p. 40), the amendments of 1905 to section 3 of the Vrooman Act (Stats. 1905, p. 63), and the amendment of 1909, adding section 52 to the latter act (Stats. 1909, p. 31), it is not a prerequisite to the validity of bonds issued for the amount due on a street work assessment that the resolution of intention to do the work should specify the period for which the bonds are to run.-Cohn v. Federal Construction Co., 171 Cal. 547, 153 Pac. 916.

82. -Publication of notices.-The publication of notices of street improvement proceedings, required by the Vrooman Act, in a newspaper printed in a building on the boundary line between the city where the work was to be done and another city, the presses being situated in the former and the business office in the latter city, constitutes a regular publication in a properly authorized journal, where such newspaper is shown to have been widely circulated in the former city.-Stanwood v. Carson, 169 Cal. 640, 147 Pac. 562.

83. -Contest and appeal to council.-An appeal taken to the city council before the expiration of the time allowed to complete a street improvement operates to suspend the running of the time originally allowed, and the council has jurisdiction to extend the time for the final completion of the work. Stanwood v. Carson, 169 Cal. 640, 147 Pac. 562.

84.

Where an appeal to the city council is made by disaffected property owners as to the character of the work, and the board in sustaining the appeal orders the work to be completed in accordance with the contract, and the work is thereafter accepted, no second appeal to the council can be entertained. Stanwood v. Carson, 169 Cal. 640, 147 Pac. 562.

85. The defendant in an action for the foreclosure of a street lien is not estopped from maintaining that the street was an accepted street by reason of failure to appeal to the council.-Barber Asphalt Pav. Co. v. Jurgens, 170 Cal. 273, 149 Pac. 560.

86. -Contract and its award and assignment.-An award of street work made by a three-fourths vote of the trustees does not require the approval of the president of the board. Stanwood v. Carson, 169 Cal. 640, 147 Pac. 562.

87. A resolution of award of street work is not insufficient because it does not bear the certificate of the clerk. The law does not require such certificate.-Stanwood v. Carson, 169 Cal. 640, 147 Pac. 562.

88. Where extensions of time for performance of a street improvement contract are regularly awarded by the trustees, the failure of the clerk to certify to the passage of the same as directed by the resolution is not of the essence of the extensions, and does not render them void.-Stanwood Carson, 169 Cal. 640, 147 Pac. 562.

v.

89. Provisions in the specifications requiring the contractor "to dig all stake holes, and preserve all stakes, for the lines, levels or measurements of the work in their proper places, until authorized to remove

91.

Under section 18 of the act, requiring that after the assessment is completed and filed with the city council, the council shall give notice of such filing "by publication for at least ten days in a daily newspaper published and circulated in the city," an affidavit of publication stating that the notice was published for "ten consecutive days (Sundays excepted), commencing on the 8th day of October, 1909, and ending on the 18th day of October, 1909, both days inclusive, and as often during said period as said newspaper was issued, to wit, daily," is sufficient.-Tilton v. Russek, 171 Cal. 731, 154 Pac. 860.

92. -Accepting street work, by ordinance. Where in an action for the foreclosure of a street assessment lien it is set up in the answer that the street was an accepted street at the time the contract for the work was let, and that therefore the defendant's land abutting thereon was not subject to assessment for such work, it is not a prerequisite to the admission in evidence of the ordinance accepting the street that the defendant formally prove that the ordinance was properly published.Barber Asphalt Pav. Co. v. Jurgens, 170 Cal. 273, 149 Pac. 560.

93. The failure of such an ordinance to recite in the language of section 20 of the general street law that the work on the street had been fully constructed to the satisfaction of the superintendent of streets and of the city council, is not fatal, where the ordinance recites the construction of the roadway to the satisfaction of the superintendent of streets and the city council.— Barber Asphalt Pav. Co. v. Jurgens, 170 Cal. 273, 149 Pac. 560.

94. The omission of the recital from the ordinance that the street was in good condition throughout, in the language of the statute, does not nullify the force and effect of the ordinance.-Barber Asphalt Pav. Co. v. Jurgens, 170 Cal. 273, 149 Pac. 560.

95. The omission to specifically mention in the ordinance that the "curbing" was accepted as a part of the "roadway" is not fatal, as "curbing" is included within the definition of "roadway," and an acceptance of a "roadway" in compliance with the section of the street law is an acceptance of the whole of the roadway including the curbing.-Barber Asphalt Pav. Co. v. Jurgens, 170 Cal. 273, 149 Pac. 560.

