[No. 11017. Department Two.-May 19, 1888.]

CITY OF NAPA, RESPONDENT, v. A. Y. EASTERBY ET AL., APPELLANTS.

OFFICIAL GRADE OF STREET-TWO SETS OF PROCEEDINGS TO ESTABLISH.If the proceedings to establish the official grade of streets are void, they may be disregarded and fresh proceedings commenced. OFFICIAL GRADE OF STREETS IN CITY OF NAPA-POWER OF BOARD OF TRUSTEES-PETITION OF PROPERTY OWNERS.-It is not necessary that the official grade of each street in the city of Napa be established separately. The board of trustees has power to establish the grade by a general ordinance, and this may be done without petition of property owners, provided no charge therefor is imposed upon them or upon the city. ID.-PUBLICATION OF ORDINANCE REFERRING TO MAPS AND BENCH-BOOKS. Where an ordinance establishing the official grade refers to maps and bench-books in the archives of the city, such maps and bench-books need not be published. All that is necessary to be published is what is entered in the ordinance-book. FORM OF ORDER THAT STREET WORK BE DONE-PUBLICATION.-An order that street work be done is not an "ordinance" within the meaning of the charter, and need not follow the form, "The board of trustees of the city of Napa do hereby ordain," etc., and need not be published.

APPEAL from a judgment of the Superior Court of Napa County, and from an order refusing a new trial.

The action was brought to foreclose a street assessment for work done in the improvement of Randolph. Street in the city of Napa. On a former trial, judgment was entered in favor of the plaintiff, which was reversed on appeal, the opinion being reported in 61 Cal. 518. The further facts are stated in the opinion.

William & George Leviston, for Appellants.

Estee, Wilson & McCutchen, Oscar Coglan, and W. F. Henning, for Respondent.

HAYNE, C.-Action upon a street assessment. Judgment was given for the plaintiff, and the defendants appeal. As is usual in such cases, every point with the

least semblance of merit is made. We deem it sufficient to notice the following:

1. It is said that the official grade was not established. Upon the former appeal (61 Cal. 509) the judgment in favor of plaintiff was reversed, because it did not appear that the ordinance purporting to establish the grades had been published by order of the board. This decision necessarily affirms that unless it appears that the ordinance was published by order of the board, the official grades were not established; and that the consequence is, that subsequent proceedings for grading, etc., are void. This has become the law of the case.

Upon the trial two attempts to prove that the official grade was established were made. The first proposition was, that the grade was established by ordinance 42. With reference to this, we are inclined to think that the position of the appellants is correct, and that there was no sufficient proof of the publication by order of the board, within the rule laid down by the former decision. Assuming this to be so, then the subsequent proceedings, taken upon the idea that the grade was established, were void. If such subsequent proceedings were void, there can be no reason why the board should not disregard them entirely and commence fresh proceedings. This was what it would seem they did do by their second attempt to establish the grade.

The second attempt was by ordinance 77. This ordinance (which, though somewhat meager we think, was sufficient) was duly ordered to be published, and was published for the requisite period; and at the expiration of the period of publication, the proceedings upon which the assessment rests were commenced. The only objections which are taken to this ordinance are the following:

(a) It is urged that the board had no power to establish the official grade except upon petition of the property owners, and that the grades of the streets must be estab

lished separately, and not altogether, as was done here. This view was set forth in the opinion of three of the justices upon the former appeal. But a majority of the court did not concur in this portion of the opinion, and it is obvious that it did not become the law of the case, but was merely the individual opinion of three members of the court. The argument in favor of the position is forcible. But the inconvenience resulting from such a construction is so great that we think if any other construction is fairly open, it should be adopted. And we think there is room for another construction.

The provisions of the charter in relation to the subject are as follows:

"Sec. 11. . . . The board of trustees shall have power: . . 3. To establish the grade of all streets, avenues, and alleys, and to require and enforce conformity thereto." (Laws 1877-78, p. 1013.)

"Sec. 18. The city of Napa shall not pay for estab lishing the grade, grading, working, improving, or repairing streets, avenues, or alleys, laying down or constructing sewers therein, or sidewalks or crosswalks thereon; but all such expenses shall be assessed upon the property fronting on such streets, avenues, and alleys, as hereinafter provided." (Laws 1877-78, p. 1017.)

"Sec. 19. When the owners of more than one-half in frontage of the property fronting on any street . . shall desire to have the grade established, or to grade, fill, plank, pave, macadamize, or gravel the same, construct sidewalks along, or sewers therein, or otherwise improve or repair the same, and shall petition the board of trustees in writing, asking that the same may be done, the board may order said work to be performed as requested, at the expense of the property fronting on said street." (Laws 1875-76, p. 556.)

"Sec. 30. The board of trustees may at any time, without petition, by an order entered in the journal of their proceedings, provide for grading, filling, planking,

paving, macadamizing, or graveling streets, avenues, alleys, or portions thereof, constructing sidewalks along or sewers therein, or otherwise improving or repairing the same, and shall proceed in letting contracts, and in assessing the expense of said work upon the property chargeable therewith, and enforcing the same in the same manner as in cases of assessments made upon petition." (Laws 1877-78, p. 1017; and see Laws 1875-76, p. 557.)

The argument against the validity of the ordinance is, in substance, that the city had no power to pay for establishing the grades; that the expense thereof must be charged upon the property owners according to frontage, and that they could only be so charged where there had been a petition that the grade be established.

Now, it is perfectly true that the city had no power to pay for establishing the grades, and that the property owners could not be compelled to pay for it in the absence of a petition. But is the power to establish the grade commensurate with the power to pay or to compel payment therefor? Suppose that some public-spirited surveyor had offered to do the work for nothing; would the board have been powerless to accept the offer? Or suppose that a portion of the citizens, chafed at what they might consider undue conservatism on the part of the property owners of the locality, should subscribe the amount necessary to pay for the expense of the work; would the board have no power to order the work to be done at their expense? Or suppose that the actual work of surveying had been done long before, and the maps and plans made; would it be necessary that the property owners should petition to have such work done a second time, and subject themselves to a useless expense when the maps, etc., lay ready to their hands?

We cannot think that there would be a want of power in such cases. And if not, then the power to establish the grades is not absolutely commensurate with the

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power to pay or to compel payment therefor. this be granted, the foundation for the argument against the validity of the grades is gone. If the power to adopt any particular grade is not commensurate with the power to pay or to compel payment therefor, then the former power may exist, although the latter does not; and the result of its exercise may be valid, although nothing can be collected from the property owners, or, notwithstanding the fact that former trustees may have unlawfully appropriated the city's money to pay for it.

There is nothing in the nature of the proceedings which makes against this construction. It does not take away from the property owners all right to determine what work shall be done. For although when the grade is established the board may order certain work to be done without petition, yet the property owners of the locality may put a veto on it by filing a protest. (Sec. 30.)

Nor is there anything in the language of the charter which negatives the construction. The charter expressly provides that the board shall have power "to establish the grade of all streets," etc. (Sec. 11.) This grant of power is unlimited by anything, unless it be the provision in a subsequent place with reference to the petition of the property owners. But this latter provision is not inconsistent with an unconditional grant of the power. It is simply that when the property owners of a locality "shall petition the board of trustees in writing, asking that the same may be done, the board may order said work to be performed, as requested, at the expense of the property owners." (Sec. 19.) If there is no petition, it cannot be done at the expense of the property owners. But this is a different thing from saying that it cannot be done at all.

We think, therefore, that the board had the power to pass the ordinance establishing the official grades.

(b) It is contended that the maps and bench books to