United States mails to and from points on its said main line of railroad, outside of the state of California, also between points in the state of California, and likewise conveys the United States mails to and from such points. Carrying passengers and freight from San Bernardino to a thousand places on the line of the road in other states, and likewise from those points to San Bernardino, is conducting an interstate commerce business pure and simple, and by the stipulation this is the business the defendant is carrying on in the city of San Bernardino. The question of power in the city to create such an ordinance is not to be tested by the fact as to whether or not the city is located upon any particular line of railroad, be it trunk or branch line, but rather by the character of the business in which the defendant is engaged in the city passing the ordinance. In dealing with this question we do not concern ourselves as to the character of the franchise under which either the trunk line or the branch line of defendant is doing business. The character of defendant's business, and not the character of its franchise, points the judg ment. Again, as far as plaintiff is concerned, it is the terminus of the transcontinental line; but we think the question of direct line and termini wholly immaterial.

If this question is to be determined by the character of the business done, and we are clear that by such rule the rights of defendant are to be measured, then plaintiff stands upon common ground with every other city situated in the state of California upon the main line proper, for in those cities the defendant conducts and carries on the same kind and character of business as is conducted and carried on in the city of San Bernardino. While defendant does business in the city of San Bernardino in carrying freight and passengers to and from other points in the state of California upon the trunk line, the same conditions are present as to every other city located upon the trunk line, and such circumstance, if controlling, would give them all power to levy the tax here assailed.

There is no attempt by the ordinance here under discussion to levy this tax upon the local business of the defendant, even if the power to take such course existed, but by its terms it includes both local and interstate business. The ordinance covers its entire business as common carriers, regardless of its nature, and, therefore, of necessity, operates as a burden upon interstate commerce, if its business is of that character. As a condition attached to the conduct of its business in the city of San Bernardino it is required by this ordinance to pay a tax to the city. In that city its business is not confined within the state lines of California. It is, therefore, engaged in interstate commerce, and, being so engaged, no statute or municipal law can burden or handicap its business, for the regulation thereof rests solely in the hands of Congress.

For the foregoing reasons the judgment is affirmed.

VAN FLEET, J., and HARRISON, J., concurred.

[No. 19462. Department One.-June 27, 1895.]

CATHERINE GEARY, APPELLANT, v. BOARD OF SUPERVISORS OF THE COUNTY OF SAN DIEGO, RESPONDENT.

ROADS AND HIGHWAYS-PETITION FOR PRIVATE ROAD POWER OF SUPERVISORS.-The board of supervisors has no power to create a private road, or take any step therein, until a petition is filed, which petition in form must be in substantial compliance with the requirements of the statute.

ID. SIGNATURE TO PETITION.-A petition for a private road should regularly be signed by the party who is directly benefited by the laying out of the road.

ID. NECESSITY OF BOND-COMPLIANCE WITH STATUTE.-A bond must accompany the petition, and it is only when the petition and bond are presented to the board of supervisors that power is vested in them to take affirmative action; and a bond in substantial compliance with the statute is as necessary to vest the board with jurisdiction to act as is a petition in substantial compliance with the statute. ID.—IRREGULAR BOND-FALSE REFERENCE TO PETITION.-A bond which appears upon its face to be given upon a petition for a private road by

a party who is not a signer to the petition, and which in no way refers to the petition, upon which the proceedings were inaugurated, is wholly void as a bond to support the petition, and does not give the board of supervisors jurisdiction of the proceedings.

ID. OMISSION OF NECESSARY CONDITION IN BOND.-A bond supporting a petition for a private road, which omits the condition provided for in section 2692 of the Political Code, that the bondsmen will pay to the person over whose land said road is sought to be opened his necessary costs and disbursements in contesting the opening of the road in case the petition be not granted and the road finally not opened, is fatally defective. (D.-AMENDMENT OF BOND-PREVIOUS ACTS NOT VALIDATED.-A fatally defective bond cannot be cured by amendment so as to validate previous acts of the board done without jurisdiction.

APPEAL from a judgment of the Superior Court of San Diego County.

The facts are stated in the opinion of the court.

