All public streets, alleys, and roads in the state are public highways for the use of the people of the state. The state, in its sovereign capacity, has the original right to control them for the public use. The state for this purpose has the right to grade and repair. "The highways within and through a state are constructed by the state itself, which has full power to provide all proper regulations of police to govern the action of persons using them, and to make, from time to time, such alterations in these ways as the proper authorities shall deem proper.' Cooley, Const. Lim. *588. This applies equally to the streets and alleys of a city or village as to country roads. A municipality has no control over a highway unless the right of control has been vested by the state in the municipality.

For convenience, this power of the state is frequently vested in the municipality; but unless so vested it remains in the state; when so vested the municipality acts as the agent of the state. It is from the state only that a municipality has power to levy an assessment on property for street work. In the absence of a delegation of such power, its efforts in that direction would be futile. When, by the act of 1872, that power was delegated to the authorities of the city and county of San Francisco, the action of the authorities rested solely on that delegated authority. When the constitution of 1879 went into effect, that delegated authority was, as to the questions in this case, revoked by the people in their sovereign capacity. No authority or power in that direction existed, save while the act of 1883 was in force. In passing the act of March 18, 1885, the state, acting through its legislature, and in the exercise of its authority over streets, lanes, and alleys, delegated to the authorities of the city and county, as it had the right to do, the authority to pursue the mode therein pointed out for doing the work therein designated. It follows from the above that the judgment and order sustaining the demurrer must be affirmed. So ordered.

MORRISON, C. J. I concur.

MCKEE, J., (concurring.) In my judgment the street law of the city and county of San Francisco (Statutes 1872, p. 804) was struck dead on the first day of January, 1880, by the provisions of section 19, art. 11, of the constitution of the state, and section 1, art. 22, Const., so far as inconsistent with those provisions. McDonald v. Patterson, 54 Cal. 248; Donahue v. Graham, 61 Cal. 276. On that day the constitution went into effect, and, by its own terms, became the supreme law of the state. About three years thereafter the legislature carried out the constitutional provisions upon the subject of street improvements, in the municipalities of the state, by conferring jurisdiction upon municipalities to order such work to be done in conformity with those provisions. Statutes 1883, p. 32.

It is contended, however, that section 19 of article 11 of the constitution, has since been amended by striking out the inhibitory clause upon the exercise of jurisdiction to order street work to be done before assessment and collection of the money necessary to pay for it, as was required by the constitution; and that now, under the constitution as amended, such work may be ordered and contracted for without the cost and expenses of the work being first ascertained and determined, and collected and paid into the municipal treasury. There is no doubt of the fact that such an amendment to the constitution was proposed at the legislative session of 1884, and that it was voted for by two-thirds of the members elected to each of the two houses. But 1 find the fact to be that the proposed amendment was not entered in the journals of the houses as required by section 1, art. 18, of the constitution, which provides: Section 1. "Any amendment or amendments to this constitution may be proposed in the senate or assembly, and if two-thirds of all the members elected to each of the two houses shall vote in favor thereof,

such proposed amendment or amendments shall be entered in their journals, with the yeas and nays taken thereon," etc. That was one of the methods which the constitution provided for its amendment; the other method provided was a constitutional convention, to be called in the manner prescribed by section 2 of the same article. The constitution is therefore constitutionally amended only by one or other of these methods; and where the first is resorted to for the purpose of amendment, the manner prescribed must be substantially complied with, else no amendment takes place; for the rule is well settled that when power is given to do a thing in a particular way, there the affirmative words marking out the particular way prohibits all others by implication. So that the particular way is the only way in which the power can be legally exercised. Smith v. Stevens, 10 Wall. 321; 1 Kent, Comm. 467, note d.

