and, taking from him the key, ordered him off. The defendant then, through his agent, applied to plaintiff for the key, proposing to enter under a pretended agreement for a sale of the land on which a deposit of $100 had been paid. But the plaintiff repudiated the agreement, and forbid the defendant's entry. This agreement contained no authority for the defendant to enter. The defendant thereupon again entered upon the premises through the front door, which he unlocked by means of a false key; and the finding of the court, which is fully sustained by the evidence, is, that the defendant on the occasion mentioned "fraudulently and without right went upon said premises and with force unlocked the doors of said house", etc.; which is to be construed as in effect that he entered in the manner shown by the evidence as above stated.

Other facts are alleged and found, but leaving these out of view, the question is presented whether the defendant's entry made in the manner stated comes within the provisions of the first subdivision of section 1159 of the Code of Civil Procedure; by which every person is to be held to be guilty of a forcible entry, who "by breaking open doors, windows, or other parts of a house enters upon or into any real property." This question we think must be answered in the affirmative. The meaning of the provision is that any opening of a closed door or window involving the use of force is to be regarded as "breaking open" the door or window or house. This was the construction given to the term "break" as entering into the common-law definition of burglary; and we see no reason why a different construction should be given to it in the provision now under consideration. (Abbott's Law Dict., word "Break"; see also Webster's Dict., in the expression: "Open the door or I will break it open"; and also the definition of "House Breaking" in Penal Code, sec. 461, as originally enacted, and in the act of February 27, 1864, Stats. 1863-4, p. 104.)

We do not find, however, any evidence in the record to sustain the finding of the court that the plaintiff suffered damage by reason of the taking and retaining of the possession of the premises in the sum of $150, or in any amount in excess of the sum of $45, which the court, in effect, finds was the value of the use and occupation during the month the premises were occupied by the defendant. The judgment should, therefore, be modified by striking therefrom "the sum of four hundred and fifty (450) dollars", as the amount adjudged, and inserting in lieu thereof "the sum of one hundred and thirty-five (135) dollars".

The case is remanded to the lower court, with directions to the court to grant a new trial, unless the plaintiff shall within ten days after the filing of the remittitur file a written consent to the modification of the judgment, as above indicated; and upon the filing of such consent, the judgment and order denying a new trial shall stand affirmed.

I concur:

SMITH, J.

ALLEN, J.

CONCURRING OPINION.

I concur in the judgment of the court and in the suggested modification of the judgment of the court below. I place my con

currence, however, upon the ground that it seems to me that the evidence discloses that the defendant did not take forcible possession of the house in question, but that he entered the same without any lawful right so to do, and that there is evidence contained in the testimony of Miss Winchester to uphold the findings and decision of the court to the effect that after this entry without right he held possession of the house by force. The plaintiff testifies: "I did not see Mrs. Becker at the time I was talking to Mr. Becker at the house. He showed me the receipt and stepped out and kept forcing me out of the door onto the porch, and I was standing on the porch and the door was closed when he showed me the check with my signature." In my opinion, this is sufficient evidence of force to uphold the finding of forcible detainer.

GRAY, P. J.

1

Civil No. 260. Second Appellate District. October 27, 1906. JOHN MULBERRY, CHAS. E. PENDALL, JULIA HERRING, CLARA I. CITRON, MARY B. OVERMAN, AUGUST LAMP, H. S. ROLLINS, GEORGE L. WARING, G. W. ROBINSON, S. H. RIGBY, E. A. GIRBIN, J. W. ERNEST, HUGH GLASSELL and ANDREW GLASSELL, Executors of the Estate of ANDREW GLASSELL, Deceased, Plaintiffs and Respondents, v. M. F. O'DEA and TRYON-BRAIN COMPANY, Defendants and Appellants.

STREET WORK-VROOMAN ACT-ORDERING WORK-AUTHORITY OF CITY COUNCIL-SIMPLE RESOLUTION.-A city council in directing street work to be done under authority of the Vrooman Act (Stats. 1885, p. 147), can do so by simple resolution.

ID.-ID.-JURISDICTION OF COUNCIL-PUBLICATION OF NOTICETIME FOR VOID PROCEEDINGS.-A city council acquires no jurisdiction to order street work to be done under the Vrooman Act until the full term of twenty days has expired after the publication by the street superintendent of a notice of the intention to perform the work, and where it makes such order on the nineteenth day it is void, the assessment for the work is void and no lien therefor attaches.

ID.-ID.-CONTRACT-PROVISION FOR ASSUMPTION OF RESPONSIBILITY FOR DAMAGE RENDERS CONTRACT VOID.-Provision in the specifications in a contract for street work obligating the contractor to assume responsibility for loss by reason of damages occurring in the execution of the work renders the contract void.

Appeal from the Superior Court of Los Angeles County—D. K. Trask, Judge.

For Appellants-Leslie R. Hewitt.

For Respondents-Lucius M. Fall.

Plaintiffs are severally the owners of parcels of real property in the city of Los Angeles against which liens are claimed under certain proceedings taken by the city for the improvement of Temple street. Defendant Tryon-Brain Company, a corporation, was the contractor, and performed work of laying cement sidewalks and building cement curbs along certain portions of said street. Upon completion of the work the rights of defendant company under their contract were assigned to defendant O'Dea. Certain irregularities in the proceedings taken by the city and alleged defects in the form of contract made with the Tryon-Brain Company formed the basis for this suit by which it was sought to have it adjudged that the assessments made against the several pieces of property owned by plaintiffs to secure payment of the contract price for the doing of said work, were void, and that no liens attached for the benefit of defendant contractor. A statement of facts was agreed upon in the lower court, and upon submission of the cause judgment was entered for plaintiffs and defendants have appealed.

