Cope, J. concurring.

This was an action to enforce a contract for repairing a street in San Francisco. The contract was made by the Street Superintendent, under the provisions of the Consolidation Act applicable to that city. The liability of the defendant in such cases as this depending upon a statute, the remedy must be according to the statute ; and the liability only inures after the taking of the steps and a compliance with the requisitions prescribed by the statute. The complaint must show the existence of the facts authorizing the contract, as it is upon these, and these alone, that the liability of the defendant is predicated. It seems to us that the learned Judge below wa§ right in sustaining the demurrer, and for the reason given, that under the provisions of the Consolidation Bill and the Act of 1859 amendatory of it, the Board of Supervisors have no power to order a contract for planking, paving, piling or repaving a street which has been once paved, piled, etc., except in the instance given in section fifty-three (amended). (See sec. 10 of the Act of 1859.) The power here was not under or conformable to that section; but this work would seem to come under the fifty-sixth section (amended). (See seq. 12 of the Act of 1859, Statutes, 145.) If inconvenience or difficulty results from such a construction, we'have no power to remedy it.

Judgment affirmed.