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of street work, has authority to provide a complete, distinct and independent method of exercising the power to construct tunnels given by chapter VIII of article 6, which method may be pursued to the exclusion of all other methods, and the requirements of sections 2 and 3 of chapter II of article 6 relative to the doing of street work are not limitations upon the powers of the board, but merely methods of procedure.

[2] ID-TWIN PEAKS TUNNEL PROCEDURE ORDINANCE-DEFERRED_PAYMENT OF ASSESSMENTS-OMISSION FROM RESOLUTION OF INTENTION AND ORDER FOR ASSESSMENT NOT FATAL.-The provisions of section 33, chapter II, and subdivision 3 of section 8 of chapter II, which ordain that in certain instances deferred payments of assessments must be provided for by the board of public works in the resolution of intention, and by the supervisors in ordering the assessments, are mere matters of procedure, and the omission thereof from the provisions of the tunnel procedure ordinance in question (Twin Peaks), was not improper.

[3] ID-TIME FOR FILING PROTEST AGAINST REPORT OF BOARD OF PUBLIC WORKS ORDINANCE NOT OPPRESSIVE.-The Twin Peaks tunnel procedure ordinance of San Francisco is not arbitrary, oppressive and unjust because only twenty days after notice of the filing of the report of the board of public works was allowed in which objectors might protest against the report, notwithstanding the magnitude of the task, where the protestant appeared and made a very exhaustive protest and repeatedly heard in person and by counsel, and did not ask for further time.

[4] ID.-ACQUISITION OF LAND FOR TUNNEL CONSTRUCTION-ASSESSMENT— INCLUSION IN ORDINANCE WARRANTED.-Under section 1, chapter VIII, of article 6 of the charter of the city and county of San Francisco, as amended in 1913, and section 2 of the same amendment, provisions for assessing property to raise the money with which to acquire lands necessary for a tunnel may be included in the ordinance providing for the assessment of property for the building of the tunnel itself.

[5] ID. TUNNEL FOR PUBLIC USES.-The assessment for Twin Peaks tunnel construction is not void on the ground that the tunnel is not one for public uses, because of use for the sole purpose of a rapid transit railroad bore, since a tunnel for one public use is a tunnel for public uses, serving the convenience of the inhabitants of two great sections of the city.

[6] ID. PROTEST OF INDIVIDUAL ASSESSMENTS RIGHT UNDER TWIN PEAKS ORDINANCE-The Twin Peaks tunnel ordinance, which, unlike the usual street improvement statutes, provides for the assessment and collection of the money necessary to construct the tunnel and acquire the necessary property therefor before the contracts are let, does not thereby deprive the property owner of the right to protest his individual assessments as to amount of benefits.

[7] ID.-VALIDITY OF ORDINANCE-OMISSION TO ASSESS PROPERTY--FAILURE TO APPEAL-ESTOPPEL.-The Twin Peaks tunnel ordinance is not void on its face because of the fact that city property was not assessed for its proper proportion of benefits, and church property was not assessed at all, since such proceeding was a "district assessment" in which the amount of the assessment upon each piece of property was left to the judgment of the supervisors, and not a "front-foot" proceeding, and where the property owner failed to appeal he lost the right to assert that the assessment was invalid on such grounds.

Appeal from the Superior Court of the City and County of San Francisco-James M. Seawell, Judge.

For Appellant-Edward C. Harrison, Maurice E. Harrison, J. A. Cooper. For Respondents-George Lull, City Attorney; Theodore J. Savage.

This is an action by which the plaintiff and appellant seeks to have his title to certain real property, situate in the city and county of San Francisco, cleared of the lien of an assessment for the construction of what is known as the Twin Peaks tunnel, and the acquisition of certain property therefor, to have the assessment adjudged void, and also to enjoin further proceedings in the matter.

The assessment attacked was made pursuant to proceedings had under the Tunnel Procedure ordinance, as it is called, of the city and county of San Francisco, the attack involving the validity of the ordinance itself and also the regularity of the proceedings taken thereunder.

