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 ■
 
 ARGUMENT. 
 
 OF 
 
 n. M. DELMAS, Esq. 
 
 Counsel for the Bondholders in the Case of thc^ 
 
 'DUPONT STREET BONDS. 
 
 Before THE SUPREME GOURT of California, 
 
 August 14th and i6th, 1886. 
 
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 EX LIBRIS 
 
 SAN CARLOS 1/6 
 
 ROBERT ERNEST COWAN 
 
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 #
 
 ARGUMENT 
 
 D. WL. DKLN/IAS, Esq., 
 
 Counsel for the nondholders in the Case of the 
 
 DUPONT STREET BONDS. 
 
 Before THE SUPREME COURT of California. 
 
 Afay it please yoiu^ Honors : 
 
 These proceedings are, in form, a suit in equjity to 
 enjoin the collection of a tax. In substance, they 
 are an attempt to repudiate the payment of one 
 milHon dollars of bonds, issued by the City of San 
 Francisco in payment of a great public improve- 
 ment. . Representing the interests of persons who 
 have invested their money in the bonds issued 
 under the statute commonly called the Dupont 
 Street Act, I shall address mvself solelv to the 
 questions which affect the validity of the bonds. 
 
 It appears that, in 1876, the Legislature of the 
 State passed an Act providing the means and 
 pointing out the machiiu^ry for widening Dupont 
 Street, in the City of San PVancisco. The Act 
 was not to go into operation until the Hoard of
 
 Supervisors had, by due resolution or order, ex- 
 pressed their judgment that it was expedient to 
 widen the street in accordance with, and in the 
 mode prescribed by, said Act. The Mayor, Aud- 
 itor and Surv^eyor of the city were constituted a 
 Board of Commissioners to carry out the provis- 
 ions of the Act. They were to appraise the dam- 
 ages and benefits accruing from the opening of the 
 street. Their report was to be approved and con- 
 firmed by the County Court. After the final con- 
 firmation of the report, bonds of the City of San 
 Francisco, payable in twenty years, were to issue^ 
 and be sold at not less than ninety-five cents on 
 the dollar, to pay for the cost of widening the 
 street.. 
 
 It appears that the Board of Supervisors, in due 
 time, passed the resolution and order provided for 
 by the Act ; that the Board of Commissioners made 
 their report to the Court, and the Court approved 
 and confirmed it ; that, thereupon, one million 
 dollars of bonds of the City of San Francisco,, 
 signed by its Mayor, Auditorand Surveyor, and bear- 
 ing its seal, were issued and sold ; and that the 
 street was then opened, and has ever since re- 
 mained a public street of the city. 
 
 These bonds are in the hands of persons who 
 bought and paid for, or otherwise acquired them 
 in good faith. They are held not only by private.
 
 
 CO 
 
 C3 
 
 1 
 
 individuals, but by public institutions — the Uni- 
 versity of California, alone, having $40,000 of 
 them, 
 
 A proceeding, which would now permit the city, 
 while retaining and enjoying the fruits of these 
 bands, to repudiate its obligation, may be justified 
 by some rule of law ; but, in the minds of ordinary 
 men, must appear repugnant to the plainest dic- 
 tates of justice and fair dealing. I hope to show 
 that a proper construction of the law and the pro- 
 ceedings had under it will avoid these unjust 
 results. 
 
 I shall, in the following argument, seek to estab- 
 lish these specific propositions : 
 
 I. The Dupont Street Act is free from any 
 constitutioual objection. 
 
 ae 2. The proceedings provided by said Act for 
 % the widening of Dupont Street have been strictly 
 followed by the Board of Supervisors, the Board 
 of C(-)mmissioners, and the County Court. 
 
 3. The judgment of the County Court is a 
 conclusive adjudication in all collateral actions, 
 that (i) the stejjs required to be taken by the Su- 
 pervisors and Commissioners to give validity to 
 their proceedings have been duly taken according 
 to the law ; and (2) that the Act itself is constitu- 
 tional
 
 4- The bonds issued under the Act are nego- 
 tiable, and have all the qualities and privileges of 
 commercial paper, and the intervenors are bona 
 fide holders thereof. 
 
 5. These bonds being executed and issued by 
 the Board of Commissioners, the recital therein, 
 that they are issued in pursuance of the Statute is, 
 in favor of a bona fide holder, a conclusive adju- 
 dication that everything which the Act required 
 the Commissioners to do was done by them ; that 
 is, that all the steps between the adoption of the 
 resolution by the Board of Supervisors and the 
 judgment of the County Court were regularly 
 taken. 
 
 6. The City of San Francisco is estopped to 
 deny the validity of these bonds, because, ( i ) its 
 retention of the fruits of the bonds estops it from 
 alleging any informality in the proceedings which 
 led up to their issue ; and ( 2 ) its own action in vol- 
 untarily adopting the Statute, and reaping the 
 benefits conferred by it, estops it from avoiding 
 the burdens which the Act imposes, upon the 
 ground of its unconstitutionality. 
 
 7. If these bonds are valid against the munic- 
 ipality, their validity can not be attacked by any 
 member of the municipality.
 
 Though the importance of the cause and the 
 fact that the Court has ordered a reargument will 
 warrant and demand a full discussion of the ques- 
 tions, both upon principle and authority, yet I 
 cannot forbear expressing my conviction that such 
 a discussion is really foreclosed, first, by the estop- 
 pel created against the plaintiffs by the statute 
 itself; and, secondly, by the decision of this Court 
 in the analogous case of San Francisco vs. Certain 
 Real Estate, 42 Cal. 
 
 First. — The statute provides the mode and ma- 
 chinery for the widenini^ of Dupont Street. The 
 Act, however, is to remain inoperative, unless the 
 Board of Supervisors of the municipality express 
 their judgment, by ordinance, that it is "expe- 
 dient that Dupont Street be widened in accord- 
 ance with and in the mode prescribed by this 
 Act," {% 21). Should such judgment be expressed 
 by the Supervisors, th(; Board of Dupont 
 Street Commissioners, created by the Act, are to 
 give published notice that the Board is organized 
 (§ 6). Within thirty days from said publication, 
 the owners of a majority in value of the property 
 fronting on the street may interpose their veto to 
 the further prosecution of the work (§ 12). Should 
 no such veto be inter[)Osed, the 13oard ot Com- 
 missioners arc to proceed with the making of an 
 estimate of damage occasioned and benefits con- 
 ferred by the opening of the street within a dis-
 
 trict, whose limits are actually giv^en by the Act 
 (§ 7). When these labors of the Board are ended, 
 they embody them in the shape of a written report. 
 Such report, as soon as completed, is left for thirty 
 days in the office of the Board for the inspection 
 of all parties interested, and notice that the same 
 is so open for inspection is given, for twenty days, 
 in the public journals (§ 7). At any time within 
 the thirty days mentioned, any person in interest 
 may file, in the County Court, his written objec- 
 tions to the report. The Court is empowered to 
 hear and pass upon the objections so made { § 8). 
 When the report of the Board is finally confirmed 
 and approved by the County Court, the Board 
 issue bonds of the City and County of San Fran- 
 cisco in a sum sufficient for the payment of the 
 damages awarded {§ 9). Parties to whom dam- 
 ages are awarded must, before receiving payment 
 thereof, execute a deed of conveyance to the mu- 
 nicipality for the land for which the damages are 
 given (§ 10). The bonds are to be paid by an 
 assessment or tax upon the district benefited (§ 13). 
 When all damages are paid and satisfied, the Board 
 are to remove the buildings upon the street and 
 widen the same (§ 17). Then follows the all- 
 important Section 22, in these words: 
 
 " Jhe completion of the work described iti this Act shall be 
 deemed an absolute acceptance by the owners of all lands affected 
 by this Act, and by their successors in interest, of the lie
 
 created by this Act upon the several lots affected. * * * 
 This shall be regarded as a cojitract betiveen said owners and 
 the holders of said bo?ids. " 
 
 The present action is brought by a// the owners 
 of land affected by the Act, to enjoin the enforce- 
 ment of the Hen created by the Act upon their 
 property. The averments of their complaint are 
 as follows: 
 
 The "order and decree of said County Court, approving and 
 confirming said report (of the Board of Commissioners) recites 
 specifically that every step required by said Act was taken by 
 said Board of Supervisors, by said Board of Dupont Street 
 Commissioners, and by said Court, and said proceedings all 
 appear to be regular on their face and make a prima facie lien 
 on all the said estate and lands." 
 
 The complainants, however, attack these pro- 
 ceedings for alleged secret vices, not disclosed 
 upon the face of the record of the proceedings, 
 and discoverable only by an investigation in pais. 
 These alleged defects are that: i, the ordinance 
 of the Board of Supervisors (§21 of the Act) was 
 not published in the manner provided by law ; 
 2, the notice required to be given by the Board of 
 Commissioners of their organization {\ 6) and of 
 the comjjletion of their report {^7) were not jjub- 
 h'shed as required by law — the only objections 
 against the publication being that they took j)lace, 
 at times, in the supplement, instead of the body of 
 the paper; 3, the Board of Commissioners were 
 guilty of misconduct and fraud in making their 
 report; 4, the report of the Commissioners, as
 
 8 
 
 finally confirmed, shows that the damages of the 
 improvement exceed the benefits. 
 
 If we add to these the claim that the statute is 
 unconstitutional, we shall have before us all the 
 objections urged by the plaintiffs ; and, as to the 
 unconstitutionality of the Act, it is clear that since 
 the late decision in People vs. Bartlett, 6 W. C. R., 
 that claim cannot successfully be urged. 
 
 It is admitted that the work described in the 
 Act has been completed. Finding XXXVI of 
 the Court is in these words: 
 
 "That after the said confirmation by the said County Court 
 and during the first seven months of the year 1877, the said 
 Dupont Street between Market and Bush Streets, was actually 
 widened on the ground from an original width of forty-four feet, 
 to a width of seventy-four feet, measuring westerly from the 
 original and present east line of said Dupont Street, by the re- 
 moval of the buildings thereon, and the turning of the same into 
 a roadway and sidewalk; and during the first seven months ot 
 the year 1877, the buildings and improvements on the west side 
 of said Dapont Street^ taken from said Market to Bush Street, 
 were made to conform to the new line of the said street as wid- 
 ened thirty feet, and so still remain ; and said thirty feet has 
 since the month of July, A. D. 1877, been devoted to the uses 
 and purposes of a public street, and has been used and is still 
 used as such by the public at large. " 
 
 This action was commenced on the 4th of April, 
 1879, two years and three months after the work 
 of actually widening the street had been com- 
 menced, and two years less four months after it 
 had been completed. 
 
 The plaintiffs do not deny full knowledge of all
 
 that was done under and in pursuance of the 
 Statute, They do deny knowledge of the al- 
 leged secret frauds and misconduct of the Board. 
 (§ XX of Complaint.) But, that they knew that 
 the Board of Supervision had passed an ordinance! 
 that the Board of Commissioners had giv^en pub- 
 lished notice that they were organized ; that the 
 Board had m.ade their report, and left it in their 
 office for public inspection for thirty days ; that 
 they had given published notice that the re- 
 port was so open for inspection ; that the report 
 had been presented to the County Court, and by 
 it confirmed ; that one million of bonds had been 
 issued and sold, and the proceeds applied to the 
 payment of the damages awarded ; that deeds of 
 conveyance had been executed to the municipality 
 for the land taken for the widening of the street ; 
 that the buildinofs alone: the whole west line of the 
 street had been removed and torn down during a 
 period of seven months, and then the street wid- 
 ened and made a public street— these things and 
 the knowledge of these things the plaintiffs tlo not 
 deny. Indttcd they could not, without perjury, 
 deny them, for, one of these very i)laintiffs — L. 
 Carniveau — appeared before the County Court and, 
 upon objections made to th(! rejwrt of the Commis- 
 sioners, obtained a reduction of assessment, 
 (Trans., pp. 316, 317.)
 
 lO 
 
 Years after all this had been done, all the par- 
 ties affected by the widening of this street (p. 409), 
 including- those who have made voluntary convey- 
 ances to the City, and have received from the pro- 
 ceeds of the bonds tens and hundreds of thous- 
 ands of dollars, upon an award to them of damages, 
 all these parties unite in an attempt to repudiate 
 the payment of these bonds, to evade the tax 
 imposed, and to invoke the aid of a Court of Equity 
 to enjoin its collection. 
 
 Such an attempt, with all its attendant dishon- 
 esty, was foreseen by the framers of this law ; and 
 they set their face against it; and, by anticipation, 
 legislated it down. They made the accomplish- 
 ment of such a nefarious purpose a legal impossi- 
 bility by providing, in the twenty-second section 
 of the Act, that the completion of the work de- 
 scribed in the Act — the conferring upon the prop- 
 erty of the benefits contemplated by the law — 
 should be deemed by the property owners an 
 acceptance of the burdens imposed by the Act. 
 
 If I understand aright the meaning of this pro- 
 vision, it creates an absolute estoppel upon the 
 property owners by which they are forbidden to 
 contend that all things provided by law necessary 
 to the legality of the proceedings were not done. 
 
 This introduces no aew principle, but simply 
 crystalizes in the shape of an express statutory 
 provision, a rule of universal application in the ad-
 
 1 1 
 
 ministration of justice, which finds expression in the 
 old maxims — ''Qui sentit commodum sentire debet 
 et 07tus ;" ''qui tacet concentire videtur ubi tracta- 
 tur de ejus commodor 
 
 These principles have been of constant applica- 
 tion in cases of this character : 
 
 In Weber vs. City of San Francisco, i Cal. 455. 
 an assessment was laid on certain property bene- 
 fited by a street improvement, which had been 
 inauofurated by an ordinance of the Common 
 Council. After the luork had been cojnpleted, plain- 
 tiff brought suit in equity to enjoin the collection 
 of the a.ssessment, claiming that it was unauthorized 
 and invalid for various reasons — among others, the 
 insufficiency of the ordinance. 
 
 The Court, there laying down in clear and 
 terse language the doctrine for which I contend, 
 said : 
 
 "An assessment was laid for the purpose of improving a 
 street, and thereby benefiting the property of the plaintiff in com- 
 mon with the property of the persons owning lots on the same 
 street. The work has been completed ; and after the plaintiff 
 has derived all the benefit and profit therefrom, and after the 
 contractors with the city have expended their labor and money 
 to improve the plaintiff's lots, he comes into Court, when he is 
 called upon to pay his proportio7i of the expense, and asks, in 
 effect, that he may be exempted from the general burden, im- 
 posed for the common benefit of himself and others, on the 
 ground that there are some irregularities in the mode of mak- 
 ing the assessments. / think that should not be permitted. 
 The plaintiff asks for the efiuitable interposition of the Court 
 to prevent a sale of his land by the defendants; but every
 
 12 
 
 principle of equity and justice demands that the plantiff should 
 pay, and it is one of the first maxims of jurisprudence, that 
 ' he who asks equity, must do equity' * * Had the plain- 
 tiff instituted proceedings before the work was commenced, 
 and enjoined the city from making the improvement, I should 
 have felt it necessary to inquire into ti.e validity of the ordi- 
 nance, by virtue of which the assessment was made and sale 
 ordered, and into the powers of the Common Council, under 
 the Charter, to make the assessment in the way they did 
 niake it. As the case now conies up, I do not deem this in- 
 quiry necessary.'^ 
 
 In Patterson vs. Baumer, 43 Iowa, 477, 482- — 
 
 an action to restrain the collection of taxes levied 
 
 upon certain lands to pay for the construction of a 
 
 ditch, it was insisted that there were many illegal 
 
 acts of the county authorities in laying out the 
 
 ditch which invalidated the assessment. 
 
 The Court said : " While the work of constructing the 
 ditch was undertaken, because demanded by the public 
 interests, yet the petitioners being land owners in the vicinity 
 of the improvement, were interested therein. They must all 
 be presumed to have had notice of the action of the couuty in 
 ordering the work, and in causing tt to be prosecuted. Some 
 of them signed the petition to the Supervisors, asking that the 
 work be done. They cannot be presumed to have been ignorant 
 of any irregularities up to and including the letting of the 
 contract They should have objected thereto before the ex- 
 penditure of money and labor by the County and contractor. 
 The la7v will not permit them to remain silent until ajter the 
 work is done, and then raise such objections to defeat the col 
 lection of taxes. ^^ 
 
 Where a person obstructed a street, claiming 
 that the Act under which it was opened, was un-
 
 13 
 
 constitutional, the Supreme Court of Pensylvania 
 — Pittsburg vs. Scott, i Barr.. 309, 357, said : 
 
 " The defendant stood by and saw the city, without a whisper 
 of objection on his part, make large expenditures and valuable 
 improvements, not only to the street, but to the landings, to 
 which he now asserts title. His objections are, therefore, neither 
 supported by law, nor has he any equity to favor his pretensions." 
 
 " ' Upon what principle of exalted equity,' asks the Supreme 
 Court of Kentucky, in Fergusoji vs. La7idra7n, 5 Bush., 230, 
 ' shall a man be permitted to receive a valuable consideration 
 through a statute procured by his own consent, or subsequently 
 sanctioned by him or from which he derives an interest and con- 
 sideration, and then keep the consideration and repudiate the 
 statute as unconstitutional ? * * * These men must 
 return the consideration they have voluntarily received, before 
 they shall be heard to assail the action and statutes by which 
 they have received it." " 
 
 Where certain swamp lands were drained and 
 the plaintiff — in Kellogg vs. Ely, 15 Ohio St., 64, 
 67— claimed immunity from an assessment for the 
 cost on the ground tJiat tJie proceedings under the 
 statute were defective, the Supreme Court of Ohio 
 answered : 
 
 " When the different sections of the ditch were let to the low- 
 est bidder and when the first spade had been thrust into the 
 earth in the execution of the contract then made, before the con- 
 tractors had expended any money or the Laborers any sweat, 
 then, if ever, the remedy by injunction was open to the plaintilT 
 below. But he did not invoke it. It does not apjiear by the 
 record that he ever warned the contractors or laljorers that he 
 intended for himself to resist the collection of the assessment, 
 which must follow to raise the money to pay them ; but, remain- 
 ing inactive and silent until his swamp lands were drained t)y a 
 ditch nearly a mile in length, he then, for the first time, asked 
 the interpsition of a Court of Equity. We think he comes too 
 late."
 
 H 
 
 In JViggin vs. Mayor & Co., of New York, 9 
 
 Paige, 16, 24. Chancellor Walworth said : 
 
 " The proceedings for making the improvement were com- 
 menced nearly five years since, and the complainant has 7vaited 
 until the improvemeiit had actually been completed several months 
 before he or his agent had attempted to interfere. His property 
 has received the full benefit that it could receive from the improve- 
 ment, which benefit the commissioners have estimated at several 
 thousand dollars. And as property of other persons to a very 
 large amount has been destroyed for that purpose, justice re- 
 quires that it should be paid for by those who have been benefited 
 by the improvement rather than by a general tax upon the city 
 at large. A Court of Equity, therefore, at this late day, will 
 not interfere with its strong arm to cast the burden of the im- 
 provement from those who have been benefited thereby and 
 upon those who have not." 
 
 In the case of Slalevs. The Mayor, (3^^., 40 N. 
 
 J. L., 244— a case of assessment for the grading 
 
 and curbino^ of an avenue — the Court said : 
 
 " The main reasons assigned (fur setting aside the assessment) 
 are (i.) That the grading was done and altered ?£'///?<??// the 
 consent of a majority of the property-07vners ; (2.) that the al- 
 teration was made without payment to the owners of buildings 
 on that section of the avenue of the damages thereby sustained; 
 (3.) that the grading was done witho7it the two weeks notice of 
 ititention in two newspapers, as required by the Charter ; (4.) 
 that the . ordinance was passed without like notice ; (5.) that the 
 ordinance was not regularly passed ; (6.) that the ordinance was 
 not duly certified ; (7.) that the ordinance was not passed by a 
 two-thirds vote, as required for the expenditure of money ; (8.) 
 that the ordinance was not published as required, between the 
 second and third reading ; (9.) nor published after passage of 
 the ordinance. * * * * * It is admitted, 
 in behalf of the City of Paterson, that there have been irregu- 
 larities in these proceedings, and it is also conceded that if the 
 prosecutors had acted promptly, the defects are such that the-
 
 grading and curbing of this avenue could have been stopped. 
 But it is also contended that the prosecutors had actual notice 
 of these improvements before they were made and during their 
 progress ; that, with this knowledge, they permitted the work to 
 go on to completion ; and, after the city had expended and ac- 
 tually paid the whole cost thereof, now refuse to pay their re- 
 spective assessments, because of these preliminary defects. x\ll 
 the proofs in the case show that they had such notice, and there 
 is no denial on their part. They were not in a position to be 
 silent if the city was acting with a misapprehension of its right, 
 and under color of authority given it by the Charter to grade,, 
 pave and curb the streets. The first work do?ie upo?i the land 
 of each, or affecting it, with their ktiowledge, was notice to them 
 that the city authorities were there with a claim of right to make 
 a public improvement, and if they neglected to make the proper 
 inquiries, or to object, with an asserti&ti of their rights as land- 
 mvners, until the work was done and paidfor^ such conduct is a 
 waiver of all objections to the right to make such improvemeyit. 
 This has become the settled law in our State, relating to such 
 improvements. * * * After such acquiescence in 
 the acts of the city officers, and delay in enforcing their legal 
 remedy, the objections that may be made by land-owners affected 
 by the improvements must relate only to the apportionment and 
 amount of assessment made upon them for the damages- and 
 benefits resulting from such improvements." 
 
 In The I^eople vs. The Coninion Council, 65 
 Barb., 9. 21, a certiorari to review the proceed- 
 ings of the Common Council of Utica, in ordering 
 the pavement of a street, the Court said : 
 
 " At the close of the present term of this Court, upwards of 
 two years will have elapsed since the first proceedings recjuired 
 by the Charter to authorize the making of the said imjjrovement 
 were initiated by the Common Council, and two years — within 
 sixty days — since the final ordinance for the construction of said 
 work and the acceittancc of the proposals therefor were passed. 
 * * The proceedings must have been well kno^an to the relator 
 and to the other property-owners in Genesee street, in whose behalf
 
 i5 
 
 i}ie writ of certiorari issued in this case. * * * In the 
 meantime (between the presentation and action upon the peti- 
 tion and the issuance of the certiorari) the work of said improve- 
 ment had been constructed and completed, and an assessment for 
 the expense thereof duly made and confirmed, and the assess- 
 ment roll delivered to the Treasurer of the City for collection, 
 and more than one-half of the amount thereof duly paid to him 
 thereupon. * * * ^ any irregularities or any in- 
 formalities occurred in the proceedings of the Common Council, 
 in directing said work, or letting the contract for its construction, 
 we are of the opinion that after the lapse of the time that has in- 
 tervened since the said work was authorized, it woidd be unjust 
 ■and unreasonable to review said proceedings with the view to re- 
 verse them for any such error. The relator and thos^ in whose 
 behalf, as well as his, the writ was sued out, have lain by and 
 seen the ivo?-k constructed upon their street, for the benefit of their 
 property, and should be estopped from questioning the right of the 
 city to make such improvement, in analogy to the rule in equity, 
 that when a party lays by and sees another make valuable erec- 
 tions and improvements on his land, supposing he is making 
 them upon his own land, he shall be estopped from afterwards 
 setting up his title to the land so improved. The Common 
 Council are, in principle and in fact, nothing more than agents of 
 the property-owners in ciiies, in making such improvements, and 
 when the property-owners benefited thereby suffer the iinprovements 
 to proceed and be completed, they should be held to affirm the acts 
 of their agents i?i constructing such nwrk. As in other cases 
 between principal and agent, where the trustees of public or 
 private corporations act for the benefit of particular individuals, 
 such individuals, if they seek to disaffirm and avoid such acts, 
 should take prompt steps to do so, or they will be held to have 
 affirmed the same." 
 
 The case of the State vs. Wertzel, 62 Wis., 184, 
 186, was an action to recover a statutory penalty 
 for encroachment on a highway. x'\s a defense, 
 the existence of the highway way denied. The 
 Court said :
 
 I? 
 
 " We think the defendant is not in a position to attack the 
 validity of the order laying out the highway. * * * 
 The acts of defendants grantor bind the defendant. Such 
 grantor acquiesced in the order laying the highway, and erected 
 his fence on what he supposed to be the east line thereof. // 
 does not appear that either the defendant or his grantor ever 
 questioned the validity of the order until this action was brought, 
 but always theretofore acquiesced in it as a valid order. To allow 
 the defendant now, for the first time, to assert its validity might 
 work great injtistice to the town. * * * These own- 
 
 ers have stood by and allowed the town to expend large sums in 
 making the highway and bJiildifig bridges thereon, without raising 
 any question of the validity of the order laying it out. Under 
 these circumstances we think the defendant and his grantor have 
 acquiesced in the validity of the highway altogether too long to 
 be noiv heard to dispute it. We conclude therefor, that the 
 learned Circuit Judge ruled correctly in holding that the order 
 * * * was ruled and established a legal highway.^^ 
 
 In Qiiinlan vs. Myers, 29 Ohio St., 500, 511, 
 an action to enjoin the collection of an assessment 
 for the improvement of a road on the ground that 
 the petition therefor had not been siq^ned by a 
 majorit)' of the residents and land-owners, it was 
 urged as a defense th;it the plaintiff had not ap- 
 plied for the injunction till the work was almost 
 completed, and that he was thereby estopped. 
 
 Said the Court : "Myers, (the i)Iaintiff,) had an election 
 either to abide by and aciiuiesce in the report of the reviewers 
 (for laying out the road,) or to institute legal proceedings to set 
 it aside. lie elected to acquiesce. The improvement was let 
 to contract, and the contractors commenced work u])on it in 
 August, 1867, of which Myers had notice again ; he had an elec- 
 tion either to commence ijroceedings to enjoin \Vork upon the 
 improvement or to accjuicsce in what was being done. He 
 chose the latter. The work was suspended from September, 
 1867, till April, 1870; * * * wlien the contractors
 
 i8 
 
 again commjnce J work on the improvement of which Myers 
 had notice, and again he elected to let the work progress with- 
 out objection on his part. The work was substantially com- 
 pleted in the year 1870; work of the value of about $1000 only 
 remaining undone. After the work was thus substantially com- 
 pleted, and the b2nefits of the mprovement thus obtained, Myers 
 for the first time, on the 2gth of May, i8ji, made application for 
 an injimction, not to restrain the Commissioners or the contractors 
 from tnaking the improvement, but to restain the Auditor and 
 Treasurer from collecting the assessments to pay for the improve 
 inent after it was made. 
 
 " In equity, wherever the rights of other parties have intervened 
 by reason of a man's conduct or acquiesence in a state of things 
 about which he has an election, and his conduct or acquiescence, 
 or even laches, was based on a knowledge of the facts, he will be 
 deemed to have made an effectual election ; and he will not be 
 permitted to disturb the state of things, whatever may have been 
 his rights at first. Bigelow on Estoppel, 508, 33 Iowa, 278. 
 
 "Here Myers had acquiesced for nearly five years, during 
 which time, and it might be said by reason of such acquies- 
 cence, the rights of contractors and sub-contractors to be reim- 
 bursed for labor and materials employed in making an improve- 
 ment beneficial to the plaintiff had intervened, or the county had 
 become bound for the same by issuing its bonds to the contrac- 
 tors. * * * The principal ground upon which 
 Myers relies for an injunction is, that the Commissioners had 
 not jurisdiction to make the order for the improvement. After 
 an acquiscence of nearly five years, during which the work was 
 substantially covtpleted. On every consideration of justice and 
 eqicity, Myers ought now to be estopped from denying his liability 
 to pay his assessments for the completed improvement, and this, 
 without reference to whether the Commissioners had jurisdiction 
 to order the improvement or not. * * * 
 
 " There is nothing shown in the record that shields Myers from 
 the consequences of his election and long acquiescence in what 
 was being done toward the construction of the improvement, 
 and we find that he is now 'estopped from denying his liability to' 
 pay the assessments ift question. " 
 
 In the Slale vs. T/ie Mayor, 36 N. J. L., 158,.
 
 ^9 
 
 a certiorari to review an assessment of expenses 
 
 for grading Fulton Street in the City of Paterson, 
 
 an the ground, among others, that the ordinance 
 
 authorizing the improvement was invaHd, not being 
 
 preceded by the public notice prescribed by law, 
 
 the Court said : 
 
 *^ Although we cannot avoid the conclusion that * * * fjig 
 prosecutors are sustained in their insistment as to the wa?it of 
 notice, we are satisfied that they are not 7iow in a position to take 
 advantage of it. 
 
 " There can be little doubt that they were aware, almost froiii 
 the first, of the inception and progress of the proceedings now 
 before us. One of them had joined in a petition for the grad- 
 ing of Fulton Street, as early as July, 1869. It is true that this 
 street was subsequently vacated and relaid. But lon^ after this, 
 May 2nd, 1870, the prosecutor referred to, Mr. Woodruff sent 
 to the Board of Aldermen a second petition relating to the pro- 
 posed improvement. This was about a month after the com- 
 pletion of the work for which the assessment in question was 
 made. The Commissioners finished the assessnent and made 
 their report May 21st, 1870, and the writs in these cases were 
 not issued until July 8th, 1870. 
 
 ^'- However fatal the objection now unde r consideration might have 
 been if promptly acted upon, it cannot be allowed to prevail after 
 so much delay, and especially after the improvement has been com- 
 pleted and paid for by the city." 
 
 In City of New Haven vs. Fair Haven, 2)^ 
 Conn.. 422, 432, an action to recover an assess- 
 ment for a street improvement, which was resisted 
 on the ^TOLiiid that the corpuratioii deleiid.uiL was, 
 under its charter, exempt from \.\\v. ojxMMtion of 
 the assessment in question, it was held that it had 
 precluded itself from raising this objection by its
 
 20 
 
 Standing by, without complaint, and acquiescing 
 
 in the work of improvement as it progressed. 
 
 Said the Court : 
 
 " It is a very interesting and imix)rtant question whether the 
 defendant, by objecting to these proceedings at the commence- 
 ment, could have practically defeated the whole improvement ; 
 but the case before us does not require us to decide that ques- 
 tion. The defendant suffered the city to go forivard and incur 
 the expense, with full knowledge of the proceeding, and without 
 objection at the time. The defendant must have known that the 
 improvement would largely benefit it in the matter of repairs, 
 that the proceeding was under the statute, and consequently at the 
 expense, in part at least, of the parties benefited. There was no 
 reason to suppose that the city was doing the work of the de- 
 fendants at its own expense, or at the expense of other parties. 
 The presumption, therefore, is, in the absence of any finding to 
 the contrary, not only that the defendant consented to the makitig 
 of the improvetnent by the city, but that there was an implied un- 
 derstanding that the defendant was to bear its fair proportion of 
 the expense. We think, therefore, that the defendant should be 
 estopped frotn setting up this claim." 
 
 In Stevens vs. Frankliji Cozinty, 48 Mo., 167, 
 176, an action to restrain the collection of an as- 
 sessment for the payment of bonds issued by the 
 defendant to enable the improvement of a certain 
 road, and to restrain the payment of such bonds, 
 the plaintiff was held estopped by his acquiescence 
 in the improvement to question the regularity of 
 the proceedings. 
 
 The Court said : 
 
 " The application on the part of the appellants would have 
 come with a better grace and with more persuasive equity, had 
 they filed their bill at the commencement of the work, and not 
 waited till its completion before they moved in the matter.
 
 21 
 
 They were citizens of the county, they knew of the contract, 
 they saw the heavy expenditures that were being made, and the 
 amount of improvement as it was executed ; and still the pro- 
 ceeding was not instituted till the work was completed, and the 
 bonds in payment were issued and nearly all negotiated." 
 
 Skinner vs. Hartford Bridge Co., 29 Conn. 
 523. 535, was an action to recover damages for 
 the raising of a causeway. The Legislature had 
 authorized the defendant to build the causeway in 
 question through certain meadows, and provided 
 for a committee to assess the damages resulting 
 therefrom to the land proprietors. The assess- 
 ment was made and the damages paid to the pro- 
 prietors, among others, the plaintiff The action 
 was not brought till many years thereafter, during 
 which time the causeway had been treated and 
 used by the public, without objection, as a public 
 highway. 
 
 Said the Court : 
 
 " We think it now (juite too late, if it ever could have been 
 done, to call in (juestion the legality of the laying out of the 
 causeway, upon the ground that the act providing for the assess- 
 ment of damages which was essential to the legality of the pro- 
 ceeding, had not taken effect by the rising of the General As- 
 sembly at the time when the assessment was made. * * * 
 The damages, whether legally, assessed or not, were in fact as- 
 sessed in favor of the jjlaintiff's grantor, and were acceiJted Ijy 
 him as damages for the land taken ; and the causeway thus laid 
 out and paid for has been ever since treated and held, without 
 objection from any (|uarter, as a public highway. In these cir- 
 cumstances the plaintiff is clearly estopped from calling in 
 question the validity of the proceedings under which the cause- 
 way was laid out and the damages assessed and paid. The
 
 22 
 
 doctrine of estoppel has often been before the Court, and has 
 been a])pUed by us in cases presenting defects and irregularities 
 more serious and questionable than any suggested in this case." 
 
 New Haven vs. Town of C/mt/iani, 42 Conn., 
 465, was an application for a mandamus to compel 
 a town to "guarantee certain bonds which had been 
 executed by the plaintiff railroad company, and 
 which it (said town) passed a vote to guarantee on 
 the completion of the road. The town defended 
 on the ground that the vote was not regularly 
 passed. The vote had in fact taken place by di- 
 vision of the house, and not by ballot, as required 
 by law, but neither the officers nor the inhabitants 
 of the town gave any notice that it was not taken 
 by ballot until more than three years thereafter, 
 and until long after the railroad company had in 
 good faith, and with the knowledge of the inhabit- 
 ants, issued the bonds that were to be guaranteed 
 and delivered them to the contractors, who had 
 performed the work, furnished materials and ex- 
 pended money in reliance upon them. Held: 
 The town and its inhabitants were estopped from 
 setting up the invalidity in the vote. 
 
 The Court, at pp. 478 and 479, said : 
 
 " Its (the town's) officers and inhabitants knew that the com- 
 pany and the contractors under it, relying upon the vote of the 
 town, and upon the record thereof, as evidence that it was legally 
 passed, were expending large sums of money and incurring 
 obligations in completing the road, and adding substantial value 
 to the property in which the town had made large previous in^-
 
 23 
 
 vestments, and that the work of construction was carried on 
 wholly upon this pledged assistance from Chatham and other 
 towns in like situation. When asked, from time to time, to 
 place the guaranty upon the bonds by the conipany, and by the 
 contractors, whom they had seen expending money and perform- 
 ing labor upon the faith of their record, they received the re- 
 quest in silence or refused comi>liance for varying reasons, but 
 no officer or individual citizen ever gave any notice or even inti- 
 mation to the company or any person that there was any defect or 
 informality in tlie manner of passing the vote, or a?iy error in 
 the record t/iereof until ilu road had been completed and they had 
 derived all possible benefits from silence. 
 
 "And the town having made the record for the express pur- 
 pose and with the design hereinbefore indicated, its officers and 
 inhabitants all having knowledge that the company and the con- 
 tractors did in fact understand it as importing a vote by ballot, 
 and upon such understanding were expending money and labor, 
 in increasing the value of the property of the town, having re- 
 frained for more than three years from any effort to correct what 
 they now insist is an erroneous record, and having during the 
 same time neglected to give any notice of a defect in the manner 
 of taking the vote, knowing that such notice would stop such 
 exiienditure, they are noiv, upon the plainest principles of law, 
 estopped, both as a municipal corporation and as individuals, from 
 setting up against the company, which still has an interest in the 
 bonds thus delivered to the contractors, and is now seeking to 
 secure the guaranty which it agreed they should have, or against 
 the contractors, any defect in the mode of exercising the power 
 conferred ujion them by the Legislature, and from altering a 
 record made by themselves and allowed to stand for three years, 
 by which, with their knowledge, the company and the contract- 
 ors were induced to believe in the existence of a certain slate of 
 things, and so act on that belief as to alter respectively tluir 
 previous positions. 
 
 "Indeed, the votes, the record, and the subse(iuent conduct 
 of the town and its inhabitants in reference thereto, considered 
 in relation to the bonds, subject them to the ojjeration of the 
 law of estoppel as completely as if the town had become the 
 makers of the bond, and had declared in it that it had complied
 
 24 
 
 with all the requirements of the law in issuing it and had allowed 
 It to pass into the hands of an innocent holder. When the 
 Legislative grant of power to the town to bind itself, and a 
 declaration of this character concerning the manner of exercis- 
 ing it, co-exist, Courts apply the principles of estoppel as strictly 
 and with as much reason to municipalities and their inhabitants 
 as to individuals." 
 
 In Society foi" Savings vs. New London, 29 
 Conn.. 174, 191, el seq., an action to recover in- 
 terest on certain city bonds, issued to aid in the 
 construction of a railroad, and the payment of 
 which was resisted by the city, on the ground of 
 irregularities and the want of authority in their 
 issuance, the Court said: 
 
 "The proceedings of the city in issuing the bonds were well 
 known to all the citizens. We must consider them as convers- 
 ant with the votes of April 14th and July 31st, and everything 
 that was done under the votes; the issuing of the bonds in the 
 name of the city; the delivery of them to New London, Willi- 
 mantic and Palmer Railroad Company for their use; the adver- 
 tisement of them in the public papers, and the fact that they 
 were bought by honest purchasers, from time to time, for the 
 ultimate benefit of the citizens themselves. They knew, too, 
 that the bonds were taken by the Treasurer of the State as se- 
 curities for the issue of bank paper. If all this was wiihout 
 authority, why, we ask, did not the citizens then make 
 their objections ? Why did they not enjoin the city agents from 
 further proceedings 1 At least, why did they not give notice 
 to the public, and put purchasers on their guard, when they 
 knew that a grievous loss must ensue if the bonds were unau- 
 thorized? We must believe that, after such acquiescence, it 
 would be an outrage upon morality and justice and an im- 
 peachment of the integrity of the citizens of New London to 
 allow the city to repudiate its obligations for such a cause. 
 Many of the citizens, we well know, disapprove of and con- 
 demn such a repudiation ; and we trust all of them would do so
 
 25 
 
 were it a simple transaction between man and man, where the 
 culpability could not be thrown off upon a municipal corpora- 
 tion. But it is this very circumstance which enhances the im- 
 propriety of the act of repudiation; for the integrity of a public 
 body is its principal virtue. To violate or impair this is to 
 undermine government itself, and to destroy the very institu- 
 tions of the civil State. Such repudiation cannot receive the 
 countenance of this Court of justice. Hitherto repudiation has 
 not anywhere been countenanced among us, and we trust it 
 would not have received favor in this instance with any of the 
 citizens of New London had they carefully considered the con- 
 equences of the act, and the precedent they were establishing 
 for other and less favored communities. The general doctrine 
 of equitable estoppel, especially as to taxpayers, is most ably dis- 
 cussed and approved in the cases of The State vs. Van Home, 
 7 Ohio St. 327; Knox County Commissioners vs. Aspinwall, 
 2\ Howard, 539; Tash vs. Ada/ns, 10 Gush., 252; Graham vs. 
 Maddox, 6 Am. Law Reg., 595, 618, and Gould \s. Venice, 29 
 Barb., 442. 
 
 " Perhaps no one thing has done more to disparage the fair 
 fame of our country abroad, or to impair the integrity of our 
 institutions at home, than the loose sentiments which prevail in 
 some parts of the land as to public and corporate indebtedness. 
 It seems to be thought by some people that as to obligations of 
 this character, nothing more is called for from the deI)tor than 
 what is agreeable, easy and convenient. Honor, honesty and 
 punctuality are thought to be quite foreign to the subject. But 
 this is a very great mistake, false and ruinous in the extreme. 
 These virtues are as essential to public bodies as to individuals, 
 and the nation, State, City or iminicipality that does not observe 
 and cheri.sh them has upon it a blight, which will, in the end, 
 destroy its best interests. 
 
 "It was said on the argument tliat, however proper it might 
 be to compel the City of New London to fulfill her engage- 
 ments, if the city as such was alone affec ted, yet that individual 
 citizens, taxpayers, have rights of their own, which they may 
 defend in the name of the corporate I)ody. But we can re<()g- 
 nize no such independent character in the citizen. Besides, the 
 .city alone appears here to defend; and if the individual citizens
 
 26 
 
 were to be considered as appearing for themselves, they could 
 only defend in the name and according to the rights of the city." 
 
 If the Court desires, it may consult the following 
 additional authorities in this connection : 
 
 Stasser vs. Fort Mayne, lOO Ind., 443. 
 Ricketls vs. Spraker, yy Ind., 371, 381. 
 Baltimore vs. Strauss, 2)1 Md., 22,7, 243. 
 Whittlesey vs. The Hartford R. R. Co., 23 
 
 Conn. 421, 432 et seq. 
 Hitchcock vs. D anbury, 25 Conn., 515. 
 Erie Ry Co. vs. Delazuare &c. Co., 21 N. J. 
 
 Eq., 283, 289. 
 Mahaska vs. Des Moines, 28 Iowa, 437, 454. 
 Goodin vs. Cincinjtati, 18 Ohio, St. 169^ 
 
 180. 
 Motz vs. City of Detroit, 18 Mich. 495, 528. 
 City of Burlington vs. Gilbert, 31 Iowa, 
 
 356, 365- 
 Conimonzvealth vs. City of Pittsburg, 43 
 
 Pa St., 391. 
 
 Bidwellvs-. City of Pittsburg, ^^ Pa. St., 412. 
 
 Task vs. Adams, 10 Cush., 252. 
 
 Matter of Application of Cooper, 93 N. Y., 
 
 507- 
 Daniels vs. Tearney, 102 U. S., 415, 420. 
 
 Matter of Application _ of Woolsey, 95 N. 
 
 Y., 144. 
 City of Lafayette vs. Fowler, 34 Ind., 140^ 
 
 146.
 
 2/ 
 
 HellenkaJitp vs. City of Lafayette, 30 Ind., 
 182, 194. 
 The principles enunciated in these cases are the 
 dictates of common honesty, the offsprings of ele- 
 mentary justice. They are not of to-day, but of 
 all time; not of this country, but of all countries. 
 They have been proclaimed by judges in all ages 
 and in all climes, and still flourish wherever trickery 
 is discountenanced and dishonesty condemned. 
 The Leofislature foresaw that these fundamental 
 rules of jurisprudence might be ignored ; they an- 
 ticipated that, upon the line of this street there 
 might be men, of such elastic consciences as to be 
 willing to permit this great public improvement, 
 by which their property was to be vastly en- 
 hanced in value, to proceed, through all its stages 
 to completion, and then, when the benefits had 
 been fully and irrevocably conferred, to attempt to 
 evade the payment of the debt contracted on their 
 behalf; they apprehended that there might be 
 men so lost to all sense of shame as to be willing 
 to convey their property to the municipality, to re- 
 ceive in payment money raised by a sale of the 
 City's bonds, and then, when assessed to pay these 
 obligations, incurred in their behalf, while still re- 
 taining th(; money paid tliein and the benefits con- 
 ferred, to repudiate the vah'dity and obligation of 
 the bonds. The Legislature foresaw all this, and 
 to prevent the accomplishment — in the hope of
 
 28 
 
 forestalling even the attempt— of such nefarious pro- 
 ceedings, it transferred to the Statute the rule that 
 the completion of the work should estop all parties 
 any where and everywhere, in law as well as equity, 
 from denying the legality of the burdens imposed 
 by the Act. 
 
