By the Court, Sanderson, J.:
Action to recover an assessment levied for the improvement of Broadway street, in the City of Oakland.
I. The first point, to the effect that the City Council had not acquired jurisdiction of the subject matter at the time they ordered Broadway street to be improved, because the resolution of intention had not been presented to or approved by the Mayor of the city, is answered by the case of Taylor v. Palmer, 31 Cal. 240. Upon this point the statute under which the City of Oakland works when improving her streets is identical with that under which the City of San Francisco works, and which was before us in Taylor v. Palmer. (Statutes of 1863-4, p. 333, Sec. 3; 1862, p. 392, Sec. 4.) In that case we held that resolutions of intention to improve streets, passed by the Board of Supervisors of the City and County of San Francisco, need not be approved by the Mayor in order to become valid and vest the Board of Supervisors with jurisdiction to order the improvements.
II. The resolution of intention, and the resolution directing the improvement to be made, in terms, only provided for macadamizing the street. The contract for the improvement, and the assessment, both call for macadamizing the street and curbing the sidewalks. The contract price for macadamizing was twenty-two cents per square foot in legal tender notes, or eight and and a half cents in gold coin of the United States; and for curbing, fifty cents per lineal foot in legal tender notes, or twenty cents in gold coin of the United States. In view of these conditions it is claimed that the entire proceedings thereby became vitiated, and that no recovery can be had against the defendants.
[276] To meet the point testimony was admitted by the Court, on the part of the plaintiff, to show that the word “ macadamizing ” represented a certain process of street improvement which, ex vi termini, included curbing of the sidewalks.
This was error. The question whether the term “ macadamizing ” also includes “ curbing” is settled by the statute under which the parties having the matter in charge were working. The second section prescribes what street improvements the City Council shall have power to cause to be made. Each kind is separately named and described. “ Macadamizing ” is named as one, and “ curbing ” as another. Hence, whether the former might or might not, under other circumstances, include the latter, is not the question. Does it, within the meaning of the statute under which the parties were working is the question, and it is clear that it does not, for they are there mentioned as different and distinct kinds of street work, which circumstance shows that in the sense in which the former term is used in the statute it does not include the latter.
The passage and publication of the resolution of intention are the acts by which the City Council acquires jurisdiction ; and by those acts they acquire jurisdiction to make only such improvements as they describe in the resolution, and they cannot, therefore, lawfully cause work other than that which is described to be performed. But if they do, it does not necessarily follow that the entire proceedings are void. If the work described in the resolution can be separately traced through the entire proceedings, and does not become so mixed up with that which is not specified in the resolution as not to be distinguishable from it, the proceedings are valid as to the former and invalid only as to the latter. In the present case the cost of macadamizing and the cost of curbing can be readily distinguished and separated from each other; and we therefore hold that the contract was a valid contract so far as it calls for macadamizing, and invalid only so far as it calls for curbing. (Emery v. San Francisco Gas Co., 28 Cal. 379.)
III. The point to the effect that the resolution of the City [277] Council accepting the bid and directing the City Marshal to enter into a contract with the bidder was void because not approved by the Mayor, stands upon the same level with the point made against the validity of the resolution of intention, and admits of the same answer.
IV. It is next claimed that the warrant for the collection of the assessment issued by the Marshal and countersigned by the Mayor, was void because the Mayor was at the time the assignee of the contract, and therefore disqualified from acting in the premises.
The Mayor, prior to his election, had become the assignee of the contract as collateral security for the payment of a note which he held against the contractor for money loaned by the former to the latter to enable him to proceed with the work under the contract. In no other sense was he the assignee of the contract. He had nothing to do with the performance of the work, and under the assignment was only entitled to receive so much of the contract price as would be sufficient to pay his note. The city charter provides that: “ Ho executive officer, nor member of the City Council, nor any officer of the corporation, shall be directly or indirectly interested, nor shall he be security for any person who may be so interested in any contract, work or business, or the sale of anything whatever, the expense, price or consideration of which is payable from the city treasury, or by assessment levied under any ordinance of the City Council.”
