McDonald v. Dodge

McFarland, J. This is an appeal by defendant from a judgment in favor of plaintiff in a street assessment case, arising in the city and county of San Francisco, and from an order denying a new trial. There are only two points made by appellant which need special notice.

1. Appellant’s counsel contends that the record shows a written protest by a majority of the frontage of the property fronting on the proposed work involved in this action (which fact may be taken for the present as true), and that therefore the assessment sued on was void, because section 3 of the street law of 1883, as [113]amended by the act of March 14, 1889 (Stats. 1889, p. 158), provides that such a protest “ shall be a bar for-six months to any further proceeding.” To this counsel for respondent replies, that said section provides that the work “shall not be stayed by any written or other protest, unless such council shall deem proper,” and. neither counsel makes the slightest reference to the possibility of reconciling those two apparently incongruous-provisions. But upon an examination of the section,, which is a very long one, we find its provisions to be, that with respect to certain kinds of work and certain-conditions of property, a protest, of itself, stops proceedings for six months; while with respect to other kinds of work, and other conditions of property, a protest has not such effect. And among other things, it provides that a protest shall not stop proceedings in a ease where the proposed work is to be done in a block lying between, blocks which have been already graded. Now, whether- or not such was the condition of the block upon which the work was done in the case at bar does not appear. No such issue was raised by the pleadings, and whether or not there was evidence upon the point we cannot tell. There is nothing upon the subject in the record.. This being so, we will not presume, against the validity of. the judgment, that the block in question was not between graded blocks. An appellant, to be successful, must show error.

2. Appellant contends for a reversal because the resolution of intention and the resolutions ordering the work and approving the award were not presented to or approved by the mayor.

The act clearly provides that the city council shall pass the resolution of intention, and order the work; and with respect to the award the provision is, that it “ shall be approved by the mayor or a three-fourths vote of the city council.” By section 34 of the act, it provides that “the term ‘city council’ is hereby declared to include a body or board which, under the-law, is the legislative department of the government.of any city.”