avenue, lane, alley, place or court, if it does not meet another, and the other one-half of the width upon the lots fronting such termination. Subdivision Eight-Where any work mentioned in this act (man-holes, cesspools, culverts, crosswalks, piling and capping excepted) is done on either or both sides of the center line of any street for one block or less, and further work opposite to the work of the same class already done is ordered to be done to complete the unimproved portion of said street, the assessment to cover the total expenses of said work so ordered shall be made upon the lots or portions of the lots only fronting the portions of the work so ordered. And when sewering or resewering is ordered to be done under the sidewalk on only one side of a street for any length thereof, the assessment for its expenses shall be made only upon the lots and lands fronting nearest upon that side, and for intervening intersections only upon the two quarter blocks adjoining and cornering upon that side. Subdivision Nine-Section one of chapter three hundred and twenty-five of the laws of this state entitled "An act amendatory of and supplementary to ‘An act to provide revenue for the support of the government of this state,' approved April twenty-ninth, eighteen hundred and fiftyseven," approved April nineteenth, eighteen hundred and fifty-nine, shall not be applicable to the provisions of this section; but the property herein mentioned shall be subject to the provisions of this act, and be assessed for work done under the provisions of this section.

Subdivision Ten-It shall be lawful for the owner or owners of lots or lands fronting upon any street, the width and grade of which have been established by the city council, to perform at his or their own expense (after obtaining permission from the council so to do, but before said council has passed its resolution of intention to order grading inclusive of this) any grading upon said street, to its full width, or to the center line thereof, and to its grade as then established, and thereupon to procure, at his or their own expense, a certificate from the city engineer, setting forth the number of cubic yards of cutting and filling made by him or them in said grading, and the proportions performed by each owner, and that the the same is done to the established width and grade of said street, or to the center line thereof, and thereafter to file said certificate with the superintendent of streets, which certificate the superintendent shail record in a book kept for that purpose in his office, properly indexed. Whenever thereafter the city council orders the grading of said street, or any portion thereof, on which any grading certified as aforesaid has been done, the bids and the contract must express the price by the cubic yard for cutting and filling in grading; and the said owner or owners, and his or their successors in interest, shall be entitled to credit on the assessment upon his or their lots and lands fronting on said street for the grading thereof, to the amount of the cubic yards of cutting and filling set forth in his or their said certificate, at the prices named in the contract for said cutting and filling; or, if the grade meanwhile has been duly altered, only for so much of said certified work as would be required for grading to the altered grade; provided, however, that such owner or owners shall not be entitled to such credit as may be in excess of the assessments for grading upon the lots and lands owned by him or them, and proportionately assessed for the whole of said grading; and the superintendent of streets shall include in the assessment for the whole of said grading upon the

same grade the number of cubic yards of cutting and filling set forth in any and all certificates so recorded in his office, or for the whole of said grading to the duly altered grade so much of said certified work as would be required for grading thereto, and shall enter corresponding credits, deducting the same as payments upon the amounts assessed against the lots and lands owned, respectively, by said certified owners and their successors in interest; provided, however, that he shall not so include any grading quantities or credit any sums in excess of the proportionate assessments for the whole of the grading which are made upon any lots and lands fronting upon said street and belonging to any such certified owners or their successors in interest. Whenever any owner or owners of any lots and lands fronting on any street shall have heretofore done, or shall hereafter do, any work (except grading) on such street, in front of any block, at his or their own expense, and the city council shall subsequently order any work to be done of the same class in front of the same block, said work so done at the expense of such owner or owners shall be excepted from the order ordering work to be done, as provided in subdivision eleven of this section of this act; provided, that the work so done at the expense of such owner or owners shall be upon the official grade, and in condition satisfactory to the street superintendent at the time said order is passed.

Subdivision Eleven-The city council may include in one resolution of intention 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 lots and portions of lots fronting upon said excepted work already done shall not be included in the frontage assessment for the class of work from which the exception is made; provided, that this shall not be construed so as to affect the special provisions as to grading contained in subdivision ten of this section.

Subdivision Twelve-Whenever the resolution of intention declares that the costs and expenses of the work and improvement are to be assessed upon a district, the city council shall direct the city engineer to make a diagram of the property affected or benefited by the proposed work or improvement, as described in the resolution of intention, and to be assessed to pay the expenses thereof. Such diagram shall show each separate lot, piece, or parcel of land, the area in square feet of each of such lots, pieces, or parcels of land, and the relative location of the same to the work proposed to be done, all within the limits of the assessment district; and when said diagram shall have been approved by the city council, the clerk shall, at the time of such approval, certify the fact and date thereof. Immediately thereafter the said diagram shall be delivered to the superintendent of streets of said city, who shall, after the contractor of any street work has fulfilled his contract to the satisfaction of said superintendent of streets, or city council, on appeal, proceed to estimate upon the lands, lots or portions of lots within said assessment district, as shown by said diagram, the benefits arising from such work, and to be received by each such lot, portion of such lot, piece, or subdivision of land, and shall thereupon assess upon and against said lands in said assessment district the total amount of the costs and expenses of such proposed work, and in so doing shall assess said total sum upon the several pieces, parcels, lots, or portions of lots, and subdivisions of land in said district benefited

. 7. Sub. 1

31, 1891

thereby, to wit: Upon each, respectively, in proportion to the estimated benefits to be received by each of said several lots, portions of lots, or subdivisions of land. In other respects the assessment shall be as provided in the next section, and the provisions of subdivisions three, four, five, six, seven and eight of this section shall not be applicable to the work or improvement provided for in this subdivision. [Amendment approved March 31, 1891, Statutes 1891, p. 201.]

[Section 7 was amended in 1889, by act of March 14, 1889, statutes '89, p. 163; and again in 1891, by act of March 31, 1891. statutes '91, p. 201.]

