Currey, J., dissenting. This action was brought to recover a certain sum of money alleged to be due the plaintiff from the defendant. In November, 1862, the plaintiff entered into a contract with the Superintendent of Public Streets and Highways of the City of San Francisco to perform certain work and labor and provide the material therefor in the improvement of that portion of Folsom street which is between First and Second streets, in said city. The defendant’s property, which adjoins the locality, was assessed to pay a portion of the price to be paid the plaintiff for the work, which the Superintendent accepted as performed, in the fulfilment of the contract, as provided by the Act of the Legislature relating to the subject, passed on the 25th of April, 1862. (Laws 1862, p. 391.) By his answer the defendant, among other things, averred that the work performed by the plaintiff, and for which the assessment was alleged to have been made, was not completed in accordance with the specifications of the contract, nor in accordance with section third of chapter fourth of the order of the Board of Supervisors in relation to streets, defining the manner of constructing streets and sidewalks, and the character and description of materials to be used in their construction.
At the trial, which was before the Court without a jury, the plaintiff submitted his case upon the pleadings. The defendant, to maintain his defense, among other things, introduced in evidence section third of chapter fourth of the ordi[90]nance referred to, and then produced three witnesses by whom he proposed to prove facts showing that the work was not done in accordance with the contract, nor in accordance with said ordinance. To this evidence the plaintiff objected on the ground that the same was inadmissible and incompetent, because the defense proposed to be proved could be made only by appeal to the Board of Supervisors, as provided in the Act of 1862. The Court sustained the objection, and the defendant excepted. The plaintiff obtained judgment and the defendant appealed.
There are several points presented by the appellant on which he seeks a reversal of the judgment. That relating to the competency of the evidence offered by him and excluded by the Court is the only one respecting which I deem it necessary to express an opinion.
The ninth section of the Act of 1862 provides that after the contractor of any street work has fulfilled his contract to the satisfaction of the Superintenpent or Board of Supervisors on appeal, the Superintendent shall make an assessment to cover the sum due for the work performed, and specified in the contract, in conformity with the provisions of the Act, or with the decision or directions of the Board on appeal. The next section provides that the assessment made shall be attached to a warrant, to which shall be annexed a diagram exhibiting the locality of the work done, signed by the Superintendent and countersigned by the Auditor of the city and county, authorizing the contractor or his assigns to demand and receive the sum assessed. The warrant, assessment and diagram are required to be recorded, and when recorded, the amount assessed is made a lien on the land assessed, which is to continue for two years, unless sooner discharged. The twelfth section of the Act gives to the owner of any land so assessed the right to appeal to the Board of Supervisors from these acts and determinations of the Superintendent, and the Board is authorized to correct, alter or modify the assessment, and to direct the Superintendent to correct the warrant, assessment or diagram in any particular, or to make and issue a [91]new warrant, assessment or diagram; and then it is declared that all the decisions and determinations of the Board shall be final and conclusive upon every person entitled to an appeal, as to all errors and irregularities which the Board could have remedied and avoided; and then it is further declared as follows : “ The said warrant, assessment and diagram shall be held prima facie evidence of the regularity and correctness of the assessment and of the prior proceedings and acts of said Superintendent, and of the regularity of all the acts and proceedings of the Board of Supervisors, upon which said warrant, assessment and diagram are based.” The thirteenth section of the Act authorizes the contractor to sue in his own name the owner of the land assessed, at any time during the continuance of the lien of the assessment thereon, and to recover the amount of the assessment due and unpaid ; and it is provided that the warrant, assessment and "diagram, with affidavit of demand and non-payment, shall be prima facie evidence of such indebtedness and of the right of the plaintiff to recover in the action ; and the Court in which such suit shall be commenced is empowered to adjudge and decree a lien against the premises assessed, and to order the same to be sold on execution.
The theory upon which it is sought to justify the exclusion of the evidence offered is, that the defendant had an opportunity, after the warrant was issued, to object by appeal to .the Board of Supervisors, to the work, and to the contractor’s right to collect the amount mentioned in the assessment, on the ground of non-performance of the contract; and that if upon such appeal it had appeared that the objection was well taken, the warrant, assessment and diagram would have been corrected by the Board, or suppressed, and new ones issued. But this theory does not admit that the defendant could controvert the plaintiff’s right to recover anything whatever, nor does the statute seem to contemplate any such contingency as possible. The object of the statute, according to the construction given to it by the Court below, was to charge the defendant to the extent of the assessment affecting his prop[92]erty with aii the burdens of the contract on the one part, without the privilege of resisting payment ira ioto because the plaintiff had not performed the contract on his part, when by the general law such performance was a condition precedent to his right to recover anything. It is also argued on the part of the plaintiff that if the work was done to the satisfaction of the Superintendent, and the time for appealing to the Board of Supervisors from his determination had elapsed, that then-the charge against the owner of the premises became fixed, and his liability to pay the amount assessed was as absolute as if in judgment of a Court of last resort. There are several answers to this position, any one of which is sufficient for its refutation. The Act of 1862 does not give to the omission of the owner of premises assessed, to appeal to the Board of Supervisors such an-effect, but it provides that said warrant, assessment and diagram shall be held prima facie evidence of the regularity and correctness of the assessment and of the proceedings and acts of the Superintendent and of the Board of Supervisors, upon which the warrant, assessment, and diagram'are based ; and in an action brought by the contractor against the owner of the assessed property, the warrant, assessment and diagram, with the affidavit of demand and non-payment, shall be prima facie evidence of such indebtedness, and the right of the plaintiff to recover in the action. What is to be understood by prima facie evidence? It is that evidence which is sufficient'to establish the fact in issue in the first instance; which.fact remains established until rebutted or disproved; but as the term itself imports, this species of evidence is not conclusive—it may be disputed and overcome by countervailing evidence. This was the kind of evidence on which the plaintiff relied to establish his right to recover, and it was competent for the defendant to prove that it was not true.
It is claimed, as already seen, that the defendant was bound by the combined action of the Superintendent of Streets and Board of Supervisors as by a judgment of a Court of competent jurisdiction. If so, by what authority could these munici[93]pal officers thus bind him ? If it be said by authority of the statute, the answer to it is that there is a law higher than the statute. The Constitution of the State has provided in whom shall be reposed the judicial power, and the Board of Supers visors and Superintendent of Streets are not of these; besides which the Constitution provides that the right of trial by jury shall be secured to all, and remain inviolate forever, though this right may be waived by the parties in civil cases in the manner prescribed by law. But the Act of 1862 does not prescribe that this right may be waived, but provides in general terms'that the contractor may have his action to recover the amount certified to be due him, and defines the evidence on which the plaintiff relied in the case as prima facie evidence of his right to recover. This statutory provision would have been idle and useless if to the acts and proceedings of the Superintendent of Streets and of the Board of Supervisors the consequences which are claimed for them were given. But the Act has hot undertaken, in terms, to deprive the defendant of his right to be heard in his defense, in a Court of justice, proceeding under and in accordance with the Constitution ; nor has it gone the length of giving to a contractor the right to recover against the owner of property supposed to be benefited by the improvement or work alleged to be done, the price specified by the contract, provided it can be shown by the defendant that the plaintiff has not rendered the consideration, on which his right to recover is made, by his contract under the law to depend.
My opinion is that the statute should be construed in support of the right of the citizen to a just defense for the preservation of his property; and believing that the ruling of the Court below, denying to the defendant the opportunity at the trial to make the defense which he proposed, was a denial of the constitutional right just in itself, I am constrained to dissent from the decision of a majority of this Court affirming the judgment.