96. The exception from the ordinance of that part of the street which according to law was required to be kept in order by a railroad company does not make the ordinance a nullity, since the zone which the railroad company is bound to keep in repair is not a part of the roadway.-Barber Asphalt Pav. Co. v. Jurgens, 170 Cal. 273, 149 Pac. 560.

97. The failure of the municipal authorities to adopt a datum plane prior to the adoption of the ordinance is immaterial to the force and validity of the ordinance, as the same is not a question between the city and a prospective bidder whose rights are in danger of being violated because of the nonexistence of an official grade.-Barber Asphalt Pav. Co. v. Jurgens, 170 Cal. 273, 149 Pac. 560.

98. Section 20 of the general street law relating to the acceptance of streets and the keeping of the same thereafter in repair at the expense of the municipality, provides for the creation of a certain status by the adoption of the ordinance of acceptance, and the moment this status is brought into existence the sovereign power of the state operates, through the act, to create an exemption, and the adoption of the constitutional amendment of 1896 under which cities and towns were freed in all "municipal affairs" from any further subjection to or control by general laws did not have the effect of extinguishing such exemption under the general law.-Barber Asphalt Pav. Co. v. Jurgens, 170 Cal. 273, 149 Pac. 560.

99. An ordinance of a municipal corporation accepting certain streets therein after their improvement under the provisions of the Vrooman Act, which falsely recites that gas mains or pipes had been laid in the streets when in fact such mains have not been so laid, is void, as it is made by the statute an essential prerequisite to the adoption of such an ordinance that all such mains be in place, or that the governing board of the municipality expressly find and declare that such mains were then unnecessary, and a subsequent board of the municipality has the right to repeal the ordinance and enact a new one for the reimprovement of the streets.-Raisch Improvement Co. v. Bonslett, 28 Cal. App. 649, 153 Pac. 747.

100. A board of trustees may declare that an ordinance accepting streets is void, and thus clear the way for further proceedings in the way of the reimprovement of the streets. Raisch Improvement Co. v. Bonslett, 28 Cal. App. 649, 153 Pac. 747.

101. A false recital in an ordinance that gas mains or pipes have been laid in certain streets is not final and binding on the courts. -Raisch Improvement Co. v. Bonslett, 28 Cal. App. 649, 153 Pac. 747.

103. The omission of the signature of the president of the board of trustees on the recorded warrant is not material where the original warrant is properly signed. Schaffer v. Smith, 169 Cal. 764, 147 Pac. 976. 104. Bond of contractor-Enforcement. -Where a bond given by a contractor for the doing of street work, after reciting that the obligors are bound unto all persons performing labor or furnishing materials to be used in the work called for by the contract, contains a provision to the effect that if the contractor fails to pay for any materials or supplies furnished for the work, or for any labor done thereon, the surety will pay the same to an amount not exceeding the sum specified in the bond, it is not necessary for a person who furnished certain materials used in the performance of the work to a subcontractor, as a condition of maintaining suit to recover upon the obligation of the bond, that he should first sue the subcontractor and establish that the materials were actually used in the work, nor is it necessary that the subcontractor be made a party defendant to the action.-Williams v. Tingey, 26 Cal. App. 574, 147 Pac. 584.

105. Where the bond of a municipal contractor provides that in case the principal fails to pay for any materials furnished in the work the surety will do so, the surety is responsible for materials furnished a subcontractor and used in the enterprise, although the contractor is not personally liable for the value of such materials.-Williams v. Tingey, 26 Cal. App. 574, 147 Pac. 584.

106. In an action to recover upon the covenant contained in a street contractor's bond to the effect that the contractor and surety would pay for the materials used in the performance of the work, the measure of recovery against them for materials furnished to the subcontractor under contract is the value of the materials, not the price specified in the contract.-Panama Commercial Co. v. Tingey, 26 Cal. App. 576, 147 Pac. 585.

107. -Action by materialman upon bond of contractor.-An action by a materialman against the surety upon a bond given for the doing of public work pursuant to the act of March 27, 1897, commenced after the expiration of the time required therein for the commencement of such actions, but within the time provided in the amendatory act of 1911 enlarging the time for filing claims and commencing actions, is in time, notwithstanding the bond was executed prior to and the materials furnished after the enactment of the amendment.-American Radiator Co. v. American Bonding Co., 27 Cal. App. 685, 151 Pac. 168.

108. The amendment of 1911 to the act of March 27, 1897, securing the payment of the claims of materialmen, mechanics or laborers employed by contractors upon state, municipal or other public work, by enlarging the time within which such claims may be filed and actions thereon begun, amounts merely to a modification of the remedy, and is not to be construed to be a

material interference with the obligation of the bond.-American Radiator Co. v. American Bonding Co., 27 Cal. App. 685, 151 Pac. 168.

