The folloAving opinion on second motion for rehearing was filed May 17, 1905. Former judgment modified:
2. -: Petition: Signature or Corporation. The president of a corporation is the proper party to sign a petitioh for repaving on behalf of the corporation. His signature will not be held invalid as unauthorized, although the board of directors took no action thereon, if it appears from the evidence that it had for some time prior to such signing been customary for the president to sign such petitions on behalf of the corporation without express authority from the directors, and that the directors knew of this custom and consented thereto, and had reason to believe that the president had signed the petition in question, and made no objection thereto until the improvement had been entered upon, relying upon the validity of such signature to bind the corporation. 3. -: -: - — . The board of education of the school district of Omaha may authorize its president to sign such petition in the name of the board, and the signature of the board by its president pursuant to such authority will bind the school district. 4. -- — : Street Intersections: Assessments: Injunction. It is the duty of the city council to provide available funds with which to pay for street intersections before ordering the improvement. But after the improvement is made and the intersections actually paid for by the city, special assessments against abutting property cannot be enjoined on the ground that this fund with which to pay for the street intersections was not available at the time the improvement was ordered. Sedgwick, J.This motion for rehearing involves principally the conclusion of the former opinions in regard to the assessment against the property of the plaintiff helow, Harriet E. Pritchett. In the opinions heretofore filed this assessment is held invalid because 30 days, from the approval and publication of the ordinance declaring such improvement necessary, was not allowed the property owners in which to designate by a petition the material to be used. The statute does not provide for the giving of notice other than the publication of the ordinance declaring the improvement necessary, but the ordinance enacted provided *563that the hoard of public works should publish a notice to property owners to select the material for the pavement, and also provided that the hour and day of the expiration of the 30 days should be stated in the notice. Accordingly notice was published that the 30 days would expire on the 31st day of August, 1897, and this notice was first published on the 2d day of August, so that by its terms the notice did not allow 30 days from the publication thereof in Avhich to make the selection of materials.
A majority of the property OAvners united in a petition designating the materials to be used, and after this petition was filed, and before 30 days from the publication of the notice had expired, the council acted upon the petition and designated the materials as in the petition requested. It was held in the former opinions that the' action of the council was invalid because it did not alloAV the full 30 days for making the selection. The plaintiff Harriet E Pritchett did not sign the petition nor take any part in making the selection of materials. It was said in the opinion that this point has been determined in the case of Morse v. City of Omaha, 67 Neb. 426, and that it was there held that the mayor and council were without jurisdiction to determine the materials to be used in paving until after the 30 days had expired. We think this was an error, as this precise point was not involved in the case of Morse v. City of Omaha, supra, and the question is now a new one before this court. As the plaintiff Pritchett did not unite in the petition selecting the materials, she is not, of course, estopped thereby to now contend that the petition was insufficient or that the council acted prematurely thereon. It is insisted on behalf of the city that, since a majority of the property owners united in selecting the materials, the council might act thereon as soon as the petition was filed, and that it was unnecessary to delay the full period of 30 days for any further action on the part of the property owners in regard to selecting materials. We think that this reasoning is not conclusive to the extent insisted upon by the city.
*564The statute provides that when the same person signs more than one petition, his signature shall be counted upon the petition last signed. The matter of the selection of materials for the paving is an important one, and a property owner might upon full investigation be dissatisfied with his first conclusion, and, although a majority had petitioned for certain materials, it would appear to be entirely competent for the property owners to change their determination at any time within 30 days. So that if a second petition had been filed within the time limited, in which some of the former petitioners should join, and which was signed by the owners of half of the foot frontage of the district, requesting a different material from the one first designated, the council would no doubt have been required to act upon this second petition. This, however, in this case was not done, and since no other petition was tendered to the council, nor any different determination made by the property owners within the 30 days, it does not appear that this plaintiff was in any Avay injured by the action of the city council in that regard. The presumption must be, upon this record, that a majority of the property owners desired the council to take the action that it did in determining the materials to be used. Nothing appears in the record to the contrary. We think therefore the conclusion reached in the former opinions upon this point is erroneous.