In adopting the proposed amendment of 1884 the legislature did not exercise its power in the manner prescribed by the constitution. The proposed amendment was not "entered upon the journals of both houses," as the constitution commanded. What was done in lieu of such entry was to make on the journal of the senate "identifying reference" to the proposed amendment, in the following form: "Senate Bill No. 15. Amendment to the constitution. To amend section 9 of article 13 of the constitution of the state of California." Sen. J. 1884, p. 114. Is that an entry upon the journals, within the intent and meaning of the constitution? I think not.

To quote the language of Chief Justice MARSHALL in Gibbons v. Ogden, 9 Wheat. 188: "The framers of the constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have understood what they meant;" and when they declared that a proposed amendment to the constitution must be "entered upon the journals of both houses," they meant just what the ordinary and popular signification of those terms import, and nothing less. To "enter" a paper upon a public journal or record is to inscribe, to enroll, to record it. Webst. Dict. "Enter;" “Entry,' as a matter of record, is the act of setting down, or causing to be set down, in writing; recording, or causing to be recorded, in due form." Abb. Law Dict. 430, word "Entry." Enrollment or recordation is therefore the meaning of the constitution, and that meaning is not satisfied by a mere "identifying reference." I therefore think that the proposed amendment of 1884 was not constitutionally adopted, that it wrought no change in the constitution, and that the Vrooman statute of 1885, passed to carry out the provisions of the alleged amendment, is unconstitutional and void. Hence the only law under which street work can be ordered in the municipalities of the state is the statute of 1883, passed to carry out the provisions of the constitution as it was at the date of the passage of that statute; and, upon these grounds, I think the demurrer to the petition in the proceedings in the court below was properly sustained.

THORNTON, J. I concur in the judgment, and will hereafter give my reasons therefor.

Ross, J., (concurring.) In Staude v. Election Com'rs. 61 Cal. 320, after quoting that portion of section 6 of article 11 of the constitution which declares that "cities and towns heretofore or hereafter organized, and all charters thereof framed or adopted by authority of this constitution, shall be subject to and controlled by general laws," we said: "The framers of the instrument meant something when they inserted this language in it, and we are not at liberty to hold that they did not mean what they said. Giving, as they did, to all cities and towns, and cities and counties, the right to organize under a general act of incorporation, which the legislature was directed to pass, or to continue their existence under their existing charters, as they might

elect, they nevertheless said that whichever course should be pursued, such cities and towns, and cities and counties, should be subject to and controlled by general laws,-such general laws as shall be passed by the legislature other than those for the incorporation, organization, and classification' of cities and towns. The constitution has provided, in effect, that the city and county of San Francisco shall not be compelled to surrender its present charter for one it does not want; and, further, that its charter shall not be changed by special legislation, directly or indirectly, under the guise of laws relating to cities, or cities and counties, containing a population of more than one hundred thousand inhabitants. At the same time, recognizing the fact that the city and county of San Francisco remains a subdivision of the state, the constitution has said, in effect, that it, as well as all other cities and towns heretofore or hereafter organized, shall be subject to and controlled by such general laws as the legislature shall enact other than those for the incorporation, organization, and classification, in proportion to population, of cities and towns. We do not perceive the danger suggested by counsel for respondents of the consolidation act being eaten away by such legislation. It cannot, as already observed, be supplanted by a general act of incorporation without the will of the people expressed at the polls, nor can it be affected by special legislation; and it is not probable that such general laws as the legislature may enact in conflict with its provisions will seriously affect it. But be that as it may, the constitution has expressly declared that it shall be subject to and controlled by such laws."

