68 P. 584 | Cal. | 1902
The complaint alleges that on October 22, 1894, the board of supervisors “duly made and passed” a resolution ordering the work to be done, and also contains allegations of the subsequent proceedings up to and including the recording in the office of the superintendent of the return upon the warrant and assessment. The answer denies that the board of supervisors duly made and passed the resolution ordering the work, and also denies various other allegations of the complaint. The court finds that the board did not duly make or pass any resolution ordering the work. The appellant contends that this finding is insufficient; that,
The court also found that on February 26, 1894, the board of supervisors passed a resolution of its intention to order the work, but that, within ten days after the publication and posting of a notice thereof, the owners of a majority of the frontage of the property fronting thereon delivered written objections to the same to the clerk of the board, who thereupon indorsed thereon the date of its reception by him, and that the said board thereafter sustained the said objections. This finding is challenged by the appellant as not sustained by the evidence. A document containing objections to the improvement, purporting to be signed by the owners of a majority of the frontage liable to be assessed therefor, was introduced in evidence on the part of the defendants, bearing the indorsement “Clerk’s Office. Filed Mar. 5, 1894. San Francisco, Cal. Board of Supervisors.” The superscription upon the document was not signed or 'authenticated in any manner, nor was it shown by whom the indorsement was made. It was, however, shown that at a meeting of the board of supervisors on March 5th this paper was read and referred to the street committee ; that that committee afterward reported that the protest contained therein was a bar for six months to any further proceedings in relation to the performance of the work, and that on March 12th this report was read at a meet
Under the provisions of the street improvement act, if a majority of the owners of the frontage properly present a protest against the improvement, the board of supervisors has no jurisdiction to order the work, except upon the subsequent passage of another resolution of intention after the expiration of six months from the presentation of such protest: City Street Improvement Co. v. Babcock, 123 Cal. 205, 55 Pac. 762. The provisions upon this subject are contained in section 3 of the act, and are as follows: “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 notice, 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 objections 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”: Stats. 1891, p. 196. The respondent contends that these provisions of the section were complied with in the present case; that the delivery of the protest at the office of the clerk of the board of supervisors constituted a filing thereof, and operated as a bar to any further proceedings under the previous resolution of intention, and that the evidence thereof sustains the finding of the court. On the other hand, the appellant contends that, as the section requires that the protest must be not only delivered to the clerk, but also that he must “indorse thereon the date of its reception by him,” the mere delivery to him is not enough; that the indorsement required must be made by him and authenticated by his signature; and that unless these acts are all performed, the protest does not become effective.
The entire proceeding for the improvement of a street is' of statutory creation, and whatever acts the statute requires to be performed within any designated time, or in any prescribed form, must be performed within that time and in that manner, in order that they may have the effect which the statute prescribes for them.- Originally the filing of a paper consisted in having the proper officer put it upon the string—filum—on which the other papers in the proceeding
The subsequent action of the supervisors in determining that the protest was sufficient to bar the proceedings was of no effect. Until the protest had been properly filed, the board had no jurisdiction to pass upon its sufficiency. Unless there had been a proper protest against the work, the subsequent action of the board in ordering the work was within the jurisdiction acquired under the resolution of intention passed February 26th, and the court erred in holding that the order was not duly passed.
The judgment and order denying a new trial are reversed.
We concur: Garoutte, J.; Van Dyke, J.