Dyer v. Miller

Thornton, J.: This is an action to recover a street assessment for work clone on Green Street, in the City of San Francisco, in which judgment passed for defendant, from which judgment plaintiff appealed.

But one question is presented on this appeal. The work intended to be done by the resolution of intention was the grading of Green Street between Leavenworth and Hyde streets, one half of which had been done before any proceeding was taken in the Board of Supervisors. Green Street had .not been graded for a distance of two blocks on each side of the proposed work. No petition for this work was ever presented in the Board of Supervisors, and the question to be considered is, whether the Board had jurisdiction to order such work to be done without a petition therefor signed as required by law.

This question is to be determined by a construction of the fourth section of the act of 1872. (See Stats. 1871-72, pp. 805, 806.) The section referred to provides that the Board of Supervisors of the City and County of San Francisco may order any street work to be done mentioned in the preceding section of the act, after notice of their intention so to do, in the form of a resolution, etc., except that no such notice shall be given or order made for the grading of any street, etc., unless the majority of the frontage of the lots and land fronting on the work proposed and described in the said resolution, or which is to be made liable for such grading, shall have been represented by the owners thereof, or their agents, in a petition to the Board, stating that they are the owners, etc., and requesting such street work to be done; for every other kind of street work no petition is required, and the Board is authorized to give the notice prescribed in the fourth section, and to order the work to be done, without any petition.

The section (fourth) further provides that all owners of lands or lots, or portions of lots, who may feel aggrieved or have objection to the ordering of the work described in the notice of intention, or who may have objections to any of the subsequent proceedings of the Board in relation to the said work, etc., etc., shall file with the clerk of the Board a peti[587]tion or remonstrance, wherein they shall set forth in what respect they feel aggrieved, or the acts or proceedings to which they object, which petition or remonstrance shall be passed upon by the Board, and their decisions thereon shall be final and conclusive; but the Board shall not order the work described in the notices to be done, unless all the objections and protests that may have been presented and filed as aforesaid shall have been by them disposed of. Should the owners or agents of more than one half in frontage of the lots and lands fronting on the work proposed to be done, and designated in said notice, or liable to be assessed for the work, file with the clerk of the Board written objections against any grading described in the notice, at any time before the expiration of the publication of the notice of intention, then the Board shall be barred from proceeding further for the period of six months, and the Board shall not renew the notice of intention for doing any grading so protested against within six months, unless the owners or agents of a majority of the frontage of the lots and lands fronting on the said grading or liable to be assessed therefor, shall petition anew for the work to be done.