Apportioning expense of doing the work.

SEC. 7. Subdivision one.-The expenses incurred for any work authorized by section two of this act, which shall not include 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, shall be assessed upon the lots and lands fronting thereon, except as hereinafter specifically provided; each lot or portion of a lot being separately assessed, in proportion to the frontage, at a rate per front foot sufficient to cover the total expenses of the work. But wherever the said assessment upon any lot or portion of a lot would exceed one half the valuation of said lot, or portion of a lot, as it was last assessed for municipal taxation, then, unless the owner, or his attorney in fact, shall have previously filed with the superintendent of streets a written waiver of the partial exemption herein provided, the assessment and the lien thereof upon said lot or portion of a lot shall be only to the amount of one half of said last preceding municipal valuation, and the proper remainder of said assessment shall be assessed to the city, and be payable out of the city treasury.

Subdivision two.-The expenses of all improvements, except such as are done by contractors, under the provisions of section thirteen of this act, until the streets, street-crossings, lanes, alleys, places, or courts are finally accepted, as provided in section twenty of this act, shall be assessed upon the lots and lands as provided in this section, according to the nature and character of the work (and after such acceptance, the expense of all work thereafter done thereon shall be paid by said city out of the street-department fund).

Subdivision three.-The expense of work done on main street crossings shall be assessed at a uniform rate per front foot of the four quarter-blocks adjoining and cornering upon the crossing, and separately upon the whole of each lot or portion of a lot having any frontage in the quarterblocks fronting on said main streets, but only according to its frontage in said quarter-blocks. Subdivision jour.-Where a main street terminates in another main street, the expenses of the work done on one half of the width of the street opposite the termination shall be assessed upon the lots in each of the two quarter-blocks adjoining and cornering on the same, according to the frontage of such lots on said main streets, and the expense of the other half of the width of said street upon the lot or lots fronting on the latter half of the street opposite such termination.

Subdivision five.-Where any small or subdivision street crosses a main street, the expense of all work done on said crossings shall be assessed on all the lots or portions of lots half-way on said small streets to the next crossing or intersection, or to the end of such small or subdivi sion street, if it does not meet another.

Subdivision six.-The expense of work done on small or subdivision street crossings shall be assessed upon the lots fronting upon such small streets, on each side thereof, in all directions, half-way to the next street, place, or court on either side, respectively, or to the end of such street, if it does not meet another.

Subdivision seven.-Where a small street, lane, alley, place, or court terminates in another street, lane, alley, place, or court, the expense of the work done on one half of the width of the street, lane, alley, place, or court opposite the termination shall be assessed upon the lot or lots fronting on such small street or lane, alley, place, or court so terminating, according to its frontage thereon, half-way on each side, respectively, to the next street, lane, alley, place, or court, or to the end of such street, 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 section two of this act (sewers, man-holes, cess-pools, culverts, cross-walks, crossings, curbings, grading, curbing, piling, and capping excepted) is done on one side of the center line of said streets, lanes, alleys, places, or courts, the lots or portions of the lots fronting on that side only shall be assessed to cover the expenses of said work, according to the provisions of this section.

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 fifty-seven," 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 to 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 own expense (after obtaining from the council permission so to do, but before said council has passed its resolutions of intention to order grading inclusive of this) any grading upon said street to its full width, and to its grade as then established, and thereupon to procure, at his 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 same is done to the established width and grade of said street, and there. after to file said certificate with the superintendent of streets, which certificate the superin tendent shall 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, certificated as aforesaid, has been done, the bids and the contract must express the prices by the cubic yard for cutting and filling in grading; and the said owner and his succes sors in interest shall be entitled to credit on the assessment upon his 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 said certificate, at the prices named in the contract for said cutting and filling, or if the grade has meanwhile been duly altered, only for so much of said certificated work as would be required for grading to the altered grade; provided, however, that such owner 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 and proportionately assessed for the whole of said grading; and the super

intendent 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 certificated work as would be required for grading thereto, and shall enter corresponding credits, deducting the same as payments made upon the amounts assessed against the lots and lands owned respectively by said certificated 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 certificated owners, or their successors in interest. Subdivision eleven.-The city council may include in one resolution of intention and order any of the different kinds of work mentioned in section two of this act, and it may except therefrom any of said work already done upon the grade. The lots and portions of lots fronting upon said excepted work 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 so construed as to affect the special provisions as to grading contained in subdivision ten of this section.

Assessing the cost.