The courts have no more power to take from, than they have to add to, the provisions of the constitution. As has been seen, that instrument, in express terms, declares that "cities or towns heretofore or hereafter organized * * * shall be subject to and controlled by general laws." No one will deny that San Francisco is one of such cities. The provision, therefore, is that San Francisco, as well as all other cities and towns of the state, "shall be subject to and controlled by general laws.” In the face of this plain language, how can it be held that San Francisco is not subject to, and controlled by general laws? To so hold, would, it seems to me, be to violate the plain and unambiguous language of the organic act. Nor have the courts the power to impose a limitation by saying that such cities and towns shall only be subject to and controlled by some certain class or classes of general laws. The constitution has imposed no such limitation, and by that we must be governed. The "general laws" spoken of in the concluding clause of section 6 of article 11 do not mean the general laws the legislature is commanded to pass for the incorporation, organization, and classification in proportion to population of cities and towns, or amendments thereto, because it is by the constitution left optional with cities and towns in existence when the constitution was adopted to become organized under such general acts of incorporation or not, as they should elect. But this is the only limitation upon the provision that such cities and towns shall be subject to, and controlled by, general laws that I can find any warrant for in the constitution.

It is unnecessary here to speak of the further provision contained in section 8 of article 11, giving to any city containing a population of more than 100,000 inhabitants authority to frame a charter for its own government, consistent with and subject to the constitution and laws of the state, by causing a board of 15 freeholders to be selected to prepare and propose a charter, etc.

If I am correct in my interpretation of the provisions of the constitution upon the subject, it follows that the Vrooman act of 1885 is not an act for the "incorporation, organization, and classification" of cities and towns, and is a "general" law. It applies to the city and county of San Francisco as well as to every other municipality of the state. A simple reading of the act in question will show clearly that it is not a general law "for the incorporation,

organization, and classification, in proportion to population, of cities and towns," which the legislature is, by section 6 of article 11 of the constitution, commanded to pass. It does not purport to provide for the incorporation, organization, and classification, in proportion to population, of cities and towns; but it does provide for the doing of work upon the streets, lanes, alleys, courts, places, and sidewalks, and for the construction of sewers, within all the municipalities of the state. It is therefore a general law. A more general one upon the subject could not be framed, and if the constitution means what it says when it declares that "cities or towns, heretofore or hereafter organized, and all charters thereof framed or adopted by authority of this constitution, shall be subject to, and controlled by, general laws," I am unable to see why this act does not apply to the city and county of San Francisco as well as to all other municipalities of the state. In my opinion, it does do so. I agree with Mr. Justice MYRICK that the constitutional amendment of 1884, removing the inhibition contained in the nineteenth section of article 11 of that instrument as adopted in 1879, was properly adopted. It was so held by a majority of this court in the recent case entitled People v. Strother, (Ño. 11,284,) 8 Pac. Rep. 383.

For the reasons here given I concur in the judgment.

MCKINSTRY and SHARPSTEIN, JJ. We think the street law of 1872 is a part of the charter of the city and county of San Francisco which was not repealed or abrogated by the constitution of 1879. Our reasons for this conclusion are fully set forth in the opinion of Mr. Justice SHARPSTEIN in Staude v. Election Com'rs, 61 Cal. 324, and in the opinion of Mr. Justice MCKINSTRY in Donahue v. Graham, Id. 277-282. We also think that the act of March, 1885, is not a "general law," within the meaning of the last clause of section 6, art. 11, of the constitution. We do not deem it necessary, however, to dissent from the judgment, inasmuch as the petitioner has not prayed for a writ of mandate, and the petition avers that the law of 1872 is not in force, while the law of 1885 has not been complied with. In the exercise of its jurisdiction to entertain or refuse the application, the court below was justified in refusing it to one who (even if he had asked for a writ) has declared in his petition that, in his own judgment, he is not entitled to it.

JUDGMENT REVERSED.

HILTON . HEVERIN. (No. 11,195.)
(Supreme Court of California. May 1, 1886.)

For the reasons stated in the opinions filed in Oakland Paving Co. v. Hilton, (No. 11,194,) ante, 3, judgment reversed.

In bank. Appeal from superior court, county of Alameda.

