not paid any portion of said pension fund, but that on March 31, 1903, the defendant audited and allowed a demand on the treasurer of the city and county for the sum of $99.66, payable out of said pension fund, as for his pension for the quarter ending on that date. She also alleges that while her husband was a member of the police department he paid into said fund out of his salary the sum of $2 each month, from April, 1878, to and including January, 1903, amounting in the aggregate to $596. The superior court sustained a demurrer to the petition, and from its refusal to issue the writ of mandate prayed for the petitioner has appealed.

The rights of the appellant are measured by the provisions of the charter of San Francisco, and these provisions alone can be considered in determining whether she is entitled to any relief, and if so the extent of such relief. She bases her claim upon the provisions of section 6 of chapter V, article VIII, of the charter (Stats. 1899, p. 333), which declares : “When any member of the department shall, after ten years' service, die from natural causes, then his widow, and if there be no widow then his children, or if there be no widow or children then his mother, if dependent upon him for support, shall be entitled to a sum equal to the amount retained by the treasurer from the pay of such deceased member and paid into the relief and pension fund; but the provisions of this section shall not apply to any member of the department who shall have received any pension under the terms of this chapter."

Whatever money she is entitled to receive is to be paid to her out of this fund, and only such amount of the fund as the treasurer shall have retained from the pay of her husband and paid into the fund. The fund itself is provided for by section 1 of said chapter X, which declares that “A fund is hereby created to be known and designated as the Police Relief and Pension Fund." The moneys constituting the fund are enu

” merated in section 11 of the chapter, subdivision 9 of which directs the treasurer “to retain from the pay of each member of the police force $2 a month, which shall be forthwith paid into the police relief and pension fund.”

The averment in the appellant's petition that there is in the official custody and subject to the official control of the defendant “more than sufficient money applicable to” and with

6

which to pay her claim of $596, is but a legal conclusion, and is limited by the facts upon which she bases her claim and the provisions of the law applicable to those facts (Pennie v. Reis, 132 U. S. 464, (10 Sup. Ct. 149); Nichols v. Police Pension Fund Commrs., 1 Cal. App. 494, (82 Pac. 557]), and although the appellant has alleged in her petition that her husband, while he was a member of the police department, paid out of his salary the sum of $2 each month, yet, as we said in the case of Nichols, supra; “The 'two dollars per month' which the petitioner alleges was retained by the treasurer from Nichols' pay as a member of the police department, and paid into said fund, was not a contribution to the fund by Nichols, but, as was said in reference to a similar provision in the act of 1878 in ennie v. Reis, 13 U. S. 464, (10 Sup. Ct. 149), ‘was money of the state retained in its possession for the creation of this

very fund.'"

The charter of San Francisco went into effect January 1, 1900, and the police relief and pension fund created by it had its birth at the same time. The provisions of the charter, as well as the duties of the officers created by it, are prospective. It is only such moneys as the treasurer should retain from the pay of the appellant's husband after that date that could be paid into the fund, and it is only to such an amount of money so paid into the fund that under the provisions of section 6 the appellant is entitled. As her husband died in February, 1903, less than thirty-eight months after the charter took effect, the treasurer could not have retained from his pay and paid into the fund more than $78. Prior to the institution of this proceeding by the appellant, the defendant had audited and allowed a demand on the treasurer against the fund for a greater sum than this; and as it does not appear that the appellant had demanded this money, or shown any reason in her petition why she had not received the same, the court very properly denied her application.

The act of March 3, 1899 (Stats. of 1899, p. 57), is not avail. able to the appellant. That act was a general law applicable to all counties, cities and counties and towns in the state, whereas the charter of San Francisco is a freeholders' charter, and, when approved by the legislature in 1899, became by the express terms of the constitution (art. XI, secs. 6, 8) the or

ganic law of the city and county, and superseded the existing charter and all laws inconsistent therewith, and thereafter the city and county was no longer subject to or controlled by general laws. There is no provision in the charter by which the fund created by the act of 1889 should be transferred to or placed under the control of the officers created by the charter. The fund was at all times subject to legislative disposition (Pennie v. Reis, 132 U. S. 464, (10 Sup. Ct. 149]), and as section 14 (page 60) of the act required the surplus thereof to be transferred to the general fund on the last day of June of each year, and declared that it should be “no longer under the control of the board or subject to its order," there is no presumption that any portion of the fund thereby authorized was transferred to or is under the control of the respondent herein. (See Nichols v. Police Pension Fund Commrs., 1 Cal. App. 494, (82 Pac. 557].)

