205 P. 1008 | Wyo. | 1922
Lead Opinion
The parties will be hereinafter referred to in the same manner as in the court below. Walter L. Bass, plaintiff, brought this action on behalf of himself and all others similarly situated against the City of Casper and its treasurer, defendants, to enjoin the collection of special assessments made by said city under certain special assessment proceedings for grading and construction of cross walks, curbs and gutters, and to remove the cloud of title caused by said assessments. The proceedings therefor were initiated by the council of said city by passing, on August 4th, 1919, a resolution of intention creating an assessment district and describing in detail the property embraced therein, which includes the property of the plaintiff, and stating that all of said property will be specially benefited by the proposed improvement. Sections 3 and 4 of said resolution are as follows:
“Sec. 3. The character, kinds and extent of said improvements shall be as follows, to-wit: The construction of necessary grading, cross-walks, curbs and gutters, together with the necessary fixtures and attachments for surface*398 drainage of said streets, and portions of streets) so designated in paragraph one above set forth.
See. 4. That no part of said improvement shall be paid out of the general fund or road fund of the city of Casper. ’ ’
August 18th, 1919, was fixed for the time at which all remonstrances and objections were to be heard. Notice of the hearing was given, but no remonstrances or objections to the improvement were filed. On September 2nd, 1919, accordingly, said council passed an ordinance, reciting the passage of said resolution of intention, and notice thereof, and that no objections had been filed; it was therein ordered that the above improvement should be made, and that plans and specifications should be prepared; the termini of the improvement district were also therein fixed. The plans and specifications were filed on October 20, 1919. A contract for said work, after duly calling for bids, was entered into on October 25, 1919, and the work was completed within about a year. ’ An assessment roll was made up and filed about October 1st, 1920; notice thereof and for the hearing thereon was duly given and the assessment roll was duly confirmed by said council on November 29, 1920, no objections whatever having been filed. Plaintiff’s property was assessed in the sum of $185.68. The value of said property does not appear. This action was instituted January 3rd, 1921. The court below entered a decree annulling the assessment made, and from that judgment the defendants have appealed.
The proceedings were had under Chapter 129, (C. 120, S. L. 1915) Sections 1966-2040, of the Wyoming Compiled Statutes, 1920. The council of the city is invested with plenary powers to cause local improvements to be made and assess the cost thereof against the property benefited. (Secs. 1966, 1967.) The procedure to be followed is specified, but it is unnecessary to state it in detail. The improvement must be initiated by the council by a resolution of intention to make it and must among other things state “the character, kind and extent of the improvement.” (Sec. 1971.) Notice of the hearing on said resolution must
1. Counsel for plaintiff contend that the resolution of inteaitioai failed to state the character and extent of the improvement to be made, as required by Section 1971; that this requirement is jurisdictional and that hence the assessment made is void. Under our statute the plans and speeificatioaas for the work contemplated are made after the resolution of intention is passed, and we cannot give to the requirement of describing the character and extent of the proposed improvement that rigid construction that is given it where the plans and specifications are made before the
Many cases are cited by plaintiff’s counsel. It is impossible, in order to retain this opinion within reasonable compass, to review them all. But we shall refer to some general statutory provisions which underlie at least many of the cases, in order to show that they are distinguishable from the case at bar. The California courts have generally adhered to the holding — -though this holding is somewhat shaken by Watkinson v. Vaughan, 182 Cal. 55, 186 Pac. 753—that the requirement that the extent of the improvement must be stated in the resolution of intention is jurisdictional, that a failure to do so is fatal to an assessment under it, notwithstanding the curative sections of the statute. Many of the cases from that state have been decided under the Vromen Act and amendments thereto, or a statute similar thereto. Examining that act (c. 153, Laws 1885) we find that the assessment is made by the Superintendent of Streets without any notice whatever to the property owner, and assessment warrants are issued thereon. Apparently the property owner is bound to follow the proceedings and know at his peril when the assessment warrant is issued. Under Section 11 of the act he has the right to file objections to the assessment; the right is limited in scope. Within thirty days after the date of the warrant he may appeal to the council from • the ruling of the Superintendent - of Streets, upon publishing notice to that effect for five days. The decision of the council is conclusive as to all ‘ ‘ errors, in-formalities and irregularities,” and all defects in any of the proceedings prior to the assessment are cured, provided that “notice of the intention of the City Council to order the work to be done” has been published for the length of time prescribed by law. The improvement act of 1911 (c. 397) closely follows the provisions of the Vromen act. So in Montana, under section 13, c. 89, no irregularities or de-
“the trend of the decisions of recent years involving questions affecting the validity-of municipal improvements, is to be less technical than formerly, and to require owners whose property may be assessed- for such improvements*405 to be at least reasonably diligent in protecting their rights before the improvements are completed. ’ ’
Inasmuch, however, as this case was not brought to enjoin the work under' an improvement contract, it is unnecessary for us to determine what our decision would be if such a case were brought before us. 'Without analyzing the cases cited by counsel for plaintiff further, let us simply say that we have examined them all, and we deem none of them decisive of the case at bar.
