The opinion
Sprague, J., concurring specially:
I concur in the judgment upon the last point discussed.
Sawyer, C. J., concurring specially:
The resolution of intention, the resolution ordering the work, and resolution awarding the contract, do not express the intention of the Board of Supervisors as clearly as they should. The question arising upon the resolutions is, whether the Board designed to make the improvements and let the work out in three separate contracts, or as one—that is to say, whether the work from Taylor to‘Jones streets waste be let as one job, the work from Jones to Leavenworth as another, and the crossing of Clay and Jones as another— or whether the whole was to be done as a single improvement and let in one contract., as one job, and, as a consequence, the expense be distributed equally over the whole. The difference between the two modes of letting may be highly important to property holders, and affect their interests in various ways. It may affect, the right of the Board *525 to make the improvement at all, or increase or diminish the amount of the assessment on the individual property holders, or affect the right of a majority of the holders of property fronting on the contemplated improvement to take the contract themselves at the lowest bid. For instance, the owners of more than half the frontage on two, three, or more blocks, where the amount and cost of the work varies on each block, might object to the improvements as a whole—as one improvement—the expense to be distributed equally through the whole district to be improved, and, by objecting, prevent the work, while there might be no such objection if the improvement was to be made on each block as a separate work and distinct district, and vice versa. So, a part of the improvement might be made, while the whole might be prevented by objections.
So upon the large single contract a majority of the property holders may not desire to unite and take the contract, while, if let in separate contracts and performed as separate works, a majority of the owners on some blocks might desire to take the contract themselves. Unless the intention of the Board is clearly expressed on these points, property holders will be at a loss how to act. They will not be able to determine whether their interests will be best subserved by objecting to or favoring the work. The points made by appellant’s counsel make it necessary to construe the several resolutions referred to, under which the work now under consideration was authorized, if authorized at all. After giving the language of the Board the best consideration I am able, I am compelled to say, that I think the intention manifested in all the resolutions, from the declaration of intention to the awarding of the contract, is to make the improvement as one improvement, and let the whole as a single contract. Resolution Ho. 2,681, awarding the contract, speaks of but one contract, and awards that to Griffin. The price for different portions of the work is different; but this might well be, and it does not affect the question. It was necessary that there should be a separate estimate for *526 the crossing, because it is to be assessed in part upon different property. The prior resolutions also seem to contemplate the work as one improvement. The work was, however, let in separate contracts, and the assessments finally separately made, the cost of improving each block on Clay street being assessed upon that block alone, and not the whole extended over the whole as one district. If, then, as I construe the resolution, the improvement was to be made as one improvement, and let as one contract, the authority given was not pursued.
The contract sued on was, therefore, unauthorized. The defect is not one that could be cured by appeal, for when the time for appeal came the work was done and the mischief past remedy. (Emery v. Bradford, 29 Cal. 86 .) The contract made, did not pursue the authority, and was, therefore, wholly unauthorized. By the course pursued, the property holders were deprived of an opportunity to avail themselves of important rights, which the statute secures to them as a condition precedent to the levy of a valid assessment upon their property.
•Under section three of the Act of 1862, (Stats, of 1862, p, 391,) the Board of Supervisors are “empowered to order the whole, or any portion ” of a street graded or planked; and by section eight, “the expense of any work authorized by section three of the Act shall be assessed upon the lots and lands fronting thereon, except as hereinafter specially provided.” The jurisdiction to determine whether the whole or a portion, and if a portion, what portion, shall be done as a single improvement, is vested in the Board of Supervisors. The design is that all improvements of the kind should have some reference to the requirements of the locality, and that the expense should be distributed with some reference to the benefits conferred. In some instances, it would, doubtless, be just, that a single block should be improved, and the expense paid by that block. In others, on a single block the work might be very heavy and expensive, while, for several blocks beyond, it might be extremely light, *527 yet the improvement on the single block, where the work is heavy and expensive, might be more advantageous to the other blocks beyond, where the work is light, than to the block itself. In such case, justice would require that the whole work should be made at once, as one improvement, extending over several blocks, and the expense distributed over the whole district or portion of the street thus improved and benefited. And it is with this view that the authority to determine the extent of the improvement is conferred upon the local Board, the members of which are supposed to be able to comprehend the wants of each locality, and merits of each particular ease. It is necessary to a proper execution of these important powers, and to protect the interests of property owners, that the determinations of the Board with respect to these matters should be distinctly and clearly expressed, to enable those interested to act intelligently, and when so expressed, that the proceedings under them should be strictly in pursuance of the authority given to the Boai’d. Unless the authority is pursued the proceedings will be void. The expenses of street crossings are assessed upon different property in part from that for the improvement of the other portions of the street, and for this reason the work must be kept separate, even if embraced in the same contract; and for this reason, also, it would, perhaps, be better to let it as a separate work. But, however this may be, when the Board determines to make an improvement as a single work, the expense to be distributed over the whole, and awards the contract upon that hypothesis, if the contracts are made, the work done in separate contracts, and the assessment made accordingly, the authority is not pursued, and the assessment for the expense is, consequently, invalid.
On the grounds indicated I concur in the judgment, but I am compelled to dissent as to the other points discussed in the opinion of my associates.