Note Enter Same-Same- each may be legally ascertained according to law. taining these views, it is our judgment that the provisions of said city ordinance in respect to the proportionate shares of the cost of the street improvement to be charged to said parties, respectively, and also the space occupied by the railway companies, be decreed null and void, as not in conformity to the provisions of section 2 of Act No. 10 of 1896, and that the decree appealed from be annulled and reversed, and one entered sustaining the demands of the defendants. It is therefore ordered and decreed that the city ordinance drawn in question be annulled and avoided in the respects enumerated, and that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the defendants' demands be sustained and enforced at the cost of the plaintiff in both courts. It is finally ordered and decreed that the right of the city is reserved to readjust its ordinance in such manner as to conform to the law and the views herein expressed. NOTE. Validity of Assessment on Abutting Owner as Affected by Failure to Assess Street Railway Company. An ordinance of a city authorized it to assess two-thirds of the cost of paving a street upon the property holders who were especially benefited thereby, after deducting the amount required of a street-railway company. The city paved only the middle portion of a street, not including the portion where the track was laid, and only assessed the property owners five-eighths of the required two-thirds, and did not assess the street-car company at all. Held, that the property owners, under the circumstances, could not complain that the company was not assessed. Bowditch v. New Haven, 40 Conn. 503. It is no objection to the validity of a city ordinance authorizing the repaving of a street, the cost of which is to be assessed upon the owners of the property binding thereon, that it does not provide that a passenger-railway company, which is required by its charter to keep its track and two feet on each side in thorough repair, should be assessed for its proportion of the cost of repaving such street, City St. Imp. Co. v. Babcock on which its tracks are laid. Mayor, etc., of Baltimore v. Scharf. 10 Am. & Eng. R. Cas. 241, 54 Md. 499. Where a street-car company is required to pave and keep in repair a certain portion of a street, a failure of the city authorities to assess the company therefor is such error as will enable a property owner, whose assessment is thereby increased, to have the assessment set aside. In re Appleby, 26 Hun (N. Y.) 427. In Gilmore v. Utica, 43 Am. & Eng. R. Cas. 225, 121 N. Y. 561, 24 N. E. Rep. 1009, 31 N. Y. S. R. 880; reversing 55 Hun 514, 29 N. Y. S. R. 781, 9 N. Y. Supp. 912, it was held that even if a company be under obligation, by the statute under which it is organized, to repave the streets between its tracks, and therefore ought to bear some portion of the expense of a pavement ordered by the city, the failure of the city to enforce the liability of the company does not render illegal an assessment imposing two-thirds of the expense upon the abutting property owners and one-third upon the city. CITY ST. IMP. CO. 2. BABCOCK. (Supreme Court of California, Dec. 30, 1898.) Authority to Order Improvements.-Under the law providing, in substance, that the owners of a majority of the frontage of the property fronting on a proposed street improvement may make an objection to the same, which shall bar for six months any further proceedings in regard to such improvement. Held, that such an objection did not merely suspend the exercise of the jurisdiction of the board of supervisors, but made it necessary that the board should again pass a resolution of intention, after the expiration of the six months, in order to acquire jurisdiction to command the performance of the work. APPEAL by plaintiff from superior court, city and county of San Francisco. Affirmed. J. C. Bates, for appellant. Geo. D. Collins, for respondent. City St. Imp. 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 (St. 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 endorse thereon the date of its reception by him, and such objection, so delivered and endorsed, 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." 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 10 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 22d 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 22d 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; City St. Imp. Co. v. Babcock 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 re-publication 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 re-publication and posting of a resolution of intention," clearly shows that under that act it was not necessary to again pass a resolution of intention; that it was sufficient to republish and repost the original resolution of intention; but by the omission of this provision in the amendment of 1891 the legislature intended that such re-publication and reposting should not be sufficient to authorize the board to order the work to be done, but that the matter of the improvement should be again submitted to the legislative discretion and judgment of the board to determine whether, upon further consideration, and in view of the objections that had been made, it was still for the public interest that the improvement should be made, and, if so, that it should be initiated by a new resolution of intention. By filing their protest, the owners of a majority of the frontage placed a veto upon "any further proceedings in relation to the doing of the work," which was absolute for six months, but at the expiration of that period the board could exercise City St. Imp. Co. v. Babcock and its power to order the improvement in the same manner, by the same proceedings, as it could order any other im provement. If it had been the intention of the legislature that the power of the board to order the work was merely suspended for six months, and that at the expiration of that period it might order the work without any other proceedings, it is reasonable to believe that it would have expressed its intention in direct language to that effect; but its use of the term "bar," and its declaration that the board should not take any further proceedings "in relation to the doing of the said work," indicates that it intended more than a suspension of action, and that the further proceeding in relation to the work should be such as were required in the first instance for effecting the improvement. The provision of the section is that the protest shall be not merely a "bar" to ordering the work, but a bar to any further proceedings "in relation to" the doing of the work,-language which must include every step which is necessary to give to the board the power to order the work to be done; and it is further to be noticed that it is not a bar to further proceedings "under said resolution," but further proceedings "in relation to doing said work." The provision for terminating the six-months veto by a petition from the owners of one-half or more of the frontage is to be read in connection with section 4 of the act, which provides that, even though the work be petitioned for by the owners of a majority of the frontage, a resolution of intention must be passed by the board; thus corroborating the conclusion that, after a sufficient protest has been filed, the work cannot be ordered without again passing a resolution of intention therefor. The construction thus given to the act is further corrobo rated by the following provision in the same section: "At the expiration of ten days after the expiration of the time of said publication of said street superintendent, and at the expiration of fifteen days after the advertising and posting as aforesaid of any resolution or intention, if no written objection to the work therein described has been delivered as |