Babcock

This is an appeal by the plaintiff from a judgment in favor of the defendant in an action to foreclose a street assessment.

The court finds that the board of supervisors did not on October 22, 1894, or at any other time, duly make or pass a resolution ordering the work done, and that said board on that day did “adopt and pass a resolution” ordering said work done, “but did not prior thereto, and relative to said order, pass a resolution of intention to order said work.” The appellant claims that this finding is inconsistent and contradictory of itself. The evident meaning of the court in making this finding was, that although the board did adopt and pass the resolution ordering the work done, still the resolution was not “duly” passed or adopted; that is to say, it was passed without there being any previous resolution of intention on which it could be founded, and, consequently, the board had no jurisdiction to pass it. In such a case it would be strictly true, in the legal sense, that it was not duly passed, although it had been actually passed.

The principal point in the ease arises from the following facts: A resolution of intention to do the work was passed on February 26,…