As we said, the legislature, subject to constitutional limitations, has plenary power to provide in what manner the municipality shall proceed in making assessments for local improvements. Its directions must be followed, and at least a substantial compliance therewith is essential in order to make the assessment valid. If Section 1971 stood by itself, without being modified, conditionally or otherwise, then we should be compelled to hold that failure to comply therewith in a substantial manner would be fatal. But the legislature has a right to say under what circumstances non-compliance with certain directions shall be fatal. (Ex Parte Gudenrath, 194 Ala. 568, 69 So. 629.) It cannot, of course, waive constitutional requirements, or, generally speaking, cure constitutional defects by a mere curative provision. (City of Denver v. Londoner, 33 Colo. 104; City Street Imp. Co. v. Pearson, 181 Cal. 640, 185 Pac. 962.) A property owner is entitled, at least in assessment proceedings like ours, to his “day in court,” and the legislature must provide sufficient notice to be given him which will constitute due process of law. No assessment can be valid, unless the council in making it has jurisdiction of the subject matter and of the person and the particular property assessed: The principles relating to this subject are stated or discussed in Elliott, supra, Sections 329, 334-339, Sec. 360; Jackson v. Smith, 120 Ind. 520, 22 N. E. 431; Brown v. Central Bermudez Co., 162 Ind. 452, 69 N. E. 150; Pittsburgh etc., R. Co., v. Tabor, 168 Ind. 419; 77 N. E. 741; City of
"Since the legislature might have dispensed with any estimate, the failure of the council to make any would doubtless be held an irregularity which might be waived by a failure to protest.5 ’
The effect of this language is, that insufficiency in those steps which the legislature might have dispensed with in the first instance will only be considered an irregularity which is waived by not filing objections to the confirmation of the assessment. The case of Allen v. Bellingham, 77 Wash. 469, 473, 137 Pac. 1010, deals with a case of reassessment, of the intended making of which notice was given, just as notice is provided to be given of the proposed confirmation of an original assessment. The principle involved accordingly is the same. The court in that case said:
"There is no constitutional requirement which makes it necessary that notice of a proposed improvement be*409 given by resolution or otherwise. The legislature would have had the power to have dispensed with such a notice. Where an opportunity has been given to present objections to a reassessment roll, a failure on the part of the taxing officers to initiate the improvement by a proper resolution does not avoid the assessment if the requirement of the law which was not observed was one which the legislature might have dispensed with. (Ricker Bros. v. Everett, 66 Wash. 366, 119 Pac. 807, 38 L. R. A. (N. S.) 582; Collins v. Ellensburg, 68 Wash. 212, 122 Pac. 1010.) As already stated, in the present case there is no claim that an opportunity was not given to present objections to the reassessment roll which is attacked by this proceeding. ’ ’
(See also Van Der Creek v. Spokane, 78 Wash. 94, 138 Pac. 560, and In Re Grandview Local Improvement Assessments, (Wash.) 203 Pac. 988.) The case of Schintgen v. La Crosse, 117 Wis. 158, 94 N. W. 84, also involves a reassessment, where the property owner was deprived of the right of the benefit of the hearing on the initial resolution. Speaking of notice to the property owner and when it should be given him, the court said in part:
“But this notice need not necessarily be before the improvement is made. The property owner has no constitutional right to be heard as to the character of the improvement nor the manner of its construction. It is enough if the law provides for notice and hearing at some time during the proceedings on the question as to what- proportion of the tax should be assessed against his land. (Hennessy v. Douglas Co., 99 Wis. 129, 74 N. W. 983; Meggett v. Eau Claire, 81 Wis. 326, 51 N. W. 566.) It would seem necessarily to follow that, if a reassessment law gives the property owner full notice and opportunity to be heard as to the amount of his assessment, it cannot be held unconstitutional because the property owner had no opportunity to be heard as to the nature of the improvement or the manner of making it, proyided there was*410 a law in existence at the time of the improvement authorizing such work to he done and paid for by special assessments upon property owners. In the present case it appears that under the provisions of the charter of the city the common council had power to cause the street to be improved and the expense thereof to be paid by assessment upon adjoining property. (Laws of 1887, Ch. 162, sub Ch. 7, Secs. 1-5.) It is true that these provisions provide for notice to the adjoining property owners before the work is done, and hearing as to the manner of doing the work; hut, as we have seen, this requirement was not an essential, and might originally have been dispensed with by the legislature, provided notice was at some time during the proceedings given to the property owner and he was given a chance to be heard as to the amount of his assessment. This opportunity is given him by the reassessment law under consideration. ’ ’