 What is the meaning of this provision ? Plainly 
 this : The law says to the property owners : 
 Here is a public Statute, of which you all take no- 
 tice, and whose provisions are known to you; under 
 it a great public improvement for the benefit of 
 your property is about to be inaugurated ; it is 
 contemplated and provided that the cost of this 
 improvement shall be borne by the parties who 
 reap its advantages ; various steps are to be taken 
 before the improvement is completed ; the Westerly 
 line of a whole street is to be changed, and rows 
 of buildings for several blocks to be torn down 
 these things will go on at your own doors and 
 under your own eyes ; the proceedings are com- 
 plicated and, through carelessness of officials, may 
 be attended with some irreg-ularities ; if vou wish 
 to take advantage of these irregularities, do so 
 while the proceedings are going on ; but, if you 
 permit them to go on without complaint, if you al- 
 low them without objection to reach completion, 
 you shall be deemed to acquiesce in the provisions 
 of the Act and the regularity of the proceedings 
 had under it ; and, having voluntarily seen the
 
 29 
 
 benefits of the law conferred upon your property, 
 you shall be held to have assented to its burdens. 
 
 Is there anything" to prevent the Legislature 
 from declaring by Statute this rule of estoppel ? 
 Nothinof that I can imagine. Courts declare what 
 acts estop parties from questioning certain things 
 done with their acquiescence. Why may not the 
 Legislature declare the same, and, by public Stat- 
 ute, warn and inform parties that their tacit ac- 
 quiescence in certain proceedings, their failure to 
 challenge or oppose them while they are in fieri 
 under their own eyes, will estop them from ques- 
 tioning them when they have reached completion ? 
 Why may not the Legislafture make it known to 
 parties that, if they voluntarily accept the benefits 
 conferred upon them by a Statute, they shall not 
 be permitted to avoid the corresponding burdens ? 
 
 This provision of the Statute is in consonance 
 with the numerous decisions which I have cited 
 upon the question of estoppel. It is eminently 
 just. 1 1 ought to be enforced, unless it contravenes 
 some prov^ision of the Constitution ; and, there is 
 no constitutional provision opposed to it. 
 
 Precisely similar statutory estoppels have been 
 recognized and enforced by tlie Courts. Tlius : 
 
 In Palmer v'^^. Stuviph, 29 Ind., 329, the Stat- 
 ute under consideration, (the Indiana Act for the 
 incorporation of Cities) provided, that the Common 
 Council might, upon petition of two-thirds of the
 
 30 
 
 abutting owners, cause improvements to be made 
 in streets, by executing contracts therefor to the 
 lowest bidder, after advertising for proposals, and 
 that the contractor should be paid at the com- 
 pletion or during the prosecution of the work by 
 assessments to the levied on the owners benefited. 
 The 6Sth section provides for the collection of the 
 assessment through the agency of a precept issued 
 for that purpose, and further makes provision for 
 an appeal from the precept to the Court of Com- 
 mon Pleas, declaring however, that " no question 
 or act shall be tried which may arise prior to the 
 making of the contract for said improvenient." 
 The Court commenting on this Act, said : 
 
 " The plai7i ititent of all ihe Statute is to prevent the owner of 
 property to be benefited by a contemplated improvement made by 
 the Common Council of the street in front of his property from 
 remaining silent until he has secured the full benefit of the tvorky 
 and then avoiding the payment therefor. If he denies the power 
 of the Council to order the improvement^ he must test the question 
 by injunction before the work is done. Acquiescence in the 
 
 ACTION OF THE CoUNCIL IS BY LAW MADE TO ESTOP HIM FROM 
 GOINO BEHIND THE MAKING OF THE CONTRACT." 
 
 The same statute came under consideration in 
 Commissio7zers of Allen County vs. Silvers, 22 
 Ind., 491, where it was objected on appeal, that it 
 no where appeared in the record, that two-thirds 
 of the resident lot-owners had petitioned the 
 council for the improvement. Said the Court at 
 
 page 499 : 
 
 " These are questions which the Court below could not in- 
 quire into. We have seen that on the appeal no questions of fact
 
 31 
 
 could be tried which arose before the making; of the contract 
 This provision of the statute was inserted for a purpose. That 
 purpose was U7idoubtedly to enable the contractor to collect his 
 money when he had done the work contracted for, without being 
 harassed with questions as to the regularity of the proceedings 
 that took place before he entered into the contract, and to which 
 proceedings he might be a stranger. If a party interested have 
 reason to believe the proceedings, before the contract, were ir- 
 regular or insufficient to authorize the contract and the doing of 
 the work, he may enjoin them before the work is done ; but if 
 he withholds his objection until the work is done there is no hard- 
 ship in precluding him from going belmid the contract and show- 
 ing that by reason of any fact it was unauthorized, * * * 
 whether the petition ivas signed by the requisite number of 
 residents of the city, owning property bordering on t/ie street on 
 which the improvement %vas to be made, was a fact that could 
 
 not be inquired into." 
 
 The provisions of this same statute, were like- 
 wise given effect, and thus its vaHdity recognized, 
 in Cily of Indianapolis vs. Imberry, ij Ind., 175. 
 
 It is humbly submitted that the principles of 
 these decisions and the express language of the 
 statute dispose of the plaintiff's contention, and 
 that the plaintiff's case ends right here. 
 
 Secondly. — If it should be hc^ld that this view 
 of the statute is incorrect, still, I maintain that, 
 unless this Court is prepared to overrule one 
 of its former decisions, upon all objections urged 
 h(;re against the legality of the proceedings 
 had under the DupoiU Street Act all dis- 
 cussion is foreclosed, and every point is set 
 at rest, upon authority in this .State, and squcirely 
 decided against the plaintiff's contention by the
 
 32 
 
 case of San Fi'ancisco vs. Cei'tain Real Estate, 
 42 Cal, 512. 
 
 This case is of such importance that a some- 
 what extended examination of it is warranted. 
 
 By statute of March 30th, 1886, [ Stat. 1867-8, 
 p. 549,] commonly known as the Second Street 
 Cut Act, it was provided as follows : 
 
 § I. The Board of Supervisors are authorized to modify the 
 grade of Second Street 
 
 § 4. The expense of the work is to be defrayed by assessment 
 upon the owners of lands " that may be benefited." 
 
 § 4. The district befiejited is defined and described. 
 
 >? 8. The Board of Supervisoors "appoint three disinterested 
 citizens * * * as Commissioners to assess the bene' 
 fits and damages to each separate lot of land within the limits of 
 the district." 
 
 § II. The Commissioners assess the damages upon the lands 
 benefited " as near as may be in proportion to the benefit, which 
 shall be deemed to accrue to each lot respectively," 
 
 By statute of February r, 1870 [Stat. 1869-70. 
 
 p. 41], amendatory of the foregoing, it is provided 
 
 as follows : 
 
 § 12. The Commissioners file their report in the office of 
 the Clerk of the County Court. 
 
 " The Clerk of said Coutity Court, as soon as said report 
 shall he filed .'n his office, shall gii'e notice of such filing by 
 puhlishing a notice thereof in the official newspaper of said Board 
 of Supervisors for a period of fin days." 
 
 §13. '■'■ Within twenty days after the publication of said Iqst 
 mentioned notice, any interested party or parties dissatisfied with 
 the report of said Commissioners, or any part thereof, may file 
 with the Clerk of the County Court of said City and County, 
 written objections to sail report, or any part thereof, setting 
 forth his or their grounds of objection.^'' 
 
 If no such objection is made the report becomes final.
 
 33 
 
 In case of objections, the County Court "shall assign a day 
 for the hearing and trial of said objections, and, on the day as- 
 signed * * * said Court shall hear the allegation of the 
 party or parties so objecting, and shall take proof in support of 
 and against said objections, and of said report and the assess- 
 ment therein, and shall confirm said report, or may modify the 
 same, or may set the same aside, either in whole or in part, or, 
 in its discretion, may refer the matter back to the same Com- 
 missioners with instructions, who shall thereupon proceed as 
 hereinbefore provided, or according to said instructions." 
 
 Upon coming in of the second report the same proceedings 
 are gone through with. 
 
 After judgment of the County Court confirming 
 the report, this action was brought to recover an 
 
 assessment. An examination of the briefs on hie 
 will show that the points of appellant were sub- 
 stantially- the same as those of the plaintiffs here. 
 In overruling them the Court said [pp. 519, 520]: 
 
 " The amendatory act of February first provides that the re- 
 port shall be returned into the County Court, of which fact 
 notice was to be given by pu!)lication, after which a reasonable 
 time is allowed by the act within which all persons interested 
 were permitted to file objections to the report, and to call wit- 
 nesses in support thereof. A sufficient opportunity, after due 
 notice, was thus afforded to all persons to attack the report and 
 the proceedings of the Commissioners for irregularity, or for any 
 other just cause ; and after hearing all the proofs and allegations 
 of the parties, it was made the duty of the Court to modify or 
 confirm the report. In case the report was set aside and a new 
 report was ordered to be made, a like opportunity was afforded 
 for filing objections thereto and calling witnesses in support of 
 them. After hearing the objections to the second report, it was 
 made the duty of the Court to render a judgment, either con- 
 firming or setting aside the report ; and the statute declares that 
 this judgment 'shall be final and conclusive.' In the case of 
 Houghton's appeal from this judgment, decided at the last term, 
 we held the judgment to be final and conclusive in such a sense
 
 34 
 
 that no appeal would lie therefrom. It was obviously the inten- 
 tion of the Legislature that all objections to the report, founded 
 upon the errors, misconduct, irregularities, or omissions of the 
 Commissioners, should be heard and determined by the County 
 Court, and should not thereafter be open to attack in a collateral 
 action. The parties in interest were allowed their day in Court, 
 after due notice, with a sufficient opportunity to be heard in their 
 defense, and the proceeding would be interminable if the report 
 could be collaterally attacked after a final judgment in the 
 County Court. This is precisely what is attempted to be done 
 by the defense in this action. To permit such a defense would 
 be to disregard the manifest intention of the statute, and to 
 nullify some of its provisions. The answer, in my opinion, pre- 
 sented no defense to the action." 
 
 This case, then, decides these essential points : 
 
 ist. It is not necessary that the property-owners 
 should have a hearing before the Commissioners 
 in the first instance ; it is sufficient if they are 
 afforded a hearing before the assessment becomes 
 final — by this they are "allowed their day in 
 Court." 
 
 2d. It is not necessary that notice of the hear- 
 ing should be given to the parties in interest per- 
 sonally ; it is sufficient that notice by publication 
 be given — this is "due notice." 
 
 3d. A notice that the report is filed is sufficient ; 
 it is not necessary that the notice should contain 
 anything more than this bare statement. 
 
 4th. A publication of such notice for five days 
 in one single newspaper, is sufficient publication, 
 
 5th. Allowing twenty days after such publica- 
 tion within which to make objections to the report 
 is the allowance of a sufficient length of time.
 
 35 
 
 6th. The right given by the statute to 
 " 7nake objections to sucJi 7'eport, or any part there- 
 of^' is a right "^ to attack the report and the pro- 
 ceedings of the Commissiojiers for irregularity, or 
 for any other just cause" 
 
 7th. Whatever the nature of the objection, no 
 
 ^ further notice of the proceeding need be given 
 
 than the five days pubHcation above mentioned, — 
 
 by this notice " opportnnity ''" '" ^ luas thus 
 
 afforded to all persons to attack the repoi^tT 
 
 8th. ''All objections to the report, founded ztpon 
 the error, misconduct, irregularities, or omissions 
 of the Commissioners'' must '' be had and deter- 
 mined by the County Court,'' and can ''not there- 
 after be open to attack in a collateral action." 
 
 9th. The judgment of the County Court con- 
 clusively establishes the legality and validity of 
 the report — which thenceforth cannot be " collat- 
 erally attacked." 
 
 lOth. To permit such a collateral attack to be 
 made " would be to disregard the mauijcst inten- 
 tion of the statute and to nullify some of its pro- 
 visions." 
 
 This decision is on all fours with the present case, 
 upon the essential points relied on by the plaintiffs 
 here. It had stood upon the rctports of this Court 
 unchallenged and unquestioned lor years, at the 
 time the Dupont Street Act was passed. It stands 
 there to this day. Relying u[>on that solemn ad-
 
 36 
 
 judication in a parallel case, a large number of per- 
 sons have purchased the bonds issued to defray 
 the expense of a great public improvement in the 
 City of San Francisco. Taught by the doctrine of 
 that case, they had learnt that the judgment of the 
 County Court was a conclusive adjudication of the 
 regularity and legality on the proceedings taken 
 under the Statute. They had been led to believe 
 that that judgment was a shield against the 
 numerous small and vermiculate attacks which are 
 now made upon the proceedings. They still abide 
 in the conviction that this Court will not push 
 aside that shield, and, by overruling its own decis- 
 ion, destroy the investments which parties, in their 
 confidence in the stability of the jurisprudence of 
 the State, have made in these securities. The de- 
 cision, as to them, has acquired all the dignity and 
 sacredness of a rule of property. As such, even 
 though doubts of its correctness should be enter- 
 tained — and none have yet been suggested — it 
 should not be shaken now.
 
 Z1 
 
 I. 
 
 The Dupont Street Act is Free from any 
 
 Constitutional Objection urged against 
 IT Bv THE Plaintiff. 
 
 I shall contend that the Statute, even under 
 the most rigorous construction, is not obnoxious 
 to criticism. But, if the act needs a more benign 
 interpretation, it may safely be expected that the 
 Court will net refuse it, in examining the action 
 of a co-ordinate branch of the government. 
 
 It is the duty of the Court " to adopt that con- 
 struction which, without doing violence to the fair 
 meaning of the words used, brings the Statute in 
 harmony with the provisions of the constitution ; 
 the presumption must be that the Legislature in- 
 tended to grant such rights as were legitimately 
 within its power."' 
 
 I. The Act does not Fall within the 
 
 inhibition of THE DoCTRINE OF 
 
 People vs. Lynch. 
 Th(- doctrine of that case prohibits the Legis- 
 lature from entering, as a forcible intruder, into 
 the municipality, to usurp its ordinary functions. 
 " Such a law " says the Court, " is unconstitutional, 
 because it * * * deprives the Board ol 
 Trustees or legislative departnifMit of the city 
 "■overnment * * '''' of all choice or discre- 
 tion in reference to the im[;rovement." 
 
 » Granada County vs. Brogdon, 112 U. S., 269.
 
 38 
 
 But, the Dupont Street Act is the exact reverse 
 of this. It leaves it entirely within the power of 
 the legislative department of the city to exercise 
 its own choice or discretion. Far from stepping" 
 within the bounds of the municipality as an in- 
 truder, the Legislature does not enter at all, until 
 the Board of Supervisors voluntarily unbars the 
 gates. 
 
 Surely the Legislature could have amended the 
 charter of the city, by inserting therein a provision 
 that, whenever the Board of Supervisors should 
 deem it expedient to widen a street^ and should 
 adopt a resolution to that effect, the Mayor^ 
 Auditor and Surveyor should constitute a board 
 for the purpose of making the proposed changes,, 
 and should proceed to discharge functions similiar 
 to those imposed upon them by the present Act. 
 The statute before us is, in reality, but an amend- 
 ment to the charter of the city. 
 
 The distinction between the present statute and 
 that under consideration in People vs. Lynch is toa 
 obvious to need further comment 
 
 Since the late decision of this Court in People 
 vs. Bartlett, 6 W. C. R., 765, this question is no< 
 longer an open one in this State. 
 
 n. The Statute does not Violate the 
 Constitutional Right of a Person to notice: 
 OF Proceedings which Affect his Property, 
 
 It is contended that the parties in interest had a
 
 39 
 
 constitutional right to notice and opportunity to be 
 heard upon the assessment of damages and bene- 
 fits ; and it is claimed that the notice of the hear- 
 ing was, in several particulars, radically defective. 
 I. It is said that no notice is given to the parties 
 to appear before the Commissioners while they 
 are making the roll, and before they have com- 
 pleted their labors ; that the only notice provided 
 for, is one given after the roll is completed by the 
 Commissioners, and that the parties had a consti- 
 tutional right to notice and opportunity for a hear- 
 ing by the Commissioners before they completed 
 their labors. 
 
 To this I answer : 
 
 The parties had no constitutional right to notice 
 and a hearing before the Commissioners. It is 
 sufficient if they have due notice and opportunity 
 to be heard before some tribunal competent to af- 
 ford them relief at any time before the proceedings 
 become final against them. 
 
 This proposition is universally recognized, and is 
 fully established by the following authorities : 
 
 Reclajnaiion District vs. Evans, 6i Cal., 104 
 That was an action to recover an assessment on 
 certain lands for reclamation purposes. It was 
 urged that the provisions of the Political Code re- 
 latine to such assessments were unconstitutional, 
 as they did not jjrovide for any mode by which a 
 party assessed should have notice of the proceed-
 
 40 
 
 ing against hini and an opportunity to object to 
 the amount charged upon his land. 
 
 The Court said : " No assessment against any tract of land 
 can be enforced except by action, to which the owner of the 
 tract must be made a party. * * * It cannot 
 
 be material, * * * tl^at the landowner had no 
 
 notice //e/ore the proportional benefit to his land was estimated 
 by the Commissioners, if, in the subsequent action, he had 
 his day in Court with full opportunity to contest the charge 
 before it was declared a lien upon his land, or a judgment to 
 be collected out of his general property." 
 
 Cz^y of Stockton vs. Dahl, 3 W. C. R., 308. 
 
 The Court there had occasion to construe the 
 provisions of the Charter of Stockton relating to 
 assessments for the improvement of streets. 
 
 The Charter, [Sec. 27, Ch. 422, Stats. 1871-2, 
 pp. 607-608,] provides, that the City Assessor 
 shall make an assessment for the work done, and 
 prepare an assessment list showing the names of 
 the owners, the description of the property as- 
 sessed, and the amount of each assessment ; which, 
 together with a diagram, he shall file with the City 
 Council, {no provision being made for a hearing 
 before him by the taxpayer.) The City Council 
 shall thereupon give notice of a day on which 
 they shall sit as a board of equalization, and 
 all, or any person directly interested in the assess- 
 ment, feeling aggrieved by any of the acts 
 or proceedings concerning the assessment, or 
 having or making any objection to the correctness 
 or legality of the same, shall, at such time specially
 
 41 
 
 make known the cause of objection or complaint. 
 Said Board may correct, alter or modify said as- 
 sessment in such manner as to them may seem 
 just, and may direct the i\ssessor to alter or cor- 
 rect it, etc. 
 
 Said the Court : " The statute * * * gives 
 
 an appeal to the Council by any person claiming to be ag- 
 grieved by the assessment, and authorizes the Council to 
 ' correct, alter or modify ' an assessment. We know of no 
 constitutional inhibition upon such legislation." 
 
 Matter 0/ De Peyster, 80 N.Y., 565, 572. 
 
 This was a motion to vacate an assessment on 
 
 the lands o^ petitioner for the construction of a 
 
 sewer in the City of New York. 
 
 " The appellant testifies," said the Court : " That he had no 
 notice that an assessment was to be imposed on him. * * 
 
 * It is not needed that in this case we decide whether an 
 assessment will be valid, though no notice of any kind is given 
 to the owner of the property, until he is called upon to pay 
 the amount rated against him. That (juestion is not here. 
 The legislature has prescribed for notice before the assessment 
 is final and effectual. Chap. 326, Laws of 1840, § 2, has pro- 
 vided for notice of the completion of the estimate and assess- 
 ment, to be given to owners or occupants of premises affected. 
 This notice is by jjublication in daily ne\vs])apers for objections 
 in writing to be presented in a time named, which, if not 
 yielded to t;y the primary Ijoard, are to be sent up with the 
 assessment to the reviewing and confirming board." * * 
 
 * "The opinion in Stuart vs. /'aimer, (74 N. Y., 183,) is not 
 in conflict. That demands only that some notice be given 
 and an opportunity for hearing had, before the assess- 
 ment becomes conclusive. It says : ' The legislature m ly 
 prescribe the kind of notice, and the mode in which it shall be 
 given ? ' We will not reason to the end, that such notice is all 
 that is exacted by the law of the land. Such has been the course
 
 42 
 
 of procedure in such case too long to be now disturbed save 
 by legislative or fundamental provision." 
 
 City of St. Louis vs. Richeson, 76 Mo., 470. 
 
 This was an action to collect an assessment up- 
 on certain property benefited by a local improve- 
 ment. The city charter made no provision for a 
 hearing before the Commissioners, or on the orig- 
 inal preceedings in the Circuit Court prior to the 
 levy of the assessment ; but by an ordinance it 
 was provided that the City Controller should issue 
 " special tax bills," in accordance with the Com- 
 missioners' report, and deliver them to the City 
 Collector, who should give notice by advertise- 
 ment to all parties interested by name that said 
 bills are in his hands for collection, and would so- 
 remain for 60 days, during which time payment 
 might be made, and that all bills remaining un- 
 paid after that period would be enforced by legal 
 proceedings ; they being turned over to the City 
 Counselor, who should commence suit thereon 
 in the name of the City. 
 
 It was claimed for the plaintiff that "if notice 
 should be held indispensable to a valid exercise 
 of the taxing power, the opportunity for a hear- 
 ing when sued under the ordinance for the col- 
 lection of the tax-bill, as in this case, is sufficient 
 notice ; that notice and opportunity to be heard 
 after the assessment and before the collection, or 
 during the progress of the suit to collect is as
 
 efficaci'ous as if given before^ and obviates the 
 objection." 
 
 Said the Court, (p. 488 ) : " We do not mean to say that this 
 assessment of benefits is of itself inoperative and without anv 
 effect whatever, but what we no mean to hold, is, that while it 
 is valid, as a preliminary inquiry, and while the tax-bill issued 
 thereon, is good as the basis for the suit directed to be issued 
 thereon, yet it does not have and was not intended to have 
 any binding or conclusive effect against the party when thus 
 sued. * * * Whether it would have been better for the 
 charter to have required that this inquiry, ( i. e., as to the 
 amount of the charge, etc.,) should have taken place in the 
 original proceedings in the Circuit Court after due notice 
 thereof, or as now provided in this suit, to enforce and collect 
 the tax-bill, was matter for the legislature, and is no concern 
 of ours. We conclude therefore, that it was competent 
 for the defendant in this suit to have set up and mantained 
 by way of answer any good and valid defence they might 
 have, or which they could have presented to the original pro- 
 ceedings in the Circuit Court for the condemnation of said 
 property, and the assessment of said benefits if they had been 
 made parties thereto, and had notice thereof But the ans- 
 wer actually made by these defendants was that they were 
 not parties to, and had no notice of said original proceeding 
 in the Circuit Court during its pendency, and were not 
 bound thereby. It may be conceded that this answer is true, 
 and yet, if our construction of the charter and ordinance is 
 correct, this answer, * * does not state facts sufficient to 
 constitute a defence to this action. It may be true that they 
 were not i)arties to the original proceeding during its pen- 
 dency, and had no notice thereof; yet that fact is wholly im- 
 material if they are parties hereto duly notified, and can be 
 heard in their defence herein." 
 
 The Court cites at length, Cooley on Taxation, p[). 265-266, 
 where it was said : "In tax proceedings, every inhabitant of 
 the State is liable to have a demand established against him 
 on the judgment of others, regarding the sums which he 
 should justly and e(|uitably contribute to the public revenues. 
 Every pro|)erty owner in the State, whether an inhabitant or
 
 44 
 
 not, is liable to have a lien in like manner established against 
 his property. * * In such proceedings therefore, it must 
 be a matter of the utmost importance that he should have 
 some opportunity to be heard before the charge is fully estab- 
 lished againsf hi?fi. * * The obligation to make provision 
 for this purpose is recognized by the statutes of the several 
 States. By some, the person assessed is allowed to reduce 
 Avhat he claims to be an excessive assessment by his own 
 oath ; by others, he is allowed an appeal to some board of re- 
 view, a,nd in all, perhaps, some method is provided by which 
 he may have a hearing before the assessment becomes fixed and 
 final against him. * * It is not customary to provide 
 that the taxpayer shall be heard before the assessment is made, 
 but a hearing is given afterwards, either before the assessors 
 themselves, or before some court or board of review." 
 
 The Court also cites the case of McMillan vs. Andersoti, 95 
 U. S., 37, where it was held, that "the revenue laws of a State 
 may be in harmony with the fourteenth amendment to the 
 Constitution of the United States, which declares that no 
 State shall deprive any person of life, liberty or property with- 
 out ' due process of law,' although they do not provide that a 
 person shall have an opportunity to be presefit when a tax is 
 assessed against him." 
 
 Wilson vs. Karle, 42 N. J. L., 612, was a case 
 arising out of assessment against certain lands, 
 benefited by the improvement of a street. 
 
 The Court said : "The supposed defect in the procedure is 
 that the land owner had no notice, either actual or construc- 
 tive, of the hearing before the Commissioners, and therefore 
 had no opportunity of presenting his case before them. The 
 decision brought here for review held this to be a fatal in- 
 firmity * * The present act does in express terms provide 
 for a hearing in the course of the procedure, its provision in 
 this respect -being substantially this : the judges of the Com- 
 mon Pleas of Hudson County are required to appoint three 
 commissioners to assess the cost of these street improvements 
 upon the land benefited, in certain specified proportions, and 
 such commissioners are to make a report, accompanied with
 
 45 
 
 a map of the lands assessed, and which report is to be filed 
 with the clerk of said Court ; then notice is to be given for a 
 prescribed period, through the public newspapers, of the filing 
 of said report and map, and that the same will be presented 
 to the Court of Common Pleas of the County of Hudson, for 
 confirmation, at a time to be specified in said notice, and that 
 said Court will at said time and place receive and consider 
 all objections which may be presented in writing against the 
 confirmation of said assessment, and such objections are to be 
 considered and adjudicated by the Court. Power is given 
 to the Court, on such hearing, to confirm or correct or alter 
 such report. 
 
 " In view, therefore, of such legislative scheme, the only 
 question arising is whether, according to any known legal 
 principles, the Court can say that the provision thus made is 
 so insufficient that, if the statutory course be pursued, the 
 procedure must fall. It is urged that a hearing before the 
 Court of Common Pleas is not as beneficial to the land owner 
 as a hearing before the commissioners would be. Such is not 
 my opinion, for I think the former much the more preferable, 
 as it would take place before a Court of general jurisdiction, 
 having the power to compel the attendance of witnesses, and 
 to examine them under oath. But, granting the inferiority al- 
 leged, what legal value has the fact ? Who is to be the judge 
 of what is best in such case, the Court or the Legislature? 
 Such matters, I think, are plainly within the i)rovince of the 
 law maker. It is to be remembered that the making of the 
 assessment was an exercise of the taxing power, and that 
 the hearing provided for was very similar to that which usually 
 obtains in the procLSS of ordinary taxation. In tiic common 
 mode the Assessor values :ind assesses the jjropcrly, and the 
 ]jerson a.ssesscd has an opportunity of a hearing l)eforc the 
 Commi.ssioner.s of Appeals, and not in the first instance !)efore 
 the taxing officer; and in the plan ;ip])ointcd by the present 
 act we have the counterpart of such a procedure if wc suljsti- 
 tute for the appellate tribunal held by the Commi.ssio.iers of 
 Ajjpcals, in cases of taxation, the Court of Coinmon Pleas. 
 'I he Legislature, in the act now before us, has jinnided that 
 the land owner shall have a hearing of a prescribed character, 
 and I do not see how this Court can .say that such hearing is
 
 46 
 
 not sufficient, but that he must have two hearings. For this 
 error I think the judgment of the Supreme Court should be 
 reversed." 
 
 This case Lindoubteclly overrules the doctrine 
 laid down in TJie State vs. Road Commissioners, 
 41 N. J. L., 83, upon which so much reliance is 
 placed by respondents, both cases arising under 
 the same statutes, and the decisions being diamet- 
 rically and irreconcilably opposite. 
 
 Cleveland MS. Tripp, 13 R. I., 50, 64. 
 
 Action to annul certain assessments for the 
 construction of a sewer. The complainants con- 
 tended that the statute under which the assess- 
 ment was made was unconstitutional, because it 
 
 did not direct any notice to be given of the assess- 
 ment. 
 
 The Court said : " Previously, under other forms of taxation 
 or assessment it has been usual in this State to require no- 
 tices to be given ; but such notices, it has been held, are not 
 essential to the validity of such tax or assessment. * * It 
 has been held by the Supreme Court of the United States that 
 such an assessment without notice and without any right of 
 appeal, is not void for repugnancy to the provision of the 
 Fourteenth Amendment of the Constitution of the United 
 States that no State ' shall deprive any person of life, liberty 
 or property without due process of law.' * * It is enough 
 the Court holds, if the person assessed has an opportunity to 
 contest the validity of the assessment in some judicial pro- 
 ceeding, after it has been made. We are not prepared, there- 
 fore, to hold the statute unconstitutional on this ground." 
 
 Matter Application Mayor, etc., 99 N. Y., 
 
 569, 580. 
 
 " That the hearing," said the Court " allowed before the 
 Commissioners, follows their estimate of damages is equally an
 
 4^ 
 
 immaterial suggestion. The same thing is true of assessors 
 in finding their basis of taxation. In each case, the first 
 judgment is tentative and not final, and enables the parties 
 interested to know, before incurring any expense or trouble of 
 a hearing, whether such is needed or desirable." 
 
 Brown vs. City of Denver, 2 W. C. R., 618, 
 622. 
 
 The Court said : " The doctrine of the authorities is that 
 whenever it is sought to deprive a person of his property or to 
 create a charge against it, preliminary to, or which may be the 
 basis of taking it, the owner must have notice of the proceed- 
 ings, and be afforded an opportunity to be heard as to the 
 correctness of the assessment or charge. It matters not what 
 the charadter of the proceedings may be, by virtue of which 
 his property is to be taken, whether administrative, judicial, 
 summary or otherwise, at some stage of it, and before the 
 property is taken or the charge becomes absolute against- either 
 the owner or his property, an opportunity for the correction of 
 wrongs and errors which have been committed, must be given, 
 otherwise, the constitutional guarantee ( that no person shall be 
 deprived of his property without due process of la.v,) is infringed. 
 Learned dissertations upon the phrase ' due i^rocess of law, 
 have been written by judges and law writers, but as applicable 
 to summary proceedings of the character under consideration, 
 (viz : proceedings for the construction of sidewalks on streets 
 and the assessment of the costs thereof, on the parties benefited,) 
 the meaning is comprehended in the foregoing paragraph. If 
 the law authorizing the proceedings, provides for notice to the 
 owner of the property to be affected, and gives him an oppor- 
 tunity to appear at a specified time or place before a board or 
 tribunal competent to administer proper relief, in order that he 
 may be heard concerning the correctness of the charge, before it 
 i^ made conclusive, the constitutional rcf|uirements arc satisfied." 
 
 Allen v.s. City of Cliarlcstoiun, 1 1 i i\I;iss., 
 
 123. 
 
 Action to re-cover money for a sewerage asses.s- 
 
 ment paid to the defendant under protest. Tlie
 
 48 
 
 act provided that an assessment should be made, 
 ascertained and certified by the Mayor and Alder- 
 men on all persons benefited by the construction 
 of a main drain or common sewer, through the con- 
 sequent drainage of his cellar or land, ot which 
 assessment, notice should be give to the parties 
 charged, and that any person aggrieved by such 
 assessment, might, at any time, within three 
 months after notice, apply for a jury. 
 
 Said the Court ; " The statute which authorizes a part of the 
 charge for making and repairing main drains or common sew- 
 ers to be assessed upon persons who receive benefit thereby, 
 does not require that such persons should have previous 
 special notice and opportunity to be heard before the Mayor 
 and Aldermen or Selectmen. * * Before they can 
 be legally 'charged' with such an assessment, notice thereof 
 must be given them ; after which, if they desire to contest the 
 fact or the amount of their just liability, a proper tribunal is 
 provided for the purpose. * * We discover nothing 
 unreasonable in the provisions, and no want of proper regard 
 for the rights of persons liable to be affected by such proceed- 
 ings. * * * Yl-ig assessment having been laid in 
 accordance with law, * * * ^]^q judgment for 
 defendant * * * must be affirmed." 
 
 Butler vs. Worcester, i 12 Mass., 541, 555-6. 
 Action to recover back a sum of money paid 
 under protest, as an assessment for sewerage and 
 drainage purposes in the City of Boston. 
 
 " It is now," said the Court, " too well settled to require a dis- 
 cussion of the general proposition, that a statute authorizing the 
 cost of a local improvement of this kind to be levied by as- 
 sessment upon the estates benefited thereby, according to the 
 judgment of the municipal authorities in the first instance, and 
 allowing to any party aggrieved by their estimate, the right to
 
 49 
 
 have it revised by a jury, is within the constitutional power of 
 the legislature. * * * It is objected that the plaintiff 
 and other parties assessed were entitled to notice and a hearing 
 upon the question of the amount to be assessed upon them, 
 before the tribunal that laid the assessment ; and that the only 
 notice and hearing were before the Mayor and Aldermen of 
 1871, but the assessment was made by the Mayor and- Alder- 
 men of 1872, who were not the same persons. But the stat- 
 utes does not require any notice to be given by the Mayor and 
 Aldermen before laying the assessment, and fully secures the 
 rights of any party assessed, by requiring notice to be given to 
 him of the assessment when made, and allowing him to appeal 
 to a jury when dissatisfied. * * The question whether 
 any hearing should be had before laying the assessment rested 
 therefore in the discretion of the Mayor and Aldermen. The 
 Mayor and Aldermen of 187 1, gave public notice to all persons 
 liable to assessment under the Statute, that it was intended to as- 
 sess upon them 'their proportionate share of the expenditure of 
 said city for drains and sewers according to law, and that they 
 might be heard on any objections which may be made to said 
 assessment; and after such hearing determined th.it a portion of 
 the expanse of the sewers be assessed upon the property specially 
 benefited,' and then referred the p.ipers to the next Board of Al- 
 dermea" 
 
 " The plaintiff was not entitled as a matter of right to be heard 
 before the new bo.ird on the amount to be assessed upon his es- 
 tate. His remedy, if he was dissatisfied with that amount, should 
 have been sought by application to the Mayor and Aldermen for 
 an abatement, or by petition for a jury as provided in .sec. 4." 
 
 Hao;ar \s. Reclamation Dislricl, i i 1 U. .S., 
 7:0. 
 ITie Court said : " Where a tax is levied on property accord- 
 ing to the value, to be ascertained by assessors appointed for 
 that ];urpose upon such evidence as they may ol)tain. * * * 
 the officers in estimating the value act judicially, and in most of 
 the States provision is made for the correction of errors com- 
 mitted by them, through boards of revision or eciualization, sil- 
 ling at designated periods provided by law to hear com|)laints 
 respecting the justice of the a.s.sessments. The law in jire-
 
 50 
 
 scribing the time when such complaints will be heard, gives 
 all the notice required, and the proceeding by which the valuation 
 is determined, though it may be followed, if the tax be not paid, 
 by a sale of the delinquent's property, is due process of law." 
 
 " In some States, instead of a Board of Revision or Equali- 
 zation, the assessment may be revised by proceedings in the 
 Courts, and be there corrected if erroneous, or set aside if in- 
 valid, or objections to the validity or amount of the assessment 
 may be taken when the attempt is made to enforce it. In such 
 cases all the opportunity is given to the taxpayer to be heard re- 
 specting the assessment, which cm be deemed essential to ren- 
 der the proceedings due process of law. The assessment under 
 consideration could by the law of California be enforced only 
 by legal proceedings, and in them any defense, going either to 
 its validity or amount, could be pleaded * * The numerous 
 decisions cited by counsel * * as to the necessity of notice^ 
 and of an opportunity of being heard, are all satisfied where a 
 hearing in Court is thus allowed. 
 
 2. It is next urged that the parties were en- 
 titled to personal notice of the proceedings ; and 
 that, as the only notice provided by the statute is 
 by publication, this violates their constitutional 
 riofhts. 
 
 To this I answer: 
 
 The contrary has been established by such a 
 long line of precedents that it almost seems affect- 
 ation to cite them. Nevertheless, the following 
 are a few of the decisions : 
 
 People vs. Mayor of Brooklyn, 4 N. Y., 441. 
 
 "Another [objection] is, that no notice was given to the own- 
 ers of land assessed. In the case of the Oivners of Ground, 
 etc., vs. The Mayor, etc., of Albany (xe^ Wend., 374), it was ad- 
 judged that the Legislature had authority to prescribe what no- 
 tice should be given in the case of an assessment like the pres-
 
 5» 
 
 ent, and, if notice was given as thus required, it is sufficient. 
 The only notice required by the statute under which the present 
 assessment was made, is a notice to be published in the corpo- 
 ration newspapers for ten days before the day fixed for the 
 alteration or confirmation of the assessment by the Common 
 Council. This gives to any person assessed an opportunity ta 
 be heard, and it is all the notice necessary.'' 
 
 The Methodist vs. The Mayor, 6 Gill, 391. 
 
 Under a charter authorizing the proceeding, 
 the Mayor and City Council ordered a street 
 widened, and appointed a Board of Commissioners 
 to assess and tax the expenses thereof upon cer- 
 tain property. The Commissioners were to give 
 sixty d.iys' notice by publication that they would 
 proceed at a given place to exercise the power 
 and perform the duty assigned them. The law 
 provided that an appeal to the Baltimore City 
 Court be allowed to all persons improperly as- 
 .sessed — said Court having power to hear and fully 
 examine the subject and decide therein, with pro- 
 vision for summonini^ a jury, to try any (juestion 
 of fact. ThL' only notice provided of the comple- 
 tion of the assessment, was. that " the Register of 
 the City of Baltimore shall cause a co|w of said 
 assessment kj be published lor thirty tla\s, in at 
 least two (jf the daily nr!Wspap;Ts of said city." 
 The time for an appeal from such assessment was 
 thirty days after the Register's publication. 
 
 Where; all these publications had been made, 
 the Court said :
 
 52 
 
 " The law imputes notice, and will not admit testimony to 
 disprove it in a case like the present" 
 
 Matter of De Peyster, 80 N. Y., 567. 
 
 Said the Court: "The determination of a municipality to 
 enter upon a work of local improvement is not invalid for the 
 lack of prior notice to owners of property to be affected, of an 
 intention so to do. 
 
 " The appellant testifies that he had no notice that an assess- 
 ment was to be imposed on him ; by which is meant, as we un- 
 derstand it, notice personal and peculiar to himself. Personal 
 notice is not needed. The Legislature may prescribe what the 
 manner of notice shall be. * * * The Legisla- 
 ture has prescribed for notice before the assessment is final and 
 effectual. Chap. 326, Laws of 1840, Sec. 2, has provided for 
 notice of the completion of the estimate and assessment to be 
 given to owners or occupants of premises affected. This notice 
 is by publication in daily newspapers, for objections in writing 
 to be presented in a time named, which, if not yielded to by the 
 primary Board, are to be sent up with the assessment to the 
 reviewing and confirming Board. * * * ly^ 
 
 will not reason to the end, that such fiotice is all that is exacted 
 by the law of the land. Such lias been the course of procedure 
 in such cases, too long to be now disturbed, save by legislative or 
 fundamental provision. * * * It [the petition] pre- 
 sents the question of whether it is needful that there should be 
 personal and individual notice, as distinguished from the pub- 
 lic and general notice given by advertisements in newspapers. 
 JVe thinh that it is not needful." 
 
 Stuart vs. Palmer, 74 N. Y., 183. 
 Commis.sioners were appointed to lay out At- 
 lantic avenue, in the City of Brooklyn. They 
 were to assess the value of the land taken, and to 
 assess the amount of the award and expenses 
 upon the lands and premises benefited. Before 
 making the assessment and awards, public notice
 
 5 
 
 1 
 
 was required to be published in two or more pub- 
 lic newspapers of the county of Kings, at least 
 twentv days before the same were to be made, of 
 the time and place of meeting to make the same. 
 {Vide these proceedings, stated in this case, in 17 
 Hun. 23.) Of this the Court of Appeals said : 
 " The Act made ample provision for notice to and hearing 
 
 of all the persons interested before the making and final con" 
 firmation by the Supreme Court of the award and assessment. 
 The Legislature may prescribe the kind of notice and the mode 
 in which it shall be given, but it cannot dispense with all 
 notice." 
 
 Johnson vs. Joliet, 23 111., 202, 206. 
 
 " Had the Legislature in this case — the exercise of the right 
 of eminent domain — prescribed the ordinary notice by posting 
 or publishing in a newspaper, which the owner might never see 
 * * * though such constructive notice, in a 
 great majority of cases, would not reach a non-resident, yet all 
 will admit he would be bound by it." 
 
 The State vs. The Mayor, 24 N. J. L., 662. 
 Of Commissioners appointed to make an assess- 
 ment of expense incurred in improving a street, 
 
 the Court say : 
 
 " It is obviously proper that they should hear the i)arties in- 
 terested ; and I think such parlies, if accessible by reasonable 
 diligence, are entitled to notice of the time and i)lace of tlieir 
 meeting to fulfill their duties. * * * Where the 
 
 statute provides for a notice by advertisement or oth^jr^tn'se, such a 
 notice is sufficient." 
 
 Owners of Ground v-^. The Mayor, 15 Wend., 
 
 374- 
 Proceeding for the opening of a ])ublic square, 
 
 for assessment according to benehts, etc. I he
 
 54 
 
 only notice to owners of property affected was one 
 published in public prints, " specifying the ground 
 required, and the time and place at which the 
 damages and recompense to the owners thereof 
 would be inquired into and assessed, and the dam- 
 ages apportioned amongst the owners of ground 
 to be benefited." The Court held the notice suf- 
 ficient, saying : 
 
 " The only reasonable rule, therefore, is that the Legislature 
 shall prescribe what notice shall be given." 
 
 Wilson vs. Hathaway, 42 Iowa, 173, 176. 
 
 The Court said : 
 
 " We have no doubt of the power of the Legislature to pro- 
 vide for the condemnation of the right of way for public high- 
 ways, upon notice by publication in newspapers, or by notices 
 posted. The proceeding is in the nature of proceedings in renty 
 in which the Court acquires jurisdiction of the property, which 
 is the subject of the adjudication." 
 
 Cupp vs. Commissioners, 19 Ohio St., 173. 
 Application was made to enjoin the County 
 Commissioners from constructinof a ditch. Al- 
 though notice by pubHcation was admitted, peti- 
 tioners averred that they were never served with 
 actual notice of the proceedings. 
 
