City Street Improvement Co. v. Babcock

SHAW, J.

This is an appeal by the plaintiff from a judgment in favor of the defendant in an action to foreclose a street assessment.

The court finds that the board of supervisors did not on October 22, 1894, or at any other time,

duly

make or pass a resolution ordering the work done, and that said board on that day did “adopt and pass a resolution” ordering said work done, “but did not prior thereto, and relative to said order, pass a resolution of intention to order said work.” The appellant claims that this finding is inconsistent and contradictory of itself. The evident meaning of the court in making this finding was, that although the board did adopt and pass the resolution ordering the work done, still the resolution was not “duly” passed or adopted; that is to say, it was passed without there being any previous resolution of intention on which it could be founded, and, consequently, the board had no jurisdiction to pass it. In such a case it would be strictly true, in the legal sense, that it was not

duly

passed, although it had been actually passed.

The principal point in the ease arises from the following facts: A resolution of intention to do the work was passed on February 26, 1894, and within the time prescribed by law the owners of a majority of the frontage along the proposed im

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provement made and signed a written objection to the work, and delivered the same to the clerk, who indorsed thereon the date of its reception by him; and thereupon the further proceedings under the resolution of intention were ended. But the board did, nevertheless, attempt to resume and revive the old proceeding, and continue the work under it without a new resolution of intention. This, it was held in

City Street Improvement Co.

v.

Babcock,

123 Cal. 205, could not be done. There must be a new resolution of intention, precisely the same as if none had ever been passed. The plaintiff now presents the proposition that the written objection of the property-owners was never legally indorsed by the clerk of the council, and that for that reason it never became effectual to terminate the proceedings under the resolution of intention passed February 26, 1894. And this is the chief remaining question in the case. The facts are, as found by the court, and upon sufficient evidence, that the written objection, or protest, was delivered to the clerk, who thereupon indorsed thereon the date of its reception by him, but did not authenticate the indorsement by signing his name thereto.