Pacific Paving Co. v. Geary

HAYNES, C.

Action to recover an assessment for a street improvement. Defendants had judgment, and plaintiff appeals therefrom and from an order denying a new trial.

The proceedings for the work in question were taken under the Street Improvement Act, as amended in 1891, (Stats. 1891, sec. 3, p. 196,) and the written objection to the work there provided for, respondents contend, was duly taken.

The effect of the filing of such protest and objection by the owners of a majority of the frontage is fully considered and stated in

City Street Improvement Co.

v.

Babcock,

123 Cal.

[374]

205, where it is distinctly held that the filing of such protest and objection not only suspends the jurisdiction of the board for six months, but that their jurisdiction to proceed with the work is ended, and cannot be again exercised without the passage and publication of a new resolution of intention to order the work; and in this conclusion we fully agree.

Appellant contends, however, that there was no direct evidence to show that the persons purporting to be signers of said protest were in fact such owners,. and that the court erred in finding that one of the protests was so signed. Whether such objection was signed by a

majority'

of the

owners

of the frontage was a question for the board to determine. In said section 3, at page 198, said act provides: “ At the expiration of the time of said publication by said street superintendent, and at the expiration of twenty-five days after the advertising and posting, as aforesaid, of any resolution of intention, if no written objection to the work therein described has been delivered, as aforesaid, by the owners of a major frontage of the property fronting on said proposed work or improvement, or if any written objection purporting, to be signed by the owners of a major frontage is disallowed by said council, as not of itself barring said work for six months, because, in its judgment, said objection has not been legally signed by the owners of a majority of said frontage, 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.”