 Said the Court : 
 
 " Nothing is better established as law than that such rights 
 (/. e., the right of the public to take and that of the owner to 
 receive compensation for his land) may be affected, and lost to 
 the owner by a proceeding in rem, and upon merely constructive 
 notice. The law of all such proceedings rests in the necessity of 
 the case, and in no instance, perhaps, is that necessity more 
 plainly apparent than in the construction of public roads and 
 other improvements of like nature. Without the aid of some
 
 55 
 
 such proceeding the construction of roads and ditches would be 
 next to impracticable. A similar proceeding is provided, and a 
 like provision as to the waiver of claims is made, in the law for 
 the establishment ot roads. * * Some such provision- 
 of law seems mdispensable. The owner of land necessary to be 
 used for a road or ditch may be absent or unknown. The title 
 may be in dispute. The legal title may be in one, and the 
 equitable title in another. One may have the present estate, 
 and the other the reversion or remainder. The owner may 
 make a secret conveyance, on purpose to evade the law. 
 . Without the power to proceed in such form against the land it- 
 self, the right guaranteed to the public by this provision of the 
 Constitution, to take the land for public uses, would be of little 
 avail. In the construction of such improvements, of any con- 
 siderable length, personal notice, if at all practicable, would be 
 attended with great inconvenience and uncertainty. It was the 
 duty of the Legislature to provide some reasonable means for 
 securing both to the public and to the owner of land these 
 rights, so guaranteed by the Constitution. To recjuire in such 
 cases persona] notice to the owners would, in our judgment, be 
 quite as unreasonable as to require that owners of land should 
 * * * 'maintain some kind of an agency in the vicinity 
 of their lands, through which they may be informed of proceed- 
 ings affecting them.' They are presumed to know of the exist- 
 ence of this Act, and therefore to have notice that their lands 
 are liable at any time, upon four weeks' notice of pubHcation to 
 that effect, to be taken for the use of a ditch, and that their 
 non-claim will betaken and held as a waiver of all right to com- 
 pensation or damages. The whole proceeding is subtantially in 
 rem. # * * Jurisdiction over the person of the 
 parties is not nece.s«:ary. The Act in cjuestion relates to and affects 
 only the remedy and not the rights of the parties, and is there- 
 fore within the general scope of legislative power. The Con- 
 stitution does not take away that power. It defines and 
 guarantees the right of the i)arty to his land, or to a sure and 
 adtMiuatc comjjensation therefor. The remedy — the ])roceeding 
 by which that right is to be affected — is still left to legislative 
 discretion."
 
 56 
 
 Polly vs. Saratoga, 19 Barb., 449, 460. 
 Under the provisions of an Act of the Legisla 
 ture, notice was given by publication in a news- 
 paper, that at a time and place named, a jury 
 vi'-ould be drawn to appraise the value of certain 
 lands which were needed for defendants' roadway. 
 
 The Court said : 
 
 " It is objected that the plaintiff had no notice of the drawing • 
 of the jury by the Clerk, Sheriff and Judge. If by this is 
 meant, no notice in writing was served on him of the time and 
 place of such drawing, the objection is founded in truth. But 
 such written notice was not required by the ninth section of the 
 Act. All that is demanded by that section is, that the Judge, 
 on receiving the petition, shall direct the Sheriff of the county 
 to give public notice in at least one newspaper printed in the 
 said county, that at some future day, not less than thirty days 
 from the first publication of the said notice, the Clerk of the 
 county and the said Judge will proceed to draw at the Clerk's 
 office the names of twelve persons, etc. The plea alleges that 
 the Judge appointed the day for this drawing, issued his war- 
 rant to the Sheriff, requiring him to give notice by publication, 
 and that said Sheriff did publish the notice as required by law, 
 in a public newspaper in said county, the name of which is 
 given. These facts are admitted by the demurrer. The 
 plaintiff, therefore, had precisely the notice which the statute 
 required." 
 
 Freetown vs. County Commissioners, 9 Pick. 
 46. 
 Speaking of the sufficiency of the notice of pro- 
 ceedings for laying out a road, the Court said : 
 
 " We have taken much pains to ascertain whether due notice 
 was given of the meeting of the Commissioners, to consider the 
 application for this road, so that a hearing might have been 
 had of the inhabitants of Freetown, who now ask to have the
 
 ■ T 
 
 proceedings quashed. The result of our inquiries is, that there 
 was, without doubt, such notice. The statute giving authority 
 to Commissioners of highways, prescribes no particular mode 
 of notice. It merely requires that ' reasonable notice ' shall be 
 given of the time and place appointed for viewing the road 
 prayed for, and iifter such yiew and hearing of the parties, the 
 Commissioners shall have power to order and determine the 
 making of such road. The mode of giving notice seems to 
 have been left by the Legislature to the discretion of the Com- 
 missioners. They adopted "the practice of advertising in a 
 newspaper printed in the county, the time and place of meeting 
 for the consideration of the application. All official notices 
 had been usually published in the same way. There having 
 been legal notice of the meetings. * * we do not think 
 that a certiorari ought to be granted on account of formal de- 
 fects in the proceedings." 
 
 Squares vs. Canipbell, 41 How. Pr., 193, 200. 
 
 An Act for the seizure of estray animals tres- 
 passing on private lands and public hij^hways, 
 authorized in a special proceeding bj the party 
 aggrieved, service of summons on the owner by 
 posting in public places. 
 
 The Court said : 
 
 "It is urged with much force, that service by posting as to a 
 known owner of the animal seized, is not a sufficient service on 
 which to predicate a due proceeding at law. With the propri- 
 ety of the enactment Courts have nothing to do ; that is for the 
 Legislature, in its wisdom -mmX discretion, to consider, i deem 
 it well settled that the Legislature has the power to allow such 
 service. Service by publication is allowed ; service by posting 
 on the door of a concealed defendant is allowed. In this case, 
 it makes one rule of service for all, both when the owner is 
 known and unknown. If the owner was unknown more could 
 not reasonably be required ; if known, it would be well calcu- 
 lated to give the person notice of the proceedings, so that the 
 propriety of the manner of service cannot reasonably be (jues-
 
 58 
 
 tioned. The Legislature is required to make general rules ; it 
 cannot make a rule for -each particular case. It is, however, 
 'sufficient to say that the Legislature deemed that mode of ser- 
 vice sufficient." 
 
 Matter of the Empire City Bank, i8 N. Y., 199. 
 
 Action to enforce the personal liability of stock- 
 holders in an insolvent bank, under the Act of 
 1849. (Ch. 226.) This Act provided that notice 
 of a hearing before a referee should be given to 
 all stockholders not residing in the county, by 
 publication in the State and county newspapers. 
 
 "The question is," says the Court, "whether personal service 
 of process, or actual notice to the party, is essential to consti- 
 tute due process of law. * * * jj ^^^ ^^ admit- 
 ted that a statute, which should authorize any debt or damages to 
 be adjudged against a person upon a purely ex parte proceeding, 
 without a pretense of notice, or any provision for defending^ 
 would be a violation of the Constitution and be void; but 
 where the Legis'ature has prescribed a kind of notice by which 
 it is reasonably probable that the party proceeded against will 
 be apprised of what is going on against him, and an opportunity 
 is afforded him to defend, I am of oi^inion that the Courts have 
 not the power to pronounce the proceeding ilhgal. The Legis- 
 lature has uniformly acted upon that understanding of the Con- 
 stitution. * * * If ^,g j^oi^^ ^^ ^g ^^^^^^ 
 
 in order to sustain this legislation, that the Constitution does 
 not positively reriuire personal notice in order to constitute a 
 legal proceeding due process of law, it then belongs to the 
 Legislature to determine whether the case calls for this kind of 
 exceptional legislation, and what manner of constructive notice 
 shall be sufficient to reasonably apprise the party proceeded 
 against of the legal steps which are taken against him. * * * 
 I conclude * * * that the proceeding does not lose the 
 character of legal process, within the constitutional provision, 
 by the omission to require personal notice to be given to all the 
 parties to be charged as stockholders."
 
 59 
 
 Tracey vs. Corse, 58 N. Y., 143, 151, 
 
 " That the proceeding is /« rem, does not dispense with the 
 rule of universal justice, that a party shall not be condemned 
 without an opportunity to be heard. It is true that he is not en- 
 titled to personal notice, before a Court can adjudge a forfeiture 
 of his property ; but he must have notice, either actual or con- 
 struciive, of the proceeding, or it will be void. * * * 
 Notice may be given * * by publication, according to 
 the usual practice of the Courts, and then he is bound to defend 
 or assert his rights, if he has any. Notice in this way may never, 
 in fact, reach hifn. In many cases the giving of personal notice 
 is impracticable, nor is it required. But the rule requiring notice, 
 either actual or constructive^ is fundamental, and ought never to 
 be departed from." 
 
 Chamberlain vs. Cleveland, 34 Ohio St., 551, 
 
 569- 
 
 An assessment was levied for the opening of a 
 
 street, and was subsequently equaHzed by a Board 
 
 of Equalization. 
 
 " It is objected by the plaintiff," says the Court, '' that the 
 etiualized assessment isvoid, onthe ground that nonotice was give. 1 
 of the time the Board of Ecjualization would proceed with the 
 ecjualizing of the assessment, nor was any notice given of the 
 filing of the same with the clerk or council. We do not think 
 this objection well taken, liy the provisions of Sec. 585, (Mu- 
 nicipal Code), before adopting the assessment made by the as- 
 sessing Board, the council is recjuired to publish notice for three 
 consecutive weeks, that such assessment has been madj, and 
 that the same is on file at the office of the clerk, for the ins])C( t- 
 ion and examination of any |)erson interested therein. VVe think 
 that, after the notice recjuired has l)een given, all jicrsons inter- 
 ested have reasonable opportunity to be heard against the assess- 
 ment, and that, from this point, the proceeding mu.st be regarded 
 as pending, and that all persons interested are bound to take 
 notice of what is done up to the time the Cfpialized as.sessment 
 is confirmed."
 
 6o 
 
 Taylor vs. County Commissioners, 1 8 Pick., 
 
 309. 
 Action to quash proceedings for laying out a 
 
 road. Notice of the location was given by publi- 
 cation in conformity with the statute. Petitioners, 
 being non-residents, denied the sufficiency of the 
 
 notice. 
 
 vShaw, C. J. said : " Had the Legislature intended tliat every 
 proprietor over whose land the way passes should have personal 
 notice, the statute would have so directed. But it is obvious to 
 perceive what difficulties would arise from requiring the com- 
 missioners, who are public officers, charged with public duties, 
 to ascertain the titles of all the lands traversed by the highway 
 intended to be located, and on peril of rendering their proceed- 
 ings erroneous to give notice to the right person. We think that 
 the Legislature intended to provide for a mode of constructive 
 notice, which should bind all persons, by whatever titles they 
 should hold, whether resident or non-resident, and whether they 
 had long held their estates or acquired them during the pendency 
 of the proceedings. It may sometimes happen that actual notice 
 may not be received, but the Legislature must have considered 
 that, on the whole, it would operate to save the rights of parties 
 for all practical purposes. It is made constructive notice by 
 force of the statute, and is to have the force and effect of actual 
 notice." 
 
 Risley vs. City of St. Louis, 34 Mo., 404, 417. 
 
 Proceedings were had for opening an avenue, 
 and assessing the costs of and damages for' the 
 same, notice of which was given by publication. 
 
 Said the Court : 
 
 " The fact that the plaintiff had no actual notice of the pro- 
 ceedings does not invalidate them as to him, or release him from 
 liability. The act only requires notices to the persons to be 
 benefitted, to be given by publication in newspapers, as was 
 done."
 
 6i 
 
 People vs. Hagar, 52 Cal., 171. 
 
 Proceedings for reclaitning swamp lands are In- 
 augurated by petition, accompanied with a notice 
 by publication of the hearing of the same. The 
 complaint averred that the Board ordered the pe- 
 tition to be filed, and four weeks' notice to be pub- 
 lished of its hearing ; that the petition and order 
 were published, and that the petition was there- 
 lafter heard by the Board of Supervisors. 
 
 The Court said : 
 
 " All the parties in interest were brought before that tribunal 
 (the Board of Supervisors) by a proper notice." 
 
 The following additional cases are also directly 
 
 in point ; but, I do not deem it necessary to do 
 
 more than to refer to them : 
 
 Gilmore vs. Hentig, ^iZ Kas. 
 
 Rockwell vs. N earing, 35 N. Y., 317. 
 
 Wilson, vs. Hathaway, 42 Iowa, 173. 
 
 A/alter of Lower' Chat ham, 35 N. J. L., 497. 
 
 State vs. The Mayor, 31 N. J. L., 360. 
 
 State vs. Village, t^j N. J. L., 65. 
 
 Scott vs. Brackett. 89 Ind., 413. 
 
 People vs. Smith, 21 N. Y., 595. 
 
 Potter vs. Ames, 43 Cal., ']'^., 79. 
 
 Matter of Application of Mayor, 99 N. Y., 
 
 3. It is objected next that tlv nolice providcxl 
 by the statute " was not authorized to be directed 
 to the property-owners affected, either by name,
 
 62 
 
 or by the most general reference to the property, 
 nor was it required to give any information of any 
 assessment upon any property. It was simply a 
 notice that the rqDort of the Board had been filed 
 and was open to inspection." 
 
 To this I answer: 
 
 First. — A notice that the report, made under a 
 general statute, of which all persons are bound to 
 take notice, is completed, and that it is deposited 
 at a certain place for inspection, is the notice 
 usually given in cases of this character. Where 
 the statute fixes the limits of the district to be 
 assessed, it is not necessary that such notice 
 should give the names of the parties. 
 
 In tJie Application of the Mayor, 99 N. Y., 
 580, the Court of Appeals of New York said : 
 
 "The objection specifies these grounds of complaint : That 
 no notice to the land owner is required before the filing of the 
 report. * * * Xhe Statute itself cofidemns and appropri- 
 ates Jor the public use the precise lands selected by metes andboimds 
 so that every owner affected had means of kfiowing that his land 
 was taken. * * * ^\;]^q Commissioners, after making 
 their repor^ are commanded to file it in the office of the Com- 
 missioner of Public Works in the City of New York, at least 
 fourteen days before its presentation to the Court, for the in- 
 spection of whom it may concern, and give notice for ten days 
 by a daily advertisement in the papers above described of such de- 
 posit, and of the date at which the motion for confirmation will 
 be made, and within such ten days any person interested may 
 file his objections to the appraisal with the Commissioners. * 
 * * There is thus secured to the land-owjier notice of the 
 
 proceedings against hi?n. * * -x- Notice by publi- 
 cation we have many times held to be sufficient, and that the 
 Legislature may prescribe the manner and time."
 
 63 
 
 The City of Ottaiua vs. Macy, 20 111., 413^ 
 
 This was an application by the City Collector 
 for judgment against certain lots, benefited by the 
 improvement of certain streets, for assessments 
 thereon. 
 
 Among other objections interposed to the as- 
 sessment, were : 3rd. That the Commissioners 
 did not give sufficient notice of the time and place 
 of making the assessment, and 5th, that the City 
 Clerk did not give sufficient notice of the time 
 and place of confirming the assessment. 
 
 The ordinance relating to assessments for public 
 improvements provided, that Commissioners 
 should be appointed, and ( Sec. 6.) before enter- 
 ing upon their duties, they should give at least six 
 days' notice in the corporation paper of the time 
 and place of making their assessment. The sec- 
 tion then prescribes the form of the notice and un- 
 der it the Commissioners published the following 
 notice, which, in all respects, conformed to the re- 
 quirements of the statute : • 
 
 " Public notics is hereljy given to all parties interested that 
 the undersigned Commissioners, appointed by the City Council 
 to assess the sum of $7,666 14, on tlie real estate benefited l>v 
 the gravelling of La Salle street from the south side of Main 
 street to the canal bridge^ * * will meet at A. H's office 
 
 in said city, on July 25lh 1857, at 9 A. M., for the purpose of 
 making such assessment." 
 
 The City Clerk under the j)rovisions of sec. 9 
 of the ordinanc(! and ot sec. 6 of article 8 of the
 
 64 
 
 City Charter, published the following notice of 
 confirmation of the assessment, when completed : 
 
 " Public notice is hereby given to all parties ititerested that 
 the Commissioners appointed by the City Council * * * 
 to assess the sum of $7,666 14, on the real estate in the part of 
 the city benefited by graveling of La Salle street from the south 
 side of Main street to the canal bridge, and paving and curbing 
 the gutters of the same, have completed their assessment, and 
 made return of the same to my office. Any person wishing to 
 appeal from said assessment, must file their objections on or be- 
 fore August 1 8th, 1857, at 7 P. M., as the City Council will at 
 that time, at the Council room, hear all objections to the assess- 
 ment, and revise and confirm or amend the same." 
 
 The Charter of the City provided that, on re- 
 ceiving the assessment list from the Commission- 
 ers, the City Clerk should cause a notice to be 
 published in one or more of the city newspapers, 
 to all pei'sons interested therein, of the completion 
 of the assessment and filing the roll. ^ ''' 
 
 "It is insisted" said the Court, "that this form of notice to 
 all persons interested, as under it a person may be deprived of 
 his property, is not sufficiently special, and that the notice 
 should contain either a description of the lands assessed, or the 
 names of the owners of the property assessed ; that the notice 
 is too general to effect the object intended by notice. It is a 
 sufficient answer to this objection to say that it confirms to the 
 requirements of the statute ; it is general because the statute al- 
 lows a general notice. * * The notice is also in strict 
 conformity with the form adopted by the ordinance of the Com- 
 mon Council. Section 4 of article 8, of the charter requires 
 the Commissioners to give six days notice in one or more 
 newspapers published in the city of the time and place of meet- 
 ing prior to making assessments, to all persons interested. 
 
 * * * If a more particular notice might have been 
 given after the assessment, the Legislature should have so re- 
 quired. In their wisdom, it was not deemed necessary, but the
 
 65 
 
 same phraseology is used in the sixth section, ( that relating to 
 notice of confimation.) The notice given contains a descrip- 
 tion of the property assessed sufficiently particular to arrest the 
 attention of the owners of lots or land in that described locality. 
 * * * We can see no force in the objections made 
 to rendering judgment against the lots assessed." 
 
 Secondly. — It is not necessary to describe in the 
 notice the property affected where the Hmits of the 
 district are defined by a pubHc statute of which 
 every person must take notice. 
 
 It will be observed that the district in which 
 the assessment is to be made — and in which it can 
 alone be made — is clearly described and defined 
 by section three of the Act. The Act is a public 
 statute, of which every person takes cognizance.' 
 The limits of the district to be affected by the 
 improvement are distinctly given in the statute. 
 This is notice to every land-owner within those 
 limits that his land is affected by the report of the 
 Commissioners. As was said by the Court of 
 Appeals of New York in a case already cited, 
 *' the statute itself condemns and appropriates tor 
 the public use ilic precise lands selected, by m(;tes 
 and bounds, so that ev(^ry owner affected had 
 means of knowing *Ji<it liis land was iiiken."" 
 
 The notic(i jjrovided by .section seven amounts, 
 then^fore, to a notification to all property-owners 
 
 • c. c. p., s 1898. 
 
 '' Matter of Ai)|)licati()n of M.iyor, 99 N. V., 5S0.
 
 66 
 
 in that district that their property has been as- 
 sessed, and that the assessment is in the office of 
 the assessors, open for inspection. 
 
 This fact, at once, distinguishes the case from 
 Boornian vs. Santa Bai'bara, upon which the 
 plaintiffs rely. There, the Act neither fixed the 
 boundaries of an assessment district, nor authorized 
 any person to fix them. At most, the notice given 
 amounted simply to a general notice to the owners 
 of the property to be affected. But, who' could 
 tell what property would or would not, in the judg- 
 ment of the Commissioners, be affected ? " Who 
 can know," says the Court, " that Jus property 
 may, by the Commissioners, be deemed to be ben- 
 efitted by the proposed improvement?" Of this 
 fact, neither the Act nor the notice informed him. 
 This uncertainty in the limits of the assessment 
 district is the element which vitiates the notice. 
 The Court adds these significant words: "It is 
 possible, if the Commissioners were authorized to 
 fix the limits of the assessment district, finally or 
 conditionally, in the first instance, and then to give 
 notice — even by publication — to the owners of 
 property within the district, the process would be 
 sufficient." 
 
 In the case at bar the limits of the assessment 
 district where known, were fixed by law. Hence, 
 a notice that an assessment of that district, the 
 whole of it — an assessment made by officers who
 
 67 
 
 could assess that district and none other — had 
 been made, was a notice to every person in that 
 district that a " burden would be imposed upon 
 him or his property." 
 
 Thirdly. — In cases of this nature, the all but 
 universal practice is to prescribe that the report, 
 when made, shall be left at a designated place for 
 inspection, to give notice of that fact by publica- 
 tion, and to afford aggrieved parties an opportunity 
 within a given time to file or make their objections 
 before a revising Board, tribunal or Court. 
 
 Cal. Stats, of 1883, Ch. 24, Sees. 6 and 7. 
 A general Act in regard to the improvement of 
 streets, lanes, etc., and the construction of sewers 
 within municipalities. 
 
 "The Superintendent of Streets shall make an assessment Ust 
 of the damages and benefits, which shall be known as the as- 
 sessment roll. 
 
 " Said assessment roll, when completed, shall be by said 
 Superintendent of Streets filed with tlic (Mty C'lerk. 
 
 "Sec. 7. — Up)n receiving said assessment roll, said City 
 Clerk shall forthwith give notice, by publication for at least five 
 days in one or more daily ne.vspapers published and circulated 
 in su-h city, or by at least ono insertion in a weekly new.sp.iper 
 so published and circulated, that said assessment roll is on file 
 in his office, thj date of the filing of the same, and that the 
 same is open for public inspection. The owners of land in said 
 assessment district, whether named or not in said assessment 
 roll, and all other persons directly interested in any property 
 affected by the assessments set forth in said assessment roll, 
 feeling agcjrieved by any act or determination of the said Coun- 
 cil or said Sup.rinlendent of Streets in relation to said asses.s-
 
 68 
 
 ments or assessment roll, or having or making any objections to 
 the legality of said assessments or assessment roll, or other act, 
 or determination, or proceeding of said Council or Superintend- 
 ent of Streets, shall, within ten days after first publication of 
 such notice, appeal to said Council by briefly stating their ob- 
 jections in writing and filing the same with the Clerk of said 
 Council. * * * * Upon the hearing of such 
 appeal or appeals, the said City Council shall have power to 
 approve and confirm said assessment roll, or to refer the same 
 back to the said Superintendent of Streets, with directions to 
 alter or modify the same. * * * * a^j^^j jf jj^g 
 Council, upon examination, shall find that the alterations and 
 modifications have been made according to the directions con- 
 tained in the resolution of reference, the said Council shall 
 adopt and confirm the same." 
 
 Charter of the City of Stockton, (Cal. Stats,, 
 
 1 87 1 -2, p. 608.) 
 
 The Assessor shall prepare an assessment list of the damages 
 and benefits resulting from works of local improvement. 
 
 " Said assessment list, certified by the Assessor, shall be pre- 
 sented to tlie City Council. On a day to be appointed by them, 
 of which notice shall be advertised for one week in some news- 
 paper published in said city, the said City Council, or a com- 
 mittee thereof for that purpose appointed or designated, shall sit 
 as a Board of Equalization on said assessment. The owners of 
 the land assessed, the contractor or his assigns, and all persons 
 directly interested in said assessment, whether named therein or 
 not, feeling aggrieved by any of the acts or proceedings concern- 
 ing such assessment, or having or making any objection to the 
 correctness or legality of the same, shall at such time specially 
 make known the cause of objection or complaint. Said Board 
 may correct, alter or modify said assessment in such manner as 
 to them shall seem just, and may instruct and direct said As- 
 sessor to alter and correct said assessment or diagram in any 
 particular, and to make a new diagram at their option to con- 
 form to the decisions of the Board." 
 
 An act to construct a canal through Channel 
 
 Street, (Cal. Stats., 187 1-2, pp. 926, 931.)
 
 69 
 
 After providing that the Commissioner shall make an assess- 
 ment of the damages and benefits flowing from the construction 
 of the canal and the taking of lands therefor, the Act provides: 
 
 *' On the completion of said assessment, the said Commission- 
 ers shall cause to be published for ten days, a notice of the com- 
 pletion of said assessment, and inviting all parties interested 
 therein to examine the same; and for that purpose said assess- 
 ment, maps and valuation shall be open and exhibited to public 
 inspection at the ofifice of the said Commissioners for thirty days 
 after the first publication of said notice. * * * There- 
 after they shall complete the same in the form of a report and 
 schedule, embracing the value of the land taken for public use, 
 and the assessment of the amount of the same as hereinbefore 
 provided, upon the several parcels of land embraced within the 
 benefited district which report shall, at the expiration of said 
 thirty days, be filed with the Clerk of said County Court, * 
 
 * * together with a petition signed by at least two of said 
 Commissioners, praying for a confirmation of said report. On 
 filing such petition and report to said Court, the Judge thereof 
 shall assign some day, not more than thirty days thereafter, as 
 the time when any objection to the confirmation of said report 
 will be heard by said Court ; and the Clerk of said Court shall 
 cause to be published for ten days, in three daily newspapers 
 published in said City and County, a notice of filing said report 
 and of the day assigned for the hearing of any objections that 
 may be made thereto, and any party interested therein may at 
 any time before the day assigned for the hearing thereof file in 
 said County Court his objections, in writing to the confimation 
 of the same, specifying with particularity his objections. * 
 
 * * Upon the day assij.jned for a hearing of objections 
 thereto, * * * ^]^(. ^^\^l Court may hear the 
 allegations of the parties and the proofs adduced in support of 
 the same, and after duly considering the same mayconfirm said 
 report, or change, alter, or modify the same or cause the same 
 to be changed, altered or modified by said Commissioners, and 
 then confirm the same, as the justice and law of the case may 
 require." 
 
 An Act to provide for the opening and extend-
 
 70 
 
 ing of Leidesdorff Street, in San Francisco. (Cal. 
 
 Stats. 1875-6, p. 563): 
 
 " It shall be the duty of the Commissioners, immediately 
 upon the filing of their report vAth the Clerk of the County 
 Court, to give notice, by publication in at least two newspapers 
 printed and published in sdd city and county for ten days, 
 daily, that said report h is been filed with said Clerk of the 
 County Court, and that any o.vner of property affected by said 
 report, feeling aggrieved by or objecting, to said report, may file 
 in said County Court his objections, in writing, thereto, at any 
 time within twenty days after the first publication of said" no- 
 tice. * * The County Court shall take jurisdiction of 
 all matters pertaining to said report and objections thereto, and 
 shall hear and determine within thirty days after the filing 
 thereof all objections to the same, * and may make such orders 
 and decrees in said matter as it shall deem just and equitable, 
 and to that end may hear testimony and pass upon all questions 
 arising in said proceediiogs." 
 
 An Act to authorize the City of Oakland to 
 construct a bridge across the estuary of Sart 
 Antonio. (Cal. Stats. 1875-6, pp. 653, 655): 
 
 The Act provides that the Commissioners shall assess the 
 lands benefited by such construction, and then continues : 
 
 " Within thirty days after their appointment, * the Commis- 
 sioners shall niake a report to the Council of the assessments 
 so made by them. * * Upon receiving, the report and 
 assessment, * the same shall be filed with the City Clerk, and 
 the Council shall forthwith give notice, by publication for at 
 feast five days, * that said report and assessment are on file in 
 the Clerk's office, the date of filing, and that they are open for 
 public inspection. The owners, whether, named in the assess- 
 ment or not, the cotitractor, or his assigns, and all other persons 
 directly interested in the said report and assessment, feeling 
 aggrieved by any act or determination of the Commissioners in 
 relation thereto, or having or making any objection to the legality 
 of the assessment, or other act or determination or proceeding
 
 /I 
 
 of the Commissioners shall, within twenty days, * appeal to 
 the City Council. * * Upon such appeal the said City 
 Council shall have power to approve and confirm said report 
 and assessment, or refer the same back to the Commissioners, 
 with directions to alter or modify the same. * * And if 
 the Council, upon examination, shall find that the alterations 
 and modifications have been made, * the said Council shall, by 
 ordinance, adopt and confirm the same." 
 
 An Act to open, etc., Fifteenth Avenue Exten- 
 sion, in San Francisco. (Cal. Stats. 1875-6, pp. 
 762, 765): 
 
 The Commissioners shall prepare an assessment and report 
 of the damages and benefits. 
 
 " Such report, as soon as the same is completed, shall be 
 left at the office of said Board, daily, from 8 o'clock A, M. 
 until 5 o'clock P. M., for thirty days, for the free inspection 
 of all parties interested, and notice that the same is so open 
 for inspection for such time and at such place shall be pub- 
 lished by said Board, daily, for ten days, in two daily news- 
 papers printed and published in said city and county; provided, 
 that notice, in writing, of such assessment shall be sent through 
 the Post Office to each of said owners, so far as the same can 
 be ascertained. * * * Any person feeling dissatisfied with 
 the determination of said Board of Commissioners as to the 
 value of the amount of damage to, or the assessments upon, lands 
 or jiroperty owned, claimed or occupied by him, shown in the 
 report jjrovided for in the last preceding section, may have a 
 summary hearing thereupon before .said Board, in person or 
 through counsel, at any time before the filing of .said report. 
 * * * ,\t the expiration of the lime allowed for such hear- 
 ing * * * said PiOard shall proceed to review its said 
 report, and, if necessary, correct or modify the same; and when 
 such revision is completed, shall file its said report as revised, 
 together with a m.ip of said Pifteenth Avenue Extension and 
 the land assessed, in the Clerk's office of the County Court of 
 said city and county, with a petition, signed by .said Board, or 
 a majority thereof, for the confirmation of said report. * * *
 
 72 
 
 Notice of the filing of said report and map, and the petition 
 for the confirmation of said report, and of the time and place 
 appointed for the hearing of said petition, shall then be given, 
 by publication thereof, daily, at least ten days before said hear- 
 ing, in two daily newspapers in said city and county. * * * 
 On the day appointed for the hearing of said petition * * * 
 all persons interested may be heard before said Court in relation 
 to any of the matters contained in the report, and the Court, 
 after hearing the allegations and proof of all persons interested, 
 and ascertaining to its satisfaction that notice of such hearing 
 has been duly given, may confirm, set aside, or modify said 
 report, and, if necessary, refer the same back for revision and 
 correction to said Board." 
 
 An Act to open Sixth Street in San Francisco, 
 {Cal. Stats. 1875-6, pp. 866, 873, 876-7,) makes 
 the same provisions in regard to the fihng of the 
 report and notice thereof, and the subsequent 
 hearing, as in the case of the Fifteenth Avenue 
 extension. 
 
 An Act to provide for the opening and widening 
 of streets in San Jose, (Cal. Stats. 1877-8, p. 621.) 
 
 Sec. 6. The Commissioners of estimate and assessment 
 " shall make their report in writing, within sixty days after their 
 appointment and file it in the office of the City Clerk. * * 
 On filing such report the City Clerk shall give notice thereof 
 for ten days in some newspaper published in said city." 
 
 It shall be the duty of the Mayor thereupon, to appoint a 
 committee of reference " which committee shall hear any ob- 
 jections to the confirmation of said report upon a day to be ap- 
 pointed by them, * such committee shall hear the allegations 
 of the parties interested who may appear before them, * and 
 shall recommend the confirmation or rejection of said report. 
 The Mayor and Council may thereupon confirm the report," or 
 may set it aside, or refer it back to the Commissioners.
 
 An Act to provide for the opening of Tehama 
 Street in San Francisco, ( Cal. Stats., 1877-8 pp. 
 802, 806,) provides : 
 
 That the Commissioners shall prepare a report, which as soon 
 as completed, shall be left at the office of said board * for thirty 
 days for the free inspection of all parties interested, and notice 
 that the same is so open for inspection shall be published by 
 the board daily for ten days, in two newspapers of San Francis- 
 co, * and written notices thereof shall likewise be mailed 
 to all known owners and persons affected. 
 
 Any person feeling dissatisfied with the determination of 
 the Commissioners as to damages or benefits might have a 
 summary hearing before the board; that the board should re- 
 view and if necessary, correct its report, and file the revised 
 report and a map in the office of Clerk of the County Court, 
 together with a petition for confirmation. That upon the filing 
 of the report and map, the County Court should take jurisdic- 
 tion of the proceedings, and that notice of such filing and of a 
 time for a hearing appended by the Court, should be given by 
 publication. That thereafter on the designated day, the Court 
 should hear the allegations and proofs of the parties aggrieved, 
 and thereupon, set aside, refer back or confirm the report. 
 
 An Act to establish Montgomery .Street south, 
 (New Montgomery,) in the City of San Francisco, 
 
 (Cal, Stats. 1877-8, p. 933.) 
 
 The report of the Commissioners for the assessment of dam- 
 ages and benefits resulting from the opening of the streets, 
 shall, "when completed, be filed in the County Court, and 
 notice of such filing be published for five days * in two 
 daily newspapers. * \\ ithin twenty days after the filing of 
 such rc]Kjrt, written objections thereto, to any matter contained 
 theiein * may be filed in said office on the j)art of any 
 
 owner or party interested in i>roperly to be taken or injured by 
 the said improvement, or assessed for benefits arising there- 
 from." 
 
 On a day to be appointed by the Court, it " shall proceed to
 
 74 
 
 a hearing upon said report and objections, and take proofs in 
 relation thereto, and " may confirm, modify or reject said report 
 wholly or in part," or refer it back to the Commissioners. 
 
 By Sec. 13 and 14 of the same Act, provision is made for 
 the filing of a report oi costs and benefits, in which precisely the 
 same procedure obtains as with the report of damages. 
 
 An Act to establish the Sacramento River 
 Drainage District, ( Cal. Stats, i^yy-^, pp. 987, 
 99i.) 
 
 The Commissioners shall appraise the damages and benefits 
 resulting from the construction of certain canals, and prepare 
 lists of the same. 
 
 " Upon the completion of said lists, said Commissioners of 
 assessment shall publish, in at least one newspaper, * for 
 not less than two weeks, a notice stating that said lists have 
 been prepared, and that said Commissioners of Assessment will 
 sit * for the purpose of hearing and determining any ob- 
 jections that may be made to said assessment. * * 
 During such sittings, any person interested may appear * * * 
 and state bis objections to the assessment, * and upon 
 such hearing, any assessment found to be erroneous shall be 
 corrected." 
 
 The Act to authorize the Supervisors of San 
 Francisco to change the grades of certain streets, 
 (Cal. Stats. 1 867-8, p, 594,) under which the Sec- 
 ond Street cut improvement was made, provides 
 that — 
 
 The Commissioners, after preparing a report of the costs 
 and benefits, shall "subscribe the same and file it in the 
 office of the Clerk of the Board of Supervisors," and that, 
 " on filing such report, the Clerk of the Board of Supervisors, 
 shall give notice thereof for five days, by publication." 
 
 The machinery prescribed after the filing of the 
 
 report for its review and confirmation is the same
 
 as that provided for in the Act relating to streets 
 in San Jose, 
 
 Nor is the above a procedure which has pre- 
 vailed here only in latter years. We find it fol- 
 lowed as far back as 1862, if not earlier. 
 
 An Act concerning the construction and repair 
 of levees in the County of Sacramento (Cal. Stats. 
 1862, pp. 1 5 i-i 55) provides that— 
 
 The Assessor shall estimate the benefits arising from the 
 reclamation improvements contemplated by that Act, and 
 assess them to the lands benefitted, and "as soon as such, 
 assessment is completed, shall deliver it to the Auditor, who 
 shall forthwith give notice, by publication in each paper pub- 
 lished in the city, that the special levee assessment roll has been 
 completed, and is in his possession, open for examination, and 
 that the Board of Equalization will, upon a day * named * 
 meet to hear and determine complaints in regard to valuation 
 and assessments therein. * Upon the day specified * the 
 Board * shall meet * * to hear and determine such ob- 
 jections to the assessments and valuations as may come before 
 them ; and the Board may change the valuation as may be 
 just." 
 
 The Charter of New York City (N. V. Laws 
 1813, Ch. 87.) provides: 
 
 The Mayor, Aldermen and Commonalty may, when they 
 deem the laying out or opening of a street, or any part thereto, 
 necessary or useful, order said opening or laying out to !)e 
 made. 
 
 2. Whenever lands shall be deemed rec|uired for such 
 opening and laying out, the Sujjreme Court, on the application 
 of the Mayor and Commonalty, shall have the power to appoint 
 three commissioners of estimate and api)raiscmcnt, who, after 
 being sworn, shall view the premises rc(|uircd for the taking, and 
 shall prepare a report showing the relative aggregate amount of
 
 76 
 
 damages and benefits that will accrue from the opening, also 
 the names of the different owners, with the description of their 
 property, and the amount of damage or benefit which each is 
 deemed to sustain by the improvement. 
 
 The Commissioners, after completing their estittiate and assess- 
 ment, and at least fourteen days before they fnake their report to 
 the Court, shall deposit a copy or transcript of the estitnate or as- 
 sessment in the Clerk's office of Ne7v York City, for the inspection 
 of whom it may concern, and shall give notice by advertisement to 
 be published in two of the public city netvspapers, of the deposit 
 thereof in the said office, and of the day on 7vhich their report 
 will be presented to the Court. Any person objecting to the re- 
 port may state his objections in writing to the Commissioners 
 within ten days after first publication, and in case of such ob- 
 jections, the Commissioners shall reconsider their assessment, 
 or the parts objected to, and in case the same shall appear to 
 them to require correction, but not otherwise, they shall and 
 may correct the same accordingly. 
 
 The Commissioners shall report to the Supreme Court, 7vithout 
 unnecessary delay, and on the coming on of their sigtied report, 
 said Court shall, after hearing any matter that may be alleged 
 against it, confirm the report, or refer it back to the same or new 
 Commissioners for revisal or correction, and has poioer to re-refer 
 until a report is returned which the Court will finally confirm. 
 The report, when cotifirmed, shall be conclusive on all parties. 
 
 The above are the only provisions made by the 
 charter In regard to notice or a hearing of the 
 parties affected at any stage of the proceedings. 
 
 The provisions of this Act have been adopted 
 in most, if not in all the important street improve- 
 ments in New York City, the statutes author- 
 izing and setting on foot those improvements, ex- 
 pressly adopting the machinery provided by the 
 existing law for the appraisement and confirmation 
 of the assessment of damages and benefits. The
 
 11 
 
 law of 1813 was in force at the time of the pass- 
 age of all the statutes referred to. As examples 
 see — 
 
 The Widening of Broadway, N. Y. Laws of 
 
 1871, Ch. 57, Sec. 4; 
 
 Matter of Widening Broadway, 6 1 Barb., 484; 
 
 Act to Reorganize the Government of N. Y, 
 
 City, N. Y. Laws 1873, Ch. 335, Sec. 105; 
 
 Act for Laying Out and Improving Certain 
 
 Portions of N. Y, City, N. Y. Laws 1865, 
 
 Ch. 565, Sec. 4; 
 
 Act Relating to Central Park Commissioners, 
 
 N. Y. Laws 1866, Ch. 367; 
 Also, N. Y. Laws 1870, Ch. ■^Z-^, Sec. 5. 
 
 Charter of Rush City, (IMinn. Spec. Laws, 1878, 
 Ch. 24, Sub. Ch. 6, p. loi.) 
 
 After providing that the Common Council shall 
 
 have the care and control of streets, etc., and may 
 
 alter, open, widen, improve and straighten the 
 
 same, and may appoint Commissioners to view the 
 
 premises affected and assess the damages, and that 
 
 said Commissioners shall file their report to the 
 
 Common Council with the Recorder, the statute 
 
 continues: 
 
 "■Upon such report being filed in the ojffice oj the Recorder, '^ 
 said Recorder shall give at least ten day^ notice^ by publication 
 in the ofiicial paper, * to the effect that said aseessment has been 
 returned, and that the same will be confirmed by the Common 
 Council at a meeting to be named in said notice, unless objec- 
 tions are inade, in writing, by persons interested in any land
 
 7^ 
 
 required to be taken * * The Common Council, on the day 
 fixed for the hearing of such report, or at such subsequent 
 meeting to which the same may stand over, shall have power, 
 in their discretion, to confirm, reverse or a?i?iul the assessment, 
 giving due consideration to any objections interposed by any 
 of the parties interested," 
 
 The Amended Charter of the City of Brook- 
 lyn, (N. Y. Laws of 1854, Ch. 384, title 4.) 
 
 After providing that the Common Council has control over the 
 opening, widening and improvement of streets,, etc., and that 
 such proceedings shall be inaugurated by petition by a majority 
 of the land owners along the line of improvement, and that 
 notice thereof shall be published in the city newspapers, fixing 
 a time for the hearing of the application, and if said Council 
 f)ass favorably on it, they shall petition the County or Supreme 
 Court to appoint Commissioners of estimate and assessment,, 
 who shall proceed to assess the damages and benefits and pre- 
 pare a report thereof> the statute continues : 
 
 '■'■After their report shall be completed, it shall be by them filed 
 in the office of the Clerk of the County of Kings. They shall then 
 cause a tiotice to be ptiblished that the same has been completed 
 and filed, and that they will meet at a time and place specified, 
 not less than 10 days from the first publication, to review their 
 report. Duritig that time the report may be examined by all 
 the parties interested,, and at the time and place specified any 
 person may offer objections,, in writing, to the said report. After 
 reviewing and correcting their report, wherever necessary, they 
 shall file it with the Clerk of said county. The Council shall 
 then cause notice to be published, in the corporation newspapers, 
 that the report has been completed and filed, and that applica- 
 tion will be made at a tiifie specified, in behalf of said Councily 
 to the County Court, or a special term of the Supreme Court, 
 to confirm the report, said notice not to be less than ten daySy 
 during which time the report shall remain open to the inspec- 
 tion of persons interested, and, if aggrieved, they may appeal, 
 7i'ithin the said ten da^ys, to the Supreme Court" The Appellate 
 Court is given the power to refer the report back to the Com^
 
 missioners for correction, and, when corrected, the same notice 
 shall be published of application to confirm as with the original 
 report, or the Court may confirm it or set it aside. (Sees. 1 2 
 and 13). 
 
 Like provisions are made and like notice by 
 publication prescribed in proceedings for grading 
 and paving streets. (Sees. 22-25). 
 
 Act to amend Charter of Newark, (N. J., Laws 
 of 1857, Ch. 52, Title 7, pages 168 et. seq.) 
 
 The Common Council may appoint five freeholders to assess 
 the benefits and costs of laying out, improving, widening streets, 
 etc. They shall make an assessment, and file a report in writing 
 in the office of the City Clerk. Before signing andcompletmg the 
 same, they shall give notice by 10 days publication in certain 
 newspapers of such depositing, to the parties interested, and also 
 of the time and place, when their objections thereto will be heard. 
 
 On signing and completing the report, the Commissioners 
 shall return the same to the Common Council, with any objec- 
 tions in writing thereto that may have been presented to them. 
 