109. Streets-Repair of bridges-Liability for safety.-A municipal corporation, in the absence of statutory requirement, is under no duty to build or maintain bridges within its limits or across a stream which is a boundary between it and another political subdivision of the state, and therefore is not responsible in damages for personal injuries received from its omission to erect or maintain a bridge over such a waterway. -Coffey v. Berkeley, 170 Cal. 258, 149 Pac. 559.

110. A municipal corporation, under the act of 1911 relating to the liability of public officers for damages resulting from defects or dangers in streets, etc., is not responsible in damages for injuries sustained by an automobile passenger from falling into a creek at a street crossing within the city limits, where the complaint does not count upon the defendant's liability by reason of a defective condition of the highway (the liability contemplated by the statute), but upon the failure to bridge the creek and the further failure to light the crossing.Coffey v. Berkeley, 170 Cal. 258, 149 Pac. 559.

111. Where the complaint in such an action fails to allege that no protection whatever was provided for the traveling public, or that the defendant totally failed to guard against accidents, the city is not liable for failure to maintain signals, lights or other warnings at the crossing, since the manner and extent of protection against possible accidents in such a case are confided so largely to the discretion of the corporation that courts will seldom hold the corporation responsible for failing to supply more elaborate and complete protection.Coffey v. Berkeley, 170 Cal. 258, 149 Pac. 559.

112. It is also essential, in order to state the liability of a municipal corporation under the act of 1911, that the complaint should aver facts exonerating the officer or board charged with the care and repair of the street in question, as the statute provides that the city is to be liable only in the event that the officer charged with the duty of repairing a street should be innocent of knowledge or notice of the condition from which the accident became possible. Coffey v. Berkeley, 170 Cal. 258, 149 Pac. 559.

113. Taxpayer's action.-A taxpayer has the right to maintain an action on behalf of his municipality against its municipal officers to recover money belonging to the city alleged to have been illegally expended by them.-Osburn v. Stone, 170 Cal. 480, 150 Pac. 367.

114. Where municipal officers refuse to bring an action to recover funds which have been illegally expended, it should be impleaded as a party defendant in a taxpayer's action. Osburn v. Stone, 170 Cal. 480, 150 Pac. 367.

115. A complaint in an action by a taxpayer of a municipality against its mayor and councilmen to compel them to pay into

the city treasury for the benefit of the taxpayers and property owners of the city certain alleged illegal expenditures of public moneys, is not subject to general demurrer without leave to amend for the technical absence of the municipality as a party defendant.-Osburn v. Stone, 170 Cal. 480, 150 Pac. 367.

116. A complaint in an action by a taxpayer in the city of Santa Cruz against the mayor and councilmen to recover on behalf of the city alleged illegal expenditures of the city's funds for street work, which alleges that the claims for such work so audited, allowed and paid were not itemized, and for that reason it is impossible for the plaintiff to make the allegations of his complaint more specific as to the character of the work done or where it was done, that no resolution of intention to perform the work was ever passed or adopted, that no competitive bids or proposals were ever called for, that the work was not let to the lowest responsible bidder, and that no assessment was ever levied upon the lot or lands fronting upon the streets upon which the work was done, but, to the contrary, it was done by day labor and paid for out of the general fund of the city, is sufficient as against a general demurrer.-Osburn v. Stone, 170 Cal. 480, 150 Pac. 367.

117. Payment to a city street superintendent of a sum of money for the rental of a surveying outfit belonging to him to the city is illegal.-Osburn v. Stone, 170 Cal. 480, 150 Pac. 367.

118. Payment to a law partnership of a sum of money for legal services to be rendered to a municipality, when at the time of entering into the contract and at the time of the payment of the money one of the members of the partnership was a member of the board of education of the city, is illegal.-Osburn v. Stone, 170 Cal. 480, 150 Pac. 367.

state, and will not be allowed to control where the conditions were those never contemplated by the common law. — -Jones v. California Development Co., 173 Cal. 565, 160 Pac. 823.

2. The statute of uses is not a part of the common law to which this section refers. -Tennant v. John Tennant Memorial Home, 167 Cal. 570, 140 Pac. 242.

3. The common law is the rule of decision only in those cases where it is not repugnant to or inconsistent with the constitution of the United States or the constitution or laws of this state. The common law which denied the right of a public officer to resign his office without the consent of the appointing power manifested by an express acceptance of the resignation or in some other

mode equally significant of its intention so to do is not the rule in this state. People (ex rel. Attorney-General) v. Marsh, 30 Cal. App. 424, 159 Pac. 191.