Such are the conditions in view of which the point in hand is made.
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By the Court, Sanderson, J.:
Action to recover an assessment levied for the improvement of Broadway street, in the City of Oakland.
I. The first point, to the effect that the City Council had not acquired jurisdiction of the subject matter at the time they ordered Broadway street to be improved, because the resolution of intention had not been presented to or approved by the Mayor of the city, is answered by the case of Taylor v. Palmer, 31 Cal. 240. Upon this point the statute under which the City of Oakland works when improving her streets is identical with that under which the City of San Francisco works, and which was before us in Taylor v. Palmer. (Statutes of 1863-4, p. 333, Sec. 3; 1862, p. 392, Sec. 4.) In that case we held that resolutions of intention to improve streets, passed by the Board of Supervisors of the City and County of San Francisco, need not be approved by the Mayor in order to become valid and vest the Board of Supervisors with jurisdiction to order the improvements.
II. The resolution of intention, and the resolution directing the improvement to be made, in terms, only provided for macadamizing the street. The contract for the improvement, and the assessment, both call for macadamizing the street and curbing the sidewalks. The contract price for macadamizing was twenty-two cents per square foot in legal tender notes, or eight and and a half cents in gold coin of the United States; and for curbing, fifty cents per lineal foot in legal tender notes, or twenty cents in gold coin of the United States. In view of these conditions it is claimed that the entire proceedings thereby became vitiated, and that no recovery can be had against the defendants.
[276] To meet the point testimony was admitted by the Court, on the part of the plaintiff, to show that the word “ macadamizing ” represented a certain process of street improvement which, ex vi termini, included curbing of the sidewalks.
This was error. The question whether the term “ macadamizing ” also includes “ curbing” is settled by the statute under which the parties having the matter in charge were working. The second section prescribes what street improvements the City Council shall have power to cause to be made. Each kind is separately named and described. “ Macadamizing ” is named as one, and “ curbing ” as another. Hence, whether the former might or might not, under other circumstances, include the latter, is not the question. Does it, within the meaning of the statute under which the parties were working is the question, and it is clear that it does not, for they are there mentioned as different and distinct kinds of street work, which circumstance shows that in the sense in which the former term is used in the statute it does not include the latter.
The passage and publication of the resolution of intention are the acts by which the City Council acquires jurisdiction ; and by those acts they acquire jurisdiction to make only such improvements as they describe in the resolution, and they cannot, therefore, lawfully cause work other than that which is described to be performed. But if they do, it does not necessarily follow that the entire proceedings are void. If the work described in the resolution can be separately traced through the entire proceedings, and does not become so mixed up with that which is not specified in the resolution as not to be distinguishable from it, the proceedings are valid as to the former and invalid only as to the latter. In the present case the cost of macadamizing and the cost of curbing can be readily distinguished and separated from each other; and we therefore hold that the contract was a valid contract so far as it calls for macadamizing, and invalid only so far as it calls for curbing. (Emery v. San Francisco Gas Co., 28 Cal. 379.)
III. The point to the effect that the resolution of the City [277] Council accepting the bid and directing the City Marshal to enter into a contract with the bidder was void because not approved by the Mayor, stands upon the same level with the point made against the validity of the resolution of intention, and admits of the same answer.
IV. It is next claimed that the warrant for the collection of the assessment issued by the Marshal and countersigned by the Mayor, was void because the Mayor was at the time the assignee of the contract, and therefore disqualified from acting in the premises.
The Mayor, prior to his election, had become the assignee of the contract as collateral security for the payment of a note which he held against the contractor for money loaned by the former to the latter to enable him to proceed with the work under the contract. In no other sense was he the assignee of the contract. He had nothing to do with the performance of the work, and under the assignment was only entitled to receive so much of the contract price as would be sufficient to pay his note. The city charter provides that: “ Ho executive officer, nor member of the City Council, nor any officer of the corporation, shall be directly or indirectly interested, nor shall he be security for any person who may be so interested in any contract, work or business, or the sale of anything whatever, the expense, price or consideration of which is payable from the city treasury, or by assessment levied under any ordinance of the City Council.”