2. There were other grounds urged in the briefs of the parties for holding this assessment erroneous, Avhich it was said in the former opinions it was not necessary to consider because of the conclusion there reached. Upon the argument before the court in this motion therefore the other grounds were discussed, and it becomes necessary for us to look into the whole record to determine Avhether there is any other reason for holding this assessment invalid. The questions discussed in the briefs and oral arguments mainly depend upon the sufficiency of the original petition of the property OAvners for the repaving in question. The statute (Compiled Statutes, 1897, ch. 12a, sec. 110) provides *565that: “No repaving shall he ordered except upon the petition of the owners of a majority of the taxable front feet in any improvement district.” The plaintiffs objected to the genuineness and validity of many of the signatures to this petition. The trial court concluded that the petition was insufficient, and, in doing so, rejected the alleged signatures of the Omaha Savings Bank, Nebraska National Bank of Omaha, the Byron Reed Co., and the Coad Real Estate Co. The names of these corporations were signed to the petition in each instance by the president of the corporation, and represented the frontage of 463.2 feet. The contention was that it did not sufficiently appear that the president signing for the corporation was sufficiently authorized so to do. The findings of the court upon this point were: (a) “That at the time of signing the petition for repaving for and in behalf of the corporation, and for a long time prior thereto, it had been the custom and usage of the president of the corporation to sign for and on its behalf petitions for the improvement of streets by paving, or repaving, without first consulting the board of directors or without receiving special authority from them so to do. (b) That the board of directors of said corporation had knowledge of such custom and usage on the part of said president, made no protest and never objected thereto, and at all times acquiesced in such custom and usage, (c) That the board of directors at no time by resolution specially authorized the president to sign for and in behalf of the corporation the petitions for the repaving of Farnam street in district No. 597, nor was such authority conferred by the articles of incorporation or by-laws thereof.” The conclusion of the court was that the signing by the presidents of the respective corporations was not authorized. In this we think the court was mistaken. Authorities are cited by the appellees which discuss the powers of corporations, but this is not a question of ultra vires. The corporation had power to join in this petition. The question Avas as to the manner of exercising that power. The statute provides that a deed of the corporation may be executed by the *566president. There can be no doubt that the president was the proper officer to sign this petition in behalf of the corporation. It was the province of the board of directors to determine whether or not he should so sign it. It is not contended that the action of the president was contrary to the wishes of the board of directors. It appears that no express authority was given him by the board of directors to sign the name of the corporation. If the board of directors knew that it had been the custom of the president to act for the corporation in regard to such petitions, and if the president in pursuance of such custom had acted upon this petition, thereby beading all parties interested to suppose that the corporation had authorized the action, and if the board had acquiesced in such action until the time that this suit was begun, other parties in the meantime having acted upon it supposing that it was the desire of the corporation to be bound upon this petition, there can be no doubt that the board of directors, and the corporation which they represented, would be estopped thereafter to deny the validity of the corporate signature so executed by the president; and if the corporation itself would at the time of the commencement of this action be bound by the signature of the president, there can, of course, be no reason for allowing a third party to object to the sufficiency of the signature upon grounds that would not be available to the corporation itself.
It is said that the evidence is not sufficient to establish the custom or usage relied upon, at least as to some of the corporations named. Special reference is made to tin1 evidence of Mr. Manderson, president of the Omaha Savings Bank, and of Mr. Yates, president of the Nebraska National Bank. Mr. Yates was questioned and testified as follows:
Q. And when you signed this you were president of the bank and one of the directors?
A. I was president and one of the directors.
Q. Did you consult with the other directors in reference to this pavement in signing this petition?
*567A. According to my recollection I did.
Q. What, if anything, Mr. Yates, did the other directors of the bank say to you in reference to this paving and you signing for the bank?