The same ordinance was before the supreme court in Mardis v. MeCarthy, 162 Cal. 94, and Hayne v. City and County of San Francisco, 174 Cal. 185, both of which cases arose out of the assessment for what is known as the Stockton street tunnel. The ordinance and the assessment were upheld in those cases. It is claimed, however, that this case presents questions not passed upon nor raised in either of those cases.

The Twin Peaks tunnel, for which this assessment was levied, is 11,200 feet in length, and was constructed to carry an electric street railway; and, in the present condition of rapid transit, is admitted by counsel to be of use for that purpose only. The assessment was to pay the expense of the construction of the tunnel and for the acquisition of certain real property which the board of supervisors deemed necessary and convenient for that purpose. It was levied upon the property in two districts, designated in the resolution of intention as the northeasterly district and the southwesterly district, respectively; and includes the sum of $514,935 for the acquisition in fee of sixty-one parcels of land, making a strip extending from the northeasterly portal of the tunnel, at Castro and Seventeenth streets, in a southwesterly direction on the line of the tunnel to Hattie and Eighteenth streets, a distance on a curve of about 1,900 feet.

The case was tried before the late Judge Seawell in the superior court of the city and county of San Francisco, and resulted in a judgment for the defendants. From this judgment the plaintiff appeals.

In order to give an understanding of the first attack upon the judgment it may be stated that by an amendment to section 33, chapter II, article 6 of the charter of the city and county of San Francisco, dated December 10, 1912, it was provided that the board of supervisors might enact a different and distinct method of procedure for street improvements and assessments therefor than those already contained in the charter. At the same time as the amendment mentioned, chapter VIII of article 6 was written into the charter, authorizing the board of supervisors to construct tunnels under the procedure and powers provided in chapter II, with the further provision that that method of procedure should not be deemed exclusive, but that the board of supervisors might adopt an ordinance prescribing a method of procedure for fully and completely exercising the powers conferred. Appellant claims that certain limitations upon the powers of the board of supervisors are found in sections 2 and 3 of chapter II, article 6, and that being limitations upon the powers of the board of supervisors and not matters of procedure merely the independent procedure authorized for the construction of tunnels must include a compliance therewith The provisions of sections 2 and 3, above referred to, are to the effect that applications for doing street work or improvement must in the first instance be made to the board of supervisors; that no street work of any kind can be ordered by the supervisors unless a written recommendation to do the same has been made by the board of public works; and that before making such recommendation to the board, if the expense is to be borne by private property, the board of works must pass a resolution of intention recommending the same, and providing for the posting, publication and mailing of copies of such resolution in order to give notice thereof. None of these requirements appear in the Tunnel Procedure ordinance, and none of them was complied with; and, as has been said, it is the contention of counsel of plaintiff in this case that the provisions of sections 2 and 3, above mentioned, place limitations upon the powers of the board of supervisors which must be observed in proceedings looking to the construction of a tunnel and the acquisition of property therefor. [1] But it must be held that by the provisions of section 33. chapter II, article 6, and chapter VIII of article 6, the board was doubly