Such are the conditions in view of which the point in hand is made.
The validity of the contract could not be affected by these conditions. The contract was made, and the Mayor’s interest in it, such as it was, had vested in him before he became Mayor. The only effect then, in any event, would be to disqualify him from discharging the duties of Mayor so far as they might relate to the proceedings under this contract. Doubtless the more regular and proper course, under the circumstances, would have been for the City Council to have elected one of their number to discharge the duties of Mayor [278] in relation to these proceedings, which they might have done under the fourth section of the city charter, which, among other things, provides that “ the Board shall elect a member from their own body to preside at the meetings and to discharge the duties of Mayor whenever there shall be a vacancy in the office of Mayor, or the Mayor shall be absent from the city, or be unable, from sickness or other cause, to attend to the duties of his office.” But, be that as it may, we do not regard the act complained of as affecting the validity of the assessment. The act is a mere ministerial duty cast upon the Mayor. It is true that he is required to satisfy himself that the previous steps and proceedings have been fair and legal before countersigning the warrants. But suppose he should fail to do so, would the proceedings or the warrants thereby become worthless in law ? As remarked by counsel for respondent, the act is no more judicial than the act of a Notary Public who, before certifying to the acknowledgment of a deed, must be satisfied that the person making the acknowledgment is the party named in the deed; or of a County Clerk who, before issuing a writ of attachment, must be satisfied that the affidavit and undertaking are sufficient and in due form ; or of the same officer in entering a judgment where the defendant has made default; or of the Governor when he signs an Act of the Legislature and is required to see whether the forms of legislation have been observed. (Lynch v. Livingston, 2 Selden, 433 ; McCauley v. Brooks, 16 Cal. 11.) But independent of this, we are further of the opinion that the irregularity, if it is such, has been waived by a failure on the part of the defendants to appeal to the City Council as provided in section eleven of the statute. (Emery v. Bradford, 29 Cal. 75 ; Taylor v. Palmer, 31 Cal. 240.) If he was prejudiced in any way by reason of the assumed incompetency of the Mayor to act in the premises the City Council could have set the warrant aside and directed another to be made out and appointed some one of their number to look over the previous proceedings and countersign the warrant as Mayor pro tern.
[279] What we have said under this point will also serve as an answer to the points made upon the proof of the demand for the amount of the assessment and upon defects alleged against the assessment roll. The latter could all have been remedied upon an appeal to the City Council, and if the defendant had any fault to find he should have availed himself of that remedy.
V. The next point relates to the kind of money which the plaintiff is entitled to recover.
The money sued for is a tax due to the city, and the plaintiff sues to recover it as the agent of the city. (Emery v. San Francisco Gas Co., 28 Cal. 345 ; Emery v. Bradford, 29 Cal. 75 ; Hendrick v. Crowley, 31 Cal. 471.) All taxes and public dues, by express statutory provision, may be collected in coin. (2 Hittell, Arts. 6,500-6,502.) Hence the City Marshal had lawful authority to levy the assessment upon a gold basis, and to draw his warrant for coin, notwithstanding the contract was in the alternative.
VI. The last point relates to the judgment, which is in the same form as was used in Taylor v. Palmer. It was erroneous to render a personal judgment for the deficiency, if any, after a sale of the lots assessed, as we held in that case.
No new trial is necessary, except so far as to ascertain what portion of the amount sued for is for macadamizing the street. This can be ascertained by referring the matter to some competent person to make the computation, for which the assessment furnishes the necessary data. When that is ascertained, the plaintiff will be entitled to a judgment for that amount, and a lien upon the lots assessed, but not a judgment over.
Judgment reversed and cause remanded for further proceedings as suggested in this opinion.