A. I can’t recall exactly what was said, but it was the judgment of the directors that the pavement was desirable.
Q. And they so informed you?
A. And I was so informed.
There is no evidence that the directors ever repudiated the action of the president. They acquiesced therein, and there can be no doubt that at the time this action was begun the corporation was estopped to deny the power of the president to bind the corporation by his signature. It was not necessary to show a general custom or usage in that regard. Without going into a detailed discussion of the evidence as to the other corporations named, it is sufficient to say that it is equally conclusive. It is contended that the views above announced are inconsistent with the rule established in Morse v. City of Omaha, 67 Neb. 426. We do not so regard it. In that case it appeared affirmatively that the directors had no knowledge that any action had been taken purporting to authorize the improvement on behalf of the corporation. It did not appear that the- circumstances were such that. they ought to have taken notice that the president had signed for the corporation. The trial court found that the signature of the corporation by its president was unauthorized, and that finding was not set aside by this court. If 463.2 feet be added to the foot frontage found by the trial court to be properly represented upon the petition, there is a clear majority required by the statute. Unless some of the questioned property which was counted by the trial court as being properly represented upon the petition should be excluded, the petition was sufficient.
3. The property of the school district was included in the finding's of the court as properly represented upon the petition. The signature upon the petition was “Board *568of Education, by Jonathan Edwards, Prest.,” and it represented a frontage of 215.5 feet. The title to the property in question was vested in the school district of Omaha. The board of education has control of the property of the school district. It is authorized to determine the question as to whether the paving would, or would not, be a benefit to the school district, and no other authority is authorized so to do. It appears from the record that, by a resolution of the board of directors, the president of the board was directed to sign the petition in question, and there can be no doubt that the president of the board in signing the petition signed for the school district of Omaha, and intended thereby to bind the property of the district, and that the board which directed him so to do was fully authorized to have so directed. We think there is no doubt that the trial court was right in counting this property as included in the petition.
It is confessed in the brief that the trial court was also right in counting the property of the Imperial Loan and Trust Company which amounted to 57 feet frontage. Onelialf of the taxable frontage of this improvement was 5,798.55 feet. The amount of the frontage represented upon the petition and not in dispute was 5,108.57 feet; add to this the foot frontage represented by the four corporations above named, the board of education, and Imperial Loan & Trust Company, and the amount represented upon the petition (5,844.27 feet) constituted the foot frontage required by the statute. It is not necessary therefore to examine as to the validity of other signatures discussed in the briefs.
4. It is contended that the city council was without jurisdiction to order the improvement in question because, as it is alleged, there were not sufficient funds available to pay for the street and alley intersections. It appears from the stipulation that the cost of paving the intersections was found to be $5,392.88, and that at the time the improvement was ordered the cash balance in the “paving fund” was $6,016.98. At the general election held three *569months before the improvement was ordered, bonds for this purpose were authorized in the amount of $25,000 pursuant to the provisions of the statute. These bonds were after-wards issued and sold, and the money had been placed in the paving fund before it was necessary to pay for the street intersections. Under this condition of the record it is not necessary to determine when the funds necessary to pay for these intersections might be said to be “available.” Nor is it necessary to determine whether it was the duty of the city council to make such provisions that cash would actually be in the paving fund with which to pay for these intersections before the improvement was ordered.
In Morse v. City of Omaha, 67 Neb. 426, after disposing of the questions necessary to a determination of the case, the writer of the opinion proceeded to decide other questions, to a discussion of which it was said counsel had devoted much of their briefs and oral argument. In determining whether it was necessary that there should be a specific declaration in the ordinance that the improvement was necessary, the writer said:
“In the provision for a petition of the abutting owners, the legislature has spoken clearly and in mandatory tones. So also with the provision regarding the status of the intersection fund. There is no difficulty under the authorities and this statute to hold these provisions jurisdictional.”
It appears from the further discussion at that point that this statement quoted was purely dictum. We do not feel bound by it. The provision that there must be “funds available” for the intersections when the improvement is ordered appears to be for the benefit and protection of the city itself and the general taxpayers therein. It may be that the council could be prevented from ordering such improvements as these without “funds available” for the street intersections. If it should be thought that ordering the improvement was not justifiable while the paving fund was in the condition shown by this record, which is by *570no means clear, we have no hesitation in concluding that after the improvement had been made and the intersections paid for by the city, the property owner could not avoid the payment of the assessment against his property upon the ground that the council exceeded its authority in ordering the improvement ivithout first providing the cash with which to pay for the intersections.
It follows that the assessment against the property of the plaintiff Pritchett was valid, and that the decree of the district court should also be modified so as to sustain that assessment.
With this exception the former opinions herein are adhered to.
Judgments modified.