authorized to provide a complete, distinct and independent method of exercising the power to construct tunnels conferred upon them by chapter VIII, article 6, of the charter; and the method provided thereunder for this specific purpose must, by familiar rules of statutory construction, be held to form a complete independent system for those purposes, which might be pursued to the exclusion of all other methods of procedure for street work laid down in other and pre-existing sections of the charter (Gausen et al. v. Moredock etc., 131 Ill. 446, 23 N. E. 633; Storez v. De Armond, 179 Ill. 510, 53 N. E. 990) that the requirements above referred to are not limitations upon the powers of the board of supervisors, as counsel argue, but are merely methods of procedure for doing street work. Although not argued in the exact language in which it is now presented we think the supreme court had this in mind when, in Mardis v. McCarthy, 162 Cal. 94, it held that under section 33, chapter II, article 6, the board of supervisors had power by ordinance to provide a method of procedure different from the two alternative methods provided by that section for the construction of tunnels, and for the assessment of the costs thereof and damages occasioned thereby, upon private property benefited by the improvement. Even though it was not argued in that case, we can hardly believe that so important a proposi tion as this now urged by counsel escaped the attention of the supreme court; and we would be very slow, even if the point was not directly raised in that case, to overthrow these proceedings at this late date in view of the comprehensive language used in Mardis v. McCarthy in upholding similar proceedings under the same ordinance. The tunnel enterprise was a new and, in many essential features, a different matter from the usual routine street improvement and construction carried on in a city such as the city of San Francisco; and it may well have been considered, and undoubtedly was thought, both by the legislature and the people of the city, when the charter was amended as above specified, that a complete system of law governing the procedure for the construction of tunnels might be better adapted to that purpose than the procedure for street improvement then in force in the city. The board of supervisors did, pursuant to these amendments to the charter, adopt a complete procedure for the constructing of tunnels; and we are convinced that this is exactly what the people of San Francisco, in adopting the amendments to the charter above referred to, and the legislature of the state in ratifying them, expected and intended that they would do. So far as this proposition is concerned, then, the proceedings were properly taken under the ordinance adopted by the board of supervisors for that purpose.

[2] In passing, it may be said that the provisions of section 33, chapter II, and subdivision 3 of section 8 of chapter II, which ordain that in certain instances deferred payment of assessments must be provided for by the board of public works in the resolution of intention, and by the supervisors in ordering the assessment, are mere matters of procedure also, and were not improperly omitted from the provisions of the tunnel procedure ordinance; nor were they improperly ignored by the city authorities in the proceedings leading up to this assessment. (Mardis v. McCarthy, supra.)

The second attack upon the ordinance is based upon the time allowed to protest against the report of the board of public works. Upon filing this report with the board of supervisors twenty days' time is allowed in which to protest against it. The report estimates the benefits to accrue to the property within the district by reason of the improvement; and on considering this report the board of supervisors fixes the amount of each assessment according to benefits, this report furnishing a basis for the finding of the board of supervisors in that particular. It is claimed that the ordi

nance is arbitrary, oppressive and unjust because only twenty days after notice of the filing of the report of the board of public works is allowed in which objectors may protest against the report. This notice and right of protest constitute, of course, an important, if not the most important, element of that due process of law which is essential to the validity of the whole proceeding. It is claimed that on account of the magnitude of the task in this instance, an examination to determine the basis of such protest was impossible within the time fixed by the ordinance. The period is as long as that allowed for similar protests in statutes of this state providing for the construction of public works at the expense of property owners; and the record of the case shows that appellant appeared and made a very exhaustive protest, and that he was repeatedly heard in person and by counsel, and through data filed by his engineer upon the merits thereof, an adjournment being taken at one time at least to give him full opportunity to do this. In view of this it must be said that appellant does not appear to have been denied an opportunity to present his protest. If he had asked for further time no doubt the board would have given it to him. As a matter of fact, the record does not show that any person interested was prevented from protesting intelligently against the report. [3] It cannot then be said that the appellant was treated arbitrarily or unjustly or was oppressed by the time limit of which he complains; and in view of similar provisions of statutes upon similar subjects as to the time of protest we cannot say as a matter of law that this ordinance in this respect is either arbitrary, unjust or oppressive.

