Smith v. Hazard

Vanclief, C. This is an action to recover a street assessment of two hundred and eighteen dollars and forty-six cents for work done by plaintiff on Micheltorena street, in the city of Santa Barbara, under contract with the superintendent of streets.

On June 13, 1893, the city council, by resolution, declared its intention “ to grade, curb, and gutter” said street, “ from the northeasterly line of Chapala street to the northeasterly line of De la Vina street, a distance of one block, and duly posted and published said resolution.

[147]Thereafter, on July 1, 1893, the owners of a majority of the frontage on the proposed improvement in due form protested against said improvement; but the city council disregarded their protest, and without delay proceeded in the matter as if no objection or protest had been made.

The court below ruled that the protest was a bar to further proceedings for six months; and that all subsequent proceedings, including the assessment, were therefore void. Whether or not this ruling was correct is the principal question discussed by counsel on this appeal. The appellant contends that it was error.

The block improved was one of two adjoining ungraded blocks intervening between and bounded at each end by graded blocks; and it is not denied that the council had power to improve the two ungraded blocks thus situated, notwithstanding the protest; but respondent contends that the whole intervening unimproved space of two blocks must have been improved under one resolution of intention and one contract; and that the council was not authorized to improve each of the two intervening blocks under a distinct resolution of intention or a distinct contract, in disregard of a protest by the owners of a majority of the frontage, even though each of the intervening blocks was being so improved at the same time.

I think, however, that this is a misconstruction of the ' street law. Section 2, page 196, of the Street Improvement Act of 1885, as amended in 1891, confers upon the city council general authority “to order the whole or any portion, either in length or width of streets,” to be improved, etc. But section 3 of the same act limits this general authority as follows:

“ The owners of a majority of the frontage of 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, which objection shall be delivered to the clerk