In Indiana also the proceedings in connection with local assessments are similar to those in our state. The Supreme Court has a number of times passed upon the nature and necessity of the resolution of intention and has uniformly held it to he not jurisdictional, and to be. advisory only in its nature. (Milliken v. Crail, 177 Ind. 426, 98 N. E. 291; Pittsburgh etc. R. Co. v. Fish, 158 Ind. 525, 63 N. E. 454; Hughes v. Parker, 148 Ind. 692, 48 N. E. 243; Barber Asphalt Co. v. Edgerton, 125 Ind. 455, 25 N. E. 436; Quill v. Indianapolis, 124 Ind. 292, 23 N. E. 788, 7 L. R. A. 681.) To the same effect are R. Co. v. Hays, 17 Ind. App. 261; Willard v. Albertson, 23 Ind. App. 165. In Pittsburgh etc. R. Co. v. Fish, supra, the court said :
“With respect to municipal improvements, it is settled in this, and most other states, that the subject-matter being clearly within the jurisdiction of municipal legislative bodies, jurisdiction over the persons of those affected by an improvement will be sufficiently obtained if, at any step in the proceedings, and before the assessments are*411 made, an opportunity is afforded to all persons feeling aggrieved to make whatever defense they may have against the assessment of their property. It has therefore been held that notice of the resolution of necessity, the purpose of which is merely to invite the views and counsel of the property owners, is not essential to jurisdiction, or to the validity of an assessment.”
In Hughes v. Parker, supra, the court said:
“It is first contended that the common council of the .city of Greenfield never acquired jurisdiction of the subject-matter of the improvement or of the persons of the property owners as assessed therefor, for the reason that no resolution of necessity was ever passed, or notice thereof given, as required by Section 2 of the Barrett law (Acts 1889, p. 237), Section 4289, Burns’ R. S. 1894. It must be admitted that the proceedings of the council in this matter were irregular. The resolution of necessity should have been adopted, and notice thereof given as provided in the statute. But it has been repeatedly held that such resolution and notice are not essential to give jurisdiction to the council, provided only that notice and a hearing are given to the property owners before the making of the final assessments. This notice and hearing were had in the case at bar.”
The law on local assessments in Alabama resembles closely that in this state. The provision making the confirmation of the assessment by the council conclusive, as contained in Section 1988 of our statute is, however, not found in the Alabama law. The court in that state holds that no collateral attack can be made on the order of confirmation because the objections not made to the confirmation of the assessment are waived. The provision that the owners of two-thirds of the property may stop the proceedings is not found, but there is a provision, as there is in the Indiana law, that if the owners of more than one1 half of the property object,-then the improvement cannot be made unless ordered by two-thirds of the council.
“As has been noted already, complainant does not aver lack of due notice to appear and defend against the final assessment. Nor does he deny that he allowed the assessment to go against him by default. True, he complains that the notice, required by the statute (Sections 1362, 1363) as preliminary to action on the part of the city council confirming the original ordinance or resolution by which it was finally determined to proceed with the work, was not given as required by law. Without impairing the argument for our position, we may assume that it was not given at all, for that default might have been brought to the attention of the governing board of the city of Birmingham at the hearing fixed for the final determination of the assessment. As for the right to confirm, amend, modify, or rescind the original ordinance or resolution, the first hearing provided for by the statute is not jurisdictional, but advisory only. The statute does not contemplate at this point that any objections or protests going to the validity of the ultimate assessment shall be determined. * * * *
The preliminary notice, and all those other steps preliminary to the notice of the assessment and the assessment itself, about the absence or perversion of which the bill complains, are provisions of legislative grace. Being written in the statute, they must be observed or the property owner may at the final hearing have the benefit of the omission of such of them as may be considered essential*413 where there has been no waiver. But their omission may he waived.”
Then the court discusses the assessment proceedings and the fact of waiver unless objections are filed and declares that none of the omissions in the preliminary proceedings can be considered as jurisdictional in a collateral attack in the following language:
‘ ‘ The effect of the statute is to make material defects or omissions in them just cause for an abatement of the proceeding, but its intention is to destroy all distinctions between defects or omissions and mere errors or irregularities in the preparatory steps in those cases in which the owners, after due notice and an opportunity to present every defense, remains silent and inactive. However harsh such proceedings may seem, and however oppressive the result may be in particular eases, the consequences are not more extraordinary or unconscionable than such as may be observed in cases where parties allow the judgments of customary courts of justice to go for their adversaries by default in the usual course of judicial procedure.”
