurer, and of the validity of said lien, up to the date of said list. [Statutes 1893, page 34.]

This section purports to make the bonds, by their issuance, conclusive evidence of the regularity of all proceedings thereto previous to the making by the superintendent of streets of the certified list of unpaid assessments; and also conclusive evidence of the validity of the lien, up to the date of said list. How far the legislature has the constitutional power to make these bonds conclusive evidence of the regularity of such proceedings, and of said lien, is a question which lies outside the plan of this book, and therefore will not receive that attention here which its importance would otherwise demand in a work upon the general principles of municipal corporation law in relation to the improvement of streets. A correct statement of the rule upon this matter is, perhaps as follows: The legislature has the power to declare that a neglect to perform any act, which it has the power to dispense with in the outset, will not affect the validity of the lien, and, therefore, it has the power to declare that the bonds shall be conclusive evidence of the due performance of such acts as it may thus dispense with at the outset; but, as to those things which the legislature can not dispense with, e. g., notice, actual or constructive, to the property owner that his property is liable to be become charged with an assessment, the legislature cannot make the bonds conclusive evidence that such things were done. It may make the bonds conclusive evidence as to regularity in respect to the manner of doing these necessary things, but may not make the bonds conclusive evidence that these things were, in in fact, done. [See McCready v. Sexton, 29 Iowa, 356; Strode v. Washer, (Or.) 16 Pac. Rep. 926; Joslyn v. Rockwell, 128 N. Y. 334; Cooley on Taxation, (ed. 1886) 521; Marx v. Hawthorn, 13 Sup. Ct. Rep. 508; Cooley's Constitutional Limitations (3rd ed.) page 369; Desty on Taxation, Vol. II p. 953.]

SECTION 5 Whenever, through the default of the owner of any lot or parcel of land to represent the assessment upon which such bond has been issued, any payment, either upon the principal or of the interest, shall not be made when the same is due, and the holder of the bond thereupon demands, in writing, that the said city treasurer proceed to advertise and sell said lot or parcel of land, as herein provided, then the whole bond, or its unpaid remainder, with its accrued interest, shall become due and payable immediately, and on the day following shall become delinquent; and the city treasurer shall have, and shall act thereafter with, all the powers and duties of the tax collector in the collection of unpaid state and county