I dissent. The complaint fairly construed shows that actions on the first and second assessments were successively defeated upon the ground that the superintendent not only failed to record those assessments, "together with" the engineer's certificate, but recorded them at a time when no engineer's certificate had ever been made. The statute requires the assessment to be recorded "together with" the certificate, and this court has decided on the former appeal in this case and in Rauer v. Lowe,107 Cal. 233, that the making of the assessment and the recording of the assessment are utterly vain and nugatory acts, unless, together with the assessment, diagram, and warrant, the certificate of the engineer is also recorded. If this law is obeyed, its object is accomplished, a lien is created, and the contractor can enforce payment of the value of his work. If it is disregarded, the whole object of the statute is frustrated, the whole proceeding is void.
This being so, it is to my mind simply impossible to hold that there is neither defect, nor error, nor informality, nor irregularity, nor illegality in the act of the superintendent *Page 176 in recording the assessment in the absence of any engineer's certificate, and when no such certificate has ever existed. On the contrary, I should say that his act was characterized by every one of these bad qualities, and that the right to demand a new assessment was absolutely clear and undoubted. And even if the plaintiff were not within the very letter of the law, he certainly is within the meaning and object, and it would require very little of the liberality of construction usually accorded to remedial statutes to give him the benefit of its provisions.