See also City of St. Paul, 94 Minn. 115, 102 N. W. 221, and the Minnesota cases there cited. ¥e cannot escape the force of these decisions. The Indiana law is, as a whole, at least as strict in its requirements as to preliminary proceedings as ours. In Alabama, the conclusion in the ease from which we have quoted was reached under a provision of the statute that objections not filed to the confirmation of the assessment are waived. "We have not only a similar law in Section 1985 of our statute, but in addition thereto the broad and sweeping provision of Section 1988 makes the confirmation of the assessment final and conclusive against all parties, not filing objections as required, in all proceedings of every nature except under two conditions not here involved. The language of the latter section seems to be broad enough to
2. The plaintiff contends that the law does not authorize the formation of an improvement district composed of two or more parallel streets, as was done in'this case. We think, however, that this contention is not good under
“When streets of different widths have been or are hereafter included in any paving district, an adjustment shall be made in the assessment for the improvement thereof” etc.
Section 1968 provides that the term “street” shall be held to include “streets.” (See also Sections 1976 and 1978.) These sections clearly contemplate that a number of streets may be embraced in one district. The question of the extent of the improvement and what shall be included in it, rests in the legislative discretion of the city council, and the courts will interfere only to correct a clear abuse of the discretion, of which there is no evidence in this case. (Frazier v. City of Rockport (Mo. App.) 202 S. W. 266; Church v. People, 179 Ill. 205, 53 N. E. 554; Davis v. City of Ritchfield, 145 Ill. 313; 33 N. E. 888, 21 L. R. A. 563; 2 Elliott, supra, Sec. 694, 616.) In Frazier v. City of Rockport, supra, the court said:
“As a practical matter to require each street to be treated as one improvement and the property fronting on that street to participate only in the cost of improving it would lead to great difficulties, often forbidding an improvement entirely or rendering it inadvisable unless adjacent streets were similarly improved and the whole done as one improvement. Especially is this true in country towns in circumstances where the embracing of several streets in one scheme of improvement benefits every piece of property abutting upon any of the streets so improved, and it is only in this way that the improvement can be had. We are of the opinion that, in the ab* sence of any facts showing that the proposed scheme should not be regarded as one improvement or that the council has abused its discretion in the matter, the courts*416 should not interfere, in the absence of a statute forbidding the inclusion of several streets in one proceeding.”
3. The plaintiff claims that the assessment is void on account of the fact that some of the property included in the improvement district by ordinance was not assessed. It is true Section 1983 provides that the assessment shall be levied “upon the property included in the district as described in the ordinance ordering said improvement,” and Section 1984 provides that “the assessment district shall include all the .property between the termini of said improvement,” and that “all property included within said limits * * * shall be considered and held to be the property * * * benefited by such local improvement.” But it further provides that said property shall be assessed “in accordance to the special benefits conferred on such property. ” The facts herein appear to be, as we understand the record, that certain lots on the outskirts of the improvement district were not assessed, though included therein by the ordinance, because subsequent to the establishment of said district they were embraced in, and assessed in connection with, a paving district that was thereafter established. It does not clearly appear, but we presume, that no work such as contemplated in the improvement district here in question was done to benefit said excluded lots, but that the necessary grading, curbing, etc., was charged up against said lots in connection with the assessment in the paving districts.' If such is the case, it would seem clear that plaintiff was not in any way prejudiced, and that his assessment was no larger by reason of the exclusion of the lots in question, and that whatever was done, was done in good faith and without fraud. In any event the gist of the objection goes to the amount for which the plaintiff was assessed; he could not be prejudiced unless, by reason of property omitted from the assessment roll, his own assessment were increased. But the law has created a special tribunal for the purpose of determining and equalizing the assessments against the various properties, and we are clear that both upon reason as well as. authority, the plain
“Another point urged by appellants is that property’ which should have been included in the assessment district was omitted. This also goes to the amount of the assessment only. Appellant’s property was properly within the district and was subject to assessment. The assessment was made on the principle of benefits accrued, and if appellant’s property was assessed too much and not ratably with other prop erty, similarly benefited, it was their duty to so inform the council and there object to the amount of the assessment.”