SEC. 8. After the contractor of any street work has fulfilled his contract to the satisfaction of the street superintendent of the said city, or city council on appeal, the street superintendent shall make an assessment to cover the sum due for the work performed and specified in said contracts (including any incidental expenses), in conformity with the provisions of the preceding section, according to the character of the work done; or, if any direction and decision shall be given by said council on appeal, then, in conformity with such direction and decision, which assessment shall briefly refer to the contract, the work contracted for and performed, and shall show the amount to be paid therefor, together with any incidental expenses, the rate per front foot assessed, the amount of each assessment, the name of the owner of each lot, or portion of a lot (if known to the street superintendent); if unknown, the word "unknown" shall be written opposite the number of the lot, and the amount assessed thereon, the number of each lot or portion of a lot assessed, and shall have attached thereto a diagram exhibiting each street or street crossing, lane, alley, place, or court, on which any work has been done, and showing the relative location of each distinct lot or portion of a lot to the work done, numbered to correspond with the numbers in the assessments, and showing the number of feet fronting assessed for said work contracted for and performed.

Warrant for assessment.

SEC. 9. To said assessment shall be attached a warrant, which shall be signed by the superintendent of streets, and countersigned by the mayor of said city. The said warrant shall be substantially in the following form:

FORM OF THE WARRANT.

"By virtue hereof, I (name of superintendent of streets), of the city of

-, county of or city and county of , and state of California, by virtue of the authority vested in me as said superintendent of streets, do authorize and empower (name of contractor), (his or their) agents or assigns, to demand and receive the several assessments upon the assessment and diagram hereto attached, and this shall be (his or their) warrant for the same.

(Date.)

"Countersigned by (name of), mayor."

(Name of superintendent of streets.)

Said warrant, assessment, and diagram shall be recorded in the office of said superintendent of streets. When so recorded, the several amounts assessed shall be a lien upon the lands, lots, or portions of lots assessed, respectively, for the period of two years from the date of said recording, unless sooner discharged; and from and after the date of said recording of any warrant, assessment, and diagram, all persons mentioned in section eleven of this act shall be deemed to have notice of the contents of the record thereof. After said warrant, assessment, and diagram are recorded, the same shall be delivered to the contractor, or his agent or assigns, on demand, but not until after the payment to the said superintendent of streets of the incidental expenses not previously paid by the contractor, or his assigns; and by virtue of said warrant, said contractor, or his agents or assigns, shall be authorized to demand and receive the amount of the several assessments made to cover the sum due for the work specified in such contracts and

assessments.

Demanding payment from owners.

SEC. 10. The contractor, or his assigns, or some person in his or their behalf, shall call upon the persons assessed, or their agents, if they can conveniently be found, and demand payment of the amount assessed to each. If any payment be made the contractor, his assigns, or some person in his or their behalf, shall receipt the same upon the assessment in presence of the person making such payment, and shall also give a separate receipt if demanded. Whenever the person so assessed, or their agents, cannot conveniently be found, or whenever the name of the owner of the lot is stated as "unknown" on the assessment, then the said contractor, or his assigns, or some person in his or their behalf, shall publicly demand payment on the premises assessed. The warrant shall be returned to the superintendent of streets within thirty days after its date, with a return indorsed thereon, signed by the contractor, or his assigns, or some person in his or their behalf, verified upon oath, stating the nature and character of the demand, and whether any of the assessments remain unpaid, in whole or in part, and the amount thereof. Thereupon the superintendent of streets shall record the return so made in the margin of the record of the warrant and assessment, and also the original contract referred to therein, if it has not already been recorded, at full length in a book to be kept for that purpose in his office, and shall sign the record. The said superintendent of streets is authorized at any time to receive

the amount due upon any assessment list and warrant issued by him, and give a good and suffi cient discharge therefor; provided, that no such payment so made after suit has been commenced, without the consent of plaintiff in the action, shall operate as a complete discharge of the lien until the costs in the action shall be refunded to the plaintiff; and he may release any assessment upon the books of his office, on the payment to him of the amount of the assessment against any lot with interest, or on the production to him of the receipt of the party or his assigns to whom the assessment and warrant were issued; and if any contractor shall fail to return his warrant within the time and in the form provided in this section, he shall thenceforth have no lien upon the property assessed; provided, however, that in case any warrant is lost, upon proof of such loss a duplicate can be issued upon which a return may be male, with the same effect as if the original had been so returned. After the return of the assessment and warrant as aforesaid, all amounts remaining due thereon shall draw interest at the rate of ten per cent per annum until paid.