 If any objections are so returned, the Council shall publish a 
 notice in two newspapers to the parties interested for 10 con- 
 secutive days of time and place, when and where they will hear 
 the report and the objections, or may correct and modify the 
 same, etc. 
 
 Charter of the City of Lockport, (N. Y., Laws 
 
 of 1873, title 387, p. 605.) 
 
 If the Common Council determines to alter, lay out, widen or 
 straighten streets, it shall pass an ordinance, and give notice by 
 |;ublication in three successive numbers of the City paper, of 
 their intention to take land 'for the proposed improvement, and 
 of an application to the Supreme Court for the appointment of 
 Commissioners of estimate and assessment. 
 
 Upon the day designated in the notice the Court will api>oint 
 Commissioners. The Charter then ccjntinucs : 
 
 .§ 9. '•'■The Common Council after the report of the Commis- 
 viissioners is returned, shall give notice by publishing in three
 
 8o 
 
 successive nutnbers of the City paper that the same will on a day 
 specified be cotifirtned, unless objectiofts to the confii-mation thereof 
 shall before that time be filed with the Clerk, or if no objections 
 be filed the report shall, in their discretion, be confirmed by the 
 Council" If objections are made, any person interested may be 
 heard before the Council on a day it may appoint, and the 
 Council may confirm or annul the report, or send it back for 
 correction. 
 
 Charter of Passaic, (N. J, Laws, 1871, Ch. 259, 
 p. 632, et. seq.) 
 
 The Common Council shall appoint three Commissioners of 
 estimate and appraisement, for the laying out or widening of a 
 street, etc. 
 
 They shall determine what lands are benefited, and assess the 
 damages and benefits, causing a map and survey to be made, 
 and making a report, showing the names of the owners, with 
 the amounts assessed to each, according to the degree in which 
 he is benefited. 
 
 Sec. 20. — All expenses and costs of proceedings for improv-a 
 ments in laying out, altering and widening streets shall be 
 assessed by the three Commissioners appointed as aforesaid, and 
 they shall report to the Common Council what proportion shall 
 be assessed on each lot of land, accompanying the report with a 
 map showing the lots assessed, * and which report and tnap shall 
 be filed in the office of the village Clerk, and he shall cause a 
 printed notice of the filing to be set up in five public places fiear 
 the improvement, and that the board will meet at a time and place 
 specified not less than 20 days thereafter to consider the said 
 assessment, and hear all objections thereto in writing. Any assess- 
 ment may be reviewed and set aside on certiorari by the Supreme 
 Court. 
 
 Charter of the City of Chicago. (Act of March 
 4, 1837; 2 111., Laws of 1837, p. 50, 61 et seq.) 
 
 Sec, 38. — The Common Council has power to lay out, widen 
 and alter streets, &c. Whenever a street is laid out, or 
 widened, * the Council shall give notice by publication to owners 
 of land of their intention to take their property, informing them
 
 8i 
 
 they may file a claim for damages within a specified time; if 
 such owners file claims in that time, the Council shall choose 
 Commissioners to assess the damages and benefits. The Com- 
 missioners shall view the premises and may in their discretion 
 hear evidence. They shall give notice by publication of the 
 time and place of their meeting to make the assessment They 
 shall then make the assessment, and shall return their report in 
 writing to the Common Council within 30 days after their appoint- 
 ment. TIu Council shall give two weeks notice in newspapers 
 that on a day specified the report will be confirmed^ unless object, 
 ions in the meamuhile be filed. If objections are filed, the owner 
 may be heard before the Council, and the Council may confirm 
 or annul the report, (and must confirm it if no objection is 
 made), or may refer it back for correction. 
 
 The Charter as amended in 1851, contains sub- 
 stantially the same provisions. — (111. Priv. Acts 
 of 185 1, p. 151 et seq.) The notice on the filing 
 of the report is much the same as the notice pro- 
 vided here. 
 
 Sec. II. — " The clerk shall give 10 days notice, in the corporation 
 paper that the assessment has been returned and on a day specified 
 will be confirmed, unless objections to the same are made by the 
 parties interested^' 
 
 And, as still further amended in 1869., (111. 
 Priv. Laws 1869, p. 349), it provides: 
 
 *' When the assessors shall have completed their assessment 
 * it shall be signed by the assessors and returned to the 
 Circuit Court, and shall be filed by the clerk thereof. The as- 
 sessors shall thereupon give at least ten days notice in three * 
 daily newspapers, and by posting * of the filing of said assess- 
 ment roll, and that they will on a day therein named, apply to 
 the Circuit Court for confinnation of the same."— whereupon 
 the Court shall hear the parties and has p<nver to confirm, 
 modify and set aside the report. 
 
 Charter of Bergen, New Jersey. (N. J. Laws 
 
 of 1864, Ch. 264, Sec. 31, i). 418.)
 
 82 
 
 " The Commissioners shall determine and report in writing to 
 the Board of Councilmenwhat proportion of the expense (of open- 
 ing, widening, altering and improving streets) shall be assessed to 
 each separate lot or parcel of land, which report * shall be 
 
 filed in the office of the Clerk of the toiun, ivhereupon said Clerk 
 shall cause to be published * for 20 days a notice of the 
 
 filing of the report, and that the Councilmen will meet (at a time 
 and place designated) to consider said assessment and to receive 
 and consider all objections thereto which may be presented in 
 meriting." 
 
 Analogous provisions are made for the case of 
 grading and curbing assessments, by Sec. 32 of 
 the same Act. 
 
 Charter of Rochester. (N. Y. Laws 1867, 
 Ch. 143.) 
 
 The assessors for assessing the benefits and damages result- 
 ing from a public improvement not involving the taking of 
 lands, shall return their assessment when made to the Common 
 Council, who "shall appoint a time at which they will hear ap- 
 peals from said assessment. * UpoJi such return being made 
 and filed the Clerk of the City shall cause notice of the same be- 
 ing returned to his office to be published * for * ten days, 
 and that tlie Common Council will on the day appointed proceed 
 to hear appeals. At the day appointed * they shall hear 
 the allegations and proofs of all persons who may complam of 
 such assessments," and may then set aside, or correct, or con- 
 firm the same. 
 
 Charter of Paterson. (N. J. Laws 1861, Ch. 
 
 121.) 
 
 The Commissioners appointed in proceedings for opening, 
 streets, &c., shall make an assessment of the damages and ben- 
 efits, giving all the usual particulars, and ^'shall file their report 
 and map with the City Clerk in go days after their appointment^ 
 and thereupon t/ie City Clerk shall give notice of the filifig of such 
 report and map * in one or tnore of the city papers^ for two^
 
 S3 
 
 weeks." If two-thirds of the persons affected protest mthin a 
 designated time thereafter, the improvement shall be discon- 
 tinued ; but if there is no such protest, the work shall be car- 
 ried on,, and if any onmer, iifho has remonstrated, is dissatisfied 
 with t/ie assessment, lie may appeal to the Supreme Court, within 
 a specified time, and in case of such appeal, Commissioners shall 
 be appointed, who shall review the assessment, and their report 
 thereon shall be final. 
 
 Charter of Jersey City (N. J. Laws of 1851, pp. 
 392, 416, Sec. 55,) is identical in language with 
 the Charter of Paterson. 
 
 Charter of Buffalo (X. Y. Laws of 1853, Ch. 
 
 530, p. 499). 
 
 The Commissioners appointed to assess the damages in pro- 
 ceedings for opening and laying out streets, &c., shall return 
 their report to the Common Council within 30 days after their 
 appointment. 
 
 " The Cotnmon Council, after the report of the Commissioners 
 is returned to them, shall give notice by publishing the same in 
 ten successive numbers of tJu city paper that the same will on a 
 day * specified * be confirmed unless objections to the con- 
 firmation thereof be * filed with the Clerk." If objections 
 are filed, any person interested may be heard before the Coun- 
 cil, and the report shall l^ corrected, annulled or confirmed 
 
 Charter of Albany (N. Y. Laws of 1870, 
 
 Ch. -]-], Title VIII). 
 
 The Board of Contract and apportionment, whose office is 
 fixed at a designated place, shall assess expenses and benefits of 
 street and similar improvements. When their •' apportionment " 
 is completed '^ the Common Council shall cause public notice 
 of such apportionment t-j be given in three * ne7C'spa/>ers * 
 for JO davs, during which time the said assessment and appor- 
 tionment shall be open for examination by any person interested, 
 and on the application in writing of any person aggrici'ed, said 
 Board may review and correct said apportionment,"' and there
 
 84 
 
 after, upon confirmation by the Council, it shall be binding and 
 conclusive. 
 
 Charter of Utica (N. Y. Laws of 1862, Ch. 
 18, Sees. 92 and 93). 
 
 The Commissioners in improvement proceedings shall make 
 their report of the assessment of damages and benefits, and re 
 turn it to the common Council, and it shall be filed in the office 
 of the City Clerk. 
 
 *' On the coming in of said report, the Common Council shall 
 cause to be puhlished * a daily notice * that at a time there- 
 in fixed * it will act on the same, and during which time 
 the report will be left at the office of the City Clerk, where all 
 persons interested may examine the same, and that unless objec- 
 tions are filed by some persons interested the report will be con- 
 firmed. * * If objections are made * any 
 person interested may be heard before the Common Council 
 touching the matter," and the Court may order a re -reference or 
 confirm, correct or annul the report. 
 
 The Ohio Act relating to the formation and 
 gov^ernment of Municipal Corporations, a statute 
 of general operation throughout the State, and 
 known as the " Municipal Code," (66 Ohio Laws 
 1869, pp. 145, 248), provides : 
 
 The assessment of benefits upon the lands affected '■'■ shall be 
 filtd in the office of the Clerk of the Corporation for public inspectiofi. 
 Before adopting the assessment * the Council shall publish 
 notice for three weeks consecutively, * that such assessment 
 has been tnade, and that the same is on file in the office of the 
 Clerk for the inspection and exainination of any person inter- 
 ested therein.^'' Any person objecting thereto shall file 
 his objections within two weeks after such publication, and the 
 Council shall then appoint three freeholders as a Board of 
 Eiiuali/.ation, who shall review and hear evidence on and 
 equalize the assessment, and report it to the Council, who shall 
 then have power to annul, confirm or modify the same.
 
 Charter of Detroit (Mich. Laws of 1857, No. 
 55. P- 123). 
 
 Provides that the assessing jury shall file a report in the Clerk's 
 office of the Recorder's Court, and that the City Attorney shall 
 give notice by publication that the Court will hear objections to 
 its confirmation at a time specified, and that thereupon it may 
 be confirmed, &c. 
 
 An Act in relation to construction of drains, 
 dikes and levees. (Indiana Laws of 1869, p. 84, 
 Ch. 3S.) 
 
 The appraisers shall return their schedule and assessment to 
 the Secretary of the Drainage Company, " who shall cause it to 
 be filed for record in tlie office of the Recorder of the County. * 
 Upon filing such schedule for record the Secretary shall give 
 notice thereof by posting, * and any party aggrieved by any 
 such assessment may, within thirty days thereafter, appeal to the 
 'Ciixxiit or Cotntfion Fleas Court. " 
 
 The above is a statute of general operation in 
 Indiana. 
 
 An Act relating to drains, ditches and levees, 
 
 approved May 29th, 1879. (111. Laws of 1879. 
 
 Cited in Blake vs. The People, 109 111.) 
 
 The Commissioners shall make an appraisement of the bene- 
 fits and costs resulting from the improvement, and file it with 
 the Clerk of the Court ^ippointing them. Upon being filed 
 with such Clerk he shall give three weeks notice by publication, 
 stating the time of the filing, and when application will be made 
 for its confirmation, at which lime all persons interested may 
 appearand contest the confirmation or show that the report ought 
 in any respect be modified, producing the appropriate evidence 
 in support thereof. If, after hearing all objections, the (Jourt is 
 satisfied that the rejiort ought to be api)roved, it shall cause an 
 order of confirmation to be enlercd
 
 86 
 
 A system of procedure for the review and con- 
 firmation of the Commissioners' report, similiar in 
 its main features to the above, is Hkewise provided 
 for in the IlHnois General Act in relation to cities^ 
 villages and towns. 
 
 4. It is urg-ed that the statute does not afford 
 due notice because the notice is too brief. 
 
 The learned Counsel say, " the time was so lim- 
 ited within which a property owner would apply 
 for relief," and add, " we think we are safe in say- 
 ing that this is the shortest statute of limitation in 
 the history of legislation." 
 
 An examination of the following cases and stat- 
 utes will demonstrate the utter groundlessness of 
 the learned Counsel's contention. 
 
 T/ic People vs. The Mayor of Bi'ooklyn, 4 N. 
 Y,, 419. 
 
 This was an application to quash on certiorari 
 an assessment imposed on certain lands in 
 the City of Brooklyn, benefited by the grading and 
 paving of Flushing Avenue. The City Charter 
 provides that the assessment shall be delivered 
 by the Assessor to the Clerk of the Common Coun- 
 . cil, who shall give public notice in the Cor- 
 poration newspapers, that the same has been so 
 left with him, and that the Common Council will,.
 
 on a certain Jay therein stated, which shall not be 
 less than lo days from the first pubhcation of the 
 notice, proceed to confirm the asvsessment. Dur- 
 ing that period any person interested may appeal 
 from the sajne to the Conimon Council, who may 
 determine such appeal, and alter the assessment 
 
 in their judgment. 
 
 The Court said : '* Another objection is, that no notice was 
 given to the owners of said assessment. In the case of The 
 Ouniers of Ground \?,. The Mayor, 15 Wend, 374, it was ad- 
 judged that the Legislature had authority to prescribe what 
 notice should be given in the case of an assessment hke the 
 present, and if notice be given as thus required it is sufficient. 
 The only notice required by the statute under which the present 
 assessment was made, is a notice to be published in the cor- 
 poration newspapers for fen days before the day fixed [for the al- 
 teration or confirmation of the assessment by the Common 
 Council. This gives to any person assessed an opportunity to 
 be heard, and is all the notice necessary." 
 
 Scot I vs. Brackett, 89 Ind., 413. 
 
 Application to set aside an assessment tor drain- 
 age purposes on certain lands, and for Ieav{; to 
 remonstrate against the Commissioners' report. 
 The statute under which the a.ssessment was levied 
 provided that upon the Commissiont^rs of drainage 
 making their repfjrt to th(.' Court, (lirce days shall 
 be allowed to any owner of lands affcricd by the 
 work propo.sed to rcMiionstrate againl lh<- report 
 for various reasons specified. 
 
 The petitioners insisted that the act is unconsli- ' 
 tutional on the grcKUul, among others, that " the 
 notice is unreasonable and only colorable."
 
 88 
 
 Said the Coart : " The objection is not supported by any 
 authority and we are of opinion that it is not well taken ; simi- 
 lar notices in many analagous proceedings have been pre- 
 scribed, and such acts have not heretofore, for such reason, 
 been deemed invalid. The notice required may not bring actual 
 knowledge of the i)roceedings to those interested, but the act 
 cannot for that reason, be deemed unconstitutional." 
 
 Blake vs. People, 109 III, 505, 527, 
 
 The Court said : "As to proceedings to charge lands with 
 the amount of special assessments, no particular kind or length 
 of time of notice is prescribed by the constitution, and it is not 
 perceived wTiy o7ie week's notice by publication, might not have 
 been sufficient." 
 
 The City of Ottawa vs. Macy^ 20 III, 413, 42a 
 In this case, the facts of which have been pre- 
 viously given, the Court said : 
 
 " The fifth objection, to which counsel has called the atten- 
 tion of the Court is, * that the City Clerk did not give 
 sufficient notice of the time and place of hearing objections to 
 the confirmations of the assessment by the City Council." 
 
 The sixth section of article 8 of the City Charter, provides ' 
 ^'That upon the return of the Commissioner's assessment to the 
 City Clerk, he shall cause a notice to be published in one or 
 more newspapers published in said city for six days, to all per- 
 sons interested therein, of the completion of the assessment and 
 the filing of the roll. Time and place shall be designated for 
 hearing objections." Under this provision and under those of 
 the city ordinance passed in pursuance thereof, the Clerk on the 
 8th of August, 1857, published six days notice of the re- 
 turn of the assessment, and fixing the 18th of August, of the 
 same year— 10 days thence, as the date of confirmation. 
 
 The Court continuing at page 422, said : 
 
 " VV' e see no force in the objections made to rendering judg- 
 ment against the lots assessed."
 
 89 
 
 Hays vs. Tippy, 91 Ind., 102, 106. 
 Application to set aside the report of Commis- 
 sioners appointed to assess the damages and bene- 
 fits resLiltinor from the drainage oJ certain lands 
 and for leave to enter objections against the same. 
 The statute under which the assessment was made 
 provided that : " Upon the making of the report of 
 the Commissioners to the Court, three days shall 
 be allowed to any owner of lands affected by the 
 work proposed, to remonstrate against the report." 
 
 " The * point made by * counsel in argument/' 
 said the Court, " is * * that that portion of Sec. 4 
 of the Drainage Act of 1881, (Sec. 4276, R. S., 1881,) provid- 
 ing that but three days shall be allowed by the Court, in which 
 an owner of lands affected by the construction of the drain, 
 may remonstrate, is unconstitutional. The learned counsel has 
 not referred us to any clause or section of the constitutions, 
 State or Federal, to which it can be said that this provision of 
 the statute is clearly rejjugnant, and we know of none. * * 
 The time given for remonstrating is short, and the provision may 
 seem therefore, unreasonable and oppressive, but this will not 
 authorize the courts to declare it unconstitutional. * The 
 only remedy for such a defect in the statute, is by appeal to the 
 law-making power." 
 
 5. 1 1 is contended, finally, that the statute docs not 
 provide for giving the parties interested notice of 
 the proceedings to bf; had in tii(,' Count)' Court 
 upon and after objection of aii) party aggrieved. 
 
 The contention, upon this pf)iiU. il I umlerstand 
 it, is that, whenever an aggrieved piri\- proceeds 
 in the County Court, all the other parties on the roll 
 ^re interested in the proceedings, and should, there-
 
 90 
 
 fore, be notified of the time and place, when and 
 where the particular matter or objection will be 
 
 heard. 
 
 To this I answer that : 
 
 First. — Without questioning, at present, the 
 soundness of the premises of the argument, it is 
 sufficient to say that the notice given under section 
 8 of the Act, is a notice of the pendency of the pro- 
 ceedings which are ultimately to result in the 
 confirmation of the report; that, from that time on^ 
 the parties in interest are charged with notice of 
 every thing done, and every step taken in the 
 County Court ; and that no other or further notice 
 than this is needful. 
 
 The precise objection made by plaintiffs on this 
 point has been long since made, and long since 
 and uniformly overruled. It was first urged in 
 Patterson vs. The Mayor, Etc., i Paige Ch. 114. 
 In declaring it untenable. Chancellor Walwoth 
 said : 
 
 " The alleged irre^alarity is that the Commissioners altered 
 the assessment, and reduced the amount allowed to the com- 
 plainant, without any written objections being put in by him, and 
 without notice to the complainant to appear and oppose. On 
 looking into the statute under which those proceedings were had, 
 I am inclined t3 believe it w.is not intended by the Legislature 
 that any farther notice should be given than the one which was 
 published in this case. In the assessment and appraisal of 
 damages in these street cases, what is allowed to that class of 
 persons whose property is taken for the improvement, is to be 
 levied upon another class whose property is supposed to be 
 benefited thereby. The necesessary result of this is, that
 
 91 
 
 il anyone objects to the amount allowed to or assessed 
 upon himself, the Commissioners cannot alter that allow- 
 ance or assessment without making a corresponding change 
 in relation to some or all of the others. ITie statute 
 directs the deposit of the copy of the repcH-t, and public notice 
 thereof to be given in the newspapers and of the time and place 
 of presenting the report to the Supreme Court for confirmation. 
 If any p>erson is dissatisfied, he may within ten days make his 
 objections in writing to the Commissioners, and, if objections 
 are made, they must review the assessment before presenting it to 
 the Court. The Legislature never could have contemplated the 
 deposit of a new copy, and a new notice to propose objections 
 as often as the Commissioners reviewed their assessment. Such 
 a construction of the Act would be productive of great and un 
 necessary d^lay, and would be inconsistent with the provision 
 which directs the notice of presenting the report to the Court 
 to be given at the same time with the notice of the depositing 
 the copy for inspection, that objections in writing may be made 
 thereto. The notice to propose objections to the report is a suffi- 
 cient notice to those who are dissatisfied with the original report, to 
 appear before the Commissioners arid oppose any alterations tohich 
 may be proposed by the persons objecting. At the expiration of 
 ten days they can apply to the Commissioners and ascertain 
 whether auy objections are made, and they 70111 then be at liberty 
 to be /leard in opposition thereto. If the Commiisioners decide 
 in favor of the objections, the original notice points out the 
 time and place for the person aggrieved thereby to appear before 
 the Supreme Court, and oppose the adoption of such amended 
 report." 
 
 Chambe7'lain v^. Cleveland, 34 Ohio, .St. 551. 
 
 570- 
 The Statute under con.sidcralion in ihi.s ca.se [)i()- 
 vided : 
 
 Tiiat in all cases in which it ims determined by the Common 
 Council to assess the cost of an improvement upon abutting prop- 
 erty, the hoard might appoint disinterested freeholders, to report
 
 92 
 
 an estimated assessment of the benefits, which assessment shonld 
 be filed in the office of the clerk of the corporation for in- 
 spection. That before adopting the assessment, the Council shoxild 
 publish notice for three consecutive weeks, in a newspaper of gen- 
 eral circulation, that the assessment had been made and that the 
 s.ime was on file in the office of the clerk for the inspection of in- 
 terested parties. That any person interested should file his objec- 
 tions with the clerk within two weeks after the expiration of such 
 notice, and thereupon the Council should appoint three disinter- 
 ested freeholders to act as aft equalizing board, * * that on a 
 day appointed by the Council such equalizing board should hear 
 evidence on said assessment, and equalize the same : thsy should 
 then report the equalized assessment to the Council, who had poiver 
 to confirm, set aside, or alter the same ; that the confirfnation by 
 the Council should be conclusive. 66 Ohio Laws, p. 248, {i86g.) 
 The Court said : •' It is objected by the plaintiff that the 
 equalized assessment is void, on the ground that no notice was 
 given of the time the Board of Equalization would proceed with 
 the ecjualizing of the assessment, nor was any notice given of 
 the filing of the same with the clerk or Council. We do not 
 think thii objection well taken. By the provisions of Section 
 585, before adopting the assessment made by the Assessing 
 Board, the Council is required to publish notice for three con- 
 secutive weeks that such assessment . has been made, and 
 that the same is on file in the office of the clerk, for the inspec- 
 tion and examination of any person interested therein. * * * 
 VV^e think that after the notice required has been given, all per- 
 sons interested have a reasonable opportunity to be heard 
 against the assessment, ^x\A that, from this pointy the proceeding 
 7nust be regarded as pending, and that all persons interested ar^ 
 bound to take notice of what is done up to the time the equalized 
 assessment is confirfned.^' 
 
 Gilbert vs. City of New If avert, 39 Conn. 467. 
 
 In proceedings for widening West Water street 
 in New Haven, the matter of assessing benefits 
 and damages was, under the provisions of the
 
 93 
 
 Charter, and in pursuance of an order of the Com- 
 mon Council referred to the Board of Compensation, 
 who made a report to the Council, which was re- 
 jected and a recommittal ordered; the board there- 
 after revised their former assessments and made a 
 new report, raising the amount of certain assess- 
 ments, which report was thereafter accepted by 
 the board, and the assessments laid accordinoly. 
 It was conceded that but one notice was given to 
 the appellant by the Board of Compensation, 
 viz : a notice of the first order of reference by the 
 Council, and that no notice was given of the re- 
 committal, or second order of reference, nor was 
 he present at any meeting of the board after such 
 second order, or heard in reference thereto at the 
 hearing at which the assessment was made, nor 
 was he present nor did he have a hearing at the 
 meeting of the Council approving the corrected 
 report. The Court below overruled his objecti(jn 
 that the assessments were irregular and void in 
 consequence, holding that but one notice was re- 
 quired, viz : t\vi notice given of ihr. first order 
 of reference. 
 
 Said the Apj^ellate Court (Car|)entcr J.) : 
 
 "It is * (jl)jected that the appellant had no notice of the 
 recommittal, and of the subsequent jirurcedinj^s. We are satisfied 
 that none was rc<iuired. T/ie 7C'//o/t' niattcr from the lime of its 
 first refereticc to the Board of Compensation to the time the report 
 avas finally adopted by the Court of Common Council, was one
 
 94 
 
 proceeding. The appellant was notified in the first instance and 
 appeared. If he neglected to attend the subsequent stages of the pro- 
 ceeding it affords him no ground of complaint now " 
 
 Gillctt vs. The Treasurer, -x^o Kas. i66. 
 
 The Court said : "Sec. 43, Ch. 107 General Statutes consti- 
 tuted the Board of EquaHzation. * The time of meeting of that 
 board was fixed by Statute, and notice of the time of the meet- 
 ing was also required to be published, so it was held that, given 
 power to equalize, the time of meeting prescribed, as well as 
 publication of the notice of the time of meeting, the board with- 
 out further and special notice had power to change the assess- 
 ment of real estate by either raising or lowering." 
 
 Gates V?,. Brooks, 59 Iowa, 510, 513, 
 
 Said the Court: "The Statute (in relation to the settlement 
 of boundaries between contiguous land owners) provides in 
 substance that, where the owner of land cannot agree with the 
 owner of adjacent land, in regard to the boundary line between 
 the tracts, he may cause a notice to be served on the owner of 
 the adjacent land that on a day named he will apply to the 
 District Court for the appointment of a commission of one or 
 more surveyors to survey and establish the boundary line. The 
 Statute also provides that on the day named, if a proper petition 
 and proof of due notice have been filed in the District Court, 
 the Court shall appoint a commission of one or more surveyors 
 who shall survey the boundary line, and make a report of their 
 doings, accompanied by a plat, and notes of the survey. 
 
 "The Statute also provides that the commission may take evi- 
 dence and incorporate the same with their survey ; and that 
 upon the filing of the report, any person adversely interested 
 may enter objections to it, and the Court shall hear and deter- 
 mine the same, and shall approve or reject the report, or modify 
 it as it shall see fit, and enter judgment accordingly. The de- 
 fendants contend that the Statute is in conflict with Sec. 9, Art 
 I of the constitution, which provides that ' no person shall be de- 
 prived of life, liberty or property without due process of law,, 
 and insist that they have been so deprived."
 
 95 
 
 # * * u^Yg cannot properly hold the Statute unconsti- 
 tutional.'' 
 
 Avery vs. East Sa^inaiu, 44 Mich., 587, 
 591. (Marston, J.) : 
 
 " The Charter of East Saginaw provides for a Board of Re- 
 view (in tax proceeeings,) and specifies the duties thereof, among 
 which is the right to increase the valuation of any property 
 found in said roll. The Common Council is to appoint the 
 time and place where said board shall meet, and the charter re- 
 quires that notice thereof ' shall be given by the Clerk of the Com- 
 mon Council at least ten days prior to the time of meeting, by 
 publishing a notice thereof in the official newspaper published in 
 said city, and also by posting the same in three different public 
 places in each ward of said city.' I concede the correctness of 
 the doctrine that no changes can be made by the board without 
 notice to the person against whose interest such change is made, 
 and an opportunity given him to show cause why no such change 
 should be made, but in my opinion, the general notice given by 
 the Clerk is all that is necessary, and that no formal or special 
 notice beyond this is required. * * * * j ^-^^^ 
 see but little, if any, object in giving the general notice re- 
 quired by the charter, if in addition thereto, special notice must 
 also be given in cases like the present. Under the general notice 
 p.irties must attend the meetings of the board as they would the 
 sessions of a Court, until their assessment is passed upon, and 
 when once this is done, no change could afterwards be made 
 without special notice within the case of Griswold vs. JSuy City, 
 24 Mich., 262. This may be an inconvenience to the tax payer, 
 but it is one for the Legislature to. remedy." 
 
 Secondly. — The objcction.s which, iiiulcr any 
 construction tliat may be .i,nvcn to tlic stattiie can 
 be m.ide to the report, so far as tlicy nia\- atl«rcl 
 oth(;rs than the party cf)niplainin.i:f. cannot 1)\ any 
 possibihty exceed the following :
 
 96 
 
 a. An objection by a land-owner, whose property 
 has been taken or damaf^ed, that his award is too 
 low, and asking to have it increased. 
 
 b. An objection by a land-owner, whose property 
 has been benefited, that his assessment is too high, 
 and asking to have it lowered. 
 
 c. An objection by a land-owner, whose land is 
 subject to be burdened with the cost, that a cer- 
 tain award of damages to another person is too 
 high, or a cerain assessment of benefits to another 
 person is too low. 
 
 d. An objection by any person in interest, that 
 the proceedings are irregular or void, and praying 
 that the whole report be refused approval or con- 
 firmation. 
 
 The question here arises : When a petition pre- 
 senting any of the objections above set forth is 
 filed, and the Board have taken issue thereon, is 
 there any means of giving notice of that proceed- 
 ing to the property-holders of the district, afford- 
 ing them a hearing therein ? And is there any 
 constitutional necessity for giving them such notice 
 and hearinof ? 
 
 The ground upon which these questions are 
 asked, is, as I understand it, this : First, if an 
 
 award of damages is increased, the burden upon 
 
 the assessed district is proportionally increased ; 
 
 and, therefore, every property-holder in the district
 
 97 
 
 has a right to be notified of the proceeding, and to 
 be heard therein. Secondly, if the assessment of 
 benefits of any one property-holder is lowered, the 
 burden upon the other property-holders of the dis- 
 trict is proportionally increased ; and therefore, 
 every property -holder in the district has a right to 
 a hearing on that point. Thirdly, if it is sought to 
 lower the award of damages, or to raise the as- 
 sessments of benefits of any one person, he is 
 entitled to be notified and heard in the pro- 
 ceeding, which diminishes his individual compen- 
 sation, or increases his individual burden. Fourth- 
 ly, if an attempt is made to dismiss the whole pro- 
 ceeding in the County Court, the property-holders, 
 who hav^e an interest in having the improvement 
 made, are entitled to be notified and heard. 
 
 I shall endeavor to answer these propositions 
 in the order in which I have stated them. 
 
 a. If it is urged that, whenever a person peti- 
 tions to have his award of damages for property 
 taken or injured increased, every property-holder 
 in the assessing district must be notified, and is 
 entitled to be heard. Yox the present, grant it. 
 The learned counsel for the jjlaintiffs contend that 
 the notice must be personal, (irant this, also. 
 With these principles established, l«:i us note the 
 result. There are, we will .say, five hundred [xr- 
 •sons to whom awards of damag^cs have been made,
 
 98 
 
 and there are two thousand property-holders, upon 
 whose kind assessments for benefits have been 
 laid. One of these first files his petition to have 
 his award raised, say from $5000 to $10,000. 
 We are now told that every one of the two thous- 
 and assessed persons of the district must be noti- 
 fied — personally notified — of this proceeding. In 
 compliance with this, a summons, bearing the 
 greeting of the sovereign people of California to 
 each of the two thousand by name, issues from the 
 County Court. The sheriff may possibly find 
 these two thousand persons in the State, and serve 
 them. I will assume that he does so. I will then 
 suppose that the same proceedings are taken with 
 reference to the five hundred claimants of damages. 
 The day of trial comes, and these two thousand 
 property-holders appear in Court, each by his own 
 attorney. The proceedings now go forwatd, with 
 the petitioners' attorneys on one side, and the at- 
 torney of the Board and the two thousand attor- 
 neys of the land-holders on the other. It is ans- 
 wered that this rediictio ad absurdum cannot hap- 
 pen. I ask, why not ? Because, it is said, it is 
 not presumable that each and every property- 
 holder will appear. But, by what right is it pre- 
 sumed that he will not ? Why does the constitu- 
 tion require, as it is claimed, that they should be 
 notified ? Because, they have an interest, we are 
 told. Why does the constitution guarantee them^,
 
 99 
 
 as it IS claimed, a hearing? In order to protect 
 their interests, we are told. Does the law which 
 requires notice and guarantees a hearing presume, 
 at the same time, that the notice will be unheeded 
 and the hearing unavailed of ? On the contrary, 
 the law summons parties into Court, presuming 
 that they will come. It promises to hear them, 
 presuming that they will speak. 
 
 The operation of this rule may be carried still 
 further. The award of. damages by the Board, 
 and its confirmation by the County Court, amount 
 to a condemnation for a public use of the property 
 taken. The assessed district must pay that award 
 in the shape of an annual tax. As the burden of 
 the tax will be in proportion to the award, we are 
 told that the tax-payers of the district have a right 
 to be heard in a proceeding which, by determining 
 the amount of the award, fixes the extent of their 
 burden. Now, suppose that the statute had made 
 the assessment district commensurate with the 
 city ; in other words, that it had enacted that the 
 cost of opening Du[jont Street should be borne 
 by the property of the whole municipality ; apply- 
 ing the principles contended for. ii wouKl be nec- 
 essary to give to each of the fifty thousand lax- 
 p^iyers of the city individual notice and opportuni- 
 ty to be heard. According to the constitutional 
 rules contended for, this result would be inevitable.
 
 lOO 
 
 Go one step further. ■ The State of Cah'fornia 
 institutes proceedings to condemn lands for a 
 prison, an asylum, a capit9l, or any other public 
 work. The whole property of the State must pay 
 the cost in the shape of a tax. Each tax-payer is, 
 of course, interested in the proceedings for con- 
 demnation ; for his b|Jrfden of taxation will be in 
 proportion to the awjard ^nade. According to the 
 principles contended for, each tax-payer in the 
 State mustj^bq^nd^vidually notified of the condem- 
 nation proceedings, and be afforded an opportuni- 
 ty to be heard therein. 
 
 These are the legitimate and unavoidable re- 
 sults of the constitutional guarantees, so much in- 
 voked in this cause. Here are proceedings con- 
 structed upon sound constitutional principles, as 
 expounded by the learned counsel for plaintiffs. 
 Every wheel, every belt, every shaft, every cog of 
 the machine is upon the most approved pattern. 
 It is constitutionally perfect, in the whole and in 
 every part. It has only one drawback : it will not 
 work. This, of course, is a very slight objection 
 to those who talk so eloquently about " Runy- 
 mede" and "Magna Charta" and the "great 
 swelling words of liberty which have been thun- 
 dered into the ears of tyrants by our English 
 speaking race"; but, still, it cannot but be admitted 
 that it is an objection.
 
 lOI 
 
 I mav be asked : Do you mean to denv that no 
 person can have his property taken from him, 
 either directly or by assessment, without being 
 notified, and, if he wishes, heard ? No, I do not 
 mean to deny it. But, I do mean to deny that 
 this vh^ht to protect his property must, in all cases 
 and under all circumstances, be exercised by him 
 individually, and cannot be exercised by repre- 
 sentation. I do mean to assert that, in the de- 
 termination of what shall or shall not be a public 
 charo^e, and the amount of that charg-e, the public 
 must, of necessity, act and be represented and 
 heard through public agents ; and each individual 
 member of the community cannot, from the very 
 nature of the case, personally appear and be indi- 
 vidually heard. The right to be notified and 
 heard is not denied, thoufyh its exercise be not 
 granted to each person individually ; the right is 
 exercised by each, in the only way that it can be 
 exercised, when all appear collectively by their 
 agent and representative, legally constituted and 
 appointed for that purpose. 
 
 For instance: when the .State institutes con- 
 demnation proceedings, the cost of which is to 
 fall upon every taxpayer of the .State, each lax- 
 payer is uiujuestionably iiitercstetl in having the 
 cost reduced to a miin'mum; and, as his j)n)[>crly 
 is to be burdened with the cost, he h.is a right to
 
 I02 
 
 be heard in the proceeding. But, as the nature 
 of the case makes it impossible for each to be 
 heard individually, the right, like all other rights 
 which are common to the whole people of the 
 State, must be exercised by representation. The 
 officers of the State, conducting the proceedings, 
 represent all the taxpayers of the State. Through 
 them, each and every taxpayer is heard and pro- 
 tected. So, where the City is condemning lands 
 for a street or any other public use, where the 
 cost is to be borne by the whole City, the officials 
 constituted by law to conduct the proceeding 
 represent therein each and every taxpayer in the 
 City, and protect and enforce the right of each to 
 have the common burden made as light as may 
 be. The same is true, where the cost is to fall 
 upon a more restricted district than the whole 
 City, The legally constituted agents authorized 
 to represent and act for the district do represent it 
 and act for it in all matters which are common to 
 the whole district. The individual property-holder 
 in the district is entitled to be individually heard 
 in all matters which affect him individually as dis- 
 tinguished from the rest; but, where his interest is 
 common with that of all the other members of the 
 district, all must be represented and act in com- 
 mon. And that can only be done through the 
 public agents authorized to act and speak for the 
 common cause.
 
 I03 
 
 In this case, for instance, when a person filed 
 his petition to have his award of damages increased, 
 he was obh'ged to cite the Board to appear and 
 answer. When the Board so appeared, the an- 
 tagonistic interests of the contest were brought 
 face to face— the individual, representing himself 
 alone, seeking to have his individual compensation 
 increased, the Board, representing the common 
 interest of the district, seeking to have it reduced 
 to a minimum. Thus, both sides were represented 
 and heard in the only way in which, in the nature 
 of things, they could be. 
 
 People vs. Smith, 21 N. Y., 595.. was n 
 certiorari to review the order of a County 
 Judge, setting aside an order of the Commission- 
 ers of Highways of the town c>{ Rivcrhead, on 
 Long Island, refusing to lay out a highway. The 
 statute under consideration provided that "the 
 Commissioners have power to lay out new roads, 
 without the consent of the owners of ilic land 
 through which they may run. upon the petition of 
 twelve freeholders." Nothing is said as to their 
 giving notice to anyone of the hearing of the ap 
 plication before them. Kvcry person conc(.-iving 
 himself aggrieved by a determination of the com- 
 missioners, cither in laying out, or refusing to lay 
 out, a highway, may ai)peal to three judges of the 
 Court of Common Pleas, or, nn<lrr the present
 
 I04 
 
 Constitution, to the County Judge. Where the 
 
 determination appealed from is against an appH- 
 
 cation for hiying out a road, the judge is to give 
 
 notice of the time and place of hearing the appeal 
 
 to the Commissioners by whom such determination 
 
 was made, and the proofs and allegations of the 
 
 parties are then to be heard. 
 
 "It will be thus seen," said Denio, J., p. 597, "that the only 
 notice which the statute requires to be given, in a case like the 
 present, is of the time and place of hearing the appeal, and that 
 such notice is only required to be given to the Commissioners 
 who made the order appealed from." 
 
 The sole error relied on was that no notice of 
 the proceedings on the appeal were served on the 
 relators, who were interested parties, and no notice 
 of the hearing before the County Judge. 
 
 By the Court (p. 599): 
 
 "The appropriation of the property is an act of public admin- 
 istration, and the form and manner of its performance is such 
 as the Legislature shall, in its discretion, prescribe. In the case 
 before us, the Act declares that the Judge shall give notice to 
 the Commissioners of Highways whose order is appealed from, 
 and it is silent as to notice to any other person. The appellants 
 and the Commissioners are the only parties who are required to 
 be convened on the hearing before the Judge, or to have notice 
 of that hearing, and it is their proofs and allegations only which 
 the judge is obliged to hear. It was doubtless considered that 
 the Commissioners, who had officially decided against the act 
 which the appellants were seeking to promote, would sufficiently 
 represent the views on that side of the question." 
 
 Burnham vs. Goffstown, 50 N. H.. 560, 563. 
 To proceedings for laying out a highway and
 
 IC5 
 
 apportioning the expense thereof between two 
 towns, one Cheney, a taxpayer of one of the 
 towns, after the order laying out had been made, 
 interposed an objection that the appointment of 
 the Commissioners was not authorized by law, and 
 that they had made a mistake in apportioning the 
 expense of the road to the towns. When the 
 Commissioners were appointed, the towns were 
 present by counsel, and did not object. Said the 
 Court: 
 
 "Mr. Cheney, who seeks to come in as a taxpayer, has no 
 right to appear and no claim to be heard, either in Court or 
 before the Commissioners, except as one of the public. His 
 interest is too remote ; he is represented, as are all other tax- 
 payers in the toion, by the town, which is the body, the aggre- 
 gation of all the taxpayers and voters and citizens 7vho reside 
 in it. The toivn is represented here, and that is all the rep- 
 resentation to which the tuxpayers as such are entitled.'''' 
 
 I conclude, therefore, that, in the first case sup- 
 posed, where a person sought to have his award 
 increased, the right of the property-holders of the 
 district to be notified and heard was exercised 
 through their representatives, the Board of Com- 
 missioners, and that there was no rnnstitutinnal 
 necessity for notifying and hearing each ol ihcm 
 personally and individually. 
 
 I). It is next urged thai, whene\'cr a land-holder 
 whose property nas been benefited comi)laiiis that 
 his assessment is too high and asks to li;i\c it
 
 io6 
 
 lowered, every other land-holder in the district is 
 entitled to be notified and heard, because the low- 
 ering of any one assessment necessarily increases 
 all the others. 
 
 The answer which I have given to the first ob- 
 jection is applicable here. The whole district 
 has a common interest in resisting an application 
 to lower an assessment. That common interest 
 is represented by the Board of Commissioners, 
 who must be notified of the application, and may 
 appear in Court and resist it. The right of each 
 taxpayer to be notified and heard in the common 
 cause, is exercised through these legally appointed 
 representatives. So far as I have been able to as- 
 certain, it has never been the practice in any 
 statute, which gives any party aggrieved the right 
 to apply to have his own assessment reduced, to 
 make the other parties to the assessment, parties 
 individually to that particular proceeding. Take 
 it in the case of general taxation: A taxpayer ap- 
 plies to the County Board of Equalization to have 
 his assessment reduced. The Board appoint a 
 time to hear his application. The Statute does 
 not provide for giving to the taxpayers of the 
 county, individual notice of that proceeding. And 
 yet, in a certain .sense, every taxpayer in the 
 county has an interest in the matter, for, in pro- 
 portion as each assessment is diminished, the rate-
 
 I07 
 
 of taxation necessary to raise the requisite re\''- 
 enue must, proportionally, be increased. 
 
 Again : The State Board of Equalization may 
 raise the assessment af any County in this State. 
 *' When they raise it in any County, they neces- 
 sarily raise it on the property of every individual 
 who awns any in that County. Must each of them 
 have notice and a separate hearing ? * '- '"" 
 If this be so, the expense of giving notice, the 
 delay of hearing each individual, would render the 
 exercise of the main functions of this Board im- 
 possible," ^ 
 
 Again : In Swamp Land Reclamation Dis- 
 tricts, each land-holder may resist in Coiu't the col 
 lection of his assessment, urging thai it is ex- 
 cessive. If all the other land-holders in the 
 district have paid their assessment to tlie Count) 
 Treasurer, they are, of course, interested in defeat- 
 ing this resistance ; for. if the defense is successful, 
 the burdens upon the rest will be proportional!) in- 
 creased, since, if the original assessment turn out 
 insufficient, the Supervisors may order additional 
 assessments." Yet, the .Statute provides no ma- 
 chinery for bringing anyone into Court, except 
 the immediate party to the action. 
 
