properly made, directing the sale of alleged perishable property, pending an appeal from said order. It was there held that such a writ may issue under proper circumstances, and that the court has inherent power in the premises.

[2] But we do not think this a proper occasion for the exercise of the discretion of this court in petitioner's behalf, even granting that upon proper showing we would issue the writ. While he alleges that the attorney who appeared for him was not authorized so to do and that the trial of the action and the entry of judgment were had without his knowledge, Mr. Bryan does not deny that he was duly served with summons nor assert that he made any arrangement for representation by other counsel. In order that he might show to this court that he suffered under peculiar hardship, it would be necessary for him, at the very least, to allege some facts which would excuse his failure to appear at all in the case. If in fact he was served with summons and made no appearance, the plaintiffs would have been entitled to a judgment by default and he could not complain of the result obtained after he had been represented by an attorney who acted without authorization. (Pacific Paving Co. v. Vizelich, 141 Cal. 8; Fitzgerald v. Fernandez, 71 Cal. 509; Hunter v. Bryant, 98 Cal. 251.)

The petition of William V. Bryan for a writ of supersedeas, therefore, is denied and the order to show cause is dismissed. MELVIN, J.

We concur:

HENSHAW, J.

LORIGAN, J.

ANGELLOTTI, C. J.

SLOSS, J.

SHAW, J.

L. A. No. 3833. In Bank. April 1, 1915.

*M. E. SCHAFFER, Plaintiff and Appellant, v. SARAH A. SMITH, as City Treasurer of the City of Watts, Defendant and Respondent.

[1] APPEAL-APPROVAL OF OPINION OF DISTRICT COURT OF APPEAL. -The opinion of the district court of appeal (18 Cal. App. Dec. 410) is adopted on the hearing of this appeal in the supreme court.

[2] ID. STREET LAW-RESOLUTION OF INTENTION-POSTING AND PUBLICATION-WANT OF CERTIFICATE-OMISSION UNIMPORTANT.-The posting and publishing of the resolution of intention in a street work proceeding without having thereon the city clerk's certificate to its passage is not the omission of a legal requirement.

[3] ID.-CERTIFICATION OF WARRANT AND ASSESSMENT CITY ENGINEER ACTING AS SUPERINTENDENT OF STREETS-SUFFICIENT CERTIFICATION. The certification of the warrant, diagram and assessment in such a proceeding by the acting street superintendent, who earlier in the proceedings was city engineer and who had not yet relinquished that office is a sufficient certification.

[4] ID. WARRANT-RECORDING WITHOUT SIGNING IMMATERIAL OMISSION. The omission of the signature of the president of the

*On hearing after judgment in District Court of Appeal, Second District (18 Cal. App. Dec. 410).

board of trustees on the recorded warrant is not material, where the original warrant is properly signed.

[5] ID.-STREET IMPROVEMENT BOND ACT-PREVENTION OF ISSU ANCE OF BOND PRIVILEGE OF PROPERTY OWNER-PRESENTATION OF AFFIDAVIT AND CERTIFICATE OF SEARCH TO CITY TREASURER-CONSTITUTIONAL PROVISION.-The provision of section 4 of the street improve ment bond act that if any person shall at any time before the issu-j ance of the bond for the assessment present to the city treasurer his affidavit that he is the owner of a parcel of land assessed, accompanied by the certificate of a searcher of records that he is such owner of record and request that no bond be issued, then no such bond shall issue and the payee of the warrant shall retain his right for enforcing collection, is not unconstitutional, in placing a bur den upon the property holder above his just share of the expense of the improvement in requiring such certificate.

[6] ID.-ISSUANCE OF BONDS FOR ASSESSMENT PRIVILEGE OF AVOIDANCE CONDITIONS POWER OF LEGISLATURE.-The legislature has the power to provide that bonds shall issue for the amount of the delinquent assessment, and it is not bound to give the property owner any opportunity to avoid the issuance of bonds further than his opportunity to pay the assessment before the time fixed for delinquency, and in extending such a privilege it may impose any reasonable condition.

[7] ID.-RAILROAD RIGHT OF WAY-EXEMPTION FROM ASSESSMENT. -Land covered by a railroad right of way cannot be assessed but the land itself covered by such right of way fronting upon an improved street is subject to assessment.