Appeal to the city council.

SEC. 11. The owners, whether named in the assessment or not, the contractor, or his assigns, and all other persons directly interested in any work provided for in this act, or in the assess ment, feeling aggrieved by any act or determination of the superintendent of streets in relation thereto, or who claim that the work has not been performed according to the contract in a good and substantial manner, or having or making any objection to the correctness or legality of the assessment or other act, determination, or proceedings of the superintendent of streets, shall, within thirty days after the date of the warrant, appeal to the city council, as provided in this section, by briefly stating their objections in writing, and filing the same with the clerk of said city council. Notice of the time and place of the hearing, briefly referring to the work contracted to be done, or other subject of appeal, and to the acts, determinations, or proceedings objected to or complained of, shall be published for five days. Upon such appeal, the said city council may remedy and correct any error or informality in the proceedings, and revise and correct any of the acts or determinations of the superintendent of streets relative to said work; may confirm, amend, set aside, alter, modify, or correct the assessment in such manner as to them shall seem just, and require the work to be completed according to the directions of the city council; and may instruct and direct the superintendent of streets to correct the warrant, assessment, or diagram in any particular, or to make and issue a new warrant, assessment, and diagram, to conform to the decisions of said city council in relation thereto, at their option. All the decisions and determinations of said city council, upon notice and hearing as aforesaid, shall be final and conclusive upon all persons entitled to appeal under the provisions of this section, as to all errors, informalities, and irregularities which said city council might have remedied and avoided; and no assessment shall be held invalid, except upon appeal to the city council, as provided in this section, for any error, informality, or other defect in any of the proceedings prior to the assessment, or in the assessment itself, where notice of the intention of the city council to order the work to be done, for which the assessment is made, has been actually pub lished in any designated newspaper of said city for the length of time prescribed by law, before the passage of the resolution ordering the work to be done.

Contractor's action against owner.

SEC. 12. At any time after the period of thirty-five days from the day of the date of the warrant, as herein before provided, or if any appeal is taken to the city council, as is provided in section eleven of this act, at any time after five days from the decision of said council, or after the return of the warrant or assessment after the same may have been corrected, altered, or modified, as provided in section eleven of this act (but not less than thirty-five days from the date of the warrant), the contractor, or his assignee, may sue, in his own name, the owner of the land, lots, or portions of lots, assessed on the day of the date of the recording of the warrant, assessment, and diagram, or on any day thereafter during the continuance of the lien of said assessment, and recover the amount of any assessment remaining unpaid, with interest thereon, as herein before provided; and in all cases of recovery under the provisions of this act the plaintiff shall recover the sum of fifteen dollars, in addition to the taxable costs, as attorneys' fees, but not any percentage upon said recovery. Suit may be brought in the superior court within whose jurisdiction the city is in which said work has been done, and in case any of the assess ments are made against lots, portions of lots, or lands, the owners whereof cannot with due dili gence be found, the service in each of such actions may be had in such manner as is prescribed in the codes and laws of this state. The said warrant, assessment, and diagram, with the affidavit of demand and non-payment, shall be held prima facie evidence of the regularity and correctness of the assessment, and of the prior proceedings and acts of the superintendent of streets and city council upon which said warrant, assessment, and diagram are based, and like evidence of the right of the plaintiff to recover in the action. The court in which such suit shall be commenced shall have power to adjudge and decree a lien against the premises assessed, and to order such premises to be sold on execution, as in other cases of the sale of real estate by the process of said courts; and on appeal, the appellate court shall be vested with the same power to adjudge and decree a lien, and to order such premises to be sold on execution or decree, as is conferred on the court from which an appeal is taken. Such premises, if sold, may be redeemed as in other In all suits now pending, or hereafter brought, to recover street assessments, the proceedings therein shall be governed and regulated by the provisions of this act, and also, when not in conflict herewith, by the codes of this state. This act shall be liberally construed to effect the ends of justice.

cases.

Owner's duty to repair.