 The reasons which I have hereinabove given, 
 obtain here. When an iii(h'vidual ajjph'es U) the 
 
 1 .Stale R. K. Tax Cases, 92 U. S., 609. 
 
 2 Hager z/j. Reclamation Dist., Ill U. S.
 
 io8 
 
 County Board of Equalization to have his assess- 
 ment lowered, the interest of the other taxpayers 
 of the County to resist him is common to them 
 all. That right they cannot be individually noti- 
 fied of, in every given instance, nor can they each 
 individually exercise it. They must exercise it by 
 delegation and representation. They do ex- 
 ercise it, and receive the full protection of it 
 through their authorized representatives, the 
 Board itself. So, in the case of the Swamp land 
 district. The district, which brings the action 
 against the delinquent, represents each and every 
 individual taxpayer of the district, in that 
 which is of common interest to them all — the col- 
 lection of a tax which goes into the common fund. 
 Each and every right which is common to all the 
 taxpayers of the district, is represented and en- 
 forced by the agents of all — the plaintiffs in the 
 action, 
 
 I conclude, therefore, that, in a proceeding by an 
 individual proprty-holder in the district, to have 
 his assessment of benefits reduced, the other 
 land-holders of the district have no rigrht to be in- 
 dividually notified or heard. 
 
 c. It is next urged, that, where a person in 
 interest applies to have an award of damages made 
 to another lowered, or an assessment made against 
 another raised, the person thus attacked is entitled 
 to be notified and heard.
 
 109 
 
 If such a proceeding as is here contemplated 
 can, under the statute, be taken and entertained, 
 I would not deny that the person thus adversely 
 moved upon should be notified and heard; for, this 
 is an attack upon him individuallv, affectinof nn 
 interest peculiar to himself, and not common to 
 him and the rest of the district, and in which, 
 therefore, the Board do not represent him. But 
 I answer- : 
 
 The statute permits no such proceedings ; nor 
 is it, under the Constitution, required to do so. 
 The Constitution does not guarantee to any person 
 the rio^ht to be heard in fixinij the assessment of 
 any other person, or the amount awarded him lor 
 property taken or damaged in the exercise of the 
 riofht of eminent domain. In that he has no in- 
 dividual interest. Mis interest is common with 
 that of all the others of his cla.ss, I f the assessment 
 is too low, it does affect him in making his own bur- 
 den proportionately greater ;" but it aflects all the 
 other taxpayers in the same way. II fheawanl is 
 too hUrh, it docs affect him in makiiv' his share of 
 the payment proportionately greater; l)ul it alfecls 
 all others who are to pay in the same way. In 
 either event, the interest bf'ing common to all. 
 it must be reprc;senled l>y all, and is re[)resenled 
 l)y the |)nblic agents who make the asscs.sment or 
 award the damages. To hold otherwise, would 
 be to give every taxpayer in the comnnmity a cou-
 
 I lO 
 
 stitutional riijht to contest every assessment upon 
 the tax roll, and to be made a party to every con- 
 demnation proceeding. 
 
 Nor does the statute require it. It gives the 
 right to appear to a person " feeling himself ag- 
 grieved by the action or determination of said 
 Board," to set forth his objections. But, that 
 grievance must be one personal to himself, one in 
 v^hich he has a direct, not a remote interest. 
 
 The principle is recognized in the case of Fagan 
 
 vs. City of Chicago, 84 III, 227, 235, vi^here it was 
 
 said : 
 
 " We see no objections to the Court below confining the ex- 
 amination of the witnesses to a comparison of the assessments 
 objected to on a particular lot, with the general assessment 
 against all of the other lots. The question being tried was what 
 proportion the assessment on the particular lot bore to the as- 
 sessment imposed on all of the other lots, and not as to that on 
 another specified lot. It was, whether the particular lot was 
 over or under assessed in proportion to the general assessm-ent. 
 It would seem, that no person could imagine that if it could be 
 shown that of perhaps a thousand lots, assessed in this case, one 
 was rated too low, the whole assessment should be held invalid. 
 To so hold, would be to thwart the purpose the General Assem- 
 bly had in view when this enactment was adopted. Nor, would 
 it be practicable to permit each attorney representing each ob- 
 jector, to examine every witness, so as to compare the assess- 
 ment of the lot for which objections were filed, with every other 
 lot assessed." 
 
 Also in Clapp vs. Hartford, 35 Conn., 66, 76* 
 
 where the Court said : 
 
 " In making the apportionment ( of the assessment ) however, 
 it may sometimes happen that injustice will be done to one or 
 more individuals. The remedy is by appeal to the Judge of the
 
 I r [ 
 
 Superior Court. The obvious imixDrt of the charter is, that the 
 appeal carries up, not the whole apportionment, but simply the 
 apportionment to the ap^jellant. The appeal is allowed ' to any 
 person aggrieved,' and notice must be served upon the City 
 Clerk. The city and not the other i^ersons benefited, is the ad- 
 verse party. If the Legislature had intended that there should be 
 a general re-apportionment upon the appeal, it is fair to presume 
 that provision would have been made for notifying the others 
 interested, as they would, in that event, seem to have a greater 
 interest in the question than the city. Indeed, the city would 
 hardly be interested at all, as it would be immaterial to it who 
 paid the assessment, or in what proportion it was paid. The 
 fact that the charter makes the city the only appellee, is suffi- 
 cient evidence of an intent that the apj^eal should not disturb 
 the assessment upon others, and that the Appellate Court should 
 be limited to re-assessing benefits to the apjiellant. In this view 
 of the case, it is apparent that the charter must have contem- 
 plated a reduction of the assessment upon the apiJellant, and a 
 conse([uent reduction of the whole sum assessed, otherwise the 
 appeal could be of no benefit to the party aggrieved." 
 
 But if it were true that Ijoth the Constitution 
 and the statute give a person the ri^ht to object 
 to the report in the respects above pointed out, 
 then the law does provide the machinery for giv- 
 ino- notice and a hearins^ to the person whose as- 
 sessment or award is thus attacked. 
 
 If the statute contemplates that the award made 
 to A by the report may, upon pc^tiiion ol H. be 
 raised by the County Court, and the Court cannot 
 constitutionally thus raise it. without givin.Lj: A 
 notice and an oiJi>f)rtunity to be heard (ami 1 ad- 
 mit it cannot), then the statute contemplates — e\-en 
 though it may not, in t(;rms. so provide — ^that the
 
 112 
 
 Court shall have power to give A appropriate no- 
 tice and hearing. 
 
 In a case in Connecticut,' where the statute 
 provided that any Judge of the Superior Court 
 might, upon the appHcation of one partner, ap- 
 point a receiver, to hold and dispose of the estate 
 of the partnership, the Court held that such an 
 appointment could not be made without notifying 
 the other partners and giving them an opportunity 
 to be heard. The Court said: 
 
 "A receiver was appointed forthwith upon the application. No 
 notice whatever of the proceeding was given to the adverse party 
 in interest prior to the appointment. * * * We must hold 
 this law to be a nullity, if it authorizes such proceedings." ' ' 
 
 Now, the statute did not, in terms, require no- 
 tice, but the Court held that it must be implied 
 that, since notice was necessary, the Legislature 
 intended that notice should be given, and that the 
 Court had power to give it. The Court said : 
 
 "It is true that the statute does not, in terms, require notice 
 to be given, but * * * vve cannot suppose that such powers 
 should be exercised without notice, without the knowledge even 
 of those most interested. * * * We prefer, certainly, rather 
 to give it such a construction as to require notice to parties 
 interested." 
 
 The Court reversed the order appointing the 
 receiver, on the ground "that there was no notice 
 to the adverse party." 
 
 The same doctrine is laid down in the case of 
 
 I Bostwick vs. Isbcll, 41 Conn., 305.
 
 113 
 
 Wilson vs Karle, 42 N. J., 61 2, 613 ; where it was 
 
 said : 
 
 "There can be no doubt, that, in all such cases," (where a 
 special body, such as commissioners of estimate and assessment, 
 qualified to perform a quasi judical function, are authorized to 
 decide some matters affecting pecuniary interests,) "the persons 
 whose interests are to be passed upon, should have the offer of 
 a hearing, for this is one of the dictates of natural justice. So 
 entirely is this the case, that whenever a statute has empowered 
 such judical acts to be performed, and has been silent with re- 
 spect to a notification to the persons interested, the necessity to 
 give such citation has invariably been imported in such legisla- 
 tion by judicial intendment. There are a number of decisions 
 in this State maintaming in emphatic terms, this doctrine." 
 
 So, also, in the late decision of the Supreme 
 Court of the United States in the Kentucky Rail- 
 road Tax Cases, i 15 U. S., 321, 334. There the 
 assessment of the railroads was brouLj^ht for review- 
 before a Board of Railroad Commissioners, who 
 sat as a Board of Equalization and corrected and 
 equalized the valuations. It was urged that no h(.'ar- 
 incr was accorded the railroad companies by the 
 statute, under which the taxes were levied, ami that 
 it was hence unconstitutional as depriving them of 
 their property without due process of law. lUit, 
 
 the Court said : 
 
 "If the plaintiffs in error have the constitutional right to such 
 hearing, for which they contend, the statute is pro|)crly to be con- 
 strued so as to recognize and respect it, and ncA to deny it. The 
 Constitution and the statute will be construed together as one 
 law. Ihis was the principle of construction applied by this 
 Court, following the decisions of the State Court in Ncal vs. 
 Delaware 103, N. S., 370, where words, denying the right, were 
 regarded as striken out of the State Constitution and statutes
 
 114 
 
 by the controlling language of the Constitution of the United 
 States. And in the case of Cooper vs. The Watidsworth Board of 
 Works, 14 C. B. U. S., 180, in a case where a hearing was 
 deemed essential, it was said by Byles J., that 'although there are 
 no positive words in a statute requiring that the party shall be 
 heard, yet the justice of the common law will supply the omis- 
 sion of the Legislature ' " 
 
 If ic be coacedeJ, in this case, that the County 
 Court has power — ^jurisdiction — to raise the assess- 
 ment or lower the award of any person on the 
 appHcation of another, an J that this power cannot 
 be rightfully, constitutionally exercised without 
 giving the person attacked notice and a hearing, 
 then the law (though this particular statute be 
 silent on the subject) gives the Court the power to 
 give appropriate notice and hearing. In this 
 State, "when jurisdiction is, by any statute, con- 
 ferred on a Court, all the means necessary to carry 
 it into effect are also given; and, in the exercise of 
 the jurisdiction, if the course of proceeding 
 be not specifically pointed out by the statute, any 
 suitable process or mode of proceeding may be 
 adopted which may appear most conformable to 
 the spirit of the Code of Civil Procedure."' 
 
 This provision has been frequently applied 
 where a law conferred a jurisdiction, but pro- 
 vided no manner of exercising it.^ 
 
 C. C. p.. Sec. 18. 
 2 Mawson vs. Mawson, 150 Cal., 539. 
 Estate of McCauley, Id. , 544. 
 Thompson vs. White, 63 Cal., 505.
 
 115 
 
 I conclude, thetefore, first, that the Constitution 
 does not require, and the statute does not grant, 
 the right to one land-holder in the district to at- 
 tack, individually, the assessment or avvard made 
 to any other land-holder; and, secondly, if it does, 
 the law provides that the Court may, by appropri- 
 ate process, bring the parts" thus attacked into 
 Court. 
 
 d. If any person in interest should petition the 
 Court to dismiss the whole proceeding, on the 
 ground of want of jurisdiction, or for fraud, or any 
 other cause, must all the other jxirsons in tlic dis- 
 trict be individually notified? If the principles 
 which I have hereinabove sought to maintain are 
 sound, it is clear that they need not. It is evident 
 that, in resistincr ^^n attack of this kind, the Hoaril 
 of Commissioners represent the common interest 
 of the whole district. 
 
 I submit, therefore, that notice is provided for 
 every possible contingency, and that the objection 
 of the plaintiffs, thai the statute is unconstitutional, 
 because it does not afford the parties in interest 
 the notice to which they arc; eiuillfd, is uiitcnabh'. 
 
 The opinion of Mr. Justices McKee, in Mn/it'oait 
 vs. Smith, is quoted at length as "sht>vving conclu- 
 sively that the notice provided for was not due 
 notice or due 'process of law.'"
 
 ii6 
 
 As I understand that opinion, it is not a deci- 
 sion that the twenty days' notice, required by sec- 
 tion seven, is not a sufficient notice of a hearing 
 before the County Court, but simply that the tax- 
 payer never had notice, nor an opportunity to be 
 heard anywhere, upon the question of the suffi- 
 ciency of the petition presented to the Mayor, 
 and, consequently, could not be bound by any 
 adjudication determining the petition to be suffi- 
 cient. Nowhere in the opinions delivered, either 
 by the learned Justice, nor by Justices. Sharpstein 
 or Ross, do I find it stated that, if a proper peti- 
 tion had been presented to the Mayor, the notice 
 provided by section seven would not have been 
 due notice to the taxpayer. 
 
 There is no doubt that Mr. Justice McKinstry 
 does so decide, citing Stuart vs. Palmer, 74 N. 
 Y., 183; Murray's Lessee vs. Hoboken, 18 How., 
 272 ; Cooley on Tax., 266. 
 
 The first two decisions do no more than recog- 
 nize the general rule, that, in proper cases, notice 
 must be given. 
 
 The passage in Cooley reads : 
 
 " It is not customary to provide that the tax-payer shall be 
 heard before the assessment is made, but a hearing is given after- 
 wards, either before the Assessors themselves, or before some 
 Court or Board of Review. And of the meeting of that Court 
 or Board, the tax-payer must, in some manner, be informed, 
 either by personal notice or by some general notice which is
 
 117 
 
 reasonably certain to reach him ; or, which is equivalent, by 
 some general law which fixes the time and place of meeting, and 
 of which he must take notice." 
 
 The general notice which the learned author is 
 here speaking- of is. doubtless, a published notice, 
 such as is provided for in the present statute. 
 Such a notice is sufficient process to subject the 
 party to the action of the Court, provided it fixes 
 the time and place of the meeting of the Court, 
 or the time and place are fixed by some general 
 law. 
 
 Apply these principles to the present case : The 
 tribunal before which the tax-payer is authorized 
 by the law to appear is the County Court. The 
 time and place of the meeting of that Court are 
 fixed by general law. The time in which the tax- 
 payer may appear and file his petition for relief in 
 the Court, is thirty days from the first publication 
 of a " general notice which is reasonable certain 
 to reach him." Of course, after the taxpayer has 
 filed his petition, he becomes a litigant in Court, 
 and, like any other litigant, must give \\vx'.(\ to the 
 calendar of the Court, in order to learn when his 
 cause comes on for hearing. 
 
 I humbly submit that the process afforded by 
 the statute is entin-ly in accord with tlie doctrine 
 of the foregoing passage of Cooley.
 
 ii8 
 
 III. The Hearing Provided by the Statute 
 IS Sufficient to Satisfy Every Constitu- 
 tional Requirement. 
 
 I. It is urged that the parties in interest had a 
 constitutional right to be heard upon the question 
 whether the improvement should be made or not. 
 It is claimed that proceedings for the widening or 
 opening of streets, where private property is to be 
 condemned for a public use and the cost is to be 
 laid upon a given assessment district, are judicial 
 in their character and can not be inaugurated with- 
 out giving the persons whose property is to be 
 taken, or made to bear the burden an opportunity 
 to be heard upon the question. It is insisted that, 
 the Dupont Street Act gives no opportunity for 
 such hearing and is, therefore, unconstitutional. 
 
 To this there are two answers : 
 
 First. — The parties have no constitutional right 
 to be heard upon the question of the propriety or 
 advisability of making the improvement. That 
 question is not, in that sense, a judicial question. 
 
 This proposition has been established by abund- 
 ant authority : 
 
 Pearson vs. Lable, 78 Ky., 170, 173, was an 
 action to recover the amount apportioned against 
 certain property benefited by a street improve- 
 ment. The defendants urged that the property 
 received no benefit.
 
 119 
 
 Said the Court: "Whether the property within the tax dfs- 
 trict, considered as an entirety, will be benefited by the proposed 
 improvement is a question to be decided primarily by the Leg- 
 islature. And when that department, whether acting directly or 
 through the local authorities, to which it may have delegated the 
 power to determine when such improvements shall be made, di- 
 rects an improvement to be made, and the cost of making it to 
 be assessed upon adjacent property, there is a decision by the 
 Legislature that the property within the district will be benefited 
 This decision will generally be final and conclusive upon the 
 question of benefits to the district as a whole, and also that pulu 
 lie convenience demands that the improvement />e made." 
 
 In matter of Zborowski, 68 N. Y.,88, 97, which 
 
 was an application to vacate an as.ses.sment for 
 
 sewerage purposes, the Court said : 
 
 " Another point made is that no notice of the purpose to huilJ 
 this sewer was given to the appellant before the work was begun 
 and finished. * * * It may be conceded that 
 before an assessment for the expenses of the work is laid, those 
 who are to be affected thereby shall j-ave notice and oppor- 
 tunity to be heard. It is not alleged in this ca.se, that it was 
 otherwise than that. The complaint is that no notice was given 
 of the purpose to build this sewer. We do not think that 
 notice was a legal prerecjuisite." 
 
 In matter of De Peyster, 68 N. ^^, 88, 97. the 
 
 decision In R(; Zborowski was recos/ni/.ed and fol- 
 
 lowed upon the point tliat " a determination of a 
 
 mimicipality to ent(.'r ujion a work of local im|)r()V('- 
 
 nient is not invalid for lack ol prior notice to 
 
 owners of projjc.rty to ix; a(l(!Cted, ol an intention 
 
 so to do." 
 
 J/oli vs. The City, 127 Mass., 408, 
 
 Certiorari to quash the j)roceedinL,^s of a City
 
 I20 
 
 Council in laying out and constructing a public 
 
 park. 
 
 "It is contended," said the Court, "that the parties assessed 
 were entitled to notice of the intention to levy the assessment, 
 and opportunity to be heard, and that those whose lands were 
 taken, were entitled to notice of the taking. But the Statute 
 does not require notice either of the taking or of the intention 
 to levy the assessment, and the rights of those whose lands are 
 taken, or whose property is assessed is amply secured by the 
 opportunity to appeal to a jury if they are dissatisfied. Upon 
 the question of the necessity of taking private property for public 
 use, parties interested have no constitutional right to be heard. 
 The authority to determine that question is in the State, or in 
 tribunals to whom the State has delegated the power. The ap- 
 propriation of the property is an act of public administration, 
 and the form and manner of its performance is such as the Leg- 
 islature may, in its discretion prescribe. * * * In 
 the exercise of the right of eminent domain, the power to take 
 private property for a public park is not open to question. 
 There are considerations affecting the health and comfort of a 
 dense population, which the Legislature in such cases may well 
 regard as sufficient to create the public necessity. Its judgtnent 
 as to the existence of the exigency, ivlien fairly exercised, is not 
 to be revised by the Courts. " 
 
 ,Bj^ewste7^\s. Syracuse, 19 N. Y., 116. 
 Action to enjoin the collection of a special assess- 
 ment for constructing a sewer, to which a de- 
 murrer was interposed and overruled, the defendant 
 appealing. 
 
 Said the Court : " It would * have been within the clear 
 authority of the Legislature, to have authorized the City govern- 
 ment of Syracuse, without the consent of any person specially 
 interested, to construct the sewer, and to assess by way of tax, 
 the expenses on such persons as ought, in the judgment of the 
 Legislature to bear that burden, and it does not at all follow from 
 the fact that the Charter of Syracuse required as a preliminary
 
 121 
 
 lo the action of the Common Council that the consent of a ma- 
 jority of the property-owners to be benefited should first be ol> 
 tainedjthat the contract entered into by the City with the'construct- 
 ors of the sewer, is to be deemed a contract between the j^roperty- 
 owners and the constructors. The property-ownerswere not in 
 any sense parties to the contract. Their cons.^nt to the building 
 of the sewer, though a necessary condition to the exercise of the 
 power actually conferred by the Legislature on the City Govern- 
 ment, \\a.% not at all necessary to the complete authority of the 
 Legislature over the whole subject. The taxation of the indi- 
 viduals interested in regard to this sewer stands on the same 
 footing as all other taxation by authority of the Legislitture.'' 
 
 In People vs. Smilh, 21 N. Y., 595, which was 
 
 a petition for certiorari to review procef^'dirtg^'in 
 
 laying out a highway, the Court said: ' '^^' 
 
 " The question is, whether the State in the exercise of the 
 power to appropriate the property of individuals to a publiq use, 
 where the duty of judging of the expediency of making (he ap- 
 propriation in a class of cases is committed to public officers, is 
 obliged to affoid to the owners of the property an opportunity 
 to be heard before those officers, when they sit for tlie purpose 
 of making the determination. I do not si)eak now of the i)ro- 
 cess for arriving at the amount of compensation to be paid to 
 the owners, but of the determination whether undi^-r the circum. 
 stances of a particular case, the property re(iuired for the purpose 
 shall be taken or not, and 1 am of opinion that the Stale is not 
 under any obligation to make provision for a judicial contest 
 upon that question. * * The necessity for appropriating 
 private property for the use of the public or of the Government 
 is not a judicial question. The power resides in the Lcgislalute. 
 It n.ay be exercised by means of a statute, whicli .shall at once 
 designate the property to be appropriated, and the purpose of 
 the appropriation, or it may be delegated to public officers, or 
 as it has l>ecn repeatedly held, to private corporations estab. 
 lished to carry on enterprises in which the public are interested. 
 * 'ITiere is no restraint upon the power, except that requiring 
 compensation to be made. * * It (the Legislature) may al. 
 low the owner to intervene and participate in the discussion be-
 
 122 
 
 fore the officer or board to whom the power of determining 
 whether the appropriation shall b j made in a particular case, or 
 it may provide that the officers shall act upon their own views 
 of propriety and duty without the aid of a forensic contest. The 
 appropriation of the property is an act of public administration, 
 and the form and manner of its performance is such as the legis- 
 lature shall, in its discretion, prescribe." 
 
 Ice Works vs. City of Lockpor^t, 28 Hun., g, an 
 action to recover back money paid under an assess- 
 ment for the construction of a sewer, which was 
 claimed to be invahd, because the ordinance 
 authorizing the work was passed without notice to 
 the plaintiff and without affording her an oppor- 
 tunity to be heard, it was said : 
 
 " As to the want of notcie, it is true that no notice was given 
 of the action of the Common Council in defining the real estate 
 which they deemed benefited by the proposed improvement ; 
 nor do we understand that such notice is requisite under the 
 charter. * The only notice required by the charter is of the 
 assessment, and that was given in the mode prescribed. * * 
 Where notice of the assessment is provided for, we are not 
 aware that an omission in the statute to provide for notice of the 
 preliminary proceeding defining the area to be benefited by the 
 proposed improvement, has been held to render the statute un- 
 constitutional.'' 
 
 The plaintiffs rely for support upon a couple of 
 cases in New Jersey. These cases stand alone. 
 They proceed upon the assumption that proceed- 
 ings for opening or widening streets are strictly 
 judicial in their charter. This contention is disposed 
 of bv the remarks of the Court in matter of 
 Zborowski 68 N. Y., 97, where it is said :
 
 123 
 
 "The appellant cites authorities from which we will not dissent, 
 that no judicial proceedings can be taken by which the property 
 of any one will be affected, without notice first given him. He 
 also cites authorities from which we will not dissent, that muni- 
 cipal bodies, in devising the plan of street and other improve- 
 ments, act judicially and not ministerially. We conceive that 
 the phrase "judicial " is not used in the same sense in the two 
 classes of cases. In the first class, the term is used of such 
 bodies or officers as have the power of adjudication upon the 
 rights of persons and property. In the second class, it is used 
 to express an act of the mind or judgment upon a proposed 
 course of official action as to an object of corporate power, for 
 the consequences of which the official will not be liable, though 
 his act may not be well judged, as differing from a ministerial or 
 physical act of an official, for which, if negligently' done, he or 
 his superior will be held to answer. We do not think ihat the 
 determination of a municipality to enter upon a work of local 
 improvement is invalid for the lack of prior notice of intention 
 so to do, to the owners of property to be affected." 
 
 Secondly.— \{ the parties were entitled to be 
 heard before the Board of Supervisors upon the 
 question of the expediency ot ordering the im- 
 provement, then, they had both notice and oppor- 
 tunity of such hearing. The ordinance declaring 
 the intention of the Board to proceed with the im- 
 provement was published for five days after it IkuI 
 passed to print and befon! it was hnally ailoplctl. 
 The sole object of this publication was to give no- 
 tice of the contemplated ad ioii of ih<' I'oard and 
 to aFf(jrd all parties an (Ji)porliniiiy to appeal- at 
 the n(^\t meeting and be heard uiK)n llu! subject 
 of the final passage of the ordinance. 
 
 2. It is ne.xt contended by the learned counsel
 
 124 
 
 for the plaintiffs in their brief in reply, pp. i8 and 
 25, that " the property owners affected by this as- 
 sessment, were entitled to be heard before the 
 Commissioners, or before the County Court, upon 
 the question as to whether or not the Commission- 
 ers were invested with jurisdiction and authority to 
 make the assessment, by the passage of a proper 
 resolution or ordinance by the Supervisors and by 
 the other preliminary steps required to be taken 
 before the assessment was made ;" they " had a 
 right to be heard as to the validity of the statute 
 authorizing the assessment, the authority of the 
 Board to make it, their fraud, misconduct and 
 errors in making it, the equality and fairness of it, 
 and the justice and propriety of the changes made 
 in it after it was reported, so far as it affected his 
 liability. '" * ^ To do complete jus- 
 
 tice, therefore, and to constitute due process of law, 
 the right of each property-owner to be heard 
 should have been continued until the final confir- 
 mation of the report." 
 
 The learned counsel contend that the Dupont 
 Street Act denies this hearinii and is, therefore, 
 "an unconstitutional and void act." 
 
 To this I answer : 
 
 I fully admit the right of the parties in interest 
 to the complete hearing which the learned counsel 
 claim for them. I fully admit their right to such 
 hearing before judgment is pronounced against
 
 12 
 
 them condemning their property for a pubhc use, 
 or burdening it with the cost. I fully admit that, 
 before the County Court, the parties were entitled 
 to be heard if they so desired, to urge in opposition 
 to a confirmation of the report, that the Statute 
 was invalid ; that the Board of Supervisors had 
 not passed the requisite ordinance or resolution 
 which was to inaugurate the proceedings ; that 
 the Commissioners had not acquired jurisdiction 
 of the matter ; that the assessment was tainted 
 with fraud; in fine, anything which would impeach 
 the validity, legality or justness of the assessment, 
 and would be a reason for denying its approval or 
 confirmation. 
 
 Hut, I do not assent to the contention that this 
 full and complete hearing is denied by the Statute. 
 On the contrary, there is not a wonl in the Stat- 
 ute evincing any intention on the part of the Leg- 
 islature to restrict or take away the right to this 
 complete hearing. If the right to this hearing is, 
 as plaintiffs contend, a constitutional riglii, ih<; 
 mere silence of the Statute does not take it away 
 or abridge it. The Constitution and the .Statute 
 must be read togeth(;r ; and ilic rights guarain<;ed 
 by the higher, helel to be blended with and insep- 
 arable from those conferred by the inferior law. 
 
 This proposition has b(;en already sutficiently 
 elaborated, and it is unnecessary to dwell upon it 
 further.
 
 126 
 
 The uniform practice in the Courts of San Fran- 
 cisco, in cases like the present, has been to hear 
 the parties in interest upon all the points enumer- 
 ated by counsel here ; and the cases are numerous, 
 in which proceedings similar to these have been 
 quashed by the County Court on the ground that 
 the Statute was unconstitutional, or the procedings 
 void for want of jurisdiction, or irregular and 
 violative of the provisions of the law, and the 
 like. 
 
 Indeed, in this very case, it was considered by 
 everybody that all possible objections tending in 
 any manner to show the illegality or injustice of 
 Commissioners' proceedings could be urged in the 
 County Court against the confirmation of their re- 
 port. By referring to the transcript we find that, 
 on the 20th of October, 1876, James Phelan, by 
 his attorneys, Jarboe & Harrison, filed his object- 
 ion to said report on the grounds that : ist. " The 
 Board of Supervisors had never, by resolution or 
 order, expressed, in any form, that it was their 
 judgment that it would be expedient that Dupont 
 Street be widened," &c. 2nd. "The said Board 
 of Dupont Street Commissioners have never pub- 
 lished the notices provided by Section One of said 
 Act." &c. 3rd. " Nine per cent, and upwards of 
 the entire cost of the proposed improvements, for 
 conjectural expenses that may never arise, and 
 which are not shown to have any foundation in
 
 127 
 
 fact, or to be based upon any fact or principle, is 
 greatly in excess of what ought to be allowed," 
 &.C. 4th. " The assessment or appraisment of ben- 
 efits against ^ * *" petitioner as shown 
 by the said report is unjust, relatively unequal to 
 the amount assessed to other lots,"&c. 5th. "The 
 Act of the Legislature under which the proceed- 
 ings of said Commisioners have been taken is un- 
 constitutional and void," &c. [Trans., pp. 266, 
 277.J 
 
 On the same day, a similiar petition was filed on 
 behalf of Thos. Blythe, by H. H. Haight. his at- 
 torney, [Trans., pp. 277-286,] and by various 
 other parties. [Trans., 286-305.] 
 
 Some of these objections were deemed by the 
 Court well founded. Others were thought ill 
 founded and, therefore, overruled. [Trans., pp. 
 308-316.] 
 
 It appears, therefore, that, in j^racticc, both 
 bench and bar concurred in o-iviiiLT to this Act such 
 a construction as would afford objecting [)arli(:s 
 ihe amj^le and full hearing claimed by counst-l 
 here to be guarantec^d as a constilulional riglil. 
 
 It is now claimed iliat the statutt; restricts the 
 hearing to obj('Ctions appearing upon ihe lace of 
 the report. This claim is bas(.-d upon lh<: language 
 of the statute — "any person feeling himself ag- 
 grieved by the action («■ determination of the said 
 Board, as s/ioivn in I he report,' may apply b\' pe-
 
 128 
 
 tition, &c. It is said that the words "as shown in 
 such report" indicate that no action or determin-. 
 ation of the Board which is not shown in the report 
 can be made the ground of objection. But, this is 
 a very clear misapprehension. The language just 
 used is descriptive of the persons who may object, 
 but not of the character of the objections which 
 may be made. That is found further down, where 
 it is said the petitioner shall "set forth his interest 
 in the proceedings had before said Board, and his 
 objections thereto." This latter language describes 
 the character of the petition and its contents. 
 Under it, all that a petitioner has to show or state 
 is that his property is affected by the proceedings 
 had before the Board of Commissioners, and the 
 reason and grounds of objection thereto. The 
 statute does not undertake to define what ob- 
 jections shall be made ; nor does it in any manner 
 restrict the nature or character of the objections 
 that mav be urofed. 
 
 Clearly, I repeat, the words " any person feeling 
 himself aggrieved by the action or determination 
 of the said Board as shown in said report " are 
 merely descriptive of the persons who may object, 
 and are intended to confine the class of objectors 
 to those, who, upon the face of the report, appear 
 to be affected by the proceedings, and to exclude 
 outsiders, who might consider themselves inci- 
 dentally and indirectly affected by the report.
 
 129 
 
 But, these words do not restrict the ris^ht of such 
 persons to make any objections they may deem 
 proper against "the proceedings had before such 
 Board." Of course, none of the parties directly 
 affected by the proceedings of the Board have any 
 interest to object, unless they feel aggrieved by 
 determination of the Board appearing and sJioiun 
 in their report. If the report, so far as it concerns 
 them, is satisfactory, what motive can they have 
 to object ? If the award of damages, or the as- 
 sessment of benefits made to them, as shown in 
 the report, is entirely satisfactory to them, how can 
 they feel themselves aggrieved ? No defect 
 or irregularity that does not culminate in some- 
 thing which appears upon the face of the report, 
 can possibly grieve them. Therefore, only those 
 who deem themselves aggrieved by the determin- 
 ation of the Board as to damages and benefits, as 
 shown In their report, can possibly object to the 
 report. But, when they deem themselves thus 
 aggrieved, they may make any (objection they 
 please to the proceedings of the Board. Whether 
 they feel aggrieved or not, is not a disputable fact. 
 Therefore, the descriptive words used really per- 
 mit all persons in the district to lilc (objections, if 
 they please. 
 
 Paraphrase the language of th(; statute and it 
 clearly comes to this : " Any person who apjjears 
 upon the face of the rc[)ort of the Board to be
 
 I30 
 
 affected by the proceedings, and who is dissatisfied 
 with and unwilHng to accept or acquiesce in the 
 award of damaofes or the assessment of benefits 
 made to him upon the face of the report, may op- 
 pose the confirmation of the report, and set forth 
 and urge in the County Court his objections to the 
 proceedings of said Board." 
 
 3. It is next urged that the hearing of the par- 
 ties in interest was confined to the unsubstantial 
 point of bringing the report into Court, and did 
 not extend to the substance of the report itself. 
 
 To this I answer : 
 
 A hearing is granted to a person whose prop- 
 erty is sought to be affected or charged, when- 
 ever, before the valuation or charge becomes 
 finally fixed and determined, he is given a right 
 to appear before an appropriate officer. Board or 
 Court, and contest it. 
 
 "It cannot be material, "says this Court, i "that the landowner 
 had no notice before the proportional benefit to his land was 
 estimated by the commissioners, if, in the subsequent action, he 
 has had his day in Court, with full opportunity to contest this 
 charge before it was declared a lien upon his land or a judgment 
 to be collected out of his general property," 
 
 "In some States," says the Supreme Court of the United 
 States, " the assessment may be revised by proceedings in the 
 Court, and be there corrected if erroneous, or set aside if invalid, 
 * * * In such cases all the opportunity is given to the tax- 
 payer to be heard respecting the assessment, which can be 
 deemed essential to render the proceedings due process of law."2 
 
 1 Rev. Dist vs. Evans, 61 Cal., 107. 
 
 1 Hagar vs. Reclamation District, 11 1 U. S., 710.
 
 131 
 
 In the present case, the Board of Commis- 
 sioners acted as assessors and appraisers. They 
 made their assessment and vahiation in the form 
 of a report, in which the property to be taken and 
 charged was described, and the name of the 
 owner, when known, was set down. This assess- 
 ment had no legal v^alidity, and was binding upon 
 no one, until it was approved and confirmed by 
 the judgment of the County Court. That Court 
 was the tribunal which finally determined the 
 extent of the valuation or charge upon the prop- 
 erty. If the land-holder is granted a hearing 
 before that tribunal, the constitutional provision, 
 which requires a hearing to be accorded, is satis- 
 fied. 
 
 The statute here provides that the ownc.-r may 
 " apply by petition to the County Court, setting 
 forth his int(!rest in the proceedings had before 
 said Br>ard. and his objections thereto." The 
 Court is "authorized and empo\v(M-('d to hear sai<l 
 petition," and to set a day for the hearing. 'I"li<- 
 Boarfl is notified, and may answer the jx'lilion 
 and ai)pear by counsel. When the day .set ar 
 rives, "testimony may be tak<-n by .said Court 
 upon said hearing, and ih*- i)roce.ss of the Court 
 may be used to compel the attendance of wit- 
 nesses an 1 the jjroduction of books, or papers, or 
 maps in the custody of said Hoard, or otherwise."
 
 132 
 
 Pausing here, and reserving for future consider- 
 ation the question of the rehef to be granted, I 
 ask : Is not this a hearing — all the hearing neces- 
 sary ? To ilkistrate: A's land is assessed $1000, 
 and he feels aggrieved, deeming that it ought to be 
 assessed $500 only ; he files his petition, setting 
 forth that his objection to the report is that it 
 assesses his land at $1000, when, in truth, it 
 ought to be only $500 ; the Board appear and 
 deny his averments ; the issues thus joined come 
 on to be tried before the Court ; by means of the 
 process of the Court, the contestant produces all 
 the witnesses he desires to summon, and all the 
 books, papers or maps in the custody of the Board 
 or otherwise ; the Court hears all his evidence and 
 listens to all his argum.ents adduced in favor of 
 reducing his assessment. 
 
 What more or greater hearing than this can be 
 given ? 
 
 Of course, a hearing would be a mockery, if it 
 could not be followed by relief; and the question 
 here arises: Can the Court, after this hearing, 
 afford relief commensurate with the issues tried ? 
 It is contended by the plaintiff here that it 
 can not. It is asserted that the statute 
 means that, after all this elaborate preparation — 
 petition, answer, testimony, trial — the Court is 
 bound to leave the complainant just where it 
 found him. The complainant, we will suppose,
 
 T T -> 
 
 sets forth his grievance, he proves it to the satis- 
 faction of the Court ; the Court, after solemn trial, 
 concludes that his cause is just. Does the statute 
 mean that the conclusion thus reached is to re- 
 main locked up in the breast of the Court ? That 
 it shall not avail the party before it? So to con- 
 strue the statute would be unreasonable, if it can 
 be avoided. It is the duty of Courts to give laws 
 a reasonable construction. It is reasonable to 
 suppose that when a trial by a Court of an issue 
 is provided for, it is meant to be followed by a 
 judicial decision commensurate with the nature of 
 the contest. The contrary would be abhorrent 
 to common sense, and would make a theatrical 
 farce of judicial proceedings. 
 
 Does the statute, then, upon a fair construction, 
 authorize the Court to grant a petitioner the relief 
 which the statute permits him to pray for and to 
 establish his claim to ? Undoubtedly, the; phrase- 
 ology of the statute is somewhat obscure ; still its 
 meaning is sufficiently plain. 
 
 The upshot of the petition and hearing can not 
 be as contended by the plaintiff h(^rc, (P»ricf. p. 25) 
 simply to have the report brought into the County 
 Court ; for, the report must be presenled there, in 
 any event, petition or no partition. Nor ran it be 
 simply to bring into Court the "documents or 
 data as may be pertinent ther(;to" ; for. liiese may 
 be brought into Court at the hearing, by process
 
 i34 
 
 of the Court for the "production of books, or pa- 
 pers, or maps in the custody of said Board." In- 
 deed, under this head, no reason is perceived why 
 the Court may not, upon the hearing of the peti- 
 tion, order by its process the production into Court 
 of the report itself as a " book or paper in the cus- 
 tody of said Board," Why should it not ? Cases 
 may readily be imagined when the report would 
 be absolutely necessary to a proper hearing of the 
 petition. 
 
 It is obvious that the end of the proceedings is 
 found in the following words of the statute : 
 
 " The Court shall have power to approve and confirm said 
 report, or refer the same back to said Board, with directions to 
 alter or modify the same in the particulars specified by the 
 Court in the order referring the same back ; and thereupon said 
 Board shall proceed to make the alterations and modifications 
 specified in the order of said Court." 
 
 It is clear, I submit, that if these powers of the 
 Court with reference to alteration and modification 
 are not to be exercised in the case that I have 
 stated, of a petition by an aggrieved party, they 
 can not be exercised at all, and this portion of the 
 statute is meaningless. For, the Court has no 
 power to modify or alter the report, if no objection 
 to it is made. When no objection is made, the 
 Board, of course, are satisfied with the report, for 
 it is their production ; and, in the absence of ob- 
 jections, they themselves present it "with a peti- 
 tion to the Court, that the same be approved and
 
 ^35 
 
 confirmed by the Court." The property owners 
 are in law deemed satisfied with it, since, havin^r 
 been notified to examine it in the office of the 
 Board, they have found no fault with it, or have 
 been content to accept it without examination. In 
 the absence, therefore, of any objection, the judg- 
 ment pronounced by the Court confirming the re- 
 port, is a judgment by consent — a judgment by 
 default against parties w^ho, having been cited to 
 set forth their objections, remain silent. To modi- 
 fy or alter a report with which every person in 
 interest is satisfied, is not within the attributes of 
 the Court ; and is evidently not in the contempla- 
 tion of the statute. 
 
 When there is a petition, the petition-r com[)lains 
 of the report, and sets forth thatan assessment there- 
 in contained shoulJ be lowered, or an award ol dam- 
 ages sh:juLl be raiscid; having in view the power of 
 the Court to modify and alter the report, the pi-li- 
 ioner prays that the report bcbrought into Court for 
 the purpose of being altered or modified in the p.ir- 
 ticulars specified; issue being joined by the Hoanl 
 upon the petition, a h(Mring is had upon the issue, 
 whether the assessment be, inch^ttl to high, or the 
 award too hnv; witnesses are sworn; all the "books, 
 papers, and maps in the custody of said P.oard" 
 are brought before the Court ; th<-reupon, the 
 Court, if satisfied of the justice of jMiitioncr's 
 claim, orders the P)oard to bring tlic report before
 
 136 
 
 it, and then refers it back to the Board to make 
 the proper alteration and modification. 
 
 This, I submit, is the reasonable meaning of the 
 statute. It gives effect to every part, and does 
 violence to none. It conforms to the ordinary and 
 logical mode of procedure, and avoids the absur- 
 dity of a solemn trial terminating without a judg- 
 ment. 
 
 And this was the construction placed upon the 
 statute by the County Court and the parties who 
 appeared before it. By reference to the Tran- 
 script we find that, on the 20th day of October, 
 1876, Thomas H. Blythe filed his objections to 
 the confirmation of the report [Trans., pp. 277- 
 286]. On the same day the Court made an order 
 setting the petition down for hearing on the 27th 
 day of October, 1876, and the order proceeds 
 "that said Board be, and it is hereby required, to 
 file with this Court, on or before the time set for 
 the hearing of said petition as aforesaid, the report 
 of said Board, with the maps, plans, diagrams and 
 data used by said Board in preparing said report" 
 [pp. 293-294J. The same order was made in the 
 case of the other objecting parties, and, in obedi- 
 ence to said order, the Board did file with the 
 Court its report and the documents and data per- 
 tinent thereto [p. 305]. 
 
 Then, on the 18th of December, 1876, upon 
 the hearing of said petition and objections, it was
 
 ^Z7 
 
 "ordered that said report be, and the same is 
 hereby referred back to said Board of Dapont 
 Street Commissioners, and that said Board be and 
 is hereby directed to alter and modify the same in 
 the manner followiPxg, to wit :" [p. 312.] 
 
 4. It is next claimed that the action of the 
 County Court granting relief was discretionary — 
 a matter of grrace and not of ricrht. 
 