The proceedings for the improvement of Temple street were taken under authority of the act of the legislature known commonly as the Vrooman act (Stats. 1885, p. 147), and acts amendatory thereof. Respondents contend that at the time the city council attempted to order the work to be done it had not acquired juris

diction, because twenty days had not expired after the publication by the street superintendent of a notice of the intention to have the work performed, when the council adopted an ordinance directing the work to be done. The Vrooman act provides that after the resolution of intention has been passed and adopted by the city council, the street superintendent shall "cause a notice similar in substance, to be published for six days in one or more daily newspapers published and circulated in said city..." and that "at the expiration of twenty days after the expiration of the time of said publication by said street superintendent the city council shall be deemed to have acquired jurisdiction to order any of the work to be done, or improvement to be made, which is authorized by this act." From the agreed statement of facts it appears that the street superintendent published the notice required of him to be published, in a daily newspaper for six days, commencing on April 9, 1903, and ending on April 15, 1903, one of the intervening days being Sunday. On May 4, 1903, the nineteenth day after the last day of publication of the notice by the street superintendent, the city council adopted an ordinance ordering the work to be done. This ordinance was signed by the mayor of the city on May 11, 1903, and published for two days thereafter, to wit: on May 13 and 14, 1903.

It is conceded by appellants that if the order made by ordinance providing for the doing of the work was complete on the 4th day of May, when the ordinance was adopted, that this order was a nullity and made without jurisdiction; but it is argued that the ordinance did not become final until after approval by the mayor and publication for two days; and that therefore the order so made should be deemed to have been made as of the date when the ordinance was signed by the mayor or published. There is probably no doubt that the city council in directing street work to be done under authority of the act here under discussion, might do so by simple resolution; in fact, it has been so held in the cases of Los Angeles v. Waldron, 65 Cal. 285, and Hellman v. Shoulters, 114 Cal. 157. In the case last cited the supreme court said: "An ordinance is also a resolution, or at least so far as this statute is concerned, they are equivalent. The street law provides a complete scheme or procedure for street work, and so far as it goes governs. The charter cannot make a different procedure by requiring more or less. Otherwise there would not be a uniform operation of the law for all cities of a class. As to publication, the street law expressly provides that no other shall be necessary for the validity of the procedure. The ordinance in this regard is in the form suited to the charter of Los Angeles, and provides that the clerk shall cause the same to be published for two days, and that thereupon it shall take effect. Counsel' says this publication was before it took effect, and the publication required by the street law is after it has become a valid resolution. Under either view the resolution is finally passed before publication. Whether we say it is a subsisting ordinance, though it can have no effect as an ordinance, or that it takes effect only after publication, when for the first time it be operative as an ordinance, is a matter of taste."

The city council here adopted the ordinance ordering the work

to be done on the nineteenth day after the expiration of the last date of publication of the street superintendent's notice. The order of the council was complete upon the adoption of the ordinance; there was nothing left to be done by that body respecting its order after adoption of the ordinance by vote taken and recorded. But the council had acquired no jurisdiction to take any step essential to the validity of an order directing the work to be done until the full term of twenty days had run. If its order made on the nineteenth day was valid, as well might it then have adopted the ordinance on the first, third or any other day after the termination of the period of publication of the street superintendent's notice. It appears clearly that the ordinance of May 4, 1903, directing the work of improvement to be done was prematurely adopted, without jurisdiction, and was ineffective and void for any purpose. The subsequent proceedings taken, therefore, failed to give any support to defendant's claim to rights of lien against the property of plaintiffs.

The further contention of respondents that the provision in the specifications obligating appellants to assume responsibility for loss by reason of damages which might accrue, rendered the contract invalid, should also be sustained. The contract executed between the city and appellants contained a provision that the work should be done according to "specifications on file in the office of the city clerk of said city which are known as specifications No. 54 and 55, and made part of this contract". Incorporated in these specifications was the following condition: "All loss or damage arising from the nature of the work to be done under this agreement or from any unforseen obstruction or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, or from any encumbrances on the lines of the work, or for any act or omission on the part of the contractor, or any person or agent employed by him, not authorized by this agreement, shall be sustained by the contractor." This condition became a part of the contract. A provision similar to this was held in the case of Blochman v. Spreckels, 135 Cal. 664, to render the contract void, because it added a term not authorized by statute, and also because it changed and might increase the burden of the taxpayer. In the Blochman case it was said by the court: "No one can say that a contractor would agree to stand behind the city and hold harmless from damage arising out of the work he had undertaken to do without some compensation additional to the necessary cost of the material and labor to him, plus a reasonable profit. . The law does not authorize a municipality to escape its liability by shifting it to the shoulders of the contractor, and in attempting to do so it imposed conditions that would naturally tend to increase the cost of the work." (See also the cases of Brown v. Jenks, 98 Cal. 10; Alameda Macadamizing Co. v. Pringle, 130 Cal. 226.)

Other minor points are argued in the briefs of counsel, but as those discussed are determinative of this appeal, it will be unnecessary to consider them.

The judgment appealed from is affirmed.

I concur:

JAMES, J., pro tem.

GRAY, P. J.