I concur in the judgment insofar as it relates to El Monte Annexation 134, but dissent from that part which reverses the judgment of the trial court respecting Industry Annexation 36 and imposes a death sentence upon that annexation.
By the statutory law of this state the power is given the owners of one-half of the value of property within uninhabited territory, sought to be annexed to a city, to thwart the will *783of the city that desires to effect the annexation. The power given to the few is not such that the city has to seek their permission before proceeding, but is a veto power that may be exercised, after proceedings are under way, by the filing of written protests against the annexation “at any time before the hour set for hearing objections.” (Gov. Code, §§ 35312 and 35313.) In the case under review, the hour set for hearing objections was, by resolution adopted November 26, 1958, 8 p. m. of January 22, 1959. All notices of the hearing required by law were given. No written protest was filed before 8 p. m. of January 22. The trial court reached the only conclusion possible; the power of the city to proceed had not been destroyed.
I do not read the majority opinion as holding that, under the facts of this case, a written protest was indeed filed before 8 p.m. Certainly there was none “filed,” before that hour within the meaning of the word as defined in W. J. White Co. v. Winton (1919), 41 Cal.App. 693, 695 [183 P. 277, 278], and Cox v. Tyrone Power Enterprises (1942), 49 Cal.App.2d 383, 395 [121 P.2d 829, 836]. Leaving a protest on a table in a room where no person was present with whom it could have been filed, was no more a “filing” than was slipping a notice of appeal under the clerk’s closed door a filing, the fact considered in the case first cited.
Let us note again the words of section 35312 which extend the veto privilege: “At any time before the hour set for hearing objections, any owner of property within the territory may file written protest . . . .” These words do not say, and cannot fairly be interpreted to mean, that written protests may be filed at any moment before the hearing actually begins. In People v. City of Palm Springs (1958), 51 Cal.2d 38, 43 [331 P.2d 4, 7], our Supreme Court said (the emphasis being that of that court) : “The statutory language is clear. Section 35312 of the Government Code provides: ‘At any time before the hour set for hearing objections, any owner of property within the territory may file written protest. . . .’ (Emphasis added.) Plaintiff seeks to give a permissive reading to this section, relying on the word ‘may.’ But the section means exactly what it says—only written protests filed before the hour set for hearing need be considered. The section is permissive only to the extent that no one is required to file a protest.”
There was, in fact, therefore, no road block ever erected to the city of Industry’s further proceedings. Is the city to *784be estopped from taking the position that no protest was filed as required because it had no official on hand to receive one for filing at 7:59 p. m. of January 22? It was stipulated “That the city offices of the City of Industry, including the City Clerk’s office, were open on all business days and during customary business hours between [November 26, 1958] to and including the date of hearing on January 22, 1959; that the said city offices closed at the customary hour of 5 :00 P. M. on said latter date.” The petitioners had over seven weeks in which to file their protests during regular office hours. I know of no rule of law that requires a city to keep its offices open at all hours, nor one that required any official of the city of Industry to be on hand, January 22, before 8 p. m., the hour set for the hearing. If not present at 8 p. m. they could be chided for not being present at the hour set, but they were not late because not present before that hour. But written protests, to serve as a dam to further progress, had to be filed before 8 p. m.
It is true that no mention is made, in the code sections, of the office where any written protest may be filed. In McMillen v. City of El Monte, 180 Cal.App.2d 394, 401 [4 Cal.Rptr. 750, 755], after quoting as I have from People v. City of Palm Springs, the court went on to say: “In the present case, in order for the majority protests to be effective in compelling a termination of the annexation proceedings, the protests should have been in writing and filed with the city clerk before the hour set for hearing objections.” None was so filed, and as a consequence it was held that there was no effective protest. But if the court was in error in saying that it was the city clerk with whom any written protest should have been filed—and I am not even suggesting that it was in error —it would not follow that a filing with some official was not required and there was none filed with any official until some time after 8 p. m., “the hour set. ’’ The city attorney correctly advised the City Council of the City of Industry that its hands had not been tied; the city council advisedly believed that it retained jurisdiction to proceed with the annexation ; the trial judge was warranted in entering the judgment that he did; it should be affirmed.
A petition for a rehearing was denied February 21, 1961. Bishop, J. pro tem.,* was of the opinion that the petition should be granted. Respondents’ petition for a hearing by the Supreme Court was denied March 29, 1961.
Assigned by Chairman of Judicial Council,
Assigned by Chairman of Judicial Council.