[8] ID.-ASSESSMENT-LOTS ON ONE SIDE OF STREET-VOID ASSESSMENT APPEAL ΤΟ COUNCIL UNNECESSARY.-An assessment made wholly against the lots on one side of an improved street is void upon its face, and belongs to that class where the property owner may, without first appealing to the city council, resist its enforcement.

[9] ID.-ID.-CURATIVE PROVISION OF BOND ACT-BONDS NOT VALIDATED. Bonds issued upon such an assessment are not validated by the curative provision of the street improvement bond act to the effect that the bonds issued thereunder shall be conclusive evidence of the regularity of all proceedings thereto under the act, as such issuance is not conclusive evidence of those proceedings that are necessary to constitute due process of law, or to comply with any other constitutional prerequisite.

Appeal from the Superior Court of Los Angeles County-John M. York, Judge.

For Appellant-Crouch & Crouch.

For Respondent-A. R. Holston, Peebles Shoaff.

BY THE COURT.

A hearing in the above cause was ordered in this court, after decision by the district court of appeal of the Second District.

[1] The opinion of the district court of appeal, written by Mr. Presiding Justice Conrey, is adopted as the opinion of this court. It is as follows:

"The plaintiff as owner of certain street improvement bonds transferred to him by a holder who acquired them from Municipal Securities Company (a Corporation), to which the bonds had been issued by the city of Watts, brought this proceeding against the defendant as city treasurer, and applied for a writ of mandate commanding defendant to advertise and sell the property described in the petition. The bonds, purporting to be issued as

required by an act approved February 27, 1893 (Stats. 1893, p. 33), are alleged to cover said property by lien claimed to exist under assessments made representing the cost of certain street work. From a judgment entered in favor of defendant, plaintiff appeals.

The street work in question was done pursuant to a contract entered into by the superintendent of streets with a contractor, and the proceedings were in form according to the requirements of the street work act, commonly known as the Vrooman Act. The record of these proceedings, so far as necessary to be noted here, begins with a resolution of the board of trustees, adopted on December 28, 1909, and known as Resolution No. 123, ordering the work to be done. The bonds are valid, unless their invalidity can be established for at least one of the reasons here presented by the respondent for our consideration.

[2] It is suggested by her counsel that the resolution, No. 123, was posted and published without having thereon the city clerk's certificate to its passage, and that the clerk did not sign the certificate until after such posting and publication. Respondent asserts that this was an omission of a legal requirement; but we do not find either in the resolution or in the statute anything which supports the assertion made. The certificate is evidence on the minutes of the fact that the resolution passed, and it is nothing more.

[3] It is further claimed that the warrant and assessment were not certified by the duly appointed street superintendent, and that the original warrant was not signed by the president of the board of trustees. These points cannot be sustained. The record shows that A. B. Waddingham who, on July 29, 1911, signed the certificate to the record of warrants, diagrams and assessments following upon the contractor's return thereof, was then acting as street superintendent. The only point made against this is that earlier in the proceedings he was city engineer, and had not yet relinquished that office, and that he as superintendent of streets was certifying to acts which had been done by him as city engineer. No reason is shown why he should not do this. [4] Upon the objection that the original warrant was not signed by the president of the board of trustees, the answer is that the original warrant was so signed, although that signature is absent from the warrant as recorded. This omission is not material. (Gillis v. Cleveland, 87 Cal. 214, 220.)

[5] Next it is contended that certain provisions contained in section 4 of the bond act are unreasonable and unconstitutional. That section as amended in 1899, and also in its original form (Stats., 1893, p. 33; Stats., 1899, p. 41) provides: "That if any person, or his authorized agent, shall at any time before the issuance of the bond for said assessment upon his lot or parcel of land, present to the city treasurer his affidavit, made before a competent officer, that he is the owner of a lot or parcel of land in said list, accompanied by the certificate of a searcher of records, that he is such owner of record, and with such affidavit and certificate, such person notifies said treasurer, in writing, that