SEC. 13. Whenever any portion of any street, lane, alley, court, or place in said city, improved or any sidewalk constructed thereon according to law, shall be out of repair and in condition to

endanger persons or property passing thereon, or in condition to interfere with the public convenience in the use thereof, it shall be the duty of the said superintendent of streets to require, by notice in writing, to be delivered to them personally, or left on the premises, the owners or occupants of lots, or portions of lots, fronting on said portion of said street, lane, alley, court, or place, or of said portion of said walk so out of repair as aforesaid, to repair forthwith said portion of said street, lane, alley, court, or place to the center thereof, or said sidewalk in front of the property of which he is the owner, or tenant, or occupant; and said superintendent of streets shal specify in said notice what repairs are required to be made. After the expiration of three days from the date of the service of said notice, the said superintendent of streets shall be deemed to have acquired jurisdiction to contract for the making of the repairs required by said notice. If said repairs be not commenced within three days after notice given as aforesaid, and diligently and without interruption prosecuted to completion, the said superintendent of streets may, under authority from said city council, make such repairs, or enter into a contract with any suitable person, at the expense of the owner, tenant, or occupant, at a reasonable price, to be determined by said superintendent of streets, and such owner, tenant, or occupant shall be liable to pay the same. Upon the completion of said repairs by said contractors as aforesaid to the satisfaction of said superintendent of streets, said superintendent of streets shall make and deliver to said contractor à certificate to the effect that said repairs have been properly made by said contractor, and that the charges for the same are reasonable and just, and that he, said superintendent, has accepted the same.

Action for value of repairs made by contractor.

SEC. 14. If the expenses of the work and material for such improvements, after the completion thereof, and the delivery to said contractor of said certificate, be not paid to the contractor so employed, or his agent or assignee, on demand, the said contractor, or his assignee, shall have the right to sue such owner, tenant, or occupant for the amount contracted to be paid; and said certificate of the superintendent of streets shall be prima facie evidence of the amount claimed for said work and materials, and of the right of the contractor to recover for the same in such action. Said certificate shall be recorded by the said superintendent of streets in a book kept by him in his office for that purpose, properly indexed, and the sum contracted to be paid shall be a lien, the same as provided in section nine of this act, and may be enforced in the same

manner.

Fines and penalty for not repairing.

SEC. 15. In addition, and as cumulative to the remedies above given, the city council shall have power, by resolution or ordinance, to prescribe the penalties that shall be incurred by any owner or person liable, or neglecting, or refusing to make repairs when required, as provided in section (13) thirteen of this act, which fines and penalties shall be recovered for the use of the city by prosecution in the name of the people of the state of California, in the court having jurisdiction thereof, and may be applied, if deemed expedient by the said council, in the payment of the expenses of any such repairs not otherwise provided for.

"Owner" defined.

SEC. 16. The person owning the fee, or the person in whom, on the day the action is commenced, appears the legal title to the lots and lands, by deeds duly recorded in the county recorder's office of each county, or the person in possession of lands, lots, or portions of lots or buildings under claim, or exercising acts of ownership over the same for himself, or as the executor, administrator, or guardian of the owner, shall be regarded, treated, and deemed to be the "owner (for the purpose of this law), according to the intent and meaning of that word as used in this act. And in case of property leased, the possession of the tenant or lessee holding and occupying under such persons shall be deemed to be the possession of such owner. Payment by tenant.

SEC. 17. Any tenant or lessee of the lands or lots liable may pay the amount assessed against the property of which he is the tenant or lessee under the provisions of this act, or he may pay the price agreed on to be paid under the provisions of section thirteen of this act, either before or after suit brought, together with costs, to the contractor, or his assigns, or he may redeem the property, if sold on exccution or decree for the benefit of the owner, within the time prescribed by law, and deduct the amount so paid from the rents due and to become due from him, and for any sums so paid beyond the rents due from him, he shall have a lien upon and may retain possession of the said land and lots until the amount so paid and advanced be satisfied, with legal interest from accruing rents, or by payment by the owner. Records of superintendent of streets as evidence.

SEC. 18. The records kept by the superintendent of streets of said city, in conformity with the provisions of this act, and signed by him, shall have the same force and effect as other publie records, and copies therefrom, duly certified, may be used in evidence with the same effect as the originals. The said records shall, during all office hours, be open to the inspection of any citizen wishing to examine them, free of charge.

Serving notices under this act.

SEC. 19. Notices in writing, which are required to be given by the superintendent of streets under the provisions of this act, may be served by any person, with the permission of the superintendent of streets, and the fact of such service shall be verified by the oath of the person making it, taken before the superintendent of streets (who, for that purpose, is hereby authorized to administer oaths), or other person authorized to administer oaths, or such notices may be delivered by the superintendent of streets himself, who must also verify the service thereof, and who shall keep a record of the fact of giving such notices when delivered by himself personally, and also of the notices and proof of service when delivered by any other person.

Acceptance of streets.

