The law requires the expenses of work done on main street crossings to be assessed uponthe four quarter blocks adjoining and cornering on the crossings. (Stat. 1871-72, p. 810, Subd. 3.) Also that an assessment shall be made by the Superintendent of Public Streets, Highways and Squares to cover the sum due for the work performed, including incidental expenses, and that he shall attach thereto a diagram exhibiting each street, or street-crossing, lane, alley, place, or court, on which any work has been done, and showing the relative location of each distinct lot, or portion of lot, to the work done, numbered to correspond with the numbers in the assessment, and showing the number of feet frontage assessed for said work. (Stat. 1871-72, p. 813.) There is no diagram attached to the assessment, showing the lots included within the four quarter blocks adjoining and cornering on said several crossings on which said lots the expense of work should have been assessed. This rendered the entire assessment null and void.
The remedy is not by appeal, because when the assessment is void on its face the property owner is not called upon to appeal. (Himmelmann v. Bateman , 50 Cal. 11; People v. Quackenbush , 53 id. 52; Himmelmann v. Cahn , 49 id. 285; Gately v. Bateman , 7 P. C. L. J. 364.) The appellant says that respondent cannot complain, because the assessment against lot No. 11 has not been effected. But the assessment cannot be partly void and partly valid--it is either void or valid, as a whole. (People v. Holladay , 25 Cal. 300; People v. Lynch , 51 id. 19; Whiting v. Quackenbush , 54 id. 306; Schumacker v. Toberman , 56 id. 508.)
OPINION The Court:
The objection to the assessment in this case is purely technical. It is not claimed that the omission complained of affected, or could affect, any substantial right or interest of the defendant. The error is one which might have been easily remedied by an appeal to the Board of Supervisors. But no appeal was taken to that Board. If an appeal had been taken and determined, the determination would be final and conclusive upon all parties entitled to appeal. (Stat. 1871-72, p. 815, § 12.)
We think that by neglecting to appeal the defendant waived the objection which he now raises to the assessment, and that the judgment and order of the Court below should be reversed.
Judgment and order denying a new trial reversed.