thereof, may make written objections to the same within ten days after the expiration of the time of the publication of said notice, which objection shall be delivered to the clerk of the city council, who shall indorse thereon the date of its reception by him, and at the next meeting of the city council after the expiration of said ten days, lay said objections before said city council, which shall fix a time for hearing said objections not less than one week thereafter. The city clerk shall thereupon notify the persons making such objections, by depositing a notice thereof in the post office of said city, postage prepaid, addressed to such objector. [Statutes '89, p. 70.]

If, by reason of some jurisdictional defect in the proceedings, e. g., failure of the notice of intention to specify the exterior boundaries of the assessment district-the council fails to acquire jurisdiction, the property owner does not waive his right to object in court to this want of jurisdiction or to defeat an action. upon the assessment, merely because he appeared before the city council and filed objections, as provided for in section 4. If the council failed to acquire jurisdiction of the subject matter of the improvement, it could not acquire jurisdiction by the consent of the property owner, much less by the fact that he objected to the improvement. [Dehail v. Morford, 95 Cal. 457.]

[See notes to sections 3 and 11 of act of March 18, 1885, supra, pages 8-37; 64-84.]

SECTION 5. At the time specified or to which the hearing may be adjourned, the said city council shall hear the objections urged and pass upon the same, and its decision shall be final and conclusive. If such objections are sustained, all proceedings shall be stopped, but proceedings may be again commenced at any time by giving notice of intention to do said work or make said improvement. If such objection is overruled by the city council, the proceedings shall continue the same as if such objection had not been made. At the expiration of the time prescribed during which objections to said work or improvement may be made, if no objections shall have been made, or if an objection shall have been, and said council, after hearing, shall have overruled the same, the city council shall be deemed to have acquired jurisdiction to order any of the work to be done, or improvements to be made, which is authorized by section one of this act. [Statutes '89, p. 71.]

[See notes to section 3 of act of March 18, 1885, supra, page 8 et seq.]

SECTION 6. Having acquired jurisdiction, as provided in the preceding section, the city council shall order said work to be done, and unless the proposed work is for closing up, and it appears that no assessment is necessary, shall appoint three commissioners to assess benefits and damages and have general supervision of the proposed work or improvement until the completion thereof in compliance with this statute. For their services they shall receive such compensation as the city council may determine from time to time; provided, that such compensation shall not exceed two hundred dollars per month each, nor continue more than six month,

8,

unless extended by order of the city council. Such compensation shall be added to and be chargeable as a part of the expenses of the work or improvement. Each of said commissioners shall file with the clerk of the city council an affidavit, and a bond to the state of California in the sum of five thousand dollars, to faithfully perform the duties of his office. The city council may at any time remove any or all of said commissioners for cause, upon reasonable notice and hearing, and may fill any vacancies occurring among them for any cause. [Statutes '89, page 71.] [See notes to section 3 of act of March 18, 1885, supra, page

et seq.]

SECTION 7. Said commissioners shall have power to employ such assist. ance, legal or otherwise, as they may deem necessary and proper; also, to rent an office and provide such maps, diagrams, plans, books, stationery, fuel, lights, postage, expressage, and incur such incidental expenses as they may deem necessary. [Statutes '89, p. 71.)

SECTION 8. All such charges and expenses shall be deemed as expenses of said work or improvement, and be a charge only upon the funds devoted to the particular work or improvement as provided hereinafter. All payments, as well for the land and improvements taken or damaged, as for the charges and expenses, shall be paid by the city treasurer, upon warrants drawn upon said fund from time to time, signed by said commissioners, or a majority of them. All such warrants shall state whether they are issued for land or improvements taken or damaged, or for charges and expenses, and that the demand is payable only out of the money in said fund, and in no event shall the city be liable for the failure to collect any assessment made by virtue hereof, nor shall said warrant be payable out of any other fund, nor a claim against the city. [Statutes '89, p. 71.]

