By
Temple, J.,concurring:
In this case I agree with Mr. Justice "Wallace in bis conclusions, but in some respects I do not agree with tbe process of reasoning adopted by him, nor with bis statement of tbe rules of construction by which tbe statute is to be interpreted.
Tbe first question which I propose to notice, is tbat in reference to tbe publication of tbe resolution of intention. Tbe statute says tbe Board may order tbe work to be done, after notice of their intention to do so (signed by tbe Clerk), has been published for ten days. As I understand this statute, it requires notice to be given by tbe Board itself. At tbat time therewereno parties to tbe proceeding, and consequently tbe notice can be given by no one save tbe Board. Tbe power to grade streets is in them, but tbe very first step in tbe exercise of tbe power, is to give tbe notice, or rather this is a condition precedent to their exercising tbe power at all. Tbe requirement tbat tbe resolution shall be signed by tbe Clerk is addressed to tbe Board, and not to tbe Clerk. He is tbe mere servant of tbe Board, and has no power except as their servant. Tbe provision only directs tbe mode of attestation by tbe Board. Tbe manner of giving notice is by publishing tbe resolution; and it seems to me it must inevitably follow that tbe publication must be *522made by tbe Board. Otherwise the duty of causing the publication is not imposed upon any one, for the Clerk certainly is not required to do it independently of their directions. The publication is official. The work is done primarily for the city and county. No one is authorized to contract for the city and county save the Board of Supervisors, and I think the publication required by the statute can only be made by their authority.
In this case the Board did direct the publication of the resolution, but it is contended, that as they directed it to be published for ten days from and after its passage, and it was not published until the second day after the day upon which it was passed, it was not published in accordance with the directions of the Board, and the publication was, therefore ineffectual to vest the Board with the power to order the work to be done.
There is no doubt that a statute which provides that it shall take effect from and after its passage, will be in full operation on the following day. It is also well settled, that when a contract fixes the commencement of a period, within which certain acts are to be done, as commencing from the date or the day of the date, the time commences to run as early as the following day; but in these cases the expressions are used for the purpose of fixing a definite time when a law shall begin to be operative, or a limit within which certain things are to be done. The time is of the essence of the thing. "Where, however, in the execution of a statutory power, time is mentioned, unless it is a limitation upon the power, the power may be exercised after that time; in other words, the provision as to time is directory. In the present case the direction is from the Board to its servant. The matter is between them so far as the particular language, in which their instructions are given, is concerned.
The essential thing to the public was that the resolution be published officially. The language was probably not selected with any great care, and I think should receive a liberal construction, with a view to give effect to the intention *523of tbe Board. Under tbe circumstances of tbis case, I have no doubt tbat by tbe words “ from and after its passage,” tbe Board simply intended to direct tbe Clerk to proceed to publish immediately. Had they used tbis language, there is no question tbat we could have construed tbe meaning to be as soon as practicable, and I think it would be unfair to tbe Board and to all parties, to give the language used a more rigid construction. It would manifestly be giving it a more literal meaning than was intended, and would be on a par with tbe old case of punishing a surgeonfor bleeding a patient under a law which condemned blood-letting in tbe streets. I therefore think tbe publication sufficient. (See Butler’s Case, 3 Bep. 34.)
But it is said, if tbe Board acquired jurisdiction to order tbe work to be done, by tbe publication of tbe resolution, still tbe contract made by tbe Superintendent of Streets is void, because it is not for tbe work 'mentioned in tbe resolution. Tbe resolution, in legal effect, is said to call for grading tbe street to tbe official grade. All tbe preliminary proceedings in tbe Board are of like import; but tbe Super-tendent entered into a contract “to grade to tbe official height and line, except the roadway, which was to be graded one foot below tbe official grade.” Tbe answer to tbis objection, as I understand it, is two-fold. First, it is said tbe contract is substantially in accordance with tbe resolution of intention — tbat is, it is graded to tbe official grade, allowing for pavement, macadamizing or planking — one of of which must be done before tbe street is fit for use. There is no evidence tbat tbe street was to be finished in either of these modes. There is nothing in tbe proceedings of tbe Board indicating such an intention. If tbe question be one of definition, it seems to me, there should have been some evidence tbat tbe language, in tbe connection in which it was used, has tbis unusual signification. Tbe phrase “official grade,” has a well understood meaning, and there is nothing in tbe case to indicate tbat it has any different signification when used with reference to contracts for grading streets.
*524The other answer to the objection is that the remedy of the defendants was by an appeal to the Board of Supervisors from the assessment. That the Board, if the work was not done in accordance with the resolution, would set aside the assessment; that they could compel the contractor to amend his contract so as to conform to the resolution of intention and his bid, and refuse to allow an assessment to provide for his payment until he had made the grade of the street conform to his contract as corrected; that this is a special remedy provided by the statute, and is exclusive of any other. I think this is a good answer to the objection, though the position is somewhat in conflict with the case of Dougherty v. Hitchcock, (35 Cal. 512). In that case it is said in reference to an objection somewhat similar, that when the appeal came the work was done, and the mischief past remedy. It is, however, impliedly admitted that if the mischief could have been remedied, the answer to the objection would have been good.
