the work to be done "after notice of its intention so to do has been posted as required in section 3 of this act.' This is the only reference to section 3 and it is the only prerequisite to the ordering of the work. It follows from the application of the rule that the other restrictions of section 3 do not apply.

"Again, it must be admitted that the legislature in enacting section 4 had some object in view.

"If, however, the theory of the plaintiff is correct, and after the petition under section 4 is filed, all the proceedings mentioned in section 3 are necessary or allowable, then there is no use for section 4. It would be without any force whatever. For the owners have the right of petition without section 4. Now, if, under section 4, the council must pass a resolution of intention, which they could do without the petition, then of what use is the petition? And the council might refuse to pass the resolution. If it did refuse, the petitioners could not force its passage. "It is my opinion that the petition mentioned in section 4 is intended to take the place of the resolution of intention required by section 3, and that when the proceeding is begun by the proper petition no resolution of intention is necessary, but the notice of intention must be the intention to do the work mentioned in the petition, and the provisions of section 3 as to stay of proceedings or objections in writing do not apply to proceedings by petition under section 4.

"This, however, leads to another consideration which is fatal to the proceedings. When the proceeding is by petition the work ordered to be done must correspond in all respects to the work described in the petition. The council in such a proceeding can order to be done only 'the work mentioned in said petition.' [Sec. 4.]"

The foregoing opinion of Judge Shaw shows clearly the relation of sections 3 and 4 of the Vrooman act to each other and to the question of jurisdiction by the council to order the work to be done-a question to which these sections (3 and 4) are mutually related. The opinion also clearly shows the mode which, in the opinion of the learned judge, is provided for by each of said sections for the attainment of such jurisdiction, in the cases to which said sections respectively relate.

The judge is doubtless correct in his conclusion that where the proceeding is inaugurated under the provision. of section 4 of the act, by the filing of a petition, it can not be barred by the filing of written objections as provided for by section 3 of the act, even if some of the owners have meanwhile changed their minds so that a majority of the frontage appears on the written objections. But the

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opinion also declares "the petition mentioned in section 4 is intended to take the place of the resolution of intention required by section 3, and when the proceeding is begun by the proper petition no resolution of intention is necessary, but the notice of intention must be the intention to do the work mentioned in the petition." In so far as the opinion holds that the petition takes the place of a resolution of intention, the learned judge seems to be in error. The mere filing of a petition signed by the owners of a majority of the frontage, while it might be sufficient to cut. off all possibility of barring the proceedings by written objections filed thereafter, is not sufficient as notice to the possible minority who have not signed the petition. Every owner whose property is liable to be assessed is entitled to notice of some kind, and if the act does not contain provisions for such notice it is unconstitutional, or if notice is not given to the lot owners in some proper manner his constitutional rights are violated and the proceedings are void. [Lent v. Tillson, 72 Cal. 404; Boorman v. Santa Barbara, 65 Cal. 313.] Judge Shaw's opinion seems to contemplate some sort of notice. But if the act has provided what kind of notice shall be given, when the proceedings are inaugurated under section 4 by the filing of a petitionand if the notice thus provided for by the act includes the passage of a resolution of intention-then a resolution of intention to order to be done the work mentioned in the petition, must be filed, notwithstanding the filing of the petition. The act provides [Sec. 4] that upon filing the petition, the council "may order the work mentioned in said petition to be done, after notice of its intention so to do has been posted and published as provided in section 3 of this act." Section 3 of the act provides that notice of the council's intention to order the work to be done shall be given by two postings and two publications, viz.: 1. By posting the resolution of intention, and by posting notices of the passage of the resolution of intention, (which notices of passage of the resolution, after stating the fact of the passage of the resolution, and the work proposed, must "refer to the resolution for further particulars;") 2. By publishing the resolution of intention and by publishing said notices of the passage of the resolution. So that, in order to post and publish notice of its intention to order to be done the work mentioned in the petition, in the manner provided by section 3 of the act, the council must pass a resolution of intention to order said work to be done.

The words "notice of its [the council's] intention so to do" have in all the acts, when used, meant "notice of its

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intention so to do, in the form of a resolution, describing the work, and published or posted for a certain time." Thus the act of 1862, amending San Francisco's consolidation.act, provided that "the board of supervisors may order any work to be done, after notice of their intention so to do, in the form of a resolution, describing the work, has been published for a period of ten days." [Statutes 1862 p. 392.] So that it would seem from the meaning heretofore placed upon the phrase, "notice of its intention," as well as the context in which it appears in section 4 of the act, that the true meaning of this section (section 4) is that "the council may order the work mentioned in said petition to be done, after notice of its intention so to do, (in the form of a resolution) has been posted and published as provided in section 3 of this act."

SECTION 5. Before the awarding of any contract by the city council for doing any work authorized by this act, the city council shall cause notice, with specifications, to be posted conspicuously for five days on or near the council chamber door of said council, inviting sealed proposals or bids for doing the work ordered, and shall also cause notice of said work inviting said proposals, and referring to the specifications posted or on file, to be published for two days in a daily, semi-weekly,or weekly newspaper published and circulated in said city, designated by the council for that purpose, and in case there is no newspaper published in said city, then it shall only be posted as herein before provided. All proposals or bids offered shall be accompanied by a check payable to the order of the mayor of the city, certified by a responsible bank, for an amount which shall not be less than ten per cent. of the aggregate of the proposal, or by a bond for the said amount and so payable, signed by the bidder and by two sureties, who shall justify, before any officer competent to administer an oath, in double the said amount, and over and above all statutory exemptions. Said proposals or bids shall be delivered to the clerk of the said city council, and said council shall, in open session, examine and publicly declare the same; provided, however, that no proposal or bid shall be considered unless accompanied by said check or bond satisfactory to the council. The city council may reject any and all proposals or bids should it deem this for the public good, and also the bid of any party who has been delinquent and unfaithful in any former contract with the municipality, and shall reject all proposals or bids other than the lowest regular proposal or bid of any responsible bidder, and may award the contract for said work or improvement to the lowest responsible bidder at the prices named in his bid, which award shall be approved by the mayor, or a threefourths vote of the city council. If not approved by him, or a three-fourths vote of the city council, without further proceedings, the city council may readvertise for proposals or bids for the performance of the work as in the first instance, and thereafter proceed in the manner in this section provided, and shall thereupon return to the proper parties the respective checks snd bonds corresponding to the bid so rejected. But the checks accompanying such accepted proposals or bids shall be held by the city