The proposition urged in the brief on behalf of the appellant that she is entitled to the sum claimed by her upon the ground that her husband never received” any portion of the pension awarded him does not require discussion. Whatever right she has to any portion of the pension fund depends upon the provisions in the first portion of section 6. The concluding sentence of the section upon which this argument is based, instead of conferring any rights, creates a limitation upon the rights which otherwise might exist, and whatever rights she has by virtue of the section she must establish under its other provisions.

The judgment is affirmed.

Cooper, J., and Hall, J., concurred.

[Civ. No. 214. First Appellate District.-August 15, 1906.]

PACIFIC PAVING COMPANY, Appellant, v. J. C. DIGGINS et al., Respondents.

STREET IMPROVEMENT PROTEST BY OWNERS-RESOLUTION ORDERING WORK, WITHOUT NEW RESOLUTION OF INTENTION-WANT OF JURISDICTION. Where it appears that after the passage of an original resolution of intention to improve a street, the owners of the majority of the frontage on the proposed work made a sufficient written objection and protest thereto, upon which the clerk of the board indorsed the date of its reception by him, and more than six months thereafter, without first passing a new resolution of intention, the board ordered the work to be done, such order was without any jurisdiction. ID.-FORECLOSURE OF ASSESSMENT-PLEADING ISSUE AS TO JURISDICTION-RESOLUTION "DULY PASSED"-FINDINGS-ULTIMATE AND PROBATIVE FACTS-NEW TRIAL.-In an action to foreclose a street assessment, where issue was joined as to the due passage of the final resolution to do the work, the finding that it was "duly passed" was of the ultimate fact upon which plaintiff's recovery depended, and was a determination that the board had jurisdiction to pass it, notwithstanding a finding of probative facts set forth in the answer assailing the jurisdiction; and the defendant properly, by motion for a new trial, assailed the ultimate finding of fact, upon a statement of the evidence showing that the resolution was not duly passed, and that the board had no jurisdiction to pass it; and the court properly granted a new trial on that ground. ID. SUFFICIENCY OF ISSUE-TRIAL WITHOUT OBJECTION.-While the averment that an act has been "duly" performed is ordinarily a legal conclusion, yet, in the absence of a special demurrer or objection on that ground, it is sufficient to authorize evidence thereupon; and if the parties try the issue without objection, they cannot, after decision, contend that the issue was not before the court for decision, especially where the answer averring that it was not duly performed supplements the averment with probative facts in support thereof.

ID.-CONFLICT IN FINDINGS-ULTIMATE AND PROBATIVE FACTS-REMEDY.-Where there is a conflict between the finding of the ultimate issuable fact and the finding of probative facts, the former will ordinarily prevail; and no mere finding of probative facts which may tend to establish that the ultimate fact was against the evidence can overcome the ultimate fact found. In such case the only rem

edy of the party injured is to move for a new trial upon the evi.

dence. ID.—DELAY IN PRESENTING MOTION FOR NEW TRIAL-MOTION TO Dis.

MISS-DISCRETION.-A motion to dismiss the motion for a new trial on the ground of failure to prosecute the same with diligence by reason of delay in presenting the motion is peculiarly addressed to the discretion of the court, which has personal knowledge of the manner in which it has been occupied during the delay complained of; and where no abuse of discretion in denying such motion affirmatively appears, the mere lapse of time is not a suffi. cient ground to overcome the presumption of the proper exercise by the court of its discretion.

APPEAL from orders of the Superior Court of the City and County of San Francisco, granting a new trial and refusing to dismiss the motion for new trial. J. C. B. IIebbard, Judge.

The facts are stated in the opinion of the court.

Booth & Bartnett, and W. J. Bartnett, for Appellant.

Knight & Heggerty, and Wm. M. Madden, for Respondents.

HARRISON, P.J.-Action upon a street assessment in San Francisco. Judgment was rendered in favor of the plaintiff against the defendant Byron Diggins, and upon the motion of the said defendant the court granted a new trial. The present appeal is from this order.

The complaint is in the ordinary form except that there is no averment therein that the board of supervisors had passed a resolution of intention to order the improvement for which the assessment was made. In his answer thereto the defendant, for a separate and special defense to the action, alleged that the resolution ordering the work referred to in the complaint was not duly passed by the board of supervisors ; that it was passed by the board November 29, 1897; that more than six months prior to said date the board passed a resolution of intention to order such work, but that within ten days after the expiration of the time of the posting and publication of the notice thereof the owners of a majority of the frontage of the property fronting on said proposed work made and delivered

4 Cal. App.-16