Appellant's third attack upon the proceeding is based upon the assertion that the assessment is void because the charter contains no grant of power to acquire land for the purpose of putting a tunnel through the land acquired; in other words, that the only power conferred is that in constructing a tunnel on lands already owned by the city, or in which the city already had an easement. Section I, chapter VIII, of article 6, of the charter, as amended in 1913, provides that the board of supervisors is empowered to construct any tunnel in, on, under or over any accepted or unaccepted open public street, or any land where the city may have an easement or right of way therefor, and to levy the cost and expense thereof upon private property; and section 2 of the same amendment empowers the board of supervisors to authorize the acquisition by purchase or condemnation and to acquire by purchase or to condemn and acquire any and all land or any easement and right of way therein, thereon, thereunder and thereover, and any property necessary and convenient for any purpose mentioned in section 1 of the same chapter, and also to levy the damages, costs and expenses thereof upon private property; and said section 2 also declares all lands and property which the supervisors may deem necessary to take the place of portions of streets used in the construction of the tunnel, its portals and approaches, and to restore to the street surface travel thereon, to be necessary and convenient for the purposes mentioned in section 1. [4] It is difficult to conceive broader language than this; and there is no possible reason why provisions for assessing property to raise the money with which to acquire lands necessary for the tunnel may not be included in an ordinance providing for the assessment of property also for the building of the tunnel itself. This is exactly what the city authorities did when they adopted the tunnel procedure ordinance; and the power to so adopt the ordinance is amply given by the provisions of the charter above quoted. That the power to bore a tunnel necessarily involves as a matter of law the power to construct approaches to the mouths of the tunnel was held in Mardis v. McCarthy, supra. Nothing further seems necessary to show that the third point of appellant is not well taken.

The fourth proposition urged by counsel is that the assessment is void because it includes as a part thereof the cost of the acquisition of the 1,900 feet extension to Market street, above mentioned, at a cost of $514,935. Counsel recite the facts from their point of view which they contend sustain their position, but without a citation of the pages or folios of the transcript at which those facts may be found. Counsel for respondents, also without citations of the record, insist that the statement of facts so set forth by appellant's counsel is erroneous, and state facts in response thereto diametrically contradictory of the recital of counsel for the appellant. The burden is upon counsel for the appellant to show that this assessment is invalid and to prove the facts on which they base their contention, and to support by evidence plaintiff's allegations that the acquisition of this strip was unnecessary; else the finding must be against him. The only evidence to which appellant calls attention in this connection is that of Mr. Anderson, his engineer. Mr. Anderson testified that the acquisition of this strip of land was unnecessary. The court found that the acquisition of this property was necessary. Mr. Anderson's evidence consisted of his bald opinion unsupported by reasons therefor. We are not inclined to set aside this solemn finding of the court upon the mere opinion of a man, however able or experienced, unsupported by any reasons. An opinion is entitled to only the weight given to it by the reasons by which it is supported. (Louisville etc. Rt. Co. v. Falvey, 104 Ind. 409, 420.) The trial judge, in his opinion, commented upon the want of reasons supporting Mr. Anderson's opinion, indicating that it lacked weight for that reason. Besides, it appears in the evidence that there was to be a station alongside the street railway for which the tunnel was constructed, and that this station was to be located somewhere on this strip; and it does not appear that it was not necessary to acquire the strip for the purpose of approaching the station.

[5] The fifth objection of appellant is that the assessment is void because the tunnel is not one for public uses. In the language of counsel for appellant, their contention is that "it appears from the record that the proposed tunnel is to be so constructed and equipped as to be valuable for use as a rapid transit railroad bore and for no other use; a railroad is a public use, but it is only one; it is not 'public uses', and a tunnel for 'one public use' is not a tunnel for 'public uses'." The tunnel serves the convenience of the inhabitants of two great sections of the city; and it has been held that tunnels and subways for such purposes are "for public use". (Price v. Crocker, 166 Mass. 347; Brown v. Turner, 176 Mass. 12.) We do not think the argument that a tunnel for one public use is not for public uses is sound.

The sixth and seventh objections to the proceedings are that the assessment is void because it appears on its face that it is not proportional and not levied according to benefits. These objections are based upon the assertion that certain church properties within the assessment districts are not assessed at all, and that property owned by the municipality therein was assessed uniformly at a lower rate than property belonging to individuals. Here again counsel have not pointed out the evidence in the record supporting their assertions; but as they seem to be admitted by respondents' counsel we will accept them as correct. Respondents' answer is that appellant did not protest the assessment upon these grounds, and that, therefore, he should not be permitted to assert them in this action; to which the appellant rejoins that the law gives no right of protest against individual assessments. But section 8 of the ordinance gives to any person interested the right of protest against the amount of benefits determined by the board of public works and reported to the board of supervisors. Briefly, the

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