I dissent. I am unable to agree with the prevailing opinion in the construction it places upon the amendment of the street law of 1889. To limit the operation of the amendment to such errors, irregularities, and illegalities as affect only the assessment as such, as contradistinguished from either of the other instruments, to wit, the diagram, warrant, and certificate of the city engineer which are required to be recorded by the superintendent of streets with the assessment proper in order to constitute the lien, is in my opinion, too strict and technical. It is true that a proceeding to enforce a lien under the street law is in invitum, and that the rule in such cases requires a strict compliance with all the provisions of the law in relation thereto. But in the construction or interpretation of the statute itself no such rule applies. The street law itself declares: "This act shall be liberally construed to effect the ends of justice." (Street Improvement Act, sec. 12.) Further, the amendment in question is remedial in its character. The purpose of the amendment evidently is to afford a remedy where a party who has fulfilled his contract is defeated in a suit to enforce a lien on property benefited by his labor, in consequence of errors, irregularities, or illegalities in any of the proceedings necessary to constitute a valid assessment. Such a statute "must therefore be construed liberally, and when the meaning is doubtful it must be construed to extend the remedy." (White v.The Mary Ann, 6 Cal. 462; 65 Am. Dec. 523; Cullerton v. Mead,22 Cal. 96; Sedgwick on Statutory and Constitutional Law, 559-61.) As said by Sawyer, C.J., in Himmelmann v. Cofran, 36 Cal. 412: "The case does not fall within the principle of a certain class of cases which hold that, when a power is conferred which in the nature of things cannot be but once exercised, a defective execution exhausts the power. In this case, the statute makes it the duty of the superintendent, after the fulfillment *Page 174 of the contract to his satisfaction, to make an assessment to cover the sum due for the work performed, in accordance with the provisions of the act, and afterward to issue a warrant thereon. No time is limited within which the assessment must be made. Time is, therefore, not of the essence of the power." In Shepard v.McNeil, 38 Cal. 75, the court say: "It is not material in what form he originally signed the assessment, provided that it was afterward properly signed in due time to constitute a lien, which is the material thing to be done. . . . If the superintendent `originally' fails to authenticate his record by his official signature, it is his duty afterward to make a valid assessment."
Dyer v. Scalmanini, 69 Cal. 637, was an appeal from the judgment rendered on a second assessment, and the court say: "If it were true, as matter of law, that such first assessment was void, then the superintendent aforesaid could have made another assessment for the work actually authorized, and if, in doing so, he complied with the statute, as was the case in the assessment in controversy here, that would have been valid, since the law under which he made it does not prescribe the time within which it must be done after the work was performed."
Wood v. Strother, 76 Cal. 545, 9 Am. St. Rep. 249, was an appeal from a judgment awarding a writ of mandamus to compel the countersigning of a street assessment warrant. The court below found that no valid assessment had previously been issued, and, in affirming the judgment, it is said: "If there was a previous assessment which was invalid, that would not, of itself, be a reason why a valid assessment should not be made, if the prior proceedings were sufficient to support it."
As stated in Rauer v. Lowe, 107 Cal. 234: "The statute requires four things to be recorded in order to constitute the one thing called a lien, viz., the assessment, warrant, diagram, and engineer's certificate; and these are intended to constitute one record, and should be found together. Before the amendment of the statute in 1889 these certificates formed no part of the assessment record, and as they were intended only for the information of the superintendent of streets, the custom of placing them in a separate record was *Page 175 proper, though not required by the statute. That fact, however, emphasizes the intention of the statute that they should be recorded in the assessment record of which they are an essential part." And in Gray v. Lucas, 115 Cal. 430, it was held that the assessment, warrant, and diagram should be attached together, but the law did not require that a certificate should be attached, but only that it "should be recorded in connection with the record of the assessment."
When, therefore, there is a defective certificate, or no certificate at all, recorded, there is a defect, informality, omission, irregularity, and illegality in the assessment, because the law requires the certificate to be recorded, together with the assessment, diagram, and warrant; in other words, they are parts of one assessment record.
It is a harsh rule of law that defeats the party, without fault on his part, but through the blunders or negligence of a public official, from recovering the fruits of his labor; and unless the language of the statute be so plain and mandatory as to leave no doubt as to its meaning, it ought not to be so construed as to work that result.