 The objection that " it was discretionary with 
 the Court to erant or refuse the order — if it was 
 refused, there was no further chance to be heard," 
 is tenable only when it is admitted that a hearing 
 must be perpetual. The Court is bound to hear 
 the petitioner's objections The Court, says the 
 statute, " shall set the same down for a hearinor." 
 The hearing is full and complete ; witnesses, 
 books, papers, maps in the custody of the board 
 or otherwise, may be produced. After this ample 
 hearing, when the Judge is fully informed, the 
 Court may or may not grant the- relief sought. It 
 may be said to be in its discretion to do so, when 
 it is understood that discretion means "todiscerne 
 bv the right line of law, and not by the crooked 
 cord of private opinion, whic h the vulgar call dis- 
 cretion."' " The discretion int<-n(l«'<I is not a 
 capricious or arbitrary discn-linn. I)nl an imi).u-tial 
 discretion, guided and controlled in its e.xercise by 
 
 ■ Co. Liu. 227 H.
 
 138 
 
 fixed legal principles. It is not a mental discre- 
 tion, to be exercised ex gratia, but a legal discre- 
 tion, to be exercised in conformity with the spirit 
 of the law, and in a manner to subserve, and not 
 to impede, the ends of substantial justice." " 
 
 The rio-ht to be heard was absolute. The ob- 
 taining the relief sought depended, of course, upon 
 the leofal discretion of the Court. 
 
 II. 
 The Proceedings Provided by the Statute for 
 THE Widening of Dupont Street have been 
 Strictly Followed by the Board of Super- 
 visors, THE Board of Commissioners, and the 
 County Court. 
 
 I The resolution or order of the Board of 
 Supe7''visors under Section 21 . 
 
 (a.) On the 27th of March, 1876, the Board of 
 Supervisors adopted a resolution which, in form, 
 complies with the requirements of the statute. 
 I Trans., fols. 556-558.] 
 
 The objection to the resolution is that " it was 
 passed only once in the Board ; it was never pre- 
 sented to the President of the Board for his 
 approval, or signed by him, and was never pub- 
 lished, either with or without the vote thereon." 
 
 The conclusive answer to this objection is found 
 in the brief of Messrs. McAllister & Bergin, Sec. 
 
 ^ Bailey vs. Taaflfe, 29 Cal., 424.
 
 139 
 
 IV ; and I could add nothing to what is there 
 stated. 
 
 (b.) On the 17th of April. i8;6, the Board of 
 Suj3ervisors adopted, and passed to print, another 
 similar resolution in proper form. It was finally 
 passed May ist, and received the signature of the 
 Mayor, May 3d, of the same year. [Trans., fols. 
 
 764, 433-435-] 
 
 The resolution was duly published in the official 
 paper of the Board of Supervisors, on the iSth, 
 19th, 2 1 St and 2 2d of iVpril, and on the 20th it 
 was published in the supplement to the paper. 
 [Fol. 434.] 
 
 The only objection to this resolution is the f ict 
 that it was published in a "supplement not circu- 
 lated co-extensively with the paper." To this 
 there are several conclusive answers : 
 
 First. The resolution having been adopted by 
 the Board and si"-ned bv the Mavor as ha\'iiin^ Iicen 
 regularly and duly {printed, the cjuestioii of its hav- 
 ing been sufficiently jjrintcd is no longer open. 
 Surely, a person who replies upon a n^sohition or 
 ordinance of the B(jard of Sui)ervisors. which ap- 
 pears, by its records, to \\\\\'v. been regularly passeil, 
 approved and signed, is not bound to pro\«'. it 
 may be twenty years after its passage, that it was 
 print(-cl the requisite numb(;r of times. Nor wxv. 
 his rights subject to be forf(;ite(l, because il may 
 be shown by parol after that [jeriod of time, that
 
 140 
 
 one p;irticul;ir insertion was defective. If this 
 were the law of municipal ordinances, to rest upon 
 them would be worse than building upon quick- 
 sand. The Board cannoL legally pass, nor the 
 Mayor siofn, an ordinance, unless it has been duly 
 printed. Its final passage by the Board and signa- 
 ture b/ the Mayor is a conclusive adjudication that 
 it has been so printed. 
 This is settled law. 
 
 City of St. Louis vs. Foster, 52 Mo., 514. 
 The defendant there was prosecuted for the viola- 
 tion of a city ordinance prohibiting the keeping of 
 gaming tables. On the trial he objected to the in- 
 troduction of the ordinances, claiming they were 
 invalid, because, among other reasons, they were 
 not read and published before adoption, as required 
 by law. His objections were overruled and the 
 ordinances admitted, which is claimed as error. 
 
 Said the Court : " The Charter * provides, 
 
 that every ordinance shall be read on three difftrent days 
 of the stated session, at which, and before it was passed, and 
 the objection was interposed to the reading of the ordinance, 
 th.it this direction was not pursued. But notwithstanding this, 
 the Court admitted it. The laws on this subject was elaborately 
 con.-.idered in the case of the Pacific R. R. vs. The Governor^ 
 (23 Mo., 353) and it will be unnecessary to restate what was so 
 well said by the learned Judge, who wrote the opinion in that 
 case. It was clearly decided, that the validity of a statute, 
 authenticated in the manner pointed out by law, could not be 
 impeached by showing a departure from the forms prescribed by 
 the Constitution, in the passage of the law. The same principle 
 applies to municipal corporations. Their Charters are their
 
 HI 
 
 Constitution, which authorize the Councils to act, and a City 
 Council is a miniature General Assembly, and their authorized 
 ordinances have the force of laws passed by the Legislature of 
 the State. * * * As the ordinance had all 
 
 the marks of being valid, and appeared to be regularly passed 
 and was published by authority, we are satisfied that it could 
 not be rejected as evidence on the alleged ground that it was 
 incorrectly passed as to matters of form. " 
 
 Secondly. The assertion that the " supplement 
 was not circulated co-extensively with the news- 
 paper " does not appear to be borne out by the 
 evidence. The only testimony on that point is, 
 that these supplements " were circulated with the 
 paper, distributed in the same way and at the 
 same time as the paper itself, and i^o to every 
 subscriber who takes the paper." [Trans., fols. 
 1035, 1039.] 
 
 Thirdly. The publication in the supplement 
 was perfectly legal. 
 
 " A publication in Extras^' says liurroughs, 
 on Taxation, \>. 291, "circulated witli the paper 
 designated by law is a good publication." 
 
 Is there not somethin<: revoltini/ to common 
 honesty, in the idea that the City of San P'rancisco 
 can avoid the payment of $1,000,000 of bomls, 
 issued in payment of property which il now holds 
 and enjoys as a public street, because, lorsooili, an 
 ordinance was, for one day, printed in a sup- 
 plement ?
 
 142 
 
 2. The notice required by Section <5, to be pub- 
 lished by the Commissioners. 
 
 The Board of Dupont Street Commissioners 
 " claiming to act under the Act of the Legislature," 
 met on the 3d day of April, 1876. [Finding III, 
 Trans., fols. 424-426.] On the loth day of April, 
 they again met, and adopted a resolution that the 
 notice "provided for by Section YI of the Act of 
 the Legislature " be published, designating the 
 papers in which it should be published. [Finding 
 III, fols. 426, 527-530.] The Secretary caused 
 the notice to be published as directed. [Finding 
 
 VIII, fols. 436-439. 534] 
 
 The objection to this publication is, that it was 
 published, at times, in the supplement of the 
 papers, and that the Secretary was not authorized 
 to cause it to be published, and that the Secretary 
 selected the newspapers to publish it in, and the 
 Board had no authority to act until the Supervis- 
 ors had adopted a resolution. 
 
 (a.) As to publicacion in supplements, I have 
 already noticed that, above. 
 
 (b.) As to the Secretary having no authority, 
 that is an error. The Board expressly authorized 
 him. [Fols. 531, 532.] 
 
 (c.) As to the papers being designated by the 
 Secretary, that is equally an error. The Board 
 designated the papers. [Fol. 527.] 
 
 (d.) The Board did not derive their authority
 
 143 
 
 from the Board of Supervisors, but from the Act. 
 [Sec. 4.] They mig-ht not, it is true, give the 
 notice under Section 6, until after the Supervisors 
 had adopted a resolution ; but, surely, they might 
 in anticipation of that resolution, resolve that, as soon 
 as it was adopted, the proper notice, under Section 
 6, should be given. And that is what they did 
 do. [Fol. 531.] 
 
 There is no question that the notice was pub- 
 lished after the resolution of the Board of Super- 
 visors was adopted, the first publication being on 
 May 4th, 1876. [Fol. 437.] These notices appear 
 regularly in the minute book of the Board of Com- 
 missioners. [Tran. fols. 1073, 1076.] 
 
 After all this, (even if the facts warranted the 
 objection, which, as I have shown, they do not). It 
 is too late, I submit, to urge th;it ilie Board of 
 Commissioners did not authorize the action of 
 their Secretary in making the publication, or the 
 selection of the papers in which the publication 
 was made. 
 
 3. The Board of Commissioners did, after hail- 
 ing cojiipleted their report, duly give and cause to 
 be published the notice that the same was iu their 
 office, open for inspection, as required by Section 7 
 of the Act. 
 
 The only objection made to this notice Is, that 
 it was published, at times, in supplements, and
 
 144 
 
 was insufficient, because "the time of publication 
 was taken out of the thirty days that the report 
 was to be on file." 
 
 (a.) As to supplements, that has been suffi- 
 ciently noticed. 
 
 (d.) As to the other objection. The report 
 is, after completion, to be left in the office of the 
 Commissioners "for thirty days" [Sec. 7.] Ob- 
 j<ictions to the report must be made "at any time 
 within the thirty days mentioned in Section 7." 
 [Sec. 8.] Incase no objection is made " within 
 the time above limited," the Board must present 
 the report to the Court. [Sec. 8.] Obviously, 
 therefore, the twenty days publication must be 
 taken out of the thirty days. It is intimated that 
 this renders the notice invalid in point of law ; 
 but no reason is suggested to support this view, 
 and none can be imagined. 
 
 4. The judgment of the Coimty Court, confirm- 
 ing the report, zvas regularly entered. 
 
 The judgment is perfectly regular upon its 
 face ; and, indeed, is avowed to be so in the com- 
 plaint here. [Trans., fols. 50, 51.] It need not, 
 therefore, be further noticed. 
 
 I submit, therefore, that all the proceedings of 
 the Supervisors, Commissioners and County 
 Court, required to be taken and had under this 
 Act, have been regularly had and taken.
 
 145 
 
 As to secret vices in the proceedings, such as 
 erroneous systems of valuation, interest of the 
 Commissioners, " indecent haste" in procuring 
 confirmation, and the Hke, they will be noticed 
 when I come to examine the effect of the judg- 
 ment of the County Court. 
 
 III. 
 
 The Judgment of the County Court is a Con- 
 clusive Adjudication in all Collateral Ac- 
 tions, that (i) the Steps Required to be Tak- 
 en BY the Supervisors and Commissioners, to 
 give Validity to their Proceedings, have been 
 DULY Taken According to Law, and (2) tilvt 
 THE Act, Itself, is Constitutional. 
 
 Before proceeding to discuss these propositions, 
 let me advert to a claim which is constantly urged 
 by the learned counsel for plaintiffs, as to the char- 
 acter in which the County Court acted in lhe.se 
 proceedings. They maintain that the County 
 Court was, in this matter, a Court of special and 
 limited jurisdiction ; that, it po.s.ses.scil no other 
 powers than such as were expressly conferred upon 
 it by the Statute; and thai, lheref(jre, its jiidi^ment 
 is of no higher value than wf)uld be that of a mere 
 Board created by the .Statute and authorized to 
 act u[jon the subject. 
 
 I admit that the rule is that, when- a Court. Ikjw- 
 ever general its ordinary jurisdiction, is by statute
 
 146 
 
 alone invested with ;i jurisdiction which it did not 
 have as a Court before the passage of the Statute, 
 it may be said that, acting wholly under the Statute, 
 it is quoad hoc a Court of inferior or limited juris- 
 diction. As said the Court of Appeals of New 
 York in Embury vs. Connor, 3 N. Y., 523, "as its 
 powers in such matters are wholly dei^ived from the 
 statutes and do not belong- to it, as a Court of 
 general jurisdiction, its decisions must be treated 
 like those of a Court of special and limited juris- 
 diction," 
 
 It will be noticed, in all the cases upon the sub- 
 ject, that it is of the very essence and, indeed, is 
 the very foundation of the rule that the powers of 
 the Court to take jurisdiction of subject matter 
 shall be derived wholly from the stattite. 
 
 That rule does not apply here. The County 
 Court does not derive its authority to act in mat- 
 ters of this character from the statute, but from 
 the constitution of the State [Const. Sec. 9, Art. 
 VI]. " The Constitution itself has distinctly 
 provided that the jurisdiction in special cases shall 
 be in the County Court," and " proceedings for the 
 opening, grading, extension, paving and alteration 
 of streets, and the assessment of damages thereby, 
 have been treated by the Legislature and the 
 Courts as special proceedings." [Houghton's Ap- 
 peal, 42 Cal., 62, 56.] The Constitution makes 
 that Court a Court of record. [Const., Sec. 8,.
 
 147 
 
 Art. VI.] "The proceedings of this Court are 
 construed in the same manner and with like in- 
 tendments, as the proceedings of Courts of gen- 
 eral jurisdiction and to its records, orders and 
 decrees, there is accorded the like force, effect and 
 legal presumptions." [C. C. P. 587.] 
 
 When the Constitution started out by declaring 
 that the County Court was a Court of record, and 
 then, in the very next section, gave it jurisdic- 
 tion over special proceedings, did the Constitution 
 mean that, when the Court exercised, in a special 
 proceeding, the very jurisdiction expressly con- 
 ferred upon it by the Constitution, it should not exer- 
 cise it as a Court of record? Did the Constitution 
 mean that the Countv Court should be a Court 
 of record in all matters except special proceedings ? 
 What warrant is found in the language of the 
 Constitution for ascribing any such contradictory 
 meaninir to that instrument? I'urther : When 
 the Code says that the proceedings of ihc County 
 Court are to be construed in the same manner, 
 and with like intendmc-nis, force, effect and legal 
 presumptions as the jjroceedings of Courts of 
 general jurisdiction, what procectdings of the 
 Countv Court is ihe Code sp(.'aking of? Is it not 
 speaking of all j)roceedings which ihe Court has 
 jurisdiction of unl«r the Constitution ol the Stale ? 
 Does the Code say that that constriictioii shall be 
 given to some of the proceedings of the County
 
 148 
 
 Court, but denied to others ? No. The language 
 is general and without exception or restriction. 
 What ground is there, then, for saying that the 
 proceedings of the County Court shall be treated 
 as the judgment of a Court of general jurisdic- 
 tion, except when it is exercising in " special cases " 
 a jurisdiction directly conferred upon it by the 
 Constitution ? 
 
 It is too clear for argument, I submit, that the 
 County Court is created by the Constitution a Court 
 of record, for the purpose of discharging all the 
 functions imposed upon it by the Constitution — 
 including "special cases" as well as others. It is 
 no less clear that the proceedings of this Court 
 taken in " special cases" are, under Sec. ^j of the 
 Code, to be treated "as the proceedings of Courts 
 of general jurisdiction." 
 
 The contention, therefore, of the learned counsel 
 opposite, that the order of the County Court, in this 
 case, approving and confirming the report of the 
 Dupont StreetCommissioners is to be treated as the 
 order of a Court of inferior jurisdiction, and to be 
 deprived of the aid of the beneficent "intendments, 
 effects and legal presumptions " which wait upon 
 the judgments of "Courts of general jurisdic- 
 tion," is based upon a misconception of the source 
 of the jurisdiction of the Court, and is absolutely 
 untenable under our constitution and laws.
 
 149 
 I. The judgment of the County Court is 
 
 A CONCLUSIVE ADJUDICATION IN ALL COLLATERAL 
 ACTIONS THAT THE STEPS REQUIRED TO BE TAKEN 
 
 BY THE Supervisors and Commissioners to give 
 
 VALIDITY TO THEIR PROCEEDINGS HAVE BEEN DULY 
 TAKEN ACCORDING TO LAW. 
 
 (a.) The judgment of the County Court gl vino- 
 its approval and confirmation to the report, was a 
 judgment by which, if valid, an assessment was 
 legally established, by which a charge upon prop- 
 erty-owners was legally created, by which the 
 property of citizens was taken for a public use. 
 That Court, we all admit, had no authority to make 
 this assessment, to impose this charge, to take this 
 property, unless it had jurisdiction of the persons 
 to be affected by its judgment — the owners of the 
 land. Jurisdiction of these persons depended up- 
 on the fact of their having been summoned Intci 
 Court by some process known to the law and ap- 
 propriate to the case. The process, in the present 
 case, was the published notice under Section 7. 
 The jurisdiction of the Court over the persons af- 
 fected depended upon the fact that this notice had 
 been given as req n'n-d by the statute. 
 
 Now, when thr; Board finally |)r<-sciUed their re- 
 port, and asked for the judgmeiu ol the Court 
 confirming it, the Court had ihf right lo pronounce 
 judgment against the parties to be affectctl by its 
 judgment, if it had acquired jurisdiction over thenj
 
 ^50 
 
 — If the process provided by law had been served 
 upon them. If the Court had not acquired juris- 
 diction over them — if the process had not been 
 served upon them — it had no right to pronounce 
 judgment against them. Surely, it will not be 
 contended that, upon this vital point, the Court is 
 ordered by the statute to act blindly. The peti- 
 tion of the Board, together with its report, is but 
 a prayer addressed to the Court to pronounce 
 judgment against the land-holders by default. It 
 is a representation that the parties in interest, hav- 
 ing been duly summoned to appear, by their 
 silence consent to the proceeding taken and to be 
 taken against them. The Court must, then, in 
 some way, know that they are in default; that, having 
 had notice and opportunity to contest the proceed- 
 ings directed against them, they are satisfied, and 
 do not choose to contest them. 
 
 It seems to me perfectly clear that the very first 
 inquiry of the Court, when called upon to pro- 
 nounce this judgment, must, of necessity, be, 
 whether the notice required by Section 7, has been 
 given, or not. In other words, the Court must, at 
 the threshold, inquire into its jurisdiction over the 
 persons — its right to act at all. 
 
 In this case, the Court made the inquiry, and 
 determined and adjudged that the fact existed — 
 that the process had been duly served upon all per- 
 sons in interest. Its judgment (fols. 976, 977,) so..
 
 151 
 
 states, and there is nothing in the record to con- 
 tradict it. Can that determination be attacked col- 
 laterally by evidence outside the record ? I under- 
 stand it to be the settled doctrine in this State, that 
 the judgment of a Court of record imports abso- 
 lute verity upon all thinofs on which it is authorized 
 to speak; and that, if the judgment adjudges the fact 
 that all parties against whom the judgment is pro- 
 nounced, have been duly served with process, and 
 have made default, that adjudication, there being 
 nothing in the record to contradict it, is hnal in all 
 collateral actions. ^ 
 
 Were it even true, therefore, that the notice pro- 
 vided by Section seven was not properly published, 
 because published, at times, in a supj^lement. (and 
 this is the only fault found witli th(' |)ublicati<)n), 
 that fact could not avail the plalnu'lfs, for the 
 Court has found that it was"dul\- |)ul)lished in two 
 daily newspapers," ( Trans., fol. 977), and that 
 finding cannot be impeached by showing by evi- 
 dence aliunde that it was, at times, [niblished in a 
 supplement. ^ 
 
 {b.) Hut the investigation of the County Court 
 was not to stop with an in([uiry into the mere ser- 
 vice of process upon the parties in inK.-rcst. Hy 
 its action it was to estabh'sh, in the form of a sol- 
 emn judgment, tilings of the highest im[)oriance 
 
 I, Hahn vs. Kelly, 34 Cal., 391. 
 
 Z. I<1. il»i<l.
 
 152 
 
 and of far reaching consequences. Upon its judg- 
 ment, as a judicial determination, it would result 
 that property estimated to be worth nearly one 
 million of dollars was to be taken from private citi- 
 zens and transferred to the City of San Francisco, 
 to be dedicated to a public use ; that rows of build- 
 ings upon the whole side of a main street in the 
 City were to be torn down ; that bonds in the sum 
 of one million of dollars would be sold and floated 
 upon the world by the City authorities ; that a 
 charge of twenty years would be, laid upon the 
 property of a whole district. 
 
 These were the consequences of the judgment 
 of the County Court, foreseen and provided for 
 by the Legislature. This judgment we are told, 
 was a valid judgment, if the Board of Supervis- 
 ors had, after due publication, adopted the ordi- 
 nance provided for in Section 21 of the Act; but, if 
 the board had not so adopted the ordinance, then 
 the judgment was a nullity. We are further told 
 that, even though it might appear regularly upon 
 the records of the Board of Supervisors to have 
 been adopted by the board, and to have received 
 the approval of the Mayor, yet the ordinance 
 would be void, if it could be shown that, on one 
 of the five days of its publication, it was printed 
 in the supplement of the newspaper, or that the 
 supplement was not circulated co-ektensively with
 
 ^03 
 
 the newspaper. We are told, further, that, when- 
 ever this is shown, it estabhshes, as a matter of 
 law, that the judgment of the County Court was 
 a nulHty, and all proceeding's under it are void. 
 
 Follow out the consequences of this doctrine : 
 The Board of Supervisors have adopted the reso- 
 lution under Section 21, but, on one day, it was 
 published in the supplement of the Examiner, in- 
 stead of the Examiner itself; and, therefore, ac- 
 cording to plaintiff's contention, it is a nullity. 
 The Board of Commissioners meet and make 
 surveys, diagrams, reports ; they employ a secre- 
 tary, attorneys, clerks, draughtsmen, searchers of 
 records and other assistants ; they make a report 
 to the County Court ; the Court by solemn judg- 
 ment, confirms it ; bonds to the extent of one 
 million are sold by the City, and are readily bought 
 by all classes of people ; the Commissioners, 
 thereupon, t(;ar down the buildings upon the whole 
 length of the west side of the street ; when llicy 
 reach the last building, the owner thereof discovers 
 that the publication of the ordinance was made, 
 for one day, in the supplement of lln' I'^xaminer ; 
 thereupon, he procures, upon lh(.* gnjund that the 
 whole proceeding is a inillit). an injunction upon 
 the board to refrain from laying hands on his.pro[)- 
 erty ; this injunction is served, a iri.il had, .md the 
 Court, upon the ground that the ordinance, which 
 was the basis of all the proceedings, had never
 
 154 
 
 been legally published, declares the proceedings a 
 nullity, and makes the injunction perpetual. 
 
 The picture I have sketched is neither fanciful 
 nor overdrawn. It is naturally suggested by the 
 theory of the plaintiffs here. Can it be that the 
 Legislature, in framing this Act, contemplated 
 that such a condition of affairs should ever be 
 possible ? Can it be that they contemplated that 
 these proceedings should go on to the point of 
 issuing bonds and tearing down buildings, without 
 having made sure and placed beyond the reach of 
 controversy the fact that the proceedings were in 
 accordance with law ? If the ordinance is, indeed, 
 the foundation of all the rest, can it be that the 
 Legislature intended that the legal sufficiency of that 
 foundation should not be conclusively established, 
 before the superstructure was finally erected ? 
 Would such a construction as this be a reasonable 
 construction of the Act? If such a construction 
 can be avoided, will not the Court readily embrace 
 the opportunity ? 
 
 I contend, that if the power of the County 
 Court to pronounce a valid judgment, or to make 
 a valid confirmation of a report, depended upon 
 the fact that a certain ordinance had been passed, 
 then the Court had, at the outset, jurisdiction to 
 inquire and determine whether such ordinance 
 existed ; and, if the validity of the ordinance de- 
 pended upon its publication, to inquire into the pub-
 
 DO 
 
 h'cation And, I contend, further, that when, after 
 such inquiry, the Court determined judicially that 
 the ordinance did exist and was valid, as it did here, 
 (fol. 966) it set that question forever at rest in that 
 proceeding. 
 
 The ordinance was a fact, without the existence 
 of which the Court could never be brouL''ht in Ico-al 
 relation with the proceedings. The Court, actino- 
 as the minister of the law, in pronouncing" judtr- 
 ment, necessarily determined that it had the right 
 so to pronounce it. If the legal right to pronounce 
 the judgment, depended upon the existence of any 
 extrinsic fact — an ordinance, or the like — the verv 
 rendition of the judgment is a conclusive adjudica- 
 tion that the fact existed. As this Court said of 
 similar proceedings, in People vs. Hagar, ^2 Cal., 
 183, "these were jurisdictional facts, which the Board 
 necessarily determined in approving the petition, 
 and its action is not open to attack in a collateral 
 action. Whenever the jurisdiction of a Court \\(A 
 of record (and, a fortiori, of a Court of nxord) de- 
 pends on a fact which the Court is nujuired to as- 
 certain and settle by its decision, such di^cision, 
 if the Court has jurisdiction of the parti(\s, is con- 
 clusive, and not subject to any collateral attack. 
 Freeman on Judgments, Sec. 523. Bigclow on 
 Estoppel, p. 142." 
 
 It is said that the statute does not expressly 
 authorize the County Ccjurt to institute this iu'
 
 156 
 
 quirv eind that, therefore, it had no right to insti- 
 tute it or pass upon the question. There was no 
 necessity for any express grant of authority on this 
 subject by the statute. In conferring upon the 
 Court the power to pronounce judgment, the Legis- 
 lature necessarily contemplated that this judgment 
 should be valid and legal. If, to render the judg- 
 ment valid, it was essential that certain facts should 
 exist, then the Legislature necessarily contem- 
 plated that the Court should examine and decide 
 upon their existence. 
 
 To illustrate what I have said : Assume that the 
 Board and a dissatisfied property-owner appear 
 before the Court, to litigate the question of the 
 confirmation of the report — suppose that the con- 
 testant alleges that, in point of fact, no resolution 
 or order has ever been adopted by the Board of Su- 
 pervisors ; must the Court decline to hear him ? 
 Suppose the Court hears him, and the proof es- 
 tablishes his alleofation ; must the Court eo on 
 and confirm the report ? Would the learned 
 counsel opposite contend that the County Court 
 miirht make a findinof to the effect that no resolu- 
 tion or order, as provided by Section 2 1 of the 
 Act, was ever adopted by the Board of Super- 
 visors, but that, as the Court has naught to do with 
 that question, and as the report is, in other res- 
 pects, quite in accordance with the provisions of 
 the statute, therefore it should be confirmed and
 
 157 
 
 the Board should proceed to widen the street ? 
 Would they contend that a judgment based upon 
 such a finding would not be erroneous upon its 
 face ? Would they contend that, if appeal was 
 taken, upon that finding alone, to the Supreme 
 Court, that that Court should not reverse, but must 
 afiirm the judgment? 
 
 I do not conceive that such a proposition can, 
 for a moment, be maintained. The contestant 
 may, under section eight, file a petition " setting 
 forth his interest in the proceedings had before the 
 Board, and his objections thereto." The Board 
 answer. A dav is then set for hearing. " Testi- 
 mony may be taken by said Court upon said 
 hearing, and the process of the Court may be 
 used to compel the attendance of witnesses, and 
 the production of books or papers or maps in the 
 custody cf said Board or otherwise." Why, under 
 these provisions, may not a contestant object that 
 no order or resolution has ever been adopted by 
 the Board of Supervisors ? 
 
 The County Court, say the learned counsel, has 
 no authority to determine that thert; ever was any 
 such ord(;r or resolution. Nor, con.se(iuenlly, would 
 the .Supreme Court have, in ca.se of an appeal. 
 These Courts have, it is asserted, abstWutcly noth- 
 ing to do with the matter. '\\\r\ must leave the 
 question where they find it to remain op<-n during 
 the twentv years that the ijonds have to run, to be
 
 I5S 
 
 agitated as against each and every bondholder de- 
 manding payment of interest or principal. It is 
 inconceivable that this is the meaning of the statute. 
 To so hold, is to credit the Legislature with the 
 authorship of a scheme of unparalleled folly. 
 
 The Board of Commissioners, it is said, have 
 no power to organize — do not become an organic 
 body — unless a proper order or resolution has been 
 adopted. If none is so adopted, they have no 
 right, it is affirmed, to do anything. The report 
 of the Board is, if there had been a proper order 
 or resolution, the official act of a legally constituted 
 body. If, on the other hand, there has been no 
 such order, the report is a nullity, and the three 
 persons named are officious intermeddlers. Now, 
 when these three persons present to the Court a 
 report, purporting to be a report of a Board of 
 Commissioners, may not the Court inquire who 
 and what they are ? They call themselves the 
 Board of Commissioners ; but is the Court bound 
 to take their word for it ? They are such a board, 
 if a proper order or resolution has been adopted ; 
 if not, they are not. May not the Court, then, as- 
 certain whether such an order or resolution has 
 been adopted ? If not, how does the Court know 
 that it is dealing with an authorized public body ? 
 
 The Court is called upon to confirm a document 
 before it, which is styled a report of the Board of 
 Commissioners. Such a report, it is asserted, is.
 
 159 
 
 unauthorized by law^s a nullity — unless preceded 
 by a proper order or resolution of the Board of 
 Supervisors. May not the Court, then, ascertain 
 whether the report is a thing that has a legal ex- 
 istence ? If the only wav of ascertaininof is to 
 examine the sufficiency of the order or resolution, 
 will not the Court make the examination ? .Must 
 the Court blindly accept what is presented to it, 
 without inquiring into its legal quality ? 
 
 I submit, that the final judgment of the County 
 Court, confirming the report, is necessarily an ad- 
 judication that the report is authorized by law; 
 that if. in order to its beinof authorized bv law, it 
 must be preceded by a given order or resolution, 
 then, the judgment is an adjudication that such 
 order or resolution existed. I submit, further, 
 that the final judgment is necessarily an adjudi- 
 cation that the report is the report of a body .lu- 
 thorized by law ; that, if to the legal existence oi 
 such a body, a given order nr resolution is neces- 
 sary, the judgment is an adjudication of the (ex- 
 istence of such an order or resolution. 
 
 The above contentions are well illustrated by 
 the case o^ Gaoe vs. Parker, 103 111., 52S, 535. 
 
 It was an application to set aside a sale of (-(rr- 
 tain lands for the payment of a delin([uent sew(rr- 
 erage assessment, imposed thereon, by tint town 
 of Hyde Park, in confijrmity with the provisions 
 uf the Illinois General Act in relation to cities,
 
 i6o 
 
 villages and towns. (111. Rev. Stat., 1883, Ch. 24, 
 Art. 9, ) and an ordinance of said town, adopted 
 in pursuance thereof. 
 
 The statute under which the assessment was 
 levied, provided as follows : 
 
 Sec. I. — "The corporate authorities of cities and villages are 
 hereby vested with power to make local improvements by special 
 assessment, or by special taxation or both, of contiguous property, 
 or by general taxation or otherwise as they shall by ordinance 
 prescribe." 
 
 Sec. 2. — " W7ien any such city or village shall by ordinance 
 provide for the making of any local improvement^ it shall by the 
 same ordinance prescribe whether the same shall be made by 
 special assessment or by special taxation of contiguous property, or 
 by general taxation, or both." 
 
 Sec. 19. — " Whenever such local improvements are to be made 
 wholly or in part by special assessments, the Commoji Council in 
 cities * shall pass an ordinance to that effect, specifying therein 
 the nature, character, locality and description of such improve- 
 ment " * * 
 
 Sec. 20. — "The City Council or board of trustees * * 
 shall appoint three of its members or any three other competent 
 persons, who shall make an estimate of the cost of the improve- 
 ment contemplated by such ordinance, including labor, materials 
 and all other expenses attending the same, and the cost of mak- 
 ing and laying the assessment, and shall report the same in writ- 
 ing to said council or board of trustees." 
 
 Sec. 21. — "On such report being made, and approved by the 
 Council or board of trustees, * * * it may order a petition 
 to be filed by such officer as it shall direct, in the County Court of 
 the County, for proceedings to assess the cost of such improvement, 
 in the fnanner prm'ided in this Act" 
 
 Sec. 22. — "The petition shall be in the name of the corpor- 
 ation and shall recite the ordinance for the proposed improve- 
 ment and the report of such commission, and shall pray that the 
 cost of such improvement may be assessed in the manner pre- 
 scribed by law."
 
 i6i 
 
 Sec 23. — " Upon the filing of such petition, the Court shall 
 appoint three competent persons as Commissioners who shall 
 take and subscribe an oath" (giving its substance.) 
 
 Sec. 24. — The Commissioners shall examine the locality where 
 the improvement is proposed to be made, and the lots, <!cc., that 
 will be specially benefited thereby, and estimate the proi)ortion 
 of said improvement that will benefit the ijublic, and that will be 
 beneficial to special property, and apportion the same between the 
 city * and such property, and assess the special benefits to 
 the lots and tracts specially benefited. Provided, no lot &c., shall 
 be assessed more than it is actually benefited. 
 
 Sec. 26. — " They shall also f/iake or cause iu be made an assess- 
 mient roll, in which shall appear the names of all the owners as 
 far as known, a description of each lot, &c, and the amount as- 
 sessed as special benefits thereto, and in which they shall set 
 down as against the city * the amount they shall have found 
 of public benefit, and certify snch assessment roll to the Court by 
 which they were appointed at least ten days before the first day of 
 the term at which a final hearing thereon will be had:' 
 
 Sec. 27. — " It shall be the duty of Com missionercs to give notice 
 'Of such assessment and of the term of Court at which a final 
 hearing thereon will be had, in the following manner." 
 
 1. They shall mail notice to each known owner, .stating that 
 his property, describing it, is assessed at such and s.uch a sum, 
 and the .assessment will be returned to such and such a term of 
 the County Court. 
 
 2. 'i'hey shall give notice by posting for ten days in at least four 
 public places of the city or village, two in the ncighborh(K)d of 
 the improvement, and by i)ul)lishing for five successive days in a 
 daily newspaper of the city or village, if any, or if there is no 
 daily, then once a week for two weeks in a weekly paper, or if no 
 weekly or daily pajjcr is |)uhlishc(l in the village or city, then in 
 a newspaper of the county -which notice mav he subslantinlly 
 as follows : 
 
 "Notice is hereby given to all parties interested, that the City 
 
 Council of , having ordered that (here insert dcs<ription 
 
 of improvement as in ordinance,) have applied to the County 
 
 Court of County, for an assessment of the cost of said 
 
 improvement according to benefits, and an assessment ihcrcol
 
 l62 
 
 having been made and returned to said Court, the final hearing 
 
 thereon will be had at the term of said Court, commencing 
 
 on ' . All persons desiring may then and there appear 
 
 and make defense." 
 
 Sec. 28. — The Commissioners shall, before final hearing es- 
 tablish the mailing and publication by affidavit. 
 
 Sec. 39. — Any person interested in real estate to be affected by 
 such assessment, may appear an i file objections to such report, and 
 the Court may make such order in regard to the time of filing 
 such objections as may be made in cases at law in regard to the 
 time of fili.ig pleas. As to all lots, blocks, tracts and parcels of 
 land to the assessment of which objections are not filed within 
 the time ordered by the Court, default may be entered, and the 
 assessment confirmed by the Court. 
 
 Sec. 31. On the hearing, the report of the Commissioners sKall 
 be competent evidence, and either party may ifitroduce such other evi- 
 dence as may tetid to establish the right of the matter. The hear- 
 ing shall be conducted as otJur cases at law, and if it shall appear 
 that the premises of the objector are assessed more or less than they 
 will be betiefited, or more or less than their proportionate share of 
 the cost of the improvement, the jury shall so find, and also find 
 the a?nountfor which sjich premises ought to be assessed, and judg- 
 ment shall be rendered accordingly. 
 
 Sec. 33. The Court before which any such proceeding may 
 be pending shall have power at any time before final adjourn- 
 ment [judgment ) to modify, alter, change, anmil or confirm any 
 assessment returned as aforesaid, or cause any such assessment to 
 be recast by the same Commissioners whenever necessary for the at- 
 tainment of justice, * or may appoint other Commission- 
 ers in the place of all or any of the Commissioners first appointed, 
 for the puipose of makittg such assessment, or modifying, altering, 
 changing or recasting the same, and may take all such proceedings^ 
 and make all such orders as may be necessary to make a true and 
 just assesment of the cost of the improvement according to the prin- 
 ciples of this act, cs^c. 
 
 Sec. 34. Provides that the judgment shall have the effect of a 
 several judgment, as to each tract, and any appeal ox writ of error 
 shall not stay the judgment unless as to property concerning;
 
 1 63 
 
 which the appeal is taken. The judgment shall be a lien from 
 its date. 
 
 The ground upon which the assessment and 
 the sale thei-eunder were attacked was that the or^ 
 dinance which initiated the proceedings was not in 
 conformity with the statue, and, consequently, that 
 the whole proceeding was illegal and void. The 
 question for decision was whether such an objec- 
 tion could be made after the County Court had 
 confirmed the assessment. 
 
 The Court said, [p. 535]: 
 
 " The 19th Section of Article 9 of the Act in relation to cities, 
 villages and towns, under which the town of Hyde Park passed 
 the ordinance, declares : ' Whenever such local imj>rovements 
 are to be made wholly or in part by special assessment, the 
 council in cities, or boards of trustees in villages shall pass an 
 ordinance to that effect, specifying therein, the nature, charac- 
 ter, locality and description of such improvement.' It is con- 
 tended that this ordinance did not comply with the recjuire- 
 nients of the section of the statute {supra,) and hence the as- 
 sessment was illegal, under the ruling of this Court in Lass vs. 
 Chicago, 56 III, 354, and other like cases. We shall not, how- 
 ever, stop to pass upon the validity of the ordinance, as com- 
 plainant is not in a position to tjuestion its vahdity. // appears 
 that the assessment was made under the ordinance, and a return 
 made to the County Court of Cook County, where * * 
 * a/ter due notice, it was confirm d, except as to the land of 
 certain persons who appeared and filed objections, complainant 
 not being one of them. Is complainant concluded by the Judg- 
 ment of confirmation ? 
 
 " In People vs. Brislin, 80 111., 423, where it was contended 
 that the assessment was illegal, because not levied on contiguous 
 proi)erty, it was said ; ' This question and all others bringing up 
 the levy and assessment have been parsed upon by the Cireuit C<>urt, 
 and areresadjudicata, and cannot now be made in this Court. Upon 
 t/u'se there is a judgment passed by a Court of competent juris-
 
 164 
 
 dictton, and there they must rest.' This case has been followed 
 by a number of other decisions where the same doctrine has 
 been announced. * * 
 
 " If the assessment was illegal from the fact that it 
 was based upon an insufficient ordinance, it was the 
 duty of the complainant in the bill to appear before 
 THE County Court when the application was made to 
 
 CONFIRM the assessment, AND THERE MAKE THE OBJECTION; 
 
 but as he failed to do so, this judgment of the county 
 Court, when called in question collaterally, must be 
 regarded as conclusive." 
 
 (c.) All that I have said with reference to the 
 conclusiveness of the judgment of th-e County 
 Court as to the existence and proper adoption and 
 passage of the resolution or order of the Board 
 of Supervisors, is equally applicable to the notice 
 required to be published by the Board of Com- 
 missioners under Section 7. If it was essential to 
 the legal validity of the judgment of the County 
 Court that that notice should be given, then the 
 Court had authority to examine and determine 
 whether it had or had not been so given. It did 
 so determine and adjudge (fol. 968); and its judg- 
 ment upon that point is final and conclusive. 
 
 [d.) Equally applicable is it, I submit, to all 
 the alleged irregularities and defects, which are 
 pointed out in the assessment and report made by 
 the board. These are all adjudicated and set at 
 rest by the judgment of the Court : 
 
 I. It is urofed that " the assessment is void, be- 
 cause it conclusively shows that the cost exceeded 
 the benefits."
 
 i65 
 
 It may be admitted, for the purpose of this ar- 
 gument, that the rule of law, constitutional or 
 statutory, requires that the cost should not exceed 
 the benefits. It may be further admitted, that an 
 assessment that violates this rule is erroneous in 
 point of law, and should be corrected by those who 
 have authority to declare the law — the Courts of 
 the land having- jurisdiction of the subject. But, 
 suppose the Court having jurisdiction approves 
 the error, and consecrates it by a solemn and final 
 judgment ; then, we simply have an erroneous 
 judgment, which, when it becomes final, is, for all 
 the purposes of that case, as valid and binding upon 
 the parties as a legally correct judgment. 
 
 Suppose an appeal had been taken to this 
 Court from the judgment of the County Court 
 finally approving and confirming the assessment ; 
 and suppose the point had been made here, that 
 the assessment was in violation of law lor the 
 reason just stated ; and sup[>ose this Court had 
 affirmed the judgment of the County Court; would 
 any one contend that that judgment could be 
 thereafter attacked and nullifi(xl, ijecause a subse- 
 quent Court might be entirely satisfied thai the 
 judgment is, in point of law, erron(,'ous .' Is not 
 such a judgment a complete protection to all who 
 act under it? Is the purchaser of the bonds of 
 the city, who bought them upon llie strength of 
 the solemn judgment of the Court, decreeing that
 
 1 66 
 
 these proceedings are according to law, and are 
 approved by the authorized ministers of the law, 
 to suffer loss, because the Court committed an 
 error of law in pronouncing judgment ? Must a 
 person who acts under a judgment, know the law 
 better than the Court which pronounces it ? 
 
 I submit, that it is too plain for argument, that, 
 if the Court had jurisdiction of the matter and the 
 parties, its judgment cannot be collaterally at- 
 tacked, however gross the error upon its face may 
 appear. 
 
 2. It is claimed that " the assessment is void 
 also, because based upon a rule so glaringly er- 
 roneous and flagrantly unjust as to amount to actual 
 fraud upon the taxpayers ; " and that " a different 
 rule of value was knowingly adopted with re- 
 spect to the property of those objectors who ob- 
 tained modifications in the County Court from 
 that which was applied to other property," and 
 that " the aggregate amount of it was increased far 
 beyond the actual or pretended cost or damage 
 incident to the improvement by arbitrary additions 
 wholly unwarranted by law ;" and that " the assess- 
 ment ■" '"' '" was delegated to experts 
 and arbitrators, and was not, in fact, made by the 
 Commissioners at all ;" and that the proceedings 
 were conducted with " indecent haste." 
 
 How it can be imagined that any of these 
 things, supposing them to be true, afford the basis.
 
 167 
 
 for a collateral attack upon the judgment of a 
 Court, approving- and confirming this assessment, 
 I confess myself at a loss to understand. The 
 learned counsel appear wholly to ignore the fact 
 that this is not a direct attack upon the assessment. 
 They seem to close their eyes to the fact 
 that that assessment has passed into judgment, 
 and is upheld by a decree of a court of record of 
 competent jurisdiction. The very object of the 
 stature in bringing this assessment before a Court 
 was to afford an opportunity to free it from all im- 
 perfections and errors. When it has received the 
 final approval of the Court, no one can, thereafter, 
 impeach it for error ; for it is. in contemplation of 
 the law, perfect. 
 
 We may say here, as the Court said, in Rcc/a- 
 mation District vs. Hagar, 4 W. C. R., 2<S4, that all 
 these thinsfs were " necessarilv detenninetl bv the 
 trustees (Commissioners) in the statcnicnt \^^ the 
 Board of Supervisors {County Court) to have been 
 proper, and such as the law contemi>lated, and by 
 the Board of Supervisors (County Court) in mak- 
 ing the order fjr the assessment, and neith<'r the 
 determination of iIk- trustees, (Commissioners) 
 nor that of the Board of .Supervisors (County 
 Court) can be contrarlictcd or impeached in this 
 suit. 
 