In Larsen v. San Francisco, supra, the court said:
“If the owner of each of these parcels could separately maintain an action and therein reopen the entire question of benefits received and the proportion to be charged against the respective parcels, it is plain that any proceeding of such magnitude, or even of far less extent, could, and probably would, be effectually blocked by unending litigation. Such construction is not to be indulged if it produces such absurd consequences. ’ ’
This principie also controls the objection that a wrong method of apportionment was applied in this case. (See In Re Grandview Imp. Assessment, (Wash.) 203 Pac. 988.) The principle also controls the claim herein made that the' grade of the street in front of the property of some of the
4. Counsel for plaintiff also contend that the assessment is void for the reason that the council of the city did not establish a grade on the streets in question. We have already mentioned this matter in connection with the question of stating the character and extent of the improvement in the resolution of intention. We must confess that we do not understand why a city council would, in the exercise of prudence and fairness to the citizens, undertake to grade a street without a definite, fixed grade established on its records, and it is, perhaps, true that proceedings for the improvement of a street prior to the establishment of such grade should, upon reasonable objection and in an appropriate proceeding, be held invalid. (State v. District Court, 44 Minn. 244, 46 N. W. 349; State v. Judges of the District Court, 51 Minn. 539, 53 N. W. 800, 55 N. W. 122; Wingate v. Astoria, 39 Or. 603, 65 Pac. 982.) But there is no provision in our statute making the establishment of a grade a condition precedent to the right or power of the council to improve the street, or prohibiting such improvement before the grade is established, and we are clearly of the opinion that the question cannot be raised by collateral attack in an action such as this, at least after the completion of the improvement. (Daly v. Gubbins, 170 Ind. 105, 110, 82 N. E. 659; Birmingham v. Wills, supra; Shepard v. People, 200
5. Plaintiff also contends that the assessment is void because the “city engineer” as provided by Section 1983, did not prepare the assessment roll. The assessment herein was made by an assistant to the consulting engineer. Sec. 1968 provides that “the term engineer” shall be deemed to mean the city engineer, town engineer, or any engineer employed by the city or town for local improvement work. It would seem that under this provision, construing it liberally as Section 2034 provides, it was probably intended that any engineer employed by the city for that purpose could make the assessment. But whether that is so or not, Section 2019 provides that it shall not be an objection to the validity of an assessment “that the same was made by an unauthorized officer or person, if the same shall have been confirmed by the city or town authorities. ’ ’ Such confirmation was made in this ease, and the objection accordingly cannot be sustained.
6. Counsel for plaintiff further seem to think that the cost of the grading work should be borne by the city as a whole, and should not be assessed against property benefited. They rely on Section 1982 of our statute, which provides:
“ESTABLISHING GRADES. In case the notice provided for in Section 1971 be to establish' a grade or alter the same, the council may, at any date within six months after the expiration of giving the notice as provided in Section 1973, establish the same by ordinance or resolution. The cost of establishing or altering the grade of any streets, highway, avenue, road or alleyway shall be paid out of the general funds of the city or town. ’ ’
This section, we think, refers only to the establishment of grades, that is to say, determining the grade lines and making a record thereof. We do not think that it could be construed to refer to the work of grading, bringing the street to the grade lines. In Kepple v. Keokuk, 61 Iowa 653, 17 N. W. 140, it was said:
*420 “Establishing a grade does not mean the actual lowering or raising the surface of the street. It means the fixing of a base line or plane of reference, and certain measurements from that plane.”
(See also Reilly v. Fort Dodge, 118 Iowa 633, 637, 92 N. W. 887; Cummins v. Dixon, 139 Mich. 269, 272, 102 N. W. 751.) We do not think that the position of counsel for plaintiff on this point is well taken.
For the reasons stated the judgment must be reversed, and finding nothing in the record that would authorize a judgment for the plaintiff, the cause will be remanded with directions to enter judgment for the defendants.
Reversed and remanded.
Rehearing
ON PETITION POR REHEARING
1. Counsel for plaintiff have argued one point at greater length than heretofore and have gone into greater details in regard thereto. Their contentions, in short, as we understand them, are these: that under the zone assessment system, as contemplated in Section 1984 of our statute, the outer limit of the fifth zone necessarily is the outer limit, laterally, not only relative to any particular street, but in an absolute sense; that therefore, under, the law, no more than one street, generally speaking, can be embraced in a district.; that in no event can parallel streets be so included; that since these provisions, which are claimed to be jurisdictional, have been violated, the council necessarily' adopted au arbitrary method of assessment, which, therefore, is not only illegal, but unconstitutional, as well. Several opinions decided by the Supreme Court of the United States are cited, that an arbitrary method of assessment will not be tolerated. Counsel call especial attention to that portion of said Section 1984 of our statute, reading as follows:
*421 “The fifth subdivision shall include all lands, if any, within the district lying between a line drawn parallel with and 120 feet from said street margin and the outer Unit of said local improvement district as hereinbefore described.”