W. T. McNeally, for Appellant.

The proceedings were not valid, because they were not commenced by a petition in writing signed by the party for whose convenience and accommodation the road was laid out, and therefore the board had no jurisdiction. (Pol. Code, secs 2681, 2692; Elliott on Roads and Streets, 249, 250; State v. Morse, 50 N. H. 9; State v. Ottoe County, 6 Neb. 129; State v. Berry, 12 Iowa, 58; Freeman on Judgments, 185, 188; Prior v. Downey, 50 Cal. 388, 399, 407; 19 Am. Rep. 656; Minard v. Douglas County, 9 Or. 211; King v. Benton County, 10 Or. 513; Nischen v. Hawes (Ky., April 6, 1893), 21 S. W. Rep. 1049; Hill v. Board, etc., 95 Cal. 242.) The objection that Wilson did not sign the petition was not waived, he being a necessary petitioner, without whom the board had no jurisdiction. (Wells v. Rhodes, 114 Ind. 467; Nischen v. Hawes, supra; Brush v. Detroit, 32 Mich. 43; King v. Croak, Cowp. 26, 30; Dwight v. City Council, 4 Gray, 107.) The bond filed with the petition was defective in not containing the condition prescribed in section 2692 of the Political Code. Both of the bonds referred to a petition of J. F. Wilson and others, whereas no such petition was pending. The bond must

accompany and refer to the petition filed. (Pol. Code, sec. 2683.)

M. L. Ward, for Respondent.

The petition filed May 10, 1893, conforms to section 2692 of the Political Code, and is properly signed. (Roosevelt v. Kellogg, 20 Johns, 207; Sherman v. Buick, 32 Cal. 242; Brenham v. Story, 39 Cal. 179; Monterey County v. Cushing, 83 Cal. 807; Butchers' etc. Assn. v. City of Boston, 139 Mass. 290; Minard v. Douglas County, 9 Or. 211; King v. Benton County, 10 Or. 513; Humboldt County v. Dinsmore, 75 Cal. 604, 607; Hogenmeyer v. Mendocino County, 82 Cal. 218; Farmers' etc. Bank v. Board, etc., 97 Cal. 326.) The petition, though defective, confers jurisdiction, and its sufficiency cannot be collaterally questioned. (Ricketts v. Spraker, 77 Ind. 371, 374; Muncey v. Joest, 74 Ind. 409; Stoddard v. Johnson, 75 Ind. 20.) The objection that Wilson did not sign the petition was not made before the board of supervisors, and was therefore waived. (Elliott on Roads and Streets, 256, and cases cited; Wells v. Rhodes, 114 Ind. 467; Palmer v. Clement, 49 Mich. 45; Bacheler v. New Hampton, 60 N. H. 207.) The board had the power to permit an amended bond to be filed, and, as the objection to the bond was not taken before the board of supervisors, it was waived. (Elliott on Roads and Streets, 256; Wedel v. Herman, 59 Cal. 507, 516; Deady v. Townsend, 57 Cal. 298, 299.)

GAROUTTE, J.-The proceedings upon upon which this

action is based were commenced before the board of supervisors of San Diego county for the purpose of creating a private road. By a writ of review these proceedings were brought before the superior court and there held to be valid. This appeal is taken from such adjudication.

1. It appears, both by the petition and the order of the board of supervisors laying out the road, that the proceedings were inaugurated for the benefit of one

J. F. Wilson, in order that he might secure a way of access to his farm. Wilson is not one of the signers to the petition for the road, and it is insisted that, under section 2692 of the Political Code, one party at least who is directly benefited by the laying out of the road must sign the petition. Such a course certainly would be the better practice, and it is somewhat anomalous that Wilson, the party directly interested, did not indicate his assent to the proceedings by attaching his name to the petition; but we think the proceeding is void for other reasons, and therefore do not find it necessary to give a construction to section 2692 of the Political Code in this regard.

2. As is said in Hill v. Board of Supervisors, 95 Cal. 242, the mode prescribed by the statute for the laying out of roads is to some extent the measure of the power of the board of supervisors. The board cannot take a step until a petition is filed, which petition in form must be in substantial compliance with the requirements of the statute. But even when the petition is filed some thing more must be done before the board can act. A bond must be filed. Section 2683 of the Political Code declares that a bond must accompany the petition, and it is only when the petition and bond are presented to the board of supervisors that power is vested in it to take affirmative action. A bond in substantial compliance with the statute is as necessary to vest the board with jurisdiction to act as is a petition in substantial compliance with the statute. At the time the petition was presented a bond in the amount of fifty dollars. accompanied it, which recited: "The condition of this obligation is such that, whereas James F. Wilson and others have petitioned the board of supervisors of San Diego county, state of California, for a private highway, the probable cost of viewing, laying out," etc. By its face the bond appears to be given upon a petition for a private road by James F. Wilson and others, and in no way refers to the petition upon which the proceedings in this case were inaugurated. Wilson is not a signer