 Further light is shed upon this quitstion \)\ the 
 following decisions.
 
 1 68 
 
 Under the laws of Virginia, (Va. Code of i860, Ch. 56, Sec. 
 6, et seq.,) it was provided that the County Court, shall, in 
 the event that a company, organized for a work of internal 
 improvement, or a county or town, cannot agree with owners 
 of land needed for purposes of improvement by such company, 
 county or town, appoint Commissioners to assess the damages. Ten 
 days' notice shall be given of the application, by service on the 
 tenant of the freehold, and by posting and publishing in a pre- 
 scribed manner, if there is no tenant in the county or cor- 
 poration. The Commissioners, after being sworn, shall examine 
 the land and hear evidence, and determine what will be just 
 compensation, making their report, in a form set forth, reciting 
 their appointment and its purpose, the time of their meeting and 
 its adjournments, a description of the property, and assessing the 
 amount of damages sustained, over the benefit enuring from the 
 improvement. This report and certificate shall be returned to 
 the County or Corporation Court, " and unless good cause be 
 shown against the report, the same shall be confirmed and re- 
 corded. * * If, however, good cause be shown against 
 the report," or if Commissioners disagree or fail to report in a reas- 
 onable time, the Court may appoint other Commissioners, &c. 
 
 In Washington vs. Swiizer, 26 Grattan, 661,664, 
 
 the question arose as to how far the confirmation of 
 
 the report, under this statute, was conclusive against 
 
 objections to it. The case is an authority showing 
 
 the great latitude which is afforded for objection 
 
 at the time of the confirmation of the report, the 
 
 parties affected not being confined to the point that 
 
 the award of damages is too high or too low, but 
 
 being at liberty to raise every other objection chat 
 
 may validly be urged against the confirmation. 
 
 It was there said : 
 " The Court is ot opinion that when the report of Commis- 
 sioners * * * is returned to the County or Cor- 
 poration Court, either party may show cause against its confir-
 
 169 
 
 mjtion, upon the ground 0/ excessive or inadequate compensation 
 and damages, improper conduct of the Commissioners in refusing 
 or failing to hear legal and proper evide?ice, or by proof of k^h 
 
 OTHER FACT, TENDING TO SHOW THAT SAID REPORT OUGHT NOT 
 TO BE ADOPTED," 
 
 Alexander vs. The Mayor, 5 Gill., 3S3, was a 
 bill in chancery to enjoin the collection of an as- 
 sessment for the improvement and extension of a 
 public street. The ordinance under which the as- 
 sessment was made provided for an appeal from 
 the Commissioners to the Baltimore City Court. 
 
 The objections urged against the assessment 
 were that the Commissioners failed to assess all 
 the property benefited, omitting one street entire- 
 ly ; and that they omitted certain church property, 
 and unjustly and arbitrarily and without reference 
 to the special benefits received by other persons, 
 imposed upon and apportioned among them the 
 tax that should have been levied upon such ex- 
 empt property, and that they otherwise proceeded 
 arbitrarily, irregularly and oppressively. 
 
 The Chancellor refused the injunction, holding 
 that for the alleged improper conduct of the Com- 
 missioners redress might have been had by ai)p(:al. 
 
 Said the Appellate Court, at p. 398 : 
 
 "It is perfectly clear that the flourt of f 'hanccry has no 
 jurisdiction to supervise or re-examine the jjroceedings and judg- 
 ment of the City Court with respect to these assessments. * * 
 And we think that the order of Chancery refusing this injunc- 
 tion was correct and must be anirmed."
 
 170 
 
 People vs. B^'islin, 80 111., 423. 
 
 This was an application for judgment against 
 certain lots benefited by the laying out of a park, 
 for assessments imposed thereon by the corporate 
 authorities, and which the owner had suffered to 
 become delinquent. 
 
 By the Act under which the park was created it 
 was provided, that a Board of Park Commissioners 
 should have control of the improvements, and 
 should make a special assessment to maintain them 
 upon the contiguous property adjudged by them to 
 be specially benefited thereby ; and that when 
 completed they should file their assessment with 
 the Clerk of the Circuit Court of the County, and 
 give notice of such filing, and of an application to 
 the Court for confirmation ; and that the Court 
 thereupon, after proof of due notice, should have 
 power to hear and determine such application. 
 
 Under this Act the Commissioners made their 
 assessment roll, which they duly reported to the 
 Circuit Court and filed with the Clerk, and the 
 assessment was thereafter duly confirmed. 
 
 The finding of the Court was as follows : 
 
 " That all the preliminary steps had been taken by the cor- 
 porate authorities, and that the assessment was made in propor- 
 tion, as near as may be, to the benefits resulting from the im- 
 provement to each separate lot, block or parcel of land mentioned 
 in the assessment roll, and that all and every of the proceedings 
 of the Commissioners in the premises were regular, valid and in 
 conformity with law, and that they have done all things required-
 
 171 
 
 of them by law to make this special assessment a legal, just, 
 valid and binding assessment, in whole and every part thereof, 
 and that the same and every part thereof was a j ust and fair as- 
 sessment in the premises." 
 
 The Cojrt, in delivering its opinion, said : 
 
 " The point is pressed, that this assessment is not on con- 
 tiguous property. This question and all others bringing up the 
 levy and assessment, have been passed upon by the Circuit 
 Court, and are res adjudicata, and cannot now be made in this 
 Court. Upon this there is a judgment pronounced by a Cotirt of 
 competent Jurisdiction, and there they must rest." 
 
 Andrews vs. The People, 84 III, 28, arose under 
 the same statutes as those referred to in People vs. 
 Brislin, the Park Commissioners makinor the as- 
 sessment roll, and referring it to the Circuit Court 
 of the County for confirmation. 
 
 The Court, at page 2)2)^ said : 
 
 " It is * urged that the assessment is void, because it does 
 not appear frjai the proceedings that the property is benefited 
 to the amouat assessed thereon." (Precisely the same objection 
 as that raised here, that the costs exceeded the benefits.) 
 " The assessment was confirmed by the Circuit Court, a Court 
 of competent jurisdiction. No appeal has ever been taken from 
 that judgment, and, in a proceeding to collect the amount found 
 by the decree of the Circuit Court, the question raised must be 
 considered res aijuiicata." 
 
 It was likewise urcjcd that iIk; Cf)mmissi()iiers 
 
 had no power to apportion the entire asse.ssment, — 
 
 as they did — into certain sums, j)ayal)l(; annually ; 
 
 that they were authorized to make only one 
 
 ai^portiunment, and wlicn that h)r the first year 
 
 was fixed, their authority was exhausted. 
 
 " But, were it otherwise," said the Court, at p. 35, "the a|> 
 pcllants cannot go behind the confirmation of tlic assessment
 
 172 
 
 made by the Circuit Court, or take advantage of such defects in 
 a collateral proceeding." 
 
 Prout vs. The People, Z}^ 111., 154, 158. 
 
 Application for judgment and order of sale of 
 land for the collection of a special assessment. 
 The ordinance under which the work of improve- 
 ment was done, contained forty distinct sections, 
 each providing for a separate and distinct improve- 
 ment and assessment. It was objected that the 
 assessment rolls under each of the sections of the 
 ordinance were presented to the Court for confirm- 
 ation at the same time, and were all confirmed by 
 one and the same order, and in a single proceed- 
 ing. 
 
 The Court said : 
 
 " If there were error in the hearing on confirmation of all 
 the assessment rolls at onetime, which is by no means admitted, 
 it would not render the order of confirmation void. The ob- 
 jection should have been raised in the proceeding where the 
 error was committed, and cannot be heard in this collateral 
 proceeding." 
 
 In Leiimer vs. The People, 80 111., 601, which 
 was an appeal from a judgment of the County 
 Court of Cook County, rendered for a special as- 
 sessment levied on certain lands benefited by the 
 improvement of a street known as Parker's Avenue, 
 and which was reported by the Collector to be de- 
 linquent, the Court said : 
 
 " It is now too late to inquire into the nature of Parker's 
 Avenue, — whether public or private. That objection should
 
 ^73> 
 
 have been made, when application for confirmation of the assess- 
 ment was made of which appellant had notice by publication. 
 It is now res adjtidicata. It must have been adjudged a public 
 Street when the order^'of confirmation was entered, and there is 
 no appeal from that." 
 
 Blake vs. The People, 109 111 , 504, was an ap- 
 peal from the judgment of aCountyCourt, in favorof 
 the collector of the County against a certain tract of 
 land, for the amount of a special assessment imposed 
 thereon for drainage purposes. The statute, under 
 which the assessment was made provided for the 
 formation of a drainao^e district. After the district 
 was created, it provided that a jury should be im- 
 panelled to assess the daniages and benefits, that 
 they should make an assessment roll, showing 
 the amount of damages and benefits sustained by 
 each land-owner affected, that, after its completion 
 they should fix a time and place, when and where 
 they would attend for its correction, and that the 
 Commissioner or the Jury should gizw ten days notice 
 of such time, by posting and publishing notices, 
 prior to the time, &c., that they should thercui)on 
 hear objections and correct or confirm said assess- 
 ment roll, and thereafter return it to the Court, 
 where it should again come on for hearing at the 
 next term. 
 
 It was urged as an objection to the proc(;edings 
 that the notices [)rior lo the confirmation of the 
 assessment roll by the jury, were not given as rc- 
 •quired by the statuL/j.
 
 174 
 
 The Court held that the land-owner was not en- 
 titled to raise the point in this collateral proceed- 
 ing — that he was concluded by the confirmation of 
 the assessment. It was said : 
 
 " All objections 7vhich could have been urged at the time of the 
 confirmation of the assessment roll and which were not then urged, 
 must be considered as waived, and cannot be urged for the first 
 time on applicatioyi for sale of lands for a delin-quent assessment. 
 Such has been the repeated ruling of this Court in cases of 
 special assessments for the opening, repair and improvement of 
 streets, and there is no difference in principle between those 
 cases and the present. " - 
 
 Matter of Widening Broadzvay, 61 Barb., 483. 
 This was an appeal from an order setting aside the 
 order of confirmation by the Supreme Court of a 
 special assessment for widening Broadway in the 
 City of New York. The Commissioners of esti- 
 mate and assessment, returned their report to the 
 Supreme Court, where it was confirmed. The 
 Judge, at special term, found that there had been 
 error, mistake, irregularity and illegal acts in the 
 assessment proceedings, and that the assessment 
 of benefits and award of damages had been un- 
 fair, unjust, inequitable and oppressive as respected 
 the City of New York, wherefore, the order of con- 
 firmation was set aside. 
 
 Said the Court at page 486 : 
 
 " Supposing * that the order of confirmation when made 
 was not appealable, can the Court entertain a motion to vacate 
 it for error, mistake, irregularity or illegality ? * * The order
 
 / :> 
 
 of confirmation * * * is an order of the Supreme Courts 
 not of any quasi-judicial tribunal, possessing limited powers. It 
 is J. final order made in a special i)roceeding. The Court has 
 appointed certain officers to ascertain and report upon certain 
 disputed facts, viz : the value of the property taken and the 
 benefit accruing. These officers have reported to the Court, 
 and the Court has confirmed the report. In what way does 
 this order of confirmation differ, as to its finality, from a judg- 
 ment of the same Court, entered on the report of Commissioners 
 for interests in partition ? " 
 
 3. It is earnestly urged that "the assessment is 
 rendered void, also, by the fact that one of the 
 Commissioners and one of the experts who made 
 the appraisement were personally interested in the 
 property affected by the assessment." 
 
 The interest of the Commissioner, if it was a dis- 
 qualification, might have been urged in the County 
 Court in opposition to the confirmation of the re- 
 port. It can not be urged now to overthrow the 
 judgment of that Court. 
 
 Matter of SoidJicrn Boiilevai^d, 3 Aijb.. I'r. 
 
 (N. S.)447. 
 Motion to confirm the r(;port of Commissioners 
 
 of estimate and assessment — appointed by an act 
 
 laying out a highway. 
 
 " It is urged," said the Court, "that one of the Commission- 
 ers owned some lots, which have been taken for the improve- 
 ment, and was therefore incompetent to act, upon the mnxini 
 that no man can be judge of his own cause. * * There 
 are, however, I think, several answers to it. One is, that the 
 maxim does not govern the case. It apjtlies to judi( iai officers 
 hilt not to officers whose duties |»ariake of an administrative
 
 176 
 
 character, and are only quasi judicial, (People vs. Wheeler 21 
 N. Y., 82.) In this case, Denio, J. says : "An act of public 
 administration, though requiring the exercise of judgment, is 
 quite a different thing from the dispensing of justice between 
 man and man. If this objection should prevail, assessors, 
 highway commissioners, tax commissioners, and many other 
 boards of public officers, would be incompetent to act, and it 
 would be impracticable to exercise some of the most important 
 functions of the government. The public interest is supreme. 
 Whenever compatible with this, officers like the one in question, 
 should be disinterested. It rests exclusively with the Legislature, 
 however, to determine whether in cases like this, interest shall 
 disqualify. The Constitution provides, that compensation for 
 private property, taken for public use, shall be ascertained by a 
 Judge or by Commissioners, as shall be prescribed by law. * In 
 this case, the only qualification for the Commissioners prescribed 
 by the Statute is, that they shall be residents of the County. * 
 * * Furthermore, the objection should have been made at 
 the hearing of the application for the appointment of Com- 
 missioners. Consent, or at least a waiver of the objection may 
 be fairly inferred, from an omission to make it at the proper 
 time. In such a case it would, * be monstrous to hold, that 
 the mere presence of the interested Commissioner, vitiated the 
 proceedings." 
 
 In People vs. Brislin, 80 111., 423, 433, the Court 
 
 said : 
 
 " The fact that the Commissioners who made the estimate 
 and assessments were property owners in the towns, could not 
 disqualify them. They were made by the law the tribunal for 
 the purpose, and were required to take an oath faithfully and 
 impartially to discharge their duties for the public interest. We 
 are of opinion they were not disqualified ; the law appointing 
 them, qualified them." 
 
 In State vs. Nelson, 57 Wise. 147, 154, Com- 
 missioners were appointed by the order of the
 
 1/7 
 
 County Court, to review the action of a Board 
 
 of Supervisors refusing to alter a highway. 
 
 "It happened," said the Court, "that one of the three Com- 
 missioners thus selected was one of the petitioners for the alter- 
 ation of the highway. This settlfed that he was not disinter- 
 ested, within the meaning of the statute, and was, therefore, 
 hot qualified to act as a Commissioner. It does not appear 
 that any objection was made to his competency before the 
 County Judge. Because there was no objection thereto, such 
 selections did not invalidate the proceedings. * * Even if objec- 
 tion in such case be taken in due time, it will not invalidate 
 the proceedings of the Commissioners, when attacked collater- 
 ally." 
 
 In Matter of Central Park, i6 Abb. Pr., 56, 70, 
 Commissioners of appraisal were appointed, in 
 conformity with N, Y. laws of 1859, Ch. 101, to 
 assess adjoining property in New York City for the 
 benefits resulting from the laying out of Central 
 Park. It was contended that all the proceedings 
 in the case were void, inasmuch as one of the 
 
 Commissioners was appointed in direct contraven- 
 tion of the terms of the Act, providing that no in- 
 terested party should be api)ointed. It appeared 
 that he held a mort^raofe on some of the lands 
 affected. Held : The objection shouKl have been 
 taken at the time of the appointment of the Com- 
 missioners. It was to(j l.itf- to urge it, or ap[jlica- 
 tion to confirm the report. 
 
 Said the Court : 
 . "The papers show that one of the Commis.sioners held a 
 mortgage on some iJroi)crty uw 471)1 street. * * 'I'he pro- 
 vision of the statute in regard to interest is merely directory. 
 Jt may have been if vahd, a good reason to apply for a change
 
 178 
 
 of the Commissioner, but was not a jurisdictional matter to 
 affect the validity or regularity of the proceedings." 
 
 Pittsburg vs Cluley, 74 Pa., St. 262, 4, was a 
 
 scire facias upon a municipal claim for $133 by the 
 City of Pittsburg against defendant, for opening a 
 certain street. 
 
 An assessment was made by receivers of the 
 damages and benefits resulting from the opening, 
 and reported to and approved by the council, and 
 thereafter an appeal was taken by an interested 
 party to the Court of Quarter Sessions and the as- 
 sessment was confirmed. 
 
 It was urged by defendant that one of the re- 
 ceivers was not a freeholder, as required by the 
 
 statute. 
 
 " If," said the Court, " the assessment was not valid, it can 
 no more be collaterally questioned or impeached on the ground 
 that one of the receivers was not a freeholder, than a judg- 
 ment or verdict, because one of the jurors by whom it was found, 
 was not qualified to serve. The confirmation of the report has 
 all the legal effects and incidents of the judgment or decree of a 
 Court of competent Jurisdictions-one of which is, that it must be 
 treated as valid atid binding until reversed or set aside, and can- 
 not be assailed except for fraud or collusion. 
 
 " The only complaint is that one of the receivers by whom (the 
 assessment) was made, was not a freeholder. This objection 
 would have availed, if it had been made in time. But it comes 
 too late, and cannot be set up here. The confirmation of the re- 
 port must be regarded as conclusive of the assessment.''' 
 
 In Williams vs. Mitchell, 49 Wis., 284, 290, 
 an action of trespass, the defendant justified 
 on the ground that he was lawfully remov-
 
 1/9 
 
 ing obstructions from a public highway. It 
 was denied that the locits in quo was a public 
 highway, the proceedings purporting to lay out the 
 same, being for various reasons void. One of the 
 main objections urged was, that the Commission- 
 ers for altering the road, were signers of the peti- 
 tion for the alteration, and consequently interested 
 parties. 
 
 Lyon, J., said : "Were the Court reviewing the proceedings 
 of the Commissioners on certiorari, brought in proper time, it is 
 very probable that their determination would be reversed, be- 
 cause the justice * appointed Commissioners who were 
 not disinterested. But this is an irregularity only, and not juris- 
 dictional. * Being merely an irregularity, it is not avail- 
 able in a collateral action. Although the Commissioners were 
 not disinterested, their determination is not, therefore, void, but 
 is valid and conclusive until assailed in a direct proceeding to 
 set it aside. This is not such a proceeding ; and therefore in 
 this action, it must be heid that such determination is valid. " 
 
 Brock vs. Hishen, 40 Wis., 674, was also an 
 action of trespassand for an injunction, thedefendants 
 justifying on the ground that the locus in quo was 
 a public highwa\-, and that they entered upon and 
 were tearing down fences. &c., on the same, for 
 the purpose of opening the highway, und(;r the di- 
 rection of the proper town officers. On motion to 
 dissolve the injunction it api)eared, that a petition 
 was presented to the Supervisors lor the laying 
 out (jf the highway — that they he.u'd the same and 
 det(irminf:d not to lay it out -that, on th(^ appli- 
 cation of a land-ownrr affected thereby. Commis- 
 sioners were appointed to review the determination
 
 i8o 
 
 of the Supervisors, which resulted in a reversal of 
 the former order, and in an order to open the high- 
 way. It was urged that one of the Commissioners 
 was an interested party, and that this vitiated the 
 proceedings. 
 
 , Said the, Court : . " The name of the petitioner who had pre- 
 viously acted as a Supervisor in the matter of the same highway, 
 sfhould have been stricken from the Ust, had the objection been 
 taken when the Commissioners were selected. We cannot say' 
 that one who had previously decided, under the sanction^ of his 
 official oath, that the highway ought to be laid out, was disinter- 
 ested, within the meaning of the statute prescribing the qualifi- 
 cations of such Commissioners. But we think- the' objection' 
 comes too late. It is not unlike the case where An incompetent 
 juror is permitted to be sworn in a case without objection. 
 Whether the fact be known or unknown to the defeated party, 
 such incompetency is not ground for reversing the judgment- 
 In some cases it is not even ground for a new trial." 
 
 II. The judgment of the County Court is a 
 
 CONCLUSIVE adjudication IN ALL COLLATERAL 
 ACTIONS THAT THE AcT ITSELF IS CONSTITUTIONAL. 
 
 In discussing the question, it ought to be borne 
 in mind that the position which we take is not that 
 ascribed to us by the learned counsel for the plaintiff.. 
 They assert [p. 57 of closing brief,] that ourargu- 
 ment is that " a Court created by an uncontsitu-. 
 tional statute, and, therefore, not a Court at all, has 
 nevertheless, power to determine conclusively or 
 against collateral attack, that the statute is consti- 
 tutional and consequently that it is a Court and 
 has authority to adjudicate upon the matter com- 
 mitted to it by the statute; thus breathing into its.
 
 i8i 
 
 own dead nostrils the breath of life." Of course, 
 this arg^ument is absurd ; but, it is not the argu- 
 ment which we jjresent in this case. We say : 
 The Court existed before and independent of this 
 statute. It was created bv the Constitution. It 
 was a Court of record. Its proceedings were car- 
 ried on with the formality and regularity which at- 
 tend the acts of the highest Courts of original juris- 
 diction. It was, by the Constitution, given power 
 to hear and determine special proceedings — a class 
 to which the opening and widening of streets be- 
 long. When, therefore, parties came before it in a 
 proceeding to widen a street, and claimed to act 
 under and in pursuance of a statute of the State, 
 it necessarily became the duty of the Court to de- 
 termine whether it would entertain jurisdiction of 
 and proceed in the matter. That question was 
 judicial and the decision of it was a judicial act 
 within the power of the Court to pcrlurm. 1 he 
 Court might decline jurisdiction on the ground 
 that the statute which attempted to give it juris- 
 diction over that proceeding is unconstitutional, or 
 it might entertain jurisdiction on the ground that 
 the statute is constitutional. In this case the 
 Court entertained the case and gave judgment 
 therein, and our position is. that : In ai)pr()ving 
 and confirming the report of the Conunissiojutrsn 
 the County Court judicially declared il l'g.ill\- cor- 
 rect — conformable to the C(jnsiituiion and laws.
 
 l82 
 
 Its judgment, though It may be erroneous, is con- 
 clusive on that point. 
 
 The only thing which brought the Court into 
 relation with these proceedings and gave it any 
 right or power to act therein, was the Constitution 
 and the Dupont Street Act. The proceedings 
 themselves belonged to a class of which, in proper 
 cases, the County Court had jurisdiction. They 
 were special proceedings under the Constitution. 
 The Constitution, though conferring the jurisdic- 
 tion in general terms, does not enumerate the par- 
 ticular occasions in which it shall be exercised. 
 To do this a statute is required. There must be 
 a law applicable to the particular case before the 
 Court. 
 
 When contesting parties come before a Court 
 and demand the exercise of its jurisdiction, may 
 not the Court, at the very threshold, ask : Is there 
 any law requiring the Court to take action in this 
 matter ? If, in response, a paper is produced pur- 
 porting to be a statute, may not the Court then 
 ask : Is this statute constitutional ? It seems to 
 me there can be but one answer to these questions. 
 Would any one contend that, if a dissatisfied 
 property-owner, on the line of Dupont Street, had 
 come into Court, when the report was up for con- 
 firmation, to urge that the Dupont Street Act was 
 unconstitutional, the Court must have refused to 
 hear him ? Would the proposition be maintained^
 
 i83 
 
 that, If the Court did hear hirn, and became entirelv 
 satisfied that the Act was unconstitutional and 
 void, it would, nevertheless, have been bound to 
 act and examine the report ; and, if it found it in 
 accordance with the void statute.confirm it ? Would 
 it be claimed that, if the County Court did, under 
 such circumstances, confirm the proceedings, and 
 appeal was taken to the Supreme Court, that that 
 Court would have no authoritv to decide that the 
 Act was unconstitutional and dismiss the whole 
 proceedings as null and void ? These questions 
 cannot be debated. To state is to answer them. 
 Courts are the ministers of the law. If there is 
 no law, they have no office to perform. When 
 they act in a given case, the very first qu(;stion 
 which they necessarily determine is, that the law 
 commands their action. It was said, and no doubt, 
 well said, by this Court on an appeal from an oaler 
 of the County Court confirming' an assessmeni un- 
 der a statute precisely similar to th<^ present: " It 
 the appellant had succeeded in convincing us that 
 this is a case at law involving th(' legality ol an a.s- 
 sessment we luould /lave been compelled to hold that 
 the Act conferrino^ jiij'isdiction on the County Court 
 wa'-y unconstitutional and void, and the loliole uia- 
 chineiy for enforcino^ the assessment would hazt 
 fallen zuith the Act." ' . 
 
 ■ Ilfiuf^hton'.s Appeal, 42 Cnl.. 57.
 
 i84 
 
 Suppose, then, that an appeal had been taken 
 in this case and that, on behalf of some dissatis- 
 fied property owner, the learned counsel, who has 
 just addressed your Honors, should have urged 
 before that Court all his present objections to the 
 constitutionality of this Act, and supported them 
 by the same learned argument which we have 
 heard ; and suppose the Supreme Court had, upon 
 mature deliberation, delivered a judgment over- 
 ruling all these objections and expressly determin- 
 ing the Act to be constitutional, would any one 
 contend that the validity of the Act would not 
 have thus become res adjudicata and forever 
 placed beyond dispute? If the Board had issued 
 these bonds, after such a decision, and a purchaser 
 in good faith, had bought and paid for them, v^ould 
 any one contend that the question of the constitu- 
 tionality of the Act could, as against him, be again 
 agitated ? Would not the judgment of the high- 
 est Court of the State, rendered in the proceeding 
 itself, afford him the same protection which final 
 judgments always afford to those who act under 
 them ? When he came to collect his bond, would 
 he again have to maintain the constitutionality of 
 the xA.ct, which the Supreme Court had, in that 
 V'ery case, declared constitutional ? Neither reason- 
 ing nor authority is required to answer these ques- 
 tions ; they answer themselves. 
 
 But, suppose the question of the constitutionality
 
 >85 
 
 of the Act had not been expressly debated in the 
 Supreme Court, but that Court had, nevertheless, 
 finally approved and confirmed the proceedings, 
 would its judgment, so far as the constitutionality 
 of the statute is concerned, be any the less con- 
 clusive ? Clearly not ; for, as between the parties 
 to an action, a final judgment is conclusive of 
 every question of law and fact which might have 
 been litigated, whether, In point of fact it was 
 litigated or not. Take a simple illustration : A 
 sues B to collect a money demand arising under 
 a statute. He obtains a judgment, wliich is finally 
 affirmed on appeal to the Supreme Court, h^xe- 
 cutlon issues. B's land is sold and boui^ht in bv 
 C, who obtains a Sheriff's deed. In .i subsequent 
 case, arising under the same Act, the point is, for 
 the first time, made in the Supreme Court, that the 
 Act is unconstitutional, and the Coiu^t so holds. 
 Does the second decision affect C's title .-^ Is 
 the judgment, under which h(; d(M-aigns title, any 
 the less valid, because an examination ot the 
 arguments may reveal the fact that counsel 
 neglected to call the Court's attention to the fact 
 that the Act was in \'iolation of llu; Constitution ? 
 WouKl the judgment hav(; been any more effective 
 for C's protection, if the objection to the constitu- 
 tionality of the Act had been expressly made and 
 overruled by die Court.'* Obviously not. 
 
 l)ul, iii<: judgment of the County Court, il im-
 
 .186 
 
 appealed from, is just as final and conclusive upon 
 every question as the judgment of the Supreme 
 Court. No one would contend that, if the ques- 
 tion of the constitutionality of the Act can be 
 raised in the Supreme Court, it can not be raised 
 in the County Court. 
 
 I contend that the judgment of the County Court 
 was equally conclusive of the legality of the pro- 
 ceedings, whether it was rendered by default or 
 upon appearance and contest. The illegality of 
 the proceedings — if they were illegal — the uncon- 
 stitutionality of the Act — would have afforded a 
 complete defense to the demand for judgment 
 made against the property -holders in the County 
 Court. If, being cited to appear, they permitted 
 judgment to be taken against them by default in a 
 Court which, under the Constitution had jurisdic- 
 tion of the subject matter, they stand in the po- 
 sition of those who, having a perfect defense to an 
 illegal demand, neglect or refuse to make it. It 
 is too late, after a judgment is pronounced, to 
 claim the benefit of that defense in a collateral 
 proceeding. If they did appear and, having urged 
 their defense, the Court found against them, they 
 are none the less bound by the judgment, because, 
 in a collateral proceeding, it may conclusively be 
 shown to be erroneous. 
 
 I conclude, therefore, that the final judgment 
 confirming the report of the Board was an adjudi-
 
 i87 
 
 cation that the proceedings were legal — that the 
 Act under which they were taken was constitu- 
 tional. 
 
 The contention which I make under this head 
 is well illustrated and fully supported by the de- 
 cision of the Court of Appeals of New York, in 
 1877, in the case of- Hallock vs. Dominy, 69 N. 
 Y., 238. The facts were these : 
 
 A Justice of the Peace pronounced judgment 
 by default against a defendant in an action to re- 
 cover a penalty. Process being issued under the 
 judgment, the defendant in that action brought 
 trespass. The justification was the judgment of 
 the Justice. In reply, it was contended that the 
 Act imposing the penalty was unconstitutional. 
 The Court of Appeals, not deciding, but assuming 
 the Act to be unconstitutional, held the judgiiKMit 
 of the Justice to be valid, and said : 
 
 " The Justice of the Peace had jurisdiction of the subject 
 matter of the action, being for the recovery of a penally less than 
 two hundred dollars (Code, |^ 53.) He had jurisdiction, by the 
 personal service of a summons, of the defendant therein, the 
 present plaintiff, and no objection was taken to the form ur the 
 regularity of the proceedings. The jurisdiction of the inai^istratc 
 was not derived from, and did not depend upon, the Act which is 
 challenged, hut upon the general statutes of the State. Hk mad 
 
 JURISDICTION TO PASS UPON KVKkV (^UKSTION INVOI.VKIt IN THF. 
 ACTION, INCLUIJIN(; THK VAMPITV OK THK LAWS IMPOSINO TIIK 
 
 PKNALiv. The judgment so long as it remains unreversed, teas 
 for every purpose as conclusive between the parties, and upon every 
 question necessarily embraced in the judgment, as would have been 
 that of the highest Court of record i.i the State."
 
 i88 . . 
 
 Precisely the Scime question arose under the 
 
 same state of facts, and was decided in the same 
 
 manner by the Supreme Court of Kentucky in 
 
 1837, in the case of Arnolds'?,. Shields, 5 Dana, 
 
 18. 
 
 " In our judgment," said the Court, '-if the unconstitution- 
 ality of the Act of 1836 be admitted, nevertheless, the magis- 
 trate below had jurisdiction to decide on the cases brought before 
 him, ifivolving the validity of the statute, and the consequential 
 right to the sums of money claimed under it. * * * 
 
 The magistrate having jurisdiction over the subject matter (debt 
 on implied contract) and the amount (fifty dollars) had a right 
 to decide whether the penalty sued for was legally recoverable, 
 or in other words, whether the statute under which it was claimed 
 was valid or void, and that, if the statute be unconstitutional, 
 that fact does not show that the magistrate had no jurisdiction 
 over the suit, but would prove only that his judgment was erron- 
 eous. * * * In this case the magistrate having a 
 general jurisdiction over demands ex contractu amounting to not 
 more than fifty dollars, the only question was, not, whether he 
 could adjudicate upon the warrant, but how he should decide — 
 and consequently, he had a right to adjudicate and, therefore, to 
 decide whether the statute, in virtue of which the sum of fifty 
 dollars was claimed, was binding or void. '' 
 
 The analogy of these cases with the present is 
 patent : The County Court had, under the con- 
 stitution, general jurisdiction of special proceedings. 
 Power to act in and decide that class of cases, it 
 derived, not from the statute, but from the con- 
 stitution. When, therefore, an act relating to a 
 special proceeding was brought to its attention, 
 and its judgment upon the steps taken under it 
 was invoked, it had a right to decide whether 
 those proceedings were legal, that is, whether the
 
 189 
 
 Act under which its judgment was claimed was 
 valid or void, constitutional or unconstitutional. 
 
 The argument that I have made upon the ab- 
 solute conclusiveness upon all points of the judg- 
 ment of the County Court is, I submit, not only 
 fully supported by the reasons adduced and the 
 authorities cited, but is the logical and inevitable 
 result of the positions assumed and the conces- 
 sions made by the learned counsel opposite. 
 
 They claim and assert under the Constitution, 
 "that the right of these tax-payers to notice and 
 a hearing upon this assessment, before it became 
 final, extended to the whole assessment and in- 
 cluded every possible objection to it ;" they had " a 
 right to be heard as to the validity of the statute 
 authorizing the assessment, the authority of the 
 board to make it, their fraud, misconduct, and 
 errors in making it, the equality and fairness of it, 
 ■and the justice and propriety of the changes made 
 in it, after it was reported so far as it affected his 
 liability y 
 
 This right to this complete hearing, I fully 
 admit. The constitution gives it and the* statute 
 does not attt^mpt to, and could not if it did, take 
 it away. \\w\., surely, it will not be c()nt(;nd{;d 
 that the judgment of a Court of record, whether 
 by default or after trial, is not, in all collateral pro- 
 ceedings, conclusive upon every question on wliicli
 
 the parties had a right to be heard before the 
 
 Court. 
 
 IV. 
 
 The bonds issued under the act are ne- 
 gotiable, AND HAVE ALL THE QUALITIES AND 
 PRIVILEGES OF COMMERCIAL PAPER, AND THE 
 INTERVENORS ARE BONA FIDE HOLDERS 
 
 THEREOF. 
 
 In discussing this point, it will be assumed, for 
 the purpose ot argument, that the bonds are 
 valid. 
 
 They are bonds of the City and County of San 
 Francisco, of $1000 each, payable in twenty years, 
 bearing interest at seven per cent, per annum. 
 (Sec. 9.) They are to be disposed of to the highest 
 bidder, at not less than ninety-five cents on the 
 dollar. (Sec. 11.) They are to be paid, principal 
 and interest, by a tax annually levied upon the 
 district declared by the Act to be benefited by the 
 improvement. (Sec. 13.) 
 
 The character of these bonds, whether they are 
 negotiable or not, depends, of course, upon the 
 meaning of the Act under which they were issued. 
 Did the Legislature intend to make these bonds 
 non-negotiable i*^ To have done so, would have 
 been to destroy or radically impair the value of 
 the bonds, and to frustrate the objects which the 
 Act had in view. That the negotiability of a bond, 
 carrying with it all the intendments, presumptions^
 
 igi 
 
 and protections which attend commercial instru- 
 ments, adds to its value and salableness, is a prop- 
 osition too obvioQs to need demonstratnon. That, 
 at a time when the nioitejr markets of the world 
 are replete with negotiable municipal bonds, the 
 Legislature of this State should have purposely 
 compelled the city of San Francisco to enter these 
 markets as a competitor, with bonds clogged and 
 impaired in their value by their non-negotiability, 
 is to tax that body with purposeless folly. 
 
 The very nature of the bond, and the purposes 
 which it was irttended to subserve are in them- 
 selves conclusive evidence that the Legislature 
 intended to make theni negotiable. Upon th..> 
 subject, the language of the Supreme Court uf 
 Mississippi, dealing with a similar statute, will be 
 found instructive r 
 
 " In construing an act of the Legislature," says the Court, 
 '■ wj must look to its scheme, the object projxised to be accom- 
 plished, as an aid to the construction of any part of it, so that 
 the eitire law may b^ made harmonious in all its parts, anil a 
 consistent whole. Two objects are ])rescnled in the fifth sec- 
 tion of the amended and supplemental charter. * * * 
 Second, that costly and extensive inii)rovemeiits might be made 
 of the character set forth in the second section. The scheme pro- 
 posed for this accom])lishment was the issuance of interest 
 bearing bonds, having a long time to run. * * * 
 
 That object would be [)romoted Ijy putting the honds in such 
 form as that they would be easily converted into m()nc7. 'I'h.it 
 exigency could Ix; met by making the bonds negotiable, but 
 the city objects to the validity of the bonds, bjcause the I-egi.i- 
 lature did not confjr the power expressly to make them negoti- 
 able (all of them are payable to bearer). * * * 
 The bonds * * * would be wortK more, and
 
 192 
 
 would realize more to the city * * * }f they were 
 invested with the privileges and immunities of commercial obli- 
 gations. * * * One of the distinguishing features 
 in the history of the internal improvements of the last quarter of 
 a century, has been the vast stimulus and assistance furnished 
 by municipal bonds. * * * By the same means 
 have the cities been paved, sewered, supplied with gas and water, 
 wharves, etc., to a great degree. Bonds thus issued bear inter- 
 est, payable generally semi-annually, and have a long time to 
 run, and are intended to be sold in the money markets as stocks 
 and securities. They are designed to be placed in the money 
 centers, in or out of the State, where money is most plenty and 
 cheapest. Where, therefore, municipal bonds, bearing annual 
 or semi-annual interest, with long maturities, are authorized to 
 be issued for these, or such purposes, it must be presumed that 
 the Legislature intended that they shall conform to the known 
 usage ; that they shall have that form and those incidents neces- 
 sary to their availability. It is necessary that they should be ne- 
 gotiable, readily so; that each purchaser and holder should ac- 
 quire a legal title, divested of all equities that might exist be- 
 tween the original parties. If they have not the characteristics 
 of negotiable instruments under the law merchant, they would 
 not be readily salable, and would not accomplish the object de- 
 signed. Whether, therefore, the supplemental charter of the 
 city, or the twentieth section of the act incorporating the V. F, 
 & S. I. R. R. Co., authorized in specific and express terms 
 the bonds to be made payable to bearer or not, the right to put 
 them in that form must be ijuplied in the general power con- 
 fer red.'' ^ 
 
 The general rule that municipal bonds are com- 
 mercial securities will be found stated in : 
 
 1 Dillon on Municip. Corp. §§ 486, 513. 
 Jones on R. R. Securities, § 284. 
 
 2 Daniel Neg. Inst. § 1500. 
 
 Mercer County vs. Hacket, i Wall. ,ZTy. 
 Thompson vs. Lee County, 3 Wall., 327. 
 
 1 City of Vicksburg OT. Lombard, 51 Miss., 122-125.
 
 19 
 
 *) 
 
 Pana vs, Bowles, 107 U. S., 529. 
 Murray vs. Lardner, 2 Wall, iio. 
 
 But, it is said that the Dupont Street bonds are 
 payable out of a special fund, created by law for 
 their payment. It will be observed that, in the 
 great majority of cases, the same statute which 
 creates the bond, creates also a fund to be raised 
 by taxation. Indeed, generally, the only way in 
 which a municipality can meet its obligatons is 
 through taxation. Suppose that the Legislature, 
 here, instead of charofinof the cost of wideninir Du- 
 pont street upon a limited district, had imposed it 
 upon the whole city, and had enacted that a tax 
 should be annually levied, assessed and collected 
 from the whole city, sufficient to pay the interest 
 and a proportionate share of the princi[jal of the 
 bonds, and that the moneys so collected should be 
 placed in a fund to be called the Dupont Street 
 Fund ; would that destroy the negotiability of the 
 bond } No one would so contend. Does it make 
 any diffc^rence that the ta.x is collectetl Iroin a dis- 
 trict only of the City ? The whoh; of the jiroperty 
 of the district is just as much bound to |)ay the 
 bonds as the whole of the property of the City 
 would be. It is urged that the whole property of 
 the district may turn out to b(; inadcf]uat(!. So it 
 may be said ihiL ihr; whoK; proix-riy ol ihc City 
 jmay turn out to be equally inadequate.
 
 194 
 
 The reports are full of cases where bonds have 
 been issued by counties on behalf of unincorpor- 
 ated townships, where the property of the town- 
 ship alone was bound for payment, and the money 
 was to be raised by a tax upon the township and 
 not of the county at large. It was so held in : 
 
 Davenport vs. The County of Dodge, 105 
 U. S., 241. 
 
 Town of Queensbury vs. Culver, 19 Wall., 83 
 
 County of Cass vs. JoJinston, 95 U. S., 360. 
 
 Jordon vs. Cass Cottnty, 3 Dillon, 185. 
 
 It has never been doubted that these bonds 
 were just as negotiable as the ordinary county 
 bonds. 
 
 The contention was made on the oral argument 
 that the bonds were, at the start, the bonds of the 
 City, and continued to be so until the completion 
 of the work, when they changed their nature and 
 became the bonds of the district. It was argued 
 that the completion of the work was a contingency, 
 and that a promise to pay which depends upon a 
 contingency, is not negotiable. The case was 
 likened to one where a township bond was to be 
 converted into a county bond " whenever a certain 
 injunction shall be finally dissolved." [Plffs'. brief, 
 p. 98,] But there is no similitude. Here, the 
 bond is from the beginning, and remains through- 
 out, the bond of the City. [Sec. 9.] The only 
 fund provided for its payment at any time, is the
 
 195 
 
 tax to be levied upon the district. [Sec. 13.] 
 There is no contingency whatever in the payment; 
 no conversion of one bond into another at the op- 
 tion of the maker. In the case cited by plaintiff,. 
 \J\Ieriwether vs. Saline Coiintyy 3 Dillon,] the 
 Court said of the instrument which thev held not 
 to be negotiable : " It is not a promise to pay ab- 
 solutely, but a stipulation for bonds thereafter to 
 be issued." 
 
 V. 
 
 The bonds executed and issued by the 
 board of commissioners being negotiable, 
 the recital therein that thev are issued 
 in pursuance of the statute, is, in favor 
 of a bona fide holder, a conclusive ad- 
 judication ihat everything which the act 
 required the commissioners to do was done 
 by them ; that is, that all the steps be- 
 tween the adoption of tiik resolution of 
 the board of supervisors and the judg- 
 MENT OF THj: COUNTY COURT, WERE ki:(;L- EAR- 
 LY TAKEN. 
 
 Nothing is bett(;r sculed, at the present day, 
 than that, whenever officers executing inunicii),il 
 bonds, have, under the law, poivcr to execute? them 
 upon the ha[)p(Miing of certain contingtMicies. the 
 execution b) ilie officers ot bonds, reciting that 
 they are issued under or in accordance with the 
 law, is, in f.ivor of a bona Jidc holder, a conclusive
 
 196 
 
 adjudication that the contingency has happened, if 
 the statute either expressly or by proper construc- 
 tion made those officers the judges of the fact. 
 
 In discussing the question, I shall assume, for 
 the purposes of the argument, that the following 
 contentions of the plaintiff are correct : First, 
 that there is no power in the Board of Commis- 
 sioners to do anything under the Act, unless the 
 Board of Supervisors first declare their adoption 
 of the scheme of the Act under Sec. 2 1 ; and that 
 the Commissioners cannot, by any act or decision 
 of theirs, supply the absence of this declaration of 
 the Supervisors. Secondly, that the jurisdiction of 
 the County Court extends no further than the re- 
 port, and that the Court does not pass upon the 
 regularity of the proceedings of the Commission- 
 ers with reference to giving notice to property- 
 owners and similar acts. 
 