SECTION 9. Said commissioners shall proceed to view the lands described in the resolution of intention, and may examine witnesses on oath, to be administered by any one of them. Having viewed the land to be taken, and the improvements affected, and considered the testimony presented, they shall proceed with all diligence to determine the value of the land and the damage to improvements and property affected, and also the amount of the expenses incident to said work or improvement, and having determined the same, shall proceed to assess the same upon the district of lands declared benefited, the exterior boundaries of which were fixed by the resolution of intention provided for by section 2 hereof. Such assessment shall be made upon the lands within said district in proportion to the benefit to be derived from said work or improvement, so far as the said commissioners can reasonably estimate the same, including in such estimate the property of any railroad company within said district, if such there be. [Statutes '89, p. 72.]

[See notes to sections 3, 8 and 11 of the Vrooman act of March 18, 1885, supra, pp. 34, 95 and 138. The street opening act of March 6, 1889, does not contain any provision for "appeal" similar to that contained in section 11 of the Vrooman act of March 18, 1885.]

If all property in the assessment district liable to assessment be not assessed, the assessment will be void, and there can be no recovery thereon. [Davies v. City of Los Angeles, 86 Cal. 37, 49; People v. Lynch, 51 Cal. 20; Moulton r.

Parks 64 Cal, 181; Dyer v. Harrison, 63 Cal. 447; Diggins v. Brown, 76 Cal. 318.] But property belonging to the United States, this state, or a municipal corporation, may be omitted from assessment. [Doyle v. Austin, 47 Cal. 353.] The commissioners, under section 9, assess upon the lands lying within the assessment district, liable to assessment, each lot being assessed in proportion to the benefits received by it-the total cost of the work or improvement. This total cost is made up of the value of the land and property taken, and the damages which accrue to the land and property not taken, plus the cost and expense incident to the work or improvement, which latter item includes the costs and expenses enumerated in sections 6 and 7 of the act, and, in the case of opening, widening or straightening a street, the cost of removing such obstructions as exist on the surface of the earth.

It is altogether probable that the act contemplates that the rules or principles by which the commissioners are to be guided in ascertaining the amount of damages which are to be paid or awarded to any property owner, whose property is to be taken or damaged for the opening of a street, or other improvement mentioned in section 1 of the act, are the rules or principles by which a jury is to be guided, under the provisions of section 1248 of the Code of Civil Procedure, relative to the exercise of the power of eminent domain. So that, where a street is to be opened, for example, the commissioners acting under section 9 of the act, should probably proceed about as follows: I. If the improvement takes all of the land and property of the owner, the commissioners determine the full and fair market value of the land and property at the time it is appropriated, but no more. [Section 624 Dillon's Municipal Corporations, 3rd ed.; Subdiv. 1 of section 1248 C. C. P.; Vol. 6, Am. and Eng. Enc. of Law, pp. 567-70.] II. If, however, as most commonly happens, part only of the property is to be taken, the commissioners should probably proceed as follows: (1.) Determine the full and fair market value of the land and property actually taken, at the time when it is appropriated. (2.) Determine the damages which will accrue to the portion not sought to be taken, by reason of its severance from the portion sought to be taken as well as by reason of the doing of the proposed improvement in the manner proposed by the city authorities. (3.) Determine how much the portion not sought to be taken, will be benefited, if at all, by the doing of the proposed improvement. (4.) Deduct from the damages which will accrue to the portion not sought to

