City Street Improvement Co. v. Babcock

HARRISON, J. Action upon a street assessment. The proceedings for the work covered by the assessment were taken under the street improvement act as amended in 1891. Section 3 of the act (Stats. 1891, p. 196) contained the following-provisions: “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 notices, which objection shall be delivered to the clerk of the city council, who shall indorse thereon the date of its reception by him, and such objection, so delivered and indorsed, shall be a bar for six months to any further proceedings in relation to the doing of said work or making said improvement, unless the owners of the one-half or more of the frontage as aforesaid shall meanwhile petition for the same to be done.”

[206]In the present case, the board of supervisors passed a resolution of intention to order the work February 26, 1894, and the court finds that within ten days after the expiration of the time of the publication and posting of the notice of said resolution the owners of a majority of the frontage filed their protest and objection to the doing of said work. Without passing any other resolution of intention, the board of supervisors passed a resolution ordering the work on the twenty-second day of October, and the work for which the assessment was made was done in pursuance of proceedings taken by virtue of this order. The superior court held that the board had no jurisdiction to order the work, and that the assessment created no lien upon the land of the defendant, and gave judgment in his favor.

It is contended by the appellant that by the passage of the resolution of intention on the twenty-second of March, and the publication and posting thereof, the board acquired jurisdiction to order the work, and that its subsequent resolution ordering the work was within the jurisdiction thus acquired; that the filing of the protest had the effect to merely suspend the exercise of this jurisdiction for the period of six months, and that after this period it could order the work the same as if no protest had been filed. Section 3 of the street improvement act, as it existed prior to the amendment in 1891, contained the following provision immediately after the clause above quoted: “At or after the end of said six months, if said work so barred for six months shall not have been done, the city council may order said work to be done after republication and posting of a resolution of intention, by virtue of the proceedings already had and taken, but within like time like objections may again be filed with like effect, and so on at the expiration of each six months until the work is done”; and the appellant urges in support of his contention that the omission of this provision in the section, as amended in 1891, indicates that the legislature intended that the work might be ordered without again passing a resolution of intention therefor. We are of the opinion, however, that a contrary inference is to be drawn from the amendment. The provision in the act as it stood prior to the amendment of 1891, that after the expiration of six months the board might order the work to be done “after republication and posting of a resolu