This action was brought to quiet plaintiff's title against a lien upon her lands claimed by defendant by virtue of his ownership of certain street bonds. The plaintiff sought to have the bonds, the assessment, the warrant, the diagram, and the proceedings for the street-work and the contract for it so far as they affected her lands declared to be null and void, and sought further to have the bond delivered to the clerk of the court and by him canceled. The complaint is therefore in its nature a bill of peace against the outstanding street bonds. Defendant made default, and the judgment granted plaintiff the relief sought. Defendant appeals from that judgment and from the order of the court refusing to vacate his default.
The questions here presented have to do with the provisions of the general street laws of the state, the Vrooman Act, and *Page 374 the Street Bond Act (Stats. 1893, p. 33). The latter portion of section 4 of said last-named act, after setting forth the conditions whereunder and the terms whereby such bonds may be issued, provides as follows: "Said bonds, by their issuance, shall be conclusive evidence of the regularity of all proceedings thereto under said Street Work Act and this act, previous to the making of the certified list of all assessments unpaid to the amount of $50 or over by the street superintendent, to the city treasurer, and of the validity of said lien, up to date of said list." In Ramish v. Hartwell, 126 Cal. 443, this conclusive-evidence clause, as it may for convenience be called, was considered by this court. It was therefore determined that the provision making the bond conclusive evidence of the validity of the lien was unconstitutional and void, as depriving a person of his property without due process of law, and the true rule regarding the extent and scope of the operation of the conclusive-evidence clause is distinctly and succinctly laid down. It is there said: "We have seen that the legislature had the authority to declare that the issuance of the bond should be conclusive evidence of certain facts, provided such facts were not essential to the jurisdiction of the officers to create the assessment; and to the extent that the legislature could exercise this power it should be upheld. In the first portion of the sentence above quoted the legislature has not assumed to make the bond conclusive evidence of the existence of any jurisdictional fact, or that any step essential to the creation of an assessment has been taken, but has merely declared that it shall be conclusive evidence of the `regularity' of all proceedings prior thereto. This clause does not necessarily imply that any proceedings were in fact taken, but is limited to the `regularity' of such as were taken, and leaves the owner at liberty to show in defense of his property that no jurisdiction to authorize the work or make the assessment was in fact acquired."
Under the rule here laid down, which may not be gainsaid, we may turn without further discussion or citation of authorities to the attacks made by the complaint against the validity of the bonds; attacks which for the purposes of this appeal are to be taken as true upon all matters of fact properly averred. These attacks are some fifteen or more in number, but it will not be necessary to consider them all, since the *Page 375 grounds of some of them at least are well taken, and they are sufficient to invalidate the bonds in question.
1. It appears that the contract was dated upon September 28, 1895, and the work was to be completed "one hundred and twenty days thereafter." This means the designated number of days after the date of the contract. (Palmer v. Burnham, 120 Cal. 366.) The time for the completion of the work as originally fixed expired on the twenty-sixth day of January, 1896. The only extension of time was that granted by the council on February 3, 1896, and was made by the street superintendent on February 6, 1896, when a forty days' extension was attempted to be given. Under a numerous and unbroken line of authorities, the council did not have the power to authorize the extension after the time for the completion of the contract had expired, and the assessment which followed would be void. (Turney v. Dougherty, 53 Cal. 619:Beveridge v. Livingstone, 54 Cal. 54; Mappa v. Los Angeles,61 Cal. 309; Fanning v. Schammel, 68 Cal. 429; Dougherty v. Coffin,69 Cal. 455; Brock v. Luning, 89 Cal. 319; Palmer v. Burnham,120 Cal. 364.)
This radical defect, however, appellant insists, is cured by the conclusive-evidence clause of the Bond Act, and herein the reasoning is that the conclusive-evidence clause of the act is in its nature curative, and validates anything and everything done or not done, jurisdictional or otherwise, the doing of which the legislature might in the first instance have dispensed with. This, within certain limitations, is true, but the limitations are set forth in Ramish v. Hartwell, 126 Cal. 443, and are all important. If, for example, the legislature has prescribed certain steps as being necessary to the acquirement or exercise of jurisdiction, the omission to take these steps will not be rectified by the conclusive-evidence clause, nor will it be an answer to say that the legislature might have dispensed with them or substituted others for them. It must be remembered that the conclusive-evidence clause was not designed to confer, and could not, if it were designed, confer, any added or new jurisdiction, nor can it be construed to permit the acquirement of jurisdiction by pursuing a mode other than the one which the legislature has advisedly prescribed. As well might it be said that because the legislature could have provided for personal service of the notice of street-work *Page 376 instead of service by publication and posting, notice by publication and posting was utterly dispensed with under the provisions of the conclusive-evidence clause. It could not be dispensed with even if it were shown that actual notice was in fact given to every property-owner, because the mode prescribed is a process of law and the only process ordained by law for charging the property-owner with notice. So, in this instance, it has been held by all of the decisions that, after the expiration of the time fixed for the completion of the contract, the council has not "power" to extend the time for the completion of the work. Lacking power, they lack jurisdiction, and an attempt to extend the time under such circumstances is an act in excess of jurisdiction rendering subsequent proceedings void. Nor does it matter that the legislature might have authorized the council to extend the time after such default upon the part of the contractor. The fact remains that it has not done so, and, as has been said, the conclusive-evidence clause was not designed to confer any new or added jurisdiction upon the council, but merely to correct irregularities in proceedings done within their jurisdiction.
2. The specifications under which the street improvement was made delegated powers which the law requires to be exercised by the council. Without setting forth these specifications, it is sufficient to say that they are identically the same as those discussed and condemned in Chase v. Scheerer, 136 Cal. 248, and substantially identical with those likewise condemned inStansbury v. White, 121 Cal. 435, and Chase v. Treasurer of LosAngeles, 122 Cal. 541. The acquirement by the council of jurisdiction to order the work done means no more than that it acquires jurisdiction to legally order the work done. The conclusive-evidence clause cannot operate to cure a defect of this nature — a defect going to the very exercise of the jurisdiction which the council had acquired. It was not within their jurisdiction to delegate these powers to the street superintendent, and for the reasons above given, under subdivision 1, the conclusive-evidence clause cannot be construed to rectify proceedings taken by the council in excess of its jurisdiction and in violation of its powers.
3. The motion to vacate the default was based upon an alleged mistake in law upon the part of the defendant, who *Page 377 believed that the defects pleaded in the complaint were unanswerable and fatal to the validity of his bond. As the sole ground for vacating the default was that this belief was mistaken, and as appears from the foregoing it was not a mistaken belief, the trial court properly refused to make the order.
The judgment and order appealed from are therefore affirmed.
McFarland, J., and Lorigan, J., concurred.
The following opinion was rendered by the court in Bank on petition for rehearing March 31, 1905: —