But the owner may interpose any defense which appears upon the face of the instruments upon which the lienor's action is founded.37

The inclusion in an assessment as incidental expenses of an amount for printing and engineering, not properly belonging therein: Boyle v. Hitchcock, 66 Cal. 129, 4 Pac. 1143, Compare Ryan v. Altschul, 103 Cal. 174, 177, 37 Pac. 339.

The inclusion in an assessment for street work of the cost of doing a greater number of lineal feet of work than was authorized by the resolution of intention and contract: Himmelmann v. Hoadley, 44 Cal. 276; Frick v. Morford, 87 Cal. 576, 579, 25 Pac. 764.

The inclusion in an assessment for street work of the cost of work not within the terms of the contract, although reasonably related thereto, and of such a character as might have been included in the contract without rendering it void: Perine v. Forbush, 97 Cal. 305, 313, 32 Pac. 226; Petaluma Paving Co. v. Singley, 136 Cal. 616, 619, 69 Pac. 426.

Certain errors in the diagrams under which street work was done at which the property owner felt aggrieved, where the diagrams set forth the facts required by law: Dorland v. MeGlynn, 47 Cal. 47, 51.

A purely technical objection to an assessment, which could not possibly affect the substantial rights of the property owner: Dyer v. Parrott, 60 Cal. 551, 555.

37 Defense Appearing Upon Face of Assessment May Always be Interposed.-Where one street terminated in another, and the whole expense of improving the street opposite the termination was assessed to the two quarter-blocks cornering on the intersection, and the objection appeared upon the face of the papers, as the objection did not require extrinsic evidence for the purpose of establishing the fact, but the assessment appeared on its face to have been made in violation of the statute, the defendants are not precluded from making the objection without having previously appealed to the board of supervisors': Perine v. Lewis, 128 Cal. 236, 241, 60 Pac. 422, 772. See, also, Kenny v. Kelly, 113 Cal. 364, 45 Pac. 699.

And the property owner may always contest a lien upon the ground that the jurisdictional prerequisites to the levy of the assessment and the accrual of the lien are lacking, or on the ground that the local corporation has exceeded its powers."

38

38 Lack of Jurisdictional Prerequisites.-The question of the existence of facts or acts of a jurisdictional character, and essential to the validity of the assess ment, may be raised in the foreclosure action without the necessity of a previous appeal: Emery v. Bradford, 29 Cal. 75, 86; San Jose Imp. Co. v. Auzerais, 106 Cal. 498, 500, 39 Pac. 859; Manning v. Den, 90 Cal. 610, 616, 27 Pac. 435 (interpreted in Girvin v Simon, 116 Cal. 610, 616, 48 Pac. 720); Warren v. Chandos, 115 Cal. 382, 387, 47 Pac. 132; Chase v. City Treasurer of the City of Los Angeles, 122 Cal. 540, 545, 55 Pac. 414; De Haven v. Berendes, 135 Cal. 178, 181, 67 Pac. 786.

"A void [street improvement] contract does not become valid by failure to appeal to the board of supervisors': Girvin v. Simon, 116 Cal. 606, 610, 48 Pac. 720. See, also, Ryan v. Altschul, 103 Cal. 174, 177, 37 Pac. 339.

Circumstances Avoiding Jurisdiction not Cured by Failure to Appeal and Provable as Defense to Foreclosure Action.-A valid contract being essential under the Vrooman Act, that there was no valid contract: Williams v. Bergin, 129 Cal. 461, 465, 62 Pac. 59; McBean v. Redick, 96 Cal. 191, 193, 31 Pac. 7.

That the street work actually done was different from that set forth in the notice of intention: Dougherty v. Hitchcock, 35 Cal. 512, 524.

That the contract for street work was prematurely made by the superintendent of streets, the contract being for that reason void: Burke v. Turney, 54 Cal. 486, 487.

That a contract for street work allowed a longer time for doing the work than that prescribed by the

Any objections for which an appeal is not pro-
vided to the forum provided by law may also be
availed of in the foreclosure action.39

That the property owner has appealed to such.
forum in a case where an appeal thereto must
needs be unavailing does not estop the property

board of supervisors for doing the work: Brock v.
Luning, 89 Cal. 316, 321, 26 Pac. 972.

That street work was not completed within the time
prescribed by the contract, no extension of the time
having been granted, this fact being fatal to any as-
sessment: Mahoney v. Braverman, 54 Cal. 565, 571.

The fact that the local legislative body delegated
powers which it was required to exercise itself: Chase
v. City Treasurer of the City of Los Angeles, 122
Cal. 540, 545, 55 Pac. 414.

That an irrigation district has no outstanding bonds
upon which interest is payable, or that the amount
of the assessment is not within any reasonable esti-
mate of that interest, the power of an irrigation dis-
trict being limited to purpose of raising money to pay
the interest on outstanding bonds: Hughson v. Crane,
115 Cal. 404, 416, 417, 47 Pac. 120.

That a contract for street work was rendered void
by fraudulent collusion between the contractor and
certain property owners: Brady v. Bartlett, 56 Cal.
350, 362-369.

The provision of section 3 of the Street Improve-
ment Act of 1885, relating to a petition of remon-
strance, being intended to be applicable only to acts
within the power of the city council, the right to in-
terpose the defense that the act complained of was
in excess of the powers of the common council is not
waived either by the filing of the remonstrance or
the failure to file it: De Haven v. Berendes, 135 Cal.
178, 182, 67 Pac. 786; Capron v. Hitchcock, 98 Cal.
427, 431, 33 Pac. 431.

39 Manning v. Den, 90 Cal. 610, 616, 27 Pac. 435.

owner from setting up the defense in the foreclosure action.40

659. Of Counsel Fees in Foreclosure Actions.

The legislature may allow a counsel fee to a successful lienor in case of the enforcement of his assessment lien by a foreclosure action.41

40 Manning v. Den, 90 Cal. 610, 616, 27 Pac. 435; California Improvement Co. v. Moran, 128 Cal. 373, 378, 60 Pac. 969; Dehail v. Morford, 95 Cal. 457, 460, 30 Pac. 593. See last paragraph of note 38, above.

41 In response to an argument against the constitutionality of this burden, it may be replied that the burden may be escaped by paying the assessment before suit is brought: Gillis v. Cleveland, 87 Cal. 214, 219, 25 Pac. 351.

INDEX.