Mar. 31, 1891.

clerk of said city until the contract for doing said work, as hereinafter provided, has been entered into, either by said lowest bidder or by the owners of three-fourths part of the frontage, whereupon said certified check shall be returned to said bidder. But if said bidder fails, neglects, or refuses to enter into the contract to perform said work or improvement, as hereinafter provided, then the certified check accompanying his bid and the amount therein mentioned, shall be declared to be forfeited to said city, and shall be collected by it, and paid into its fund for repairs of streets; and any bond forfeited may be prosecuted, and the amount due thereon collected and paid into said fund. Notice of such awards of contract shall be posted for five days, in the same manner as herein before provided for the posting of proposals for said work, and shall be published for two days in a daily newspaper published and circulated in said city, and designated by said city council, or in cities where there is no daily newspaper, by one insertion in a semi-weekly or weekly newspaper so published, circulated and designated; provided, however, that in case there is no newspaper printed or published in any such city, then such notice of award shall only be kept posted as herein before provided. The owners of threefourths of the frontage of lots and lands upon the street whereon said work is to be done, or their agents, and who shall make oath that they are such owners or agents, shall not be required to present sealed proposals or bids, but may, within ten days after the first posting and publication of said notice of said award, elect to take said work and enter into a written contract to do the whole work at the price at which the same has been awarded. Should the said owners fail to elect to take said work, and to enter into a written contract therefor within ten days, or to commence the work within fifteen days after the first posting and publication of said award, and to prosecute the same with diligence to completion, it shall be the duty of the superintendent of streets to enter into a contract with the original bidder to whom the contract was awarded, and at the prices specified in his bid. But if such original bidder neglects, fails or refuses, for fifteen days after the first posting and publication of the notice of award, to enter into the contract, then the city council, without further proceedings, shall again advertise for proposals or bids as in the first instance, and award the contract for the said work to the then lowest regular bidder. The bids of all persons and the election of all owners as aforesaid, who have failed to enter into the contract as herein provided, shall be rejected in any bidding or election subsequent to the first for the same work. If the owner or contractor who may have taken any contract, do not complete the same within the time limited in the contract, or within such further time as the city council may give them, the superintendent of streets shall report such delinquency to the city council, which may relet the unfinished portion of said work, after pursuing the formalities prescribed herein before for the letting of the whole in the first instance. All contractors, contracting owners included, shall, at the time of executing any contract for street work, execute a bond to the satisfaction and approval of the superintendent of streets of said city, with two or more sureties and payable to such city, in such sums as the mayor shall deem adequate, conditioned for the faithful performance of the contract; and the sureties shall justify before any person competent to administer an oath, in double the amount mentioned in said bond, over and above all

statutory exemptions. Before being entitled to a contract, the bidder to whom the award was made, or the owners who have elected to take the contract, must advance to the superintendent of streets, for payment by him, the cost of publication of the notices, resolutions, orders, or other incidental expenses and matters required under the proceedings prescribed in this act, and such other notices as may be deemed requisite by the city council. And in case the work is abandoned by the city before the letting of the contract, the incidental expenses incurred previous to such abandonment shall be paid out of the city treasury. [Amendment approved March 31, 1891, statutes 1891, page 199.]

[Section 5 was amended in 1889, by act of March 14, 1889, statutes 1889, p. 160, and again in 1891 by act of March 31, 1891, statutes, 1891, p. 199.] As stated in the notes to section three, there are, ordinarily, at least ten things essential to the acquisition of jurisdiction or power to execute a valid contract under which the property of the lot owner will be liable, including the execution of the contract itself. [Pages 18-19, supra.] Five of these jurisdictional prerequisites, viz: (1.) Passage of resolution of intention; (2.) posting and publication of resolution; (3.) posting and publication of notices of passage of the resolution; (4.) passage of order for the work to be done, and (5.) publication of order for the work to be done or resolution of construction-are considered in the notes under section 3, supra. The remaining five jurisdictional prerequisites to the existenceof a valid contract are provided for by section 5 of the act. They are: (1.) Posting and publication of notices inviting sealed proposals; (2.) consideration of bids; (3.) award of contract; (4.) posting and publication of notice of award of contracts, and (5.) execution of written contract by superintendent of

streets.

1. Posting and Publication of Notices Inviting Sealed Proposals. Notices inviting sealed proposals must be both posted and published.

(a.) Posting Notices Inviting Proposals. The act provides [Sec. 5] that notices inviting sealed proposals for doing the work ordered to be done shall be posted conspicuously for five days on or near the council chamber door; that the city council shall cause such notices to be posted, and that the "specifications" shall be posted along with such posted notices. The section provides that the council shall cause the notices to be posted. From which it would seem that the posting is not sufficient unless the council passes an order or resolution directing the notices inviting sealed proposals to be posted by the clerk or by the superintendent of streets, or by some one under their authority. This direction may be contained in a separate and independent order or in the resolution of construction or order for the