It is true, as said in Smith v. Davis, (30 Cal. 536), in these proceedings “ the various Acts prescribed by the Legislature must, in all essential particulars, be strictly performed." It is the exercise of a naked statutory power, in which the prescribed mode is a limitation upon the power. It is a proceeding to divest individuals of their estates, and the statute must be strictly construed in favor of individual rights; and yet the statutes confer powers which are to be used for the public good, and the officers-charged with their execution are necessarily intrusted with a large discretion. Such statutes are of a mixed character, partly penal and partly remedial, and should be liberally construed, so far as it is necessary to render their execution practicable. It is an old rule that the language in which the legislator has expressed his will is not to be so used as to defeat that will. Even statutes wholly penal are not to be so-strictly construed as to defeat the obvious intent of the Legislature.
The desired end in the construction of these statutes, as applied to this class of cases, is that individuals should be deprived of no safeguards which the Legislature has pro*525vided for tbeir protection, and at tbe same time a proper exercise of tbe powers granted, shall not be unnecessarily obstructed, and tbat tbe contractor, wbo bas in good faitb performed labor, should have certain and speedy means of collecting bis money. Tbe interests of tbe property-holders, as well as of tbe public, require tbe streets to be graded, and it is for tbe interest of all, so tbe rights of none are jeopardized, tbat tbe contractor should have tbe most certain means of prompt collection. Litigation in tbe collection necessitates higher prices, and these again provote to litigation, and so tbe canter spreads and deepens.
I do not tbint, however, tbat there is any magic in tbe fact, tbat after notice of intention, tbe Board acquire “jurisdiction,” which will excuse to any extent, a compliance with tbe requirements of tbe statute. Tbe word jurisdiction of course means power, for there is nothing of a judicial nature in tbat portion of tbe proceedings, which relates to ordering tbe work and letting tbe contract.
There is nothing peculiar in this statute in this respect. It is generally, if not always tbe case in statutes conferring tbe power to divest vested rights, tbat notice is given to tbe parties, whose rights are affected, as a condition precedent to tbe exercise of tbe power. Tbe statutes in regard to laying out or changing highways provide for notice, which must be given before tbe Board bas jurisdiction to act; but I never beard tbe proposition advanced tbat this dispensed with a full compliance with tbe statute, in the exercise of tbe power, after tbe jurisdiction bad been acquired. Tbe same is true of all proceedings for tbe condemnation of lands, and even in tbe assessment and collection of tbe general taxes, in which case tbe assessment roll is, upon notice, laid open for tbe inspection of tbe tax-payers; and an appeal provided from tbe action of tbe assessor to tbe Board of Equalization.
It is not to be supposed tbat tbe Legislature bas provided, with tbe greatest minuteness, tbe mode which tbe Board is to adopt in these proceedings, and then excused them from pursuing tbe mode, except at tbeir option. I therefore think, *526notwithstanding the resolution of intention has been regularly published and the Board has acquired jurisdiction to act, they must still exercise their power in the mode prescribed by law — as much so, as in laying out a public road after due notice. The effect of the right to appear before the Board and object to the proceedings, as a special remedy provided for the tax-payer, was discussed in the recent case of Hewes v. Reis, and to the views there expressed after a thorough examination, I still adhere. The right to pro-' test against a threatened injury is not a remedy for it.
The contract is really between the Board -of Supervisors, as the agents of the city and county, and the contractor. The work for which bids are made, and which the contractor agrees to do, is that described in the resolution of intention. The agreement is complete when the bid is accepted, and it is the contract made by the Board, which the Superintendent is. required to reduce to writing. As said in Emery v. Bradford, the tax-payer is not a party to the contract; and it is reasonable and proper that the Board of Supervisors, which represents the city and county, should determine whether the work has been done in accordance with the contract, and that their decision should be final. The taxpayer, however, though not of a party to the contract, is allowed to object that the work has not been done in accordance with the contract and to appeal from the determination of the Superintendent accepting it. I have no doubt but that this right is exclusive of any other remedy as to all matters which can .be revised and corrected on such an appeal.
In this case the written contract did not correctly describe the work which the Board had ordered to be done, and which the contractor had agreed with the Board to do. The error was in the written memorandum made by the Superintendent. The statute providing an appeal is broad enough to include an appeal from the determination of the Superintendent, and I see no reason why a complete remedy is not afforded by it. The Board, as already stated, could order the contract to be reformed and refuse to allow an assessment until the work was made to conform to it. *527Tbe contractor could not complain of tbis for be ought to have executed no contract not in accordance witb tbe agreement made between himself and tbe Board, and be contracted witb a view of tbe right to appeal from tbe acts of tbe Superintendent, and of tbe right of tbe Board to make bis contract conform to bis real agreement, and be is not injured bj being compelled to do tbe work as be agreed to do it. By failing to pursue tbis remedy, I think tbe defendant lost bis right to object, that tbe grading has not been done as ordered by tbe Board.
On tbe other questions discussed, I concur witb Mr. Justice WALLACE. I also concur in tbe judgment.