Of course, there may not be any fifth, or any fourth, zone, by reason of the depth of the lots, but in order not to further obscure a subject already sufficiently obscure, we shall leave that factor out of consideration, except to say that were it not for the italicized clause referring to the fifth zone, there would be no possible ground for the contention of counsel. This italicized clause would seem to lend color to the claim of counsel, and, anxious to arrive at conclusions only that are right, we have given full and careful reconsideration to this subject. And in view of the importance of this clause, we shall not apologize for the length of this opinion on rehearing.
We have shown fully, in the original opinion herein, that several sections of our statute clearly contemplate that more than one street may be embraced in a district. We cannot ignore these provisions of the law, and must, if possible, give effect to them. We must, therefore, if we can, construe Section 1984 in harmony therewith, so that all provisions of the law on this subject may stand. Counsel have attempted to elucidate the subject. They say:
“There necessarily must be two sets of zones, and only two, paralleling the street on which the improvement is made, and which will include the entire area of the district. They need not necessarily be in straight lines; that is to say, they may change directions, and thus turn into another street, and another, so long as this one system of parallel zones is maintained. ’ ’
Unfortunately, the explanation is not adequate. Make a map with streets and blocks. Suppose a street, and its parallel zones, running north and south. Then, at the northern point, turn to the west along a street running in that direction at an angle of 90 degrees. The zones cannot be kept parallel and continuous. One zone area, under the law, will overlap another at the turning point to the extent
If we substitute the plural “streets” for the singular “street” in Section 1984, as we are authorized to do under Section 1968 and other sections of the statute, and leaving out all words and sentences not necessary for a clear understanding of the point under consideration, the first part of Section 1984 would read about as follows:
“The assessment district shall include all the property between the termini of said improvement, abutting upon*423 or proximate to the streets proposed to be improved to a distance back from the marginal lines thereof to the center line of blocks facing or abutting thereon. All property included within said limits shall he held to he the property specially benefited by such local improvement and shall be the property to be assessed to pay the cost and expense thereof, which cost and expense shall he assessed upon all of said property so benefited in accordance to the special benefits conferred on such property in proportion to area and distance hack from the marginal line of the streets improved. Said local improvement, for the purpose of ascertaining the amount to be assessed against each separate lot, shall he divided into subdivisions or zones, paralleling the margin of the streets to be improved. ’ ’
Then follow the provisions providing five subdivisions, and including the provisions for the fifth zone or subdivision above quoted. Thus far and thus read, it would seem clear that this section in no wise hears out the contention of counsel, hut sustains the contrary view thereof.
The primary purpose of this section is to fix and determine what in Section 2031 is called the ‘ ‘ assessment zone ’ ’ which includes five zones or subdivisions, and to fix the relative proportion of benefits to them and the amounts each of these subdivisions respectively shall pay. The clause relied upon by counsel that the outer limit of the fifth zone is the ‘ ‘ outer limit of said local improvement district as hereinbefore described,” must therefore be construed in that light. The words '‘as hereinbefore described” refer to the previous provisions of Section 1984, and, as we have seen, these provisions may well be held to contemplate that various streets, including parallel streets, may be included in the district.
The section, after defining the relative position and area of the first four zones, proceeds, in the clause mentioned, to define the relative position and boundaries of the fifth zone. It is clear, therefore, that the purpose of the section is not to define the boundaries of the whole district as such, but the boundaries of zones or subdivisions, and whatever
2. But if we are wrong in our construction of the statute, the question in this case still remains as to whether or not plaintiff, not having filed objections in the proceedings
“It is not contended by the appellants that their property is not properly assessable for the Pacific Avenue sewer. * * * The controversy, therefore, seems in effect to reach the amount of the assessment only, and if that is true, then, since the appellants were constructively before the council at the time of the hearing upon the confirmation of the roll, and since the records there disclosed the extent of the plans and also that the expense of the laterals was included, the objection should have been raised at that time. Even under appellant’s theory that the city could not acquire jurisdiction except through the petition, jurisdiction was at least acquired to construct the sewer directly within Pacific Avenue, and having jurisdiction for that purpose, the city was not divested of its power to make at least some assessment upon appellant’s property, and it was their duty to make objection to the amount thereof before the council. ’ ’
The language so used is so apt here that we have quoted it, notwithstanding the fact that it was also said:
“We fail to find any contention that the extension of the laterals brought appellant’s property within the district, when otherwise it would or might not have been included.”*426 which, though the meaning is in doubt, seems to hint at some arbitrary way of including Pacific Avenue in the district.
