The opinion
I dissent, and adhere to the subjoined opinion heretofore rendered in department. I think the correct rule for the interpretation of the statute in *Page 373
question was laid down in Ramish v. Hartwell, 126 Cal. 443 , which case, and others which have followed its construction of the law, are reversed by the prevailing opinion. Moreover, they are reversed upon a line of authority dealing with the general taxing power, which is not only a high prerogative power of a government itself, but one whose daily exercise is necessary to the very existence of the government. It is natural, therefore, that in dealing with questions of the collection of taxes — the very life-blood of a nation's existence — to find courts construing somewhat liberally curative acts, and looking in their interpretation to discover but one thing — namely, whether the subject who is taxed has had his day in court. But I do not believe it was the intention of our legislature — nor yet necessary to a construction of this law — to clothe street contractors with this high governmental prerogative, and by putting a bond for street-work in their hands to declare, as is declared in the opinion, that the property-owner is forever, and in every forum, shut out from the right of contesting its legality.
McFarland, J., and Lorigan, J., concurred in the dissenting opinion.
The following opinion was rendered in Department Two, April 2, 1904: —