SEC. 20. Whenever any street, or portion of a street, has been or shall hereafter be fully constructed to the satisfaction of the superintendent of streets and of the city council, and is in good condition throughout, and a sewer, gas-pipes, and water-pipes are laid therein, under such regulations as the city council shall adopt, the same shall be accepted by the city council, by ordinance, and thereafter shall be kept in repair and improved by the said municipality; the expense thereof, together with the assessment for street work done in front of city property, to be paid out of a fund to be provided by said council for that purpose; provided, that the city council shall not accept of any portion of the street less than the entire width of the roadway (including the curbing), and one block in length, or one entire crossing; and provided further, that the city council may partially or conditionally accept any street, or portion of a street, without a sewer, or gas-pipes, or water-pipes therein, if the ordinance of acceptance expressly states that the council deems such sewer, or gas-pipes, or water-pipes, to be then unnecessary, but the lots of land previously or at any time assessable for the cost of constructing a sewer shall remain and be assessable for such cost, and for the cost of repairs and restoration of the street damaged in the said construction, whenever said council shall deem a sewer to be neces sary, and shall order it to be constructed the same as if no partial or conditional acceptance had ever been made. The superintendent of streets shall keep in his office a register of all streets accepted by the city council under this section, which register shall be indexed for easy reference thereto.

Office of superintendent of streets.

SEC. 21. The superintendent of streets shall keep a public office in some convenient place within the municipality, and such records as may be required by the provisions of this act. He shall superintend and direct the cleaning of all sewers, and the expense of the same shall be paid out of the street or sewer fund of said city.

Duties of superintendent.

SEC. 22. It shall be the duty of the superintendent of streets to see that the laws, ordinances, orders, and regulations relating to the public streets and highways be fully carried into execu tion, and that the penalties thereof are rigidly enforced. He shall keep himself informed of the condition of all the public streets and highways, and also of all public buddings, parks, lots, and grounds of said city, as may be prescribed by the city council. He shall, before entering upon the duties of his office, give bonds to the municipality, with such sureties and for such sums as may be required by the city council; and should he fail to see the laws, ordinances, orders, and regulations relative to the public streets or highways carried into execution, after notice from any citizen of a violation thereof, he and his sureties shall be liable upon his official bond to any person injured in his person or property in consequence of said official neglect. Damages to persons injured by faulty streets.

SEC. 23. If, in consequence of any graded street or public highway improved under the provisions of this act being out of repair and in condition to endanger persons or property passing thereon, any person while carefully using said street or public highway, and exercising ordinary care to avoid the danger, suffer damage to his person or property, through any such defect therein, no recourse for damages thus suffered shall be had against such city; but if such defect in the street or public highway shall have existed for the period of twenty-four hours or more after notice thereof to the said superintendent of streets, then the person or persons on whom the law may have imposed the obligations to repair such defect in the street or public highway. and also the officer or officers through whose official negligence such defect remains unrepaired, shall be jointly and severally liable to the party injured for the damage sustained; provided, that said superintendent has the authority to make said repairs, under the direction of the city council, at the expense of the city.

Sewers, culverts, and the like.

SEC. 24. The city council of such city shall have full power and authority to construct sewers and man-holes, and provide for the cleaning of the same, culverts with cross-walks, or culverts, or cross-walks, or sidewalks, or any portion of any sidewalk, upon or in any street, lane, alley, court, or place in such city, of such materials, in such a manner, and upon such terms as it may deem proper. None of the work or improvements described in this section shall be stayed or prevented by any written or any other remonstrance or objection, unless such council

deems proper.

Street contingent fund.

SEC. 25. The city council may, in its discretion, repair and water streets that shall have been graded, curbed, and planked, paved, or macadamized, and may build, repair, and clean sewers, and shall provide a street contingent fund at the same time and in the same manner as other funds are provided, out of which to pay the costs and expenses of making said repairs, and watering said streets, and building, repairing, and cleaning said sewers; but whenever any unac cepted street or part of a street requires regrading, recurbing, repiling, repaving, replanking, regraveling, or remacadamizing, or requires new culverts, or new cross-walks, or new sidewalks, or new sewers, the work shall be advertised and let out by contract, and the costs and expenses thereof shall be assessed upon the property affected or benefited thereby, the same as in the first

instance.

Payment from city treasury.

SEC. 26. The city council may, in its discretion, order that the whole or any part of the cost and expenses of any of the work mentioned in section two of this act be paid out of the treasury of the municipality from such fund as the council may designate. Whenever a part of such cost and expenses is so ordered to be paid, the superintendent of streets, in making up the