C. T. Johns, for appellant. John H. Boalt, Henry Vrooman, and C. T. H. Palmer, for respondent.

THORNTON, J. The court below held that the act of March 18, 1885, was in force, and that the proceedings being had under it were valid. The judgment must be reversed on the ground that the act of 1885 is, so far as involved in this case, unconstitutional and void. The reasons for this are stated at length in Oakland Paving Co. v. Hilton, (No. 11,194,) ante, 3, this day filed.

MCKEE, J. For the reasons given in my concurring opinion in the case of Thomason v. Ruggles, ante, 20, this day filed, I concur in the judgment. MCKINSTRY and SHARPSTEIN, JJ. We concur in the judgment. We are of the opinion that the act of 1863-64, amended in 1869–70, was not affected by the constitution of 1879, and is still in force.

(63 Cal. 515)

HOLLADAY . HARE. (No. 9,221.)

(Supreme Court of California. May 14, 1886.) BANKRUPTCY-DISCHARGE IN BANKRUPTCY-ATTACHMENT.

Where property of a defendant has been attached more than four months before the filing of a petition in bankruptcy by him, the plaintiff, if he recovers in the action, is entitled to a judgment for the enforcement of his attachment lien; and the fact that such property had been released by the giving of an undertaking, under section 555 of the California Code of Civil Procedure will not deprive plaintiff of such right, but will entitle him to the benefit of the undertaking as a substitute for the property, and a judgment so providing is proper.

Department 1. Appeal from superior court, city and county of San Fran

cisco.

Action commenced May 16, 1886, to recover the value of services rendered by plaintiff as an attorney at law. Defendant answered, setting up as a defense his discharge in bankruptcy from all debts ex sting on the fifteenth day of March, 1877, the day on which his petition for adjudication as a bankrupt was filed. The court found on the trial that plaintiff was entitled to have $3,078.50 for his services, and that defendant had been discharged in bankruptcy as alleged. It was also found that when the action was commenced plaintiff had, by way of garnishment, attached funds in the California Bank sufficient to satisfy his demand, and that defendant obtained a release of the attachment by giving the undertaking required by section 555 of the Code of Civil Procedure. The court then entered the judgment set forth in the opinion, from which judgment defendant appealed.

J. M. Seawell, for appellant. S. W. Holladay, for respondent.

MCKINSTRY, J. The judgment appealed from is as follows: "It is therefore now, by the consideration of the court, hereby ordered, adjudged, and decreed that the plaintiff herein, Samuel W. Holladay, do have and recover from the defendant herein, Charles Hare, the sum of three thousand and seventy-eight dollars and fifty cents, ($3,078.50,) with costs of this action, hereby taxed at $133; that the said sums of money so adjudged hereby to the plaintiff be enforced or satisfied out of the property attached in this action by the sheriff, on or about the sixteenth day of May, 1876, as appears by this return on file herein, if the said property shall be re-delivered for that purpose, otherwise by proceedings on the undertaking of the sureties, Daniel Dodge, P. H. Cooty, and H. C. Wright, filed herein June 17, 1876, on behalf of the defendant, Charles Hare, and given for the discharge of the writ of attachment, and the release of the property taken thereunder, as appears by the papers on file in this cause."

The prosecution of the action to judgment had not been stayed by any order of the bankruptcy court. But the effect of the discharge of the defendant as a bankrupt was to prohibit a judgment which could be made out of any property of defendant other than that which was attached, (more than four monthis before the commencement of the bankruptcy proceedings.) Rev. St. U. S. 5,044. The plaintiff here was entitled to a judgment in form, either general, or limited to the property attached. The state law authorized a judgment enforceable, except to the extent that its enforcement was limited by the paramount authority of the law of the United States, adopted to carry out the bankruptcy jurisdiction conferred by the constitution on the courts of the United States. The appellant here cannot complain that the judgment provided for its collection only out of the property attached; that is, of a judgment collectible out of part, instead of the whole, of his property. Such would be the only mode in which the judgment could be satisfied, if it had been general in its form