§ 4484.

1. Applicable to subdivisions of sections. -Where there are conflicting provisions in different sections of the same chapter or article, "the provisions of the sections last in numerical order must prevail, unless such construction is inconsistent with the meaning of such chapter or article." The rule is founded in reason, and it exists independently of the code. It therefore for like reasons applies to conflicting provisions of different subdivisions of a section.-Turner v. Wilson, 171 Cal. 600, 154 Pac. 2.

"Abandoned," in section 224, Civil Code, is to be given its ordinary meaning as defined by Webster.-In re Cordy, 146 Pac. 533, affirmed 169 Cal. 150, 146 Pac. 534.

"Adopt" is a term properly applicable only to contracts by a party acting or assuming to act for another.-Snook v. Page, 29 Cal. App. 246, 155 Pac. 107.

"Adverse party."-Caruthers Building Co. v. Johnson, 174 Cal. 20, 161 Pac. 985.

"Accident." The expression, "accident," is used in the popular and ordinary sense of the word, as denoting an unlooked for mishap or an untoward event which is not expected or designed.-Southwestern Surety Ins. Co. v. Pillsbury, 172 Cal. 768, 158 Pac. 762.

"All other usual terms and conditions."The Carlos, 237 Fed. 731.

"Appendages."-City of Sacramento v. Pacific Gas & Electric Co., 173 Cal. 787, 161 Pac. 978.

"Assessed."-People's Water Co. v. Baromeo, 31 Cal. App. 270, 160 Pac. 574.

"Children." In the ordinary and grammatical sense the word "children" implies immediate offspring. This is its natural and primary sense.-Estate of Willson, 6 Cof. Prob. Dec. 34.

"Children" in will, includes grandchildren, when.-Estate of Wilson, 171 Cal. 449, 153 Pac. 927.

"Choses in action" includes all debts and all claims for damages for breach of con1917 Sup.-23.

tract or for torts connected with contract.Power & Irr. Co. v. Bank of Woodland, 226 Fed. 698.

"Claim."-Estate of Cutting, 174 Cal. 104, 161 Pac. 1137.

"Consideration," for contract, defined.Pacific Imp. Co. v. Maxwell, 26 Cal. App. 265, 146 Pac. 900.

"Control."-Western Indemnity Co. v. Pillsbury, 172 Cal. 807, 159 Pac. 721.

"Costs and expenses." - Hayne V. San Francisco, 53 Cal. Dec. 46, 162 Pac. 625.

"Delivery," as relates to transfer, defined. -Williams v. Kidd, 170 Cal. 631, Ann. Cas. 1916E 703, 151 Pac. 1.

"Dependent," under provisions of section 1970 of Civil Code, who is a.-Balaklala Consol. Copper Co. v. Reardon, 220 Fed. 584.

"Due," in a building contract, upon which this claim of the owner is founded, as applied to a debt or obligation to pay money, does not always mean that the money is then immediately payable. It may be so used, but it often merely denotes the idea of a complete debt, an existing obligation, or money fully earned, but not payable until a future time or until the happening of another event.-Ahlgren v. Walsh, 27 Cal. 173, 158 Pac. 748.

"District."-San Bernardino v. Horton, 173 Cal. 396, 160 Pac. 231.

"Each."-Brazil v. Azevedo, 32 Cal. App. 364, 162 Pac. 1049.

"Faultless." - Temple v. Gordon, 31 Cal. App. 127, 160 Pac. 983.

"Fees allowed by law."-Alameda County v. Cook, 32 Cal. App. 165, 162 Pac. 405.

"Final judgment."-Colusa & H. R. R. Co. v. Superior Court, 31 Cal. App. 746, 161 Pac. 1011.

"Furnished" means to supply; to offer for use, to give, to hand.-People v. Joy, 30 Cal. App. 36, 157 Pac. 507.

"Grounds."-People v. Preciado, 31 Cal. App. 519, 160 Pac. 1090.

"In good faith" has a settled and welldefined meaning, which generally imports that in any given case the transaction involved was honestly conceived and consummated without collusion, fraud or knowledge of fraud, and without intent to assist in a fraudulent or otherwise unlawful design.-Heney v. Sutro, 28 Cal. App. 698, 153 Pac. 972.

"Income."-Union Hollywood Water Co. v. Carter, 238 Fed. 329.

"Intermediate employee."-Kirkpatrick v. Industrial Accident Commission, 31 Cal. App. 668, 161 Pac. 274.