I dissent.
The question presented is whether or not, under the street improvement law of 1911 (Stats. 1911, p. 730), where the council determines to improve a street and assess the cost thereof upon a district, and the resolution of intention to do so fails to declare that the district to be assessed is "the district benefited by said work or improvement," such omission is cured by the provisions of sections 16 and 66 of the same act.
The majority opinion bases its conclusion that the omission is so cured chiefly upon some statements in the introductory discussion concerning the lawful scope and effect of curative statutes in the opinion of this court in Chase v. Trout,146 Cal. 359, [80 P. 84]. The general rule, as there stated, is that such provisions may operate to cure the failure to follow any requirement of the prescribed procedure, "excepting those that are necessary to constitute due process of law, or to comply with any other constitutional prerequisite." That case involved the effect of the conclusive evidence clause of the Street Bond Act of 1893 (Stats. 1893, p. 33), upon proceedings for street improvements prescribed by the so-called Vrooman Act (Stats. 1885, p. 147, as amended). The clause of the said Bond Act was in precisely the same language as the conclusive evidence clause of section 66 of the act of 1911, and the proceedings prescribed by the Vrooman Act for acquiring jurisdiction to *Page 64 make the proposed improvement are substantially the same as those prescribed by the act of 1911. Each of said acts requires the passage of a resolution of intention of a specified form, the publication of said resolution, the giving of notice of the time and place wherein property owners or others interested may file protests or objections to the proposed work or the extent of the district, and provides that if at such time no protests or objections are filed, or if such as have been filed are overruled or denied, "the city council shall be deemed to have acquired jurisdiction to order the proposed improvements." Referring to these provisions, the opinion in Chase v. Trout,146 Cal. 359, [80 P. 84], proceeds to say that "this part of the proceeding constitutes 'due process of law' and satisfies the constitutional requirement." The complaint under consideration in that case alleged a number of asserted defects in the proceedings occurring after the acquisition of jurisdiction in the manner above set forth, and another alleged defect in the resolution of intention, consisting of the supposed failure thereof to "describe the work," as required by section 3 of the Vrooman Act. The opinion discusses the alleged defects occurring subsequently to the acquisition of jurisdiction and holds that they are all of a character which the legislature might have dispensed with and, consequently, that the non-compliance therewith, if it occurred, could be and was cured by the conclusive evidence clause. The opinion, in paragraph 5, page 366 of 146 Cal., [80 P. 87], then takes up the question of the claimed defect in the resolution of intention. Upon this subject the opinion contains this passage: "The appellant in answer to this claim contends that the curative clause of the Bond Act covers these defects, if such they are. The resolution of intention is the first step in the proceeding. It is to be published, and it is by means of such publication, and the notice thereafter given, which refers to it for particulars, that the council acquires jurisdiction. It is a part of the 'due process of law' required by the constitution, the want of which cannot be cured or waived by the legislature. There must be a substantial compliance with the provisions of the act in regard to this preliminary process." This express declaration that the resolution of intention must substantially comply with the requirements of the statute and that its failure in that respect is not cured or *Page 65 waived by the conclusive evidence clause was apparently overlooked in the preparation of the majority opinion, and it is contrary to the conclusion stated therein. That it was considered important to the decision in Chase v. Trout is shown by the fact that the opinion proceeds elaborately to show that the resolution was not defective and that it did sufficiently describe the work. If such defect could have been cured, the point could have been disposed of in a few words to that effect.
The final acts which result in the acquisition of jurisdiction by the council to order the work done, under the act of 1911, are the publication of the resolution of intention for the period prescribed, and the posting of notices of the time and place of filing protests and objections as provided in section 5 of the act, together with the denial of protests or objections if any are filed. (Section 7.) Although the supposed curative provisions of section 16 refer in general terms to any objections to the proceeding prior to the date of publishing the notice of the award of contract, yet in view of the final clause of the section and the previous provisions of the act, it is clear that it was not intended thereby to render it unnecessary for the council to follow the steps prescribed as necessary to acquire jurisdiction. The final clause declares that objections on account of any defect, irregularity, error, or fault in the previous proceedings, not made in writing within ten days after notice of the award of the contract, shall be considered as waived, "provided, the resolution of intention to do the work has been actually published and the notices of improvement posted as provided in the act." This, of course, does not refer to the protests or objections to be made at the hearing provided for in sections 5 and 6, for those must be acted on and denied before jurisdiction to order the work done and advertise for bids can be acquired. Section 16 must therefore refer exclusively to other objections, that is to say, to those which arise from proceedings subsequent to the acquisition of jurisdiction. In view of the decision aforesaid in Chase v. Trout and that in Ramish v. Hartwell, 126 Cal. 448, [58 P. 920], to the effect that material defects in the jurisdictional part of the proceeding cannot be cured, of which it must be presumed the legislature was aware, it could not reasonably be supposed that section 16 was intended *Page 66 to provide for a waiver of any jurisdictional step in the proceeding, certainly not of those made mandatory by the language used.
It may be conceded that the legislature, if it had been so minded, could have expressly declared that the failure to state in the resolution of intention that the district described was the district benefited by the work should not invalidate the proceedings. But in view of the fact that the evident purpose of the provision was to compel the council to put itself on record on the subject and that it is one of the jurisdictional prerequisites prescribed by the act, nothing less than an express declaration that it should not be necessary should be considered as having that effect. The provisions of section 16 fall far short of such declaration.