he desires no bond to be issued for the assessments upon said lot or parcel of land, then no such bond shall be issued therefor, and the payee of the warrant, or his assigns, shall retain his right for enforcing collection, as if said lot or parcel of land had not been so listed by the street superintendent." The argument for respondent is that the provision requiring the property owner to present to the treasurer a certificate made by a searcher of records is in effect the taking of property without due process of law, and that it places upon the property holder a burden above his just share of the expense of the improvement. In our opinion, the statute does not have the effect thus claimed. The legislature has the power to provide, as by this bond act it does provide, that bonds shall issue for the amount of a delinquent assessment. [6] The legislature is not bound to give the property owner any opportunity to avoid the issuance of bonds further than his opportunity to pay the assessment before the time fixed when it would become delinquent. In extending to him the further privilege whereby he may be subject to the assessment alone and may prevent the issuance of such bonds, any reasonable condition to the exercise of that privilege may be imposed. The rule requiring him to produce from the records some evidence that he owns the property imposes only a reasonable condition. The case of Havemeyer v. Superior Court, 84 Cal. 327, cited by counsel for respondent, does not support their position. After much searching through the eighty-two pages of that decision, we think that we have found at page 396 the reference intended. The court there holds that where a person is about to be illegally deprived of his property by another person claiming to act as receiver, and where the superior court in appointing a receiver exceeded its jurisdiction, the property owner may have a writ of prohibition and is not obliged to submit to the wrong and rely on a long and expensive litigation for recovery of his property. But the provisions above quoted in the bond act are in their effect confined to proceedings within the jurisdiction of a city and its officers.

In respondent's answer to the petition herein she alleged, and the court found, that along the westerly side of Melvin avenue, and along the entire length thereof within the north and south limits of the street work described in said resolution No. 123, "extends the lands of the Pacific Electric Railway Company, which lands are used as a part of the right-of-way of said railway company for its line of railway from the city of Los Angeles to the city of Long Beach, and which right-of-way abuts and fronts upon the westerly side of said Melvin avenue between said Main street and Shorb avenue, the entire distance". After deducting from the total cost of the street work certain amounts which were paid partly by the city out of a street improvement fund obtained from the proceeds of a municipal bond issue, and partly by $1500 voluntarily paid by the Pacific Electric Railway Company to the city of Watts on account of said street improvements, the remainder of said cost (such remainder amounting to much more than half of the total cost) was assessed solely and only against the lots and lands fronting on the easterly side

of Melvin avenue between Main street and Shorb avenue. The bonds here in question are based upon this assessment.

[7] Upon the facts above stated, the respondent claims that the land covered by the railroad right-of-way is part of the land fronting on the improved street, and that the assessment is void because the right-of-way land is not included therein; or that if by reason of the principles of law controlling assessments against rights-of-way no interest in this land could be subjected to assessment, then the street could not be improved at all under the street work act. In Pennsylvania it has been held that for the purposes of asserting claims for street paving against the roadbed of a railway company "the distinction between the right-of-way and the fee is a shadowy one". (Junction City R. Co. v. City of Philadelphia, 88 Pa. St. 424.) In California this point appears to be not definitely decided. In Southern California Ry. Co. v. Workman, 146 Cal. 80, it was decided that a railroad right-of-way could not be sold under a street work assessment. With respect to the question now under consideration, the statute applicable to this work on Melvin avenue was the same as that under which the case last mentioned was determined. At that time the legislature had not provided for such sales of rights-of-way. In that decision the supreme court declined to decide whether or not the fee or reversion in rightof-way land could be assessed, as it held that the proceeding there was merely "for the purpose of enjoining a sale of plaintiff's right-of-way, that is to say, its easement". In Fox V. Workman, 155 Cal. 201, 204, referring to the same proceedings as in the earlier case, the court again found that the question of right to assess the fee separately from the right-of-way was not involved, and said: "The court did not, therefore, in the former decision, determine that the fee, subject to the easement, could not be, or that it had not been assessed. The judgment there affirmed merely declared that the bond created no lien upon the right of way. It could not bar plaintiff's right to have the fee, subject to such easement, sold. . . Here the plaintiff, having at most a right to compel the sale of the fee, subject to the easement, made a demand for a sale of property described in terms covering both fee and easement. The officer was justified in refusing to comply with this excessive demand, and no liabil ity for damages accrued upon such refusal." If the case of Fox v. Workman does not carry an intimation that lands subject to a railroad right-of-way, as were the lands of the Pacific Electric Railway on the west side of Melvin avenue, are subject to assessment and should be assessed as lands fronting on the street, but excluding from such assessment the easement held for right-of-way purposes, we are at least left free to deal with the subject as an undetermined matter. From the record in this case we are unable to say that the right-of-way over the land in question is complete either in the sense of being perpetual, or of being such as to necessarily require the company to continue to occupy the whole thereof in the operation of its railroad. This land abutting upon the street, although subject