be taken, the said benefits thereto, if the benefits be less than the damages, and add the remainder to the value of the land and property which is actually taken, and the sum is the amount of damages to be awarded to the property owner. (5.) If the benefits which will accrue to the portion not sought to be taken, by reason of the proposed improvement, equal or exceed the damages which will accrue thereto, the owner will be entitled to the full and fair market value of the land and property actually taken, and no more. [Section 1248, C. C. P.; Sections 624-625 Dillon's Municipal Corporations, 3rd ed.; Vol. 6 Am. and Eng. Euc. of Law, pp. 571-584.] III. To the total amount of damages to be awarded to all the property owners whose property is sought to be taken,-ascertained according to the foregoing principles-the commissioners add the total amount of expenses incident to the work or improvement. These last mentioned incidental expenses include the cost of removing all obstructions upon the surface of the earth, -obstructions which must be removed before the street can be thrown open to public use to the width proposed,-also such incidental expenses as are mentioned in sections 6 and 7 of the act. IV. The commissioners then determine the amount of benefit which will accrue to each parcel of land in the assessment district, liable to be assessed to pay the expenses of the proposed work. V. The commissioners then assess upon all the lands within the assessment district, liable to be assessed, the total cost of the proposed work. Said total cost including (1.) the total amount to be awarded to property owners as damages to property taken. or damaged, and (2.) the total amount of incidental expenses, incident to the doing of the work, as aforesaid. The said total cost of the proposed work is assessed upon the lands in the district in proportion to the benefits to be derived from said work or improvement, each lot or parcel of land being assessed with such a proportion of the total cost of the work, as the amount of benefit derived by it from the posed work bears to the total amount of benefits which will accrue to all the lands in the assessment district, subject to

assessment.

pro

The commissioners having thus determined the amount of damages to be awarded to each property owner whose, property is to be taken or damaged for the proposed work and having thus determined the amount to be assessed against each lot or parcel of land to pay the total amount of damages to be awarded to the property owners, as well as the expenses incident to the work, make out a writ

ten report thereof and a plat of the assessment district, as provided for by sections 10 and 11 of the act.

Under section 14 of article I of the constitution, the benefits that will accrue to the portion of the land not sought to be taken may be deducted from the damages which will accrue to said portion, when the corporation for whose use the property is taken or damaged, is a "municipal corporation." [Pacific Coast R'y Co. v. Porter, 74 Cal. 261; Butte County v. Boydston, 64 Cal. 110; Tehama County v. Bryan, 68 Cal. 57.]

An assessment upon lands fronting on a street, to raise the amount to be paid the owner for land taken from him for a street, is not in violation of the provision of the constitution which declares that the compensation to be paid to a party for his land, taken for public use, shall be "without deduction for benefits." "Assessment" for benefits in the exercise of the sovereign power of taxation, is not the same as "deduction for benefits" in the exercise of the sovereign. power of eminent domain. [Cleveland v. Wick, 18 Ohio St. 303.

For a discussion of some of the principles of assessment by street commissioners, in a proceeding to open or widen a street, see Appeal of Piper, 32 Cal. 530; Appeal of Brooks, 32 Cal. 559; Appeal of Reese, 32 Cal. 568.]

SECTION 10. Said commissioners having made their assessment of benefits and damage, shall, with all diligence, make a written report thereof to the city council, and shall accompany their report with a plat of the assessment district showing the land taken or to be taken for the work or improvement, and the lands assessed, showing the relative location of each district, block, lot, or portion of lot, and its dimensions, so far as the commissioners can reasonably ascertain the same. Each block and lot, or poition of lot, taken or assessed, shall be designated and described in said plat by an appropriate number, and a reference to it by such descriptive number shall be a sufficient description of it in any suit entered to condemn, and in all respects. When the report and plat are approved by the city council, a copy of said plat, appropriately designated, shall be filed by the clerk thereof in the office of the recorder of the county. [Statutes 1889, page 72.]

[See notes under section 8 of act of March 18, 1885, supra, page 85 et seq.]

SECTION 11. Said report shall specify each lot, subdivision, or piece of property taken or injured by the widening or other improvement, cr assessed therefor, together with the name of the owner or claimants thereof, or of persons interested therein as lessees, incumbrancers, or otherwise, so far as the same are known to such commissioners, and the particulars of their interest, so far as the same can be ascertained, and the amount of value or damage, or the amount assessed, as the case may be. [Statutes 1889, page 72.]

[See notes under section 8 of act of March 18, 1885, supra, page 85, et seq.]