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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
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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
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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.
f gi m
UNIVERSITY OF CALIFORNIA AT LOS ANGELES
THE UNIVERSITY LIBRARY
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