 Having made these concessions, for the sake of 
 argument, the question remains : What, if any, 
 is the legal effect of the recital in the bond exe- 
 cuted by the Commissioners, that it is issued under 
 the Statute } 
 
 I shall seek to establish that this recital is, in 
 favor of a bo7ia fide holder, a conclusive adjudica- 
 tion of the followinof facts : ist. The due orivinof 
 of the notice under Sec. 6. 2d. The due making- 
 of the report of damages and benefits provided 
 for in Sec. 7. 3d. The leaving of the report in
 
 197 
 
 the office of the Boird for thirty days, as provided 
 in Sec. 7. 4th. The due pubhcation of twenty 
 days' notice provided in Sec. 7. 
 
 I contend that these are all acts to be performed 
 by the Board ; and, if, as it is asserted, the County 
 Court has no jurisdiction to pass upon them, then, 
 the determination of their due performance is, by 
 the Statute delegated to the Board ; and the re- 
 cital in the bond that it is issued under the law, is 
 an authoritative declaration by the Boartl, that all 
 these things have been done according to law, aiuP 
 is conclusiv'e in favor of a bona fide holder ot the 
 bonds. 
 
 I understand this to be the doctrine of Meyej' 
 vs. Brown, 3 W. C. R., 760. In that case, the 
 President of the Board of Supervisors, the Clerk 
 of the Board and the Treasurer, were authorized 
 to issue bonds to fund all legal claims against the 
 Citv of Sacramento. The Act did not, in terms, 
 appoint anyone to determine what were legal 
 claims against the City. 
 
 The Court said : 
 
 "True, the Act of 1858 (Slats. 1858, p. 280) [jrovided thai 
 all 'legal' claims might l)e funded; but, as we understand the 
 provisions of that Act, the President of the Board of Supervi.sors, 
 the Clerk of the Board, and the Treasurer, were authorized to 
 determine, on behalf of the City and County of Sacramento, the 
 legality of each claim presented, an<l, if satisfied of its legality, 
 to issue a bond or bonds therefor. * * # pin. 
 
 bonds recite that they were issued in accordant e with the law of 
 1858 ; they, and the (■f)upons attached, are signed and authen-
 
 198 
 
 ticated as required by the law. They are exactly such bonds as 
 would have been authorized, had the officers of the city and 
 county indisputably allowed only ' legal debts and liabilities ' of 
 the former corporation, the City of Sacramento. At the trial, 
 the bona fides of the plaintiff being conceded, there was but one 
 question to be decided, to wit : Were the bonds such as the 
 city and county had power to issue ? No question of irregularity, 
 or even fraud, on the part of the agents of the municipality, 
 could be considered. Roneden vs. Jersey Cii}\ 17 Rep., 253; 
 East Lincoln vs. Davenport^ 94 U. S., 801 ; Po)npton vs. Cooper 
 Utiion, 10 1 ib., 196; Sherman vs. Simmons, 109 ib., 757; 
 Louisiana vs. Pilsbury, 105 ib., 278." 
 
 This decision is of the utmost importance, as it 
 establishes all I claim in this branch of my argu- 
 ment. It decides that: Jii'st, where a Statute 
 authorizes officers to issue bonds upon the happen- 
 ing of a contingency, e. g., the existence and pres- 
 entation to them of a letral claim asfainst a munici- 
 pality, and the statute does not, in terms, appoint 
 a tribunal to determine the fact of the existence or 
 presentation of the claim, the officers charged with 
 the duty of issuing the bonds, are, themselves, 
 made by the law the judges of the question ; sec- 
 ondly, the recital in the bond executed by these 
 officers, that it is issued in accordance with the 
 law, is an adjudication by these officers of the ex- 
 istence of the fact submitted to their determination; 
 thirdly, in favor of a bona fide holder of the bond, 
 the adjudication, evidenced by that recital, is con- 
 clusive. 
 
 If we apply these principles to the case at bar,
 
 199 
 
 they will afford a ready answer to the question of 
 the effect of the recital in the bonds. 
 
 Grant that the giving of the notices and the 
 making of the report, provided in Sees. 6 and 7, 
 are conditions precedent to the right of the Board 
 to issue bonds ; still, who is to determine whether 
 these things have been done .-* It is said that the 
 County Court has nothing to do with the matter. 
 If this be conceded, then, the Commissioners 
 must determine them — else they must remain 
 forever open. 
 
 I propose to examine this subject, and state 
 various propositions which I understand, control it. 
 
 I. Whenevei' power is granted to a niiinicipal- 
 ity or its agents to issne bonds tipon the happen- 
 ing of a certain contingency, if authority to de- 
 termine the question of the existence of the contin- 
 gency, be expressly or impliedly conferred iipO)i the 
 municipality or its agents, their determination and 
 decision of the fact is final ; and, as between a bona 
 fide holder of the bonds and the obligor, all further 
 agitation of the question is forever foreclosed. 
 
 I might content myself with a reference to the. 
 repeated adjudicati(jns which have established 
 the rul(,'. It may be well, however, to discuss it 
 in its origin and development. 
 
 To hold that the existence of the conditions 
 was a question forever op;Mi. would lead to most
 
 200 
 
 inconvenient results, would destroy the value of 
 the bonds, and breed disaster, as well to the ob- 
 ligor as the obligee. 
 
 Grant that, in the present case, for instance, 
 publication of notices under Sections 6 and 7 is a 
 condition precedent to the issuance of the 
 bonds. Still, is the question, whether or not the 
 notices were published, to remain open, as a ques- 
 tion of fact, until the last bond and coupon shall 
 have been paid? The bonds have twenty years 
 to run. May the obligor, at any time within 
 those twenty years, compel each individual bond- 
 holder to litigate with it the question of due pub- 
 lication ? Whether the publication was for the re- 
 quisite length of time ? Whether the papers were 
 selected by the Board ? Whether the notices were 
 published in the body of the paper instead of the 
 supplement? May these questions be raised twenty 
 years hence, when witnesses are dead, papers lost, 
 records destroyed ? A doctrine leading to such 
 results is so disastrous— so destructive of the true 
 value of the bond, and of the objects which it is 
 intended to subserve — that it would be amazing 
 to find it approved by any system of rational 
 jurisprudence. 
 
 Grant that it is important that the conditions 
 precedent to the issue of the bonds should be 
 observed — that the facts should exist; still, as the 
 determination of the existence of those facts must,
 
 20I 
 
 at some time, be established bv the iudcrment of 
 some humcin tribunal, wisdom and sound policy 
 certainly dictate that the determination should pre- 
 cede, and not follow, the issuance of the bonds. 
 
 Speaking upon this subject, the Supreme Court 
 of the United States has said : 
 
 "It is very obvious that, if the act of the Legislature which 
 authorized an issuance of bonds in aid of the construction of the 
 railroad, on the wTitten assent of two-thirds of the resident tax- 
 payers of the town, intended that the holder of the bonds should 
 be under obligation to prove, by parol evidence, that each of the 
 two hundred and fifty-nine names, signed to the written assent, 
 was a genuine signature of the person who bore the name, the 
 proffered aid to the railroad company was a delusion. No sane 
 person would have bought a bond, with such an obligation rest- 
 ing upon him, whenever he called for payment of principal or 
 interest. If such was the duty of the holder, it was always his 
 duty. It could not be performed once for all. The bonds, re- 
 tained in the hands of the company, would have been no help 
 in the construction of the road. It was only because they could 
 be .sold, that they were valuable. Only thus could they be ap- 
 plied to the construction. Yet, it is not to be doubted that the 
 Legislature had in view, and intended to give, substantial aid to 
 the railroad company, if a sufficient number of taxjjaycrs as- 
 sented. They must have contemplated that the bonds would 
 be offered for sale, and it is not to be believed that they intended 
 to impose such a clog upon their salableness, as would rest upon 
 it, if every jjerson projjosing to purchase was rctiuired to inijuire 
 ofeach one whose name a[jpcarcd to the assent, whether he had, 
 in fact, signed it." 
 
 Town of Venice vs. Munh)cA\()2 U. S.. 
 
 497. 49''^- 
 
 " Conceding as we do, that the authority to make the sul)- 
 scription was, by the eleventh section of the act, made depcnd- 
 .ent upon the result of the submission of the tjuestion, whether
 
 202 
 
 the town would subscribe to a popular vote of the township, 
 and upon the approval of the subscription by a majority of the 
 legal voters of the town voting at the election, a preliminary in- 
 quiry must be : How is it to be ascertained whether the direc- 
 tions have been followed, whether there has been any popular 
 vote, or whether a majority of the legal voters present at the 
 election did, in fact, vote in favor of a subscription ? Is the 
 ascertainment of these things to be before the subscription is 
 made, and before the bonds, are issued ; or must it be after the 
 bonds have been sold, and be renewed every time a claim is 
 made for the payment of a bond or a coupon ? The latter ap- 
 pears to us inconsistent with any reasonable construction of the 
 Statute. Its avowed purpose was to aid the building of the 
 railroad by placing in the hands of the railroad company the 
 bonds of assenting municipalities. These bonds were intended 
 for sale ; and it was rationally to be expected that they would 
 be put upon distant markets. It must have been considered 
 that, the higher the price obtained for them, the more advan- 
 tageous would it be for the company, and for the cities and 
 towns which gave the bonds in exchange for capital stock. 
 Everything that tended to depress the market value was averse 
 to the object the Legislature had in view. It could not have 
 been overlooked that their market value would be disastrously 
 affected, if the distant purchasers were under obligation to in- 
 quire before their purchase, or whenever they demanded pay- 
 ment of principal or interest, whether certain contingencies of 
 facts happened before the bonds were issued — contingencies, 
 the happening of which it would be almost impossible for them, 
 in many cases, to ascertain with certainty. Imposing such an 
 obligation upon the purchaser would tend to defeat the primary 
 purpose the Legislature had in view ; namely, aid in the con- 
 struction of the road. Such an interpretation ought not to be 
 given to the Statute, if it can reasonably be avoided ; and we 
 think it maybe avoided." 
 
 Tozvn of Colo ma, vs, Eaves, 92 U.S., 487— 
 488.
 
 203 
 
 See further to the same effect : 
 
 Bissell v^s. City of Jcffersonville, 24 How. 
 287. 
 
 Knox vs. Aspini^all, 21 How., 539. 
 
 People ^^. Hagar, 52 Cal., i 71-183, 
 Therefore is it, that Courts have avoided giv- 
 ing Statutes such an unreasonable construction as 
 that insisted upon by the plaintiff here, and have 
 always sought to read them so as to find in them 
 the creation of a tribunal vested with authoritv to 
 decide, before the issuance of the bonds, upon the 
 existence of the conditions precedent, and whose 
 adjudication, upon that point, should be final and 
 conclusive upon all parties. Hence, the doctrine 
 is firmly established, that : 
 
 2. If poiifer is given to a Cottrt, Board or officer 
 to issue bonds, mlien a certain event has happened, 
 or, upon the performance oj certain conditions, and 
 the Statute does not, in terms, appoint a trit>unai to 
 adjudicate the happening of the event or the condi- 
 tions, it zm'll be infcred that poiaer to make such 
 an adjudication is vested in the Court, Board or 
 officer. 
 
 In Town of Colo ma vs. Haves. 92 U, S., 484, 
 the munici[)al offic('rs were not to act until liic as- 
 sent of a majority of the votttrs had been obtained. 
 
 The Supreme Court, ol ihc United Stales said : 
 
 "At some time or other, it is ttj l)c ascertained wliether the 
 directions of the Act have been followed ; whether there was
 
 204 
 
 any popular vote ; or whether a majority of the legal voters 
 present at the election did, in fact, vote in favor of the subscrip- 
 tion. The duty of ascertaining was plainly intended to be 
 vested somewhere, and once for all ; and the only persons spoken 
 of, who have any duties to perform respecting the election, and 
 action consequent upon it, are the Town Clerk and the Super 
 visor or other executive officer of the city or town. It is a fair 
 presumption, therefore, that the Legislature intended that those 
 officers, or one of them at least, should determine whether the 
 requirements of the Act, prior to a subscription to the stock of 
 a railroad company, had been met. 
 
 " If, therefore, there CQuld be any obligation resting (jn per- 
 sons proposing to purchase the bonds purporting to be issued 
 under such legislative authority, and, in accordance with a pop- 
 ular vote, to inquire whether the provisions of the statute had 
 been followed, or whether the conditions precedent to their law- 
 ful issue had been complied with, the inquiry must be addressed 
 to the Town Clerk, or executive officer of the municipality, — to 
 the very person whose duty it was to ascertain and decide what 
 were the facts. The more the statute is examined, the more 
 evident d3es this become. The eleventh section (quoted above) 
 declared, that if it should appear that a majority of the legal 
 voters of the city, town ortownshi[), voting, had voted 'for sub- 
 scription,' the executive officer and Clerk should subscribe and 
 execute bonds. ' If it should appear,' said the Act. Appear 
 when ? Why, plainly, before the subscription was made and the 
 bonds were executed ; not afterwards. Appear to whom ? In 
 regard to this, there can be no doubt. Manifestly, not to a 
 Court, after the bonds have been put on the market and sold, 
 and when payment is called for ; but, if it shall appear to the 
 persons whose province it was made to ascertain what had been 
 done preparatory to their own action, and whose duty it was to 
 issue the bonds, if the vote appeared to them to justify such 
 action under the law. These persons were the Supervisor and 
 Town Clerk. Their right to issue the bonds was made depend- 
 ent upon the appearance to them of the performance of the 
 conditions precedent. It certainly devolved upon some person 
 or persons to decide this preliminary question ; and there can 
 be no doubt who was intended by the law to be the arbiter. In
 
 205 
 
 Commissioners vs. Nichols, 14 Ohio St., 260, it was said that 'a 
 statute, in providing that county bonds should not be delivered 
 by the Commissioners until a. sufficient sum had been provided 
 by stock subscriptions, or otherwise, to complete a certain rail- 
 road, and imposing upon them the duty of delivering the bonds 
 when such provision had been made, 7vithout indicating any 
 person or tribunal to determine that fact, ftecessarily delegates 
 that power to the Commissioners ; and, if delivered improvi- 
 dently, the bonds were not to be invalidated." 
 
 To the same effect are the following cases : 
 Bissell vs. City of J effersonvilLc , 24 How., 
 
 287. 
 Knox vs. Aspiniuall, 21 How., 539. 
 Humboldt Toiunship vs. Long, 92 U. S., 642. 
 Marcy vs. Township of Osivego, 92 U. S., 
 
 County of Moultrie vs. Savings Bank, 92 U. 
 
 S., 631. 
 Town of Venice vs. Murdock, 92 U. S., 494. 
 ^V. Joseph TownsJiip vs. Rodgers, 16 Wall.. 
 
 644. 
 Lewis vs. Coniniissiouei^s, 105 U. S., 739. 
 County of Clay vs. Society for Savings, 1 04 
 
 U. S., 579. 
 Conunissioners vs. fa unary, 94 U. S., 202. 
 Conunissioncrs vs. Bolles, 94 U. S., 104. 
 Lynde vs. The County, 16 Wall., 6. 
 Grand Chute v^. Winegar, 15 Wall.. 355. 
 Learned vs. Burlington, 4 Wall.. 275. 
 
 Therefore, it has been further established that :
 
 206 
 
 3. Whenever the pi^oper Court, Board or officer, 
 upon luhoni the statute expressly or by iinplication 
 casts the duty of decidino^ the existence of the con- 
 ditions precedent, has decided, and has, in some 
 authentic manner, promulgated its decision, that 
 adjudication is conclusive in favor of a bona fide 
 holder of the bonds. Hence, when the officers, who 
 are to pass upon the question, are also the officers 
 who are to execute the bonds, if the bonds so exe- 
 cuted bear, upon their face, a recital of the existence 
 of the conditions, this is a declaration of the deci- 
 sion by tJie proper officers, and is conclusive in favor 
 of a BONA FIDE holder for value. 
 
 Says the Supreme Court of the United States 
 
 in a case already cited : 
 
 " In the present case, the person or persons whose duty it was 
 to determine whether the statutory requisites to a subscription 
 and to an authorized issue of the bonds had been performed, 
 were those whose duty it was also to issue the bonds in the event 
 of such performance. The statute required the Supervisor, or 
 other executive officer, not only to subscribe for the stock, but 
 also, in conjunction with the Clerk, to execute bonds to the rail- 
 road company in the name of the town for the amount of the 
 subscription. The bonds were required to be signed by the 
 Suj>ervisor or other executive officer, and to be attested by the 
 Clerk. They were so executed. 1 he Supervisor and the Clerk 
 so signed them^ and they were registered in the office of the 
 Auditor of the State, in accordance with an Act requiring that, 
 precedent to their registration, the Supervisor must certify under 
 oath to the Auditor that all preliminary conditions to their issue 
 retjuired by the law had been complied with. On each bond 
 the Auditor certified the registry. It was only after this that 
 they were issued. And the bonds themselves recite that they
 
 207 
 
 • are issued under and by virtue of the Act incorporating the 
 railroad company,' approved March 24, 1869, 'and in accord- 
 ance with the vote of the electors of said Township of Coloma, 
 at a regular election held July 28, 1869, in accordance with said 
 law.' After all this, it is not an open cjuesiion as between a /;<y«</ 
 fide holder of the bonds and the Township, whether all the pre- 
 ^equsites to their issue had been complied with. Apart trom 
 and beyond the reasonable presumption that the officers of the 
 law, the Township officers, discharged their duty, the matter has 
 passed into judgment. The persons appointed to decide whether 
 the necessary prerequisites to their issue had been completed 
 have decided, and certified ihcir decision. They have declared 
 the contingency to have happened, on the occurrence of which 
 the authority to issue the bonds was complete. Their recitals 
 are such a decision ; and beyond those a bona fide purchaser is 
 not bound to look for evidence of the existence of things in pais. 
 He is bound to know the law conferring upon the municipality 
 power to give the bonds on the happening of a contingency ; but, 
 whether that has happened or not is a question of fact, the de- 
 cision of which is by law confided to others — to those most com- 
 petent to decide it — and which the purchaser is, in general, in 
 no condition to decide for himself. This we understand to be 
 the settled doctrine of the Court." 
 
 "Where legislative authority has been given to a municipality, 
 or to its officers, to subscribe for the stock of a railroad com- 
 pany, and to issue municipal bonds in payment, but only on 
 some precedent condition, such as a popular vote favoring the 
 subscription, and where it may be gathered from the legislative 
 enactment that the officers of the municii)alily were invested with 
 power to decide whether the condition precedent has been com- 
 plied with, their recital that it has been, made in the bonds issued 
 by them and held by a bona fide purchaser, is conclusive of the 
 fact, and binding upon the municipality ; for, the recital is itself 
 a decision of the fact by the appointed tribunal. 
 
 Toivn oj Coloma vs. Eaves, 92 U. S., 489- 90. 
 
 Furthermore: It is not necessary that the re- 
 cital of the bonds should, in express terms, .set
 
 2C8 
 
 forth the existence of the facts, whose existence Is 
 made a concHtion precedent to the issuance of the 
 bonds. It is sufficient, if it does so by necessary 
 imphcation. Hence, it is the estabHshed doctrine 
 that : 
 
 4. If the bond is executed by the officers upon 
 whojn the duty of determining the performance of 
 conditions precedent is cast, audit bears upon its face 
 the recital that it is issued in conformity with the 
 law, such a recital is an adjudication by the proper 
 authority that the conditions made by law precedent 
 to the issuance of the bond existed. 
 
 This rule will be found in the following familiar 
 cases : 
 
 School District vs. Stone, 106 U. S., 187. 
 Com^nissioners vs. Bolles, 94 U. S., lo.j.. 
 County of Clay vs. Society for Savings, 104 
 
 U. S., 579. 
 Bonhaui vs. Needles, 103 U. S., 648. 
 Buchanan vs. Litchfeld, 102 U. S., 2/8. 
 Pompton vs. Cooper s Union, loi U. S., 196. 
 Orleans vs. Piatt, 99 U. S., 676. 
 Humboldt ToiunsJiip vs. Long, 92 U. S., 642. 
 Pana vs. Bowler, 107 U. S., 529. 
 Montclair vs. Ramsdell, Id., 147. 
 
 This doctrine had its origin twenty-five years 
 ago, in the celebrated case of K7iox County vs. 
 Aspiniuall, 21 How., and has steadily been ad-
 
 209 
 
 fiered to in an unbroken line of decisions, extend- 
 ing from that time down to the last volumes of the 
 United States Reports : — Shei'man County vs. 
 Simmons, 109 U. S, 735, and Dixon County vs. 
 Field, III U. S., 83. 
 
 If vi^e apply these principles to the case in hand, 
 the result cannot be doubtful. The result is : 
 
 5. The Board of Diipont Street Co7n?)iissioners, 
 -being charged by the Act ivith the duty of acting 
 and issuing bonds, upon the happening of certain 
 ■conditions, viz ; the giving of certain notices, the 
 snaking of a certain report, and the leaving that 
 report for a certain length of time open for inspec- 
 tion at a given place ; and no other tribunal being 
 constituted to pass tipon these questions, the board 
 itself is clothed with authority to decide tJicm. 
 The recital in the bonds executed by the board that 
 I hey are issued in confo7nnity withe Act, is a deci- 
 sion. In favor of a bona fide holder of the bonds, 
 that decision is final and conclusive. 
 
 The Board of Dupont Street Commissioners is 
 created by statute, and is vested by the statute 
 with authority to issue bonds. The board is to 
 act upon the happening; of certain events — the 
 giving of certain notices, making a certain report, 
 affording certain opj^ortunities for insjK!ction. 
 
 Grant that thf; cxistcncf^ of all these things, in 
 ihe terms prescribed !))• law, is a condition j)rece-
 
 2IO 
 
 dent. Still I ask : Is the question whether the 
 notices have been given, whether the report has 
 been made, whether the requisite opportunity for 
 examination has been afforded, to be decided be- 
 fore the issue of the bonds, or is it to remain open 
 forever thereafter ? In the light of the foregoing 
 discussion, it cannot be doubted that it is to be 
 decided before the bonds issue. 
 
 But by whom '^ If the County Court has no 
 power over the question, then, the statute does 
 not, in express terms, point out the tribunal. The 
 board are to act whenever these things have hap- 
 pened. They, therefore, no one else being au- 
 thorized to take action in the matter, must deter- 
 mine whether they have happened or not. 
 
 The decision by the board upon this point is 
 necessarily final in favor of a bo7ia fide holder of 
 the bonds. The recital in the bond here, that it 
 is issued under the provisions of the Act,- is an 
 adjudication and declaration that this condition 
 precedent, which it was in the power of the board 
 to determine, existed. Behind that recital, as re- 
 gards a bona fide holder, the obligor of the bond 
 cannot go ; and the obligee is not bound to go. 
 
 '* The bonds recite that they were issued under, and in pur- 
 suant to, the orders of the Board of Supervisors of Clay County, 
 as authorized by virtue of the laws of the State of Illinois. The 
 Act of November 6, 1849, authorized the Judges of the County 
 Court to issue the bonds, only in case a majority of the voters 
 of the county, taking as a standard the number of votes thrown.
 
 2 I I 
 
 at the next preceding general election, should vote in favor of 
 the pro[)Osition to subscribe to the stock of some designated rail- 
 road company, and pay for it by the issue of county bonds 
 The ultimate decision of the question whether such a vote had 
 been cast was, therefore, left with the Judges of the County 
 Court. The recital of the bonds, that they were issued pursuant 
 to the orders of the Board, the successor of the County Court, 
 as authorized by virtue of the laws of the State of Illinois, is 
 equivalent to a declaration by the Board, upon the face of the 
 bond, that the election had been held, and had resulted so as to ■ 
 authorize the lawful issuing of the bonds. When the bonds are 
 in the hands of a bona fide holder, this recital is conclusive and, 
 binding upon the municipality. 
 
 " The recital that they were issued in conformity with the 
 laws of the State, as already shown, is binding on the county 
 when suit is brought on the bonds by a bona fide holder, and 
 concludes the county from setting up any irregularities in their 
 issue, if any existed." 
 
 County of Clay vs. Society for Savings, 104 
 
 U. S., 579, 583-6-9. 
 
 See also the following cases : 
 
 Walnut vs. Wade, 103 U.S., 683. 
 Bonhain vs. Needles, 103 U. S., 648. 
 Hackctt vs. Ottaiva, 99 U. S., 86. 
 County of Macon vs. Shores, 97 U. .S.. z^i. 
 County of Warner vs. Marcy, 97 V . S., 96. 
 San Antonio vs. Mcliaffy, 96 U. S., 312. 
 Commissioners vs. Bo lies, 94 U. S., 104. 
 Chambers County vs. Clezos, 21 Wall., 317. 
 Learned vr,. liurlinotoii, 4 Wall., 275. 
 Van /lost nip vs. Madison City, i Wall., 291. 
 Mercer County vs. Hackctt, \ W'.ill., 83.
 
 212 
 
 Morari vs. Commissioners of Miami, 2 Black., 
 
 722. 
 ■Amey vs. Mayor, 24 How,, 364. 
 Sherman County vs. Simons, 109 U. S,, 735. 
 
 To resume, and restate the proposition gener- 
 ally in this case : 
 
 6. The plaintiff beino- the holder in good faith, 
 for value and before matu7^ity, of a inunicipal bond, 
 
 issued by officers, empowered to issue it upon the 
 existence of certain conditions precedent, and the 
 bond containing a recital that it is issued under the 
 provisions of the act authorizing it, the existence of 
 the conditions is, as to the plaintiff, conclusively es- 
 tablished by the recital. 
 
 The defendant relies upon the late case of 
 Dixon County vs. Field, 11 1 U. S., 83, to sustain 
 a contrary doctrine ; but — 
 
 7. The decision in Dixon County vs. Field, far 
 fi^om overthrowing, confirms and illustrates all the 
 principles ivhich I have hereinabove maintained. 
 
 In that case, the county had " no legislative au- 
 thority to create a debt in excess of ten per cent, 
 upon the assessment." (p. 90.) It issued $87,- 
 000 of bonds, each one of which, upon its face, re- 
 cited that it was " one of a series of eighty-seven 
 thousand dollars, issued * ""' '"'' under and 
 by virtue of" the Statute and Constitution of the 
 State. The amount of the bonds exceeded ten
 
 213 
 
 per cent, of the assessment, which, as "' zuas shozvii 
 and appeared from the books of public record of 
 said county, was $587,331, and no more." (p. 86.) 
 
 The question which arose was : Docs the re- 
 cital in the bond, that it is issued " under and by 
 virtue of" the law, constitute a conclusive adjudica- 
 tion against the county, *'that everything necessary, 
 by law, to be done has been done, and every fact 
 necessary, by law, to have existed, did exist, to 
 make the bonds lawful and binding ? " (p. 92.) 
 
 The decision establishes the following propo- 
 sitions : 
 
 (a.) A creneral i^ecital in the bond, th.it it lias 
 been issued in conformity with the law, is as effica- 
 cious as a specific enumeration of the existence of 
 each particular fact essential to the validity of the 
 bond. 
 
 " It is not necessary," says the Court, " that the recital should 
 enumerate each particular fact essential to the existence ot the 
 obligation. A general statement that the bonds have been i-s- 
 sued in conformity with the law will suffice. * * * 
 A determination and statement as to the whole series, where 
 more than one is involved, is a determination and rerlificate as 
 to each essential particular." [pp. 92 93.J 
 
 {b.} The recital, njliether general or specific, is 
 determinative and conclusive of those kac is, only, 
 which Ike officers executing the bond had authority 
 to inquire into and determine. 
 
 "'{'here must be authority vested in the olH( crs by law, as to 
 each necessary fact, whether enumerated or non-enumerated, 
 to ascertain and determine the existence, and lo guarantee to
 
 214 
 
 those dealing with them the truth and conclu-;iveness of their 
 admissions" (p. 93.) 
 
 (<f,) The vital question, then in each case, is 
 " zvliethej'' in the pai^ticnlar case nnder considera- 
 tion, a fair construction of the laiv authorized the 
 officers issuing the bonds to ascertain, determine, 
 and certify the existence of the facts upon which 
 their poiver, by the terms of the law, was made to 
 depend!' {p. g^.) 
 
 [d. ) The authority thus to decide zvill not be held 
 to exist, first : zvhere the statute grants ' ' a power to 
 issue bonds, upon the existence of a state of facts to 
 be ascertained and determined by some persons or 
 tribunal other than those authorized to issue the 
 bonds" {p. 93); secondly, where "' the fact neces- 
 sary to the existence of the authority ivas by lazv to 
 be ascertained, not officially by the officers charged 
 with the execution of the power, but by refe7^ence to 
 some EXPRESS and definate record of a public 
 
 CHARACTER." (p. 93.) 
 
 • {e) The authority thus to decide the question 
 of fact will be held to exist in the officers executing 
 the bonds, whenever the ri^ht to issue them depends 
 tcpan the existence of a state of facts, zvhich can be 
 ascertained only by an investigation and examina- 
 tion IN PAIS and no other tribunal than the officers 
 issuing the bonds has been appointed by the statute 
 to make the decision.
 
 215 
 
 This rule is clearly established by Marcy vs. 
 Township of Oszuego, 92 U. S., 637, cited with ap- 
 proval, and confirmed, in Dixon vs. Field. In 
 that case, the County Commissioners were, be- 
 fore issuing the bonds, to order an election. 
 
 "The Board was to order the election if certain facts existed, 
 and only then. It was required to act, if fifty freeholders, who 
 were voters of the totvnshipy petitio7i:d for the election ; if the pe- 
 tition set out the amount of stock proposed to be subscribed ; 
 if that amount was not greater than the amount to which the 
 township was limited by the act ; if the petition designated the 
 railroad company ; if it pointed out the mode and terms of pay- 
 ment. Of course, the board and it only, was to decide whether 
 these thins^s precedent to the right to order an election were actual 
 facts. No other tribunal could make the determinatio?i, and the 
 members of the Board had peculiar means of knowledge beyond 
 what any other persons could have. Moreover, these decisions 
 were to be made before they acted, not after the election, and after 
 the bonds had been issued. 
 
 " The order for the election, then, involved a determination by 
 the appointed authority that the petition for it was sufficiently 
 signed by fifty freeholders, who were voters; that the petition was 
 such a one as jaas contemplated by the law ; and that the amount 
 proposed by it to be subscribed was not beyond the limit fixed 
 by the Legislature. 
 
 "So also the subsequent issue of the bonds containing the 
 recital above quoted, that they were issued ' by virtue of and in 
 accordance with ' the legislative act, and in ' i)ursuance of and in 
 accordance with the vote of three- fifths of the legal voters of the 
 township' was another determination, not only of the result of 
 the popular vote, but that all the facts existed which the .statute 
 required in order to justify the issue of the bonds. 
 
 "// is to be observed that every prequisite fact to the execution 
 and issue of the bonds wa^ of a nature that required e.xautinatiou 
 and decision. The existence of sufficient taxable pro[jerly to 
 warrant the amount of the subscrii)tion and issue was no more 
 essential to the exercise of the authority conferred upon the
 
 2l6 
 
 Board of County Commissioners, than was the petition for the 
 election, or the fact that fifty freeholders had signed, or that 
 three-fifths of the legal voters had voted for the subscription. 
 These are all extrinsic facts, bearing not so much upon the au- 
 thority vested in the Board to issue the bonds, as upon the ques- 
 tion whether that authority should be exercised. They are all, 
 by statute, referred to the inquiry and determination of the Board, 
 and they were all determined before the bonds and coupons 
 came into the hands of the plaintiff. He was, therefore, not 
 bound, when he purchased, to look beyond the Act of the Legis- 
 lature, and the recitals which the bonds contained." 
 
 If we make application of these principles to 
 the case of Dupont Street, we will find, that the 
 recital by the Board that the bonds are issued 
 under the provisions of the Act, conclusively es- 
 tablishes the giving of the requisite notices and 
 the other facts hereinabove stated, if the sufficiency 
 of these notices and other facts were a " fact of a 
 nature that required examination and decision," 
 and if a "fair construction of the law authorized 
 the officers issuing the bonds (the Board) to as- 
 certain, determine and certif\^ " the exisience of 
 the facts. On the other hand, the recital will not 
 be conclusive, if the sufficiency of these notices 
 and other facts were determinable " by reference 
 to some express and definite record of a public 
 character," or was '"to be ascertained and deter- 
 mined by some persons or tribunal other than 
 those authorized to issue the bonds." 
 
 It is clear, I submit, that the question of the 
 sufficiency of the publication involves investiga- 
 tions of fact which " require examination and de-
 
 217 
 
 cision," and could, at no time, be ascertained " by 
 reference to some express and definite record of a 
 public character." 
 
 It is equally clear, I submit, that, if the County 
 Court has no jurisdiction of the question, the 
 Board of Commissioners, who perform these va- 
 rious duties, are. by "a fair construction of the 
 law, authorized to ascertain, determine and cer- 
 tify" the sufficiency of their own acts. 
 
 If what I have already contended for, as to the 
 effect of the recital in the bond, is correct, that re- 
 cital establishes, in itself, upon the plaintiff's own 
 theory of the law, every condition essential to the 
 validity of the bond, except the resolution or order 
 of the Board of Supervisors and the judgment of 
 the County Court. The resolution. I have already 
 endeavored to show, was rej^ularly adopted ; and 
 there is no question as to regularity of the judg- 
 ment of the Count)' Court. 
 
 VI. 
 Till. Ci r\' OF Sax Francisco is ESToiTKn to dkny 
 
 THE VALIDIIV Ol' IIIKSE HONDS, JU-X'AUSK (l) : ITS 
 RETENTION OF Till': FRUITS OF Till; I'.oNDS ES- 
 TOrS IT FRO.M ALLEGINC; ANV INFOR.MALFrV IN 
 TIIF PROCFEr)IN(;S WFTFCII r.FD I'l' To Til I'. ISSUE 
 OF THE HONDS; AND, (2) : ITS OWN ACTION IN 
 VOLUNTARILY AOOl'TINC THE STATUTE AND REAP- 
 ING THE BENEFITS CONFERRED \:\ 11, ESTOPS IT
 
 2l8 
 
 FROM AVOIDING THE BURDENS WHICH IT IMPOSES, 
 UPON THE GROUND OF ITS UNCONSTITUTIONALITY. 
 
 I. Nothing is better settled in the law of mu- 
 nicipal bonds than that the municipality is estop- 
 ped by its retention of the benefits of the bonds 
 from setting up any irregularity in their issue; 
 the insufficiency of the publication of the resolu- 
 tion of the Board of Supervisors, or of the notices 
 given by the Commissioners, or the irregularity 
 in the assessment, or the misconduct of the Board 
 are matters which cannot be set up by the City as 
 loner as it retains the fruits of the bonds. 
 
 These bands were issued in payment of land 
 taken for a certain public street, which the City of 
 San Francisco acquired title to, took possession of, 
 and enjoys to this day as a public thoroughfare. 
 Under these circumstances, the City is not per- 
 mitted to assert any irregularity or informality in 
 the issuance of the bonds. 
 
 That this is well settled in this State and else- 
 where, see : 
 
 Nevada Bank vs. Steinmetz, 64 Cal., 314. 
 Meyer z>s. Brown, 3 W. C. R., 761, 
 Supervisors vs. Schenck, 5 Wall, 772. 
 Jones on R. R. Securities, Sees. 280-282. 
 County of Davies z^j. Huydekoper, 98 U. S., 
 
 98. 
 County of Moultrie vs. Fairfield, 105 U. S., 
 
 380.
 
 2 19 
 
 County of Ray vs. Vansyckle, 96 U. S., 675. 
 Commissioners z's. January, 94 U. S., 202. 
 Pendleton County z's. Amy, 13 Wall., 297. 
 Rogers vs. Burlington, 3 Wall., 654. 
 
 2. The City of San Francisco, having, by its 
 Board of Supervisors, voluntarily declared its ac- 
 ceptance of the provisions of the statute, and hav- 
 ing, by its own free will, given vitality to an Act 
 which would otherwise have remained inoperative, 
 and having, through that Act, obtained an advan- 
 tage in the widening of one of its streets, can not 
 now, for the purpose of avoiding the burdens im- 
 posed upon it by the Act, allege its unconstitution- 
 ality. 
 
 The same rules of universal justice and right 
 which apply to the conduct of individuals, apply 
 equally to municipalities. As was said by this 
 Court, in Meyer vs. Drown, " there is no more 
 reason to permit a municipal government to re- 
 pudiate its solemn obligations, entered into for val- 
 ue, than there is to permit an individual to do so. 
 Good faith and fair dealing should be exacted of 
 the one, equally with the other." 
 
 It is not in accordance with good faith and fair 
 dealinL'', and, I mi'dit add, woukl not be consistent 
 with common sense, to [x.-rmit a jx-rson vohinlarily 
 to reap the benefit iA a statute, aiul, at th<: same 
 time, avoid its burdens by claiming that it is un-
 
 220 
 
 constitutional. Qui sentit coriimoduin sentire debet 
 et onus, is a maxim as old as the science of juris- 
 prudence. 
 
 It is, accordingly, well settled, that one who, by 
 his own voluntary action, sets an Act of the Legis- 
 lature in motion, or is active in reaping its benefits* 
 can not set up its unconstitutionality, nor the ir- 
 regularity of proceedings taken under it, to avoid 
 its burdens. 
 
 This subject I have already sufficiently dis- 
 cussed. 
 
 In the case at bar, the obligation springing from 
 these bonds is sought to be avoided on the ground 
 of irregularity in the proceedings, and unconstitu- 
 tionality in the Act. A specimen of these grave 
 irregularities is found in the objection that the 
 ordinance which appears regularly adopted and 
 approved in the records of the Board of Supervis- 
 ors was, on one day, published in the supplement 
 instead of in the body of a newspaper. For this 
 insignificant defect — if defect it be — the city claims 
 the right, while retaining all the advantages, to 
 avoid all the obligation, of one million dollars of 
 bonds issued by it. Is this justice ? Is this fair 
 dealine ? Would not such conduct be considered 
 dishonorable in a private citizen ? Can the city — 
 the aggregation of Individuals — honestly do what 
 it would be dishonest in any Individual member of
 
 221 
 
 it to do ? As said by the Supreme Court of Iowa, 
 on a similar occasion: "It would be manifestly 
 against every principle of justice, to allow the tax- 
 payers of the township through the defendant, to 
 escape liability from a tax for so slight a defect, if 
 it be one, under the circumstances stated."' 
 
 The same reasons apply to the alleged uncon- 
 stitutionality of the Act. The Citv has taken the 
 land for a public use ; it uses it to-day as an av^- 
 enue of travel. The property which it has taken 
 destroyed, or damaged, it has paid for with these 
 bonds. Can the City now stultify itself, by alleg- 
 ing that, all the while, the law under which it acted 
 was unconstitutional — was no law? Is the law- 
 good to enable it to hold on to what it has got, 
 but bad to enable it to shirk the payment which 
 it has promised } Would that be honesty or fair 
 dealing ? 
 
 I submit, that the estoppel upon tlie City is 
 complete, and shuts it off from th(; defense ol ir- 
 regularit)- in th(.' proceedings or unconstitutionality 
 in the /\ct. 
 
 VII. 
 
 I I IIIK IIONDS ARK VALID A(;AINST Till: MUNKI- 
 I'AMTV, THKIk VAMDITV CANNOT UK AllAiKKH 
 I'.\' AW NTI.MIM.k 0|- IKi; MrN'KII'AI.I lA . 
 
 If the city of .San Francisco cannot set up .my 
 
 ' 'J'li.- I!. C. K. M. K. Cu. vs. Slcwarl, 30 I"w.i, J67, 270.
 
 222 
 
 irregularity in these proceedings, or any unconsti- 
 tutionality in the Act, it is evident that the indi- 
 vidual taxpayers therein can not. If the city is 
 bound by the obligations of these bonds, the individ- 
 uals who compose the city are equally bound. As- 
 sume that a suit was brouofht to-morrow against 
 the City to recover upon these bonds. If the 
 propositions for which I have contended are sound, 
 the City could not set up either irregularity in the 
 proceedings or unconstitutionality in the Act, A 
 judgment would necessarily go against it, payable 
 out of the special tax provided by the Act. Now, 
 if, when that tax comes to be collected, each indi- 
 vidual taxpayer can set up the defense which the 
 City could not, then the estoppel against the City 
 is a mere empty farce. 
 
 What do we mean when we say that a City is 
 bound bv oblio^ation ? We mean that the human 
 beings composing the corporation are bound, each 
 according to his legal proportion. What do we 
 mean when we say that a city is estopped to deny 
 an obligation ? We mean that the human beings 
 composing the City are each estopped to deny his 
 proportionate share of the burden of that obliga- 
 tion. When we say, therefore, that the City of 
 San Francisco is, by its conduct, estopped from 
 setting up irregularities in these proceedings or 
 unconstitutionality in this Act, we simply mean 
 that certain officers, made, by law, the agents of a
 
 22 ^ 
 
 certain number of men, living in a designated 
 region, have so acted, in their representative capa- 
 city, that the persons whom they represented are 
 bound or estopped. 
 
 If this is not the meaning of these legal phrases, 
 they mean nothing. I have shown that a munic- 
 ipality which has issued bonds is estopped by a 
 retention of the benefits from alleging irregular- 
 ities in the proceedings. This has always been 
 insisted upon, and considered as a valuable pro- 
 tection to the holder of the bond. But, of what 
 value is it, if each individual taxpayer in the County 
 is not bound by the same estoppel ? Of what 
 value is this estoppel against the County, if, when 
 the tax to pay the bonds comes to be collected, 
 each individual taxpayer may defeat it by setting 
 up these irregularities ? If estoppel upon the 
 County does not mean estoppel upon every tax- 
 payer of the County, it amounts to nothing and 
 means nothing. 
 
 1 f, in the present case, the City is estopped, then, 
 so an,' the plaintiffs. 
 
 In conclusion, 1 submit : 
 
 First. The Dupont Street Act is, in itself, con- 
 stitutional, and ail the steps required to br taken 
 und-ir it. to give validity to the bonds, have been 
 duly taken. 
 
 Secondly. The judgiiK-nt of the County Court
 
 224 
 
 is, in the hands of a bona fide holder of the bonds, 
 a shield against all assaults upon the constitution- 
 ality of the Act, and the regularity of the proceed- 
 ings. 
 
 o 
 
 Thirdly. The ordinance having been regu- 
 larly passed by the Board of Supervisors, and the 
 judgment of the County Court being regular on 
 its face, the recital in the bonds that they are issued 
 in pursuance of the provisions of the Act, is a 
 conclusive adjudication in favor of a bona fide 
 holder, that all the steps between the ordinance 
 and the judgment have been duly and regularly 
 taken. 
 
 FourtJily. The City is estopped, by its conduct 
 in voluntarily adopting the Act and reaping all 
 its benefits, from denying the consti:utionality of 
 the statute and the regularity of the proceedings, 
 and this estoppel extends to every landholder of 
 the district. 
 
 It is submitted, that the one million dollars of 
 Dupont Street bonds, issued by the city of San 
 Francisco, are valid.
 
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