City Street Improvement Co. v. Laird

HARRISON, J.

Action upon a street assessment in the city and county of San Francisco. Judgment was rendered in favor of the plaintiff, and from this judgment and an order denying a new trial the defendants have appealed.

The work ordered to be done, and for which the assessment was made, is the paving with bituminous rock of the roadway of the crossing of Market and Noe streets. A resolution of intention therefor was passed April 22, 1895, and within ten days thereafter certain property-owners filed with the clerk of the board of supervisors a protest against the work. This protest was referred by the board to the committee on streets, and that committee afterwards reported that, as the protest represented a majority of the property liable for the expense of the work, it barred for six months any proceedings in relation thereto, and this report when received and read was adopted as the action of the board. After the expiration of

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six months,—viz., December 9, 1895,—the board of supervisors without passing any other resolution of intention, passed an order that the work be done, and thereafter awarded a contract therefor to the plaintiff. It is now contended by the appellants that, under the authority of

City Street Improvement Co.

v.

Babcock,

123 Cal. 205, as the board of supervisors did not pass another resolution of intention after the expiration of six months from the filing of the protest, it had no jurisdiction to order the work, and that the assessment is invalid.

1. The right to protest against the improvement of a street is created by the statute, and is limited by the terms of the statute. Section 3 of the Street Improvement Act provides that, after the board of supervisors has passed a resolution of its intention to order any street improvement, “The owners of a majority of the frontage of the property fronting on said proposed work or improvement where the same is for one block or more, may make a written objection to the same within ten days after the expiration of the time of the publication and posting of said notice. And such objections, so delivered and indorsed, shall be a bar for six months to any further proceedings in relation to the doing of said work.” This is the only provision in the statute in which written objections to the work, without giving any reasons for the objection, will operate as a veto upon the intention of the council, and this is by its terms limited to a case where the improvement is “for one block or more.” A block is declared in section 34 of the act to mean such blocks as are bounded by “main streets.” In order that the protest may be available, it is also necessary that the written objections should be made by “the owners of a majority of the frontage of the property fronting on said proposed work or improvement.” It is apparent that these provisions of the statute can have no application in the present case, for the reason that the proposed improvement is not “for one block or more,” and for the further reason that there can be no property “fronting” upon the proposed work. A crossing is the intersection of two streets, and from the nature of the term can have no property fronting upon it.