In Kendig v. Knight, 60 Iowa 29, 14 N. W. 78, it was held that to construct a gutter on two streets under different resolutions, and to take into consideration the entire work on both streets in making the assessment, was an irregularity-merely. And it has been held that, although under certain provisions of the local law, their several and distinct characters must be upheld in making several improvements, they may, nevertheless, be provided for in one resolution of intention. (Crummey v. Howe (Cal. App.) 192 Pac. 112; Bates v. Twist, 138 Cal. 52, 70 Pac. 1023.) In fact, counsel for defendant in error concede that the mere technical matter of including a number of parallel streets in one district would not have been jurisdictional, provided separate accounts of the cost of the improvement on each and every street had been kept, so that the proper apportionment could have been made. Then they further contend that it would have been a physical impossibility to properly apportion the assessments in this case because no such separate account was kept. Now, if the inclusion of several streets is not itself jurisdictional, then it would seem to follow that the subsequent action of the council in assessing the property is a mere matter of apportionment, going merely to the amount of the assessment, and such matters, as we showed in the original opinion, must be raised in the proceedings for confirmation of the assessment. (See also Dowling v. Conniff, 103 Cal. 75, 36 Pac. 1034.) Further, we are not persuaded that the mere matter of keeping accounts should present an insuperable obstacle to make corrections, if necessary. The city council had, under the law, ample power to take full and complete evidence on the subject, and it could, probably, in that manner have ascertained reasonably accurately the amount expended on each street, so as to enable the making of any necessary corrections which it was fully authorized to make.
“The legislature has, accordingly, a wide discretion in restricting defenses to assessments, or in restricting the right of property owners to apply to the courts for redress against assessments. It may deny to the property owner the right to interpose defenses or to seek redress as to all matters with which the legislature could have dispensed in advance.”
In such cases the legislature simply passes upon the rules of procedure, which it had a right to adopt in the first instance, and has, of course, also the right to declare waived, if no objections are filed. (Elliott, Roads & Streets, (3rd Ed.) Sec. 738. See also Brown v. City of Silverton (Or.) 190 Pac. 971; In Re Delinquent etc. Taxes (Minn.) 180 N. W. 240.)
¥e think we have also heretofore clearly shown, and the principle is not disputed, that the legislature could have specifically provided for the inclusion of parallel streets, where the circumstances of the case would make such inclusion reasonable; and there is nothing in this case to show that it would not have been here. (See also Elliott, Roads & Streets, (3rd Ed.) Sec. 684.) Improvements are often made by improving a certain definite district, or area that is compact, and the enhancement in value of the property affected often arises by reason of the fact that this is done. We might further say here that it seems that the property of the plaintiff was benefited to some extent; to what extent does not appear. It does not appear that the benefit is not equivalent to the assessment (not considering that some of the persons assessed might have an action for
“These provisions leave the property owner in no worse situation that if they had left the power of assessment un limited in the first instance; hence while they give this right to 'the property owner, they also provide a method by which it may be lost for want of objection on his part.”
*430 “Formerly á property owner without appearing before the city council could within a reasonable time contest the validity of special assessments for local improvements by an independent action in court. * * * Since the Act of 1911, however, assuming power in the city to make the improvement, and in the absence of fraud, such independent action cannot be maintained except for the causes mentioned in Section 23, which are non-existent here. * * * "Evidently the purpose of the law was to change the remedy, and provide for appearance in the proceedings before the legislative body of the city. It is the property owner’s day in court, so,to speak, and the penalty upon his failure to so appear is that he waives objections or the right to an independent suit in equity. ’ ’
The force of the reasoning in the foregoing cases as to the meaning of Section 1988 of our statute is applicable to and disposes as well of the other points argued in the petition for rehearing, such that the statute requires the grade to be established by ordinance. (See Elmendorff v. City of Antonio, (Tex. Civ. App.) 223 S. W. 631.) Hence we need not determine that point, although we might mention that we have not overlooked the reading of Section 1970 of our statute. The fact that the assessment was not made immediately after the contract for the improvement was entered into is at most, an irregularity. In the Matter of Deering, 14 Daily 89. That fact, so far as we can see, would in no event be prejudicial to the rights of the parties assessed, and seems rather to have been enacted for the benefit of the contractor, so that, if no objections are filed to the confirmation of the assessment, he may feel secure in his rights.