SUBDIVISION 1 OF SECTION SEVEN.

Subdivision 1. Subdivision 1 of section 7 provides: (1.) That the expense incurred for any work authorized by the act shall not include the cost of any work done in such portion of any street as is required by law to be kept in order or repair by any person or company having railroad tracks thereon, nor shall such expense include work which shall have been declared in the resolution of intention to be assessed on a district benefited; (2.) that the expense incurred for any work authorized by the act shall be assessed upon the lots and lands fronting thereon, except as in this act otherwise specially provided; and (3.) that each lot or portion of a lot shall be separately assessed in proportion to the frontage, at a rate per front foot sufficient to cover the total expense of the work.

I. Cost of Work Upon Such Portion of a Street as is Required by Law to be Kept in Order or Repair by Owners of Street Railways. The law-not the act under consideration providing for work upon streets, alleys, lanes etc., but section 498 of the Civil Code-requires the city authorities to impose upon street railway companies, as a condition to grants of their franchises, an obligation or agreement "to plank, pave, or macadamize the entire length of the street used by their track, between the rails, and for two feet on each side thereof, and between the tracks, if there be more than one, and to keep the same constantly in repair, flush with the street and with good crossings." [Civil Code section 498.] Section 511 of the Civil Code makes the above provisions of section 498, applicable to street railroads constructed, owned and operated by natural persons, as well as corporations. The act providing for work upon streets, lanes, alleys, etc., i. e. the act of March 18, 1885, and the several acts amendatory thereof,-prior to the act of February 27, 1893-do not include any mode for collecting from the owners of street railways any portion of the expense of improving a street. [Schmidt . Market St. R. R. Co., 90 Cal. 39.] The above section of the act-i. e. section 7 of the

act of March 18, 1885, as amended-exempts from the expense assessable against the lots of the property owners, all the expense of any work done in such portion of any street as is required by law to be kept in order or repair by any person or company having railroad tracks thereon, and section 6 of the act of February 27, 1893, [statutes 1893, pages 36-38] provides that whenever any railroad track or tracks exist upon any street or streets on which street or streets the city council has ordered work to be done or improvements made, the council may, at any time thereafter; order the person or company having such tracks to perform upon the portion required by law to be kept in order or repair by such person or company, the work or improvements, similar in all respects to that already ordered to be performed upon the main part of the street, under the same specifications and superintendence, with the same materials, within the same time, and to the like satisfaction and acceptance by the superintendent of streets. The section then proceeds to provide how the work shall be ordered done and how done, in done, in case the person or company having the railroad tracks refuses to obey the order, and how the cost thereof shall be paid, etc. Prior to the passage of this act of February 27, 1893, there was no machinery provided by law for collecting from a street railway company, whose road occupies a portion of the street, any portion of the expense of improving the street. [Schmidt v. Market St. R. R. Co. supra.] If section 6 of the act of February, 27, 1893, be considered as providing such machinery, it is a provision injected into an an act, which, as expressed in its title, is "An act to provide a system of street improvement bonds to represent certain assessments for the cost of street work and improvements within municipalities, and also for the payment of such bonds." It is essentially and primarily an act to provide for the issuance of bonds as a means of paying the cost of street work. The title of the act says nothing about providing the machinery for imposing upon the owners of street railways, whose tracks occupy a portion of the street, the cost of the improvements which the law [section 498 C. C.] requires to be done by such owners. The act is constructed upon the assumption or theory that other acts, which it collectively designates as the "Street Work Act," provide all the machinery for acquiring jurisdiction to order street work to be done, for levying assessments to pay for the same, etc. Its primary object is to provide for a system of serial bonds, each bond representing the amount which

has been assessed against each lot or parcel of land under the provisions of the acts collectively designated as the "Street Work Act." And, quaere, if the title of the act did state that one of its objects was to provide the machinery for collecting from the owners of street railways the portion of the expense which the law [Sec. 498 C. C.] imposes upon them as a condition of the grant of their franchises, would not the act be repugnant to the provisions of article IV, section. 24 of the constitution? "Every act shall embrace but one subject, which subject shall be expressed in its title." And, as the title of the act states, its subject is "a system of street improvement bonds."

If section 6 of the act of Feby. 27, 1893-in so far as it purports to provide a mode for collecting from street railway owners the cost of the work which the law [section 498 C. C.] requires such owners to do-be repugnant to article IV of section 24 of the constitution, then, the statement by Mr. Justice Harrison in Schmidt v. Market St. R. R. Co., 90 Cal. 39-"no mode is provided in the act for collecting from a street-railroad corporation, whose road occupies a portion of the street, any portion of the expense of improving the street”—is as true now as it was prior to the said act of Feb. 27, 1893.

In said case of Schmidt v. Market St. R. R. Co., it was held that the amount of the assessment might be recovered by the contractor upon an implied contract on the part of the railroad company, arising out of its acceptance of its franchise under a grant containing a condition that the company should be held for the payment of its proportion of the cost of the improvement, and that the amount of the assessment might be collected in the manner provided by law for the collection of other street assessments. But, quaere, in the absence of such a condition in the ordinance granting the franchise, how shall a street car company, or persons owning and operating street cars, be compelled to pay the cost of improving the street between the rails, etc.? [See notes to section 6 of the act of Feby. 27, 1893, post.]

II. Front-Foot Mode of Assessment is the Mode Provided by the Act. Subdivision 1 of section 7 of the act lays down the general rule which is to govern in levying assessments to pay the expense incurred for any work authorized by the act. That general rule is that such expense shall be assessed upon the lots and lands fronting upon the work. That is, the act adopts the front-foot mode of assessment, and the only exceptions thereto are such as are specially provided by the act.