Counsel have re-argued at length the question of the defect in the resolution of intention, without, however, discussing the curative provisions of Section. 1988 of our statute. They have drawn our attention to the differences in our law and that of Indiana and Alabama, and try to distinguish the cases we originally • cited from those states. Some of these points of difference we shall mention later. In the states mentioned the preliminary proceedings are
3. No man' can be deprived of his property without due process of law, according to the fourteenth amendment to the Constitution of the United States and Sec. 6, Art. 1 of the Constitution of Wyoming. While we shall not attempt to give a comprehensive definition of what constitutes such due process, its indispensable elements are an investigating tribunal, not necessarily a judicial body, with full power to hear and determine the subject matter of the controversy, notice to appear, and an opportunity to be heard respecting the matter in dispute. A law winch requires notice to be given, and affords the right to be heard, with ample opportunity to'present all the evidence and argument which the parties deem important before judgment, is all that can be adjudged vital under due process of law. (Pryor v. Western Pav. Co., (Ok.) 184 Pac. 88.) We cited eases m oúr original opinion holding that in special assessment proceedings, no notice of preliminary proceedings is necessary, but that notice such as, under Section 1985 of our statute, is required in' proceedings for the confirmation of assessments, and an opportunity for hearing as is therein provided, is sufficient to meet the constitutional requirements above mentioned. These cases were decided in Alabama, Indiana and by the Supreme Court of the United States. Counsel insist that these cases are not applicable for the reason that it appears therein that the assessments in those cases were fixed by the local governing boards according to benefits, but that the method of assessment in the case at bar is governed by Section 1984 of our statute, which fixes a definite rule according to zones, and under which the amount to be assessed is purely a matter of mathematical calculation. Our attention is called to the fact that the Supreme Court of the United States has held that no notice' is required to be given of an assessment made under such a rule. Myles Salt Co. v. Drainage District, 239 U. S. 478;
The distinction which counsel have sought to draw between cases where the legislature fixes a mathematical rule, and where the local board fixes the assessment according to benefits, is not borne out by the authorities. Counsel would make the time of the notice, and of the opportunity for a hearing, of the essence. But while that might be a matter of legislative expediency, we fail to see why that should be
“But while we regard notice as indispensable, we do not believe that it need always be given during the initiatory or original proceedings; on the contrary, our judgment is that if it is provided for at some stage of the proceedings and in such a mode as to give the party an opportunity to be heard before a final conclusion is reached, it will be sufficient. ’ ’
In the case of Pryor v. Western Pav. Co., supra, the court said:
‘ ‘ The city authorities are given full power to correct any appraisement or apportionment, by raising or lowering the same as the facts may justify. Such proceeding meets all the requirements of due process of law.”
In the case of Argyle v. Johnson, 39 Utah 500, 118 Pac. 487, 490, the court said:
“In giving legal effect to the foregoing principle in cases like the one at bar, it is not necessary that a hearing be had at any particular stage of the proceeding, by which rights may be affected, or that the hearing be had before a regularly constituted court of justice; but it is necessary that a hearing be given at some time, and that the same be had before some officer, tribunal, board or court to whom the persons whose property is affected may present his evidence, objections, and arguments, to the end that the officer, tribunal, board, or court may be enabled to fairly and intelligently pass upon and determine the question presented for decision. ’ ’
We think that two cases decided by the'Supreme Court of-the United States completely dispose of the contention of
“So far, therefore, as the present ordinance determined that a district sewer should be constructed, and established the bounds of the district for the purpose of determining what property should be subjected to the special cost of constructing it, there' was an authorized exercise of the legislative power of the state, which, according to repeated decisions of this court, was not wanting in due process of law because of the mere fact that there was no previous notice to the propei’ty owners or opportunity to be heard. ’ ’
In the first of the two cases last cited the court said:
“It is insisted that no notice was given, or opportunity to be heard, prior to the creation of the sewer district, and, therefore, due process of law was denied. These tax bills were levied upon districts the creation of which was authorized by legislative authority. The record discloses that the owner has had full opportunity to be heard, in judicial proceedings to enforce the tax, and its contentions of arbitrary action and lack of benefits conferred have been considered and decided. This is due process. (Davidson v. New Orleans, 96 U. S. 96; Embree v. Kansas City Road District, 240 U. S. 242, 251.) ” (See also In Re Delinquent, etc. Taxes, (Minn.) 180 N. W. 240.
We can see no force in the statement of counsel that “it is a legal absurdity to conclude that due process of law is
We have so far discussed the constitutional questions largely as though no notice of the preliminary proceedings had been given. But that is not the fact. Notice of the resolution of intention was duly published as required by law. That resolution,'though defective in some particulars, advised the parties interested of the intention to make the improvement, of the inclusion of their property within the district, and that payment for the improvement was expected to be made by special assessments. Again, the record
We are not unmindful of the fact that proceedings for local assessments are of vital importance to the tax payers affected. We realize that inequality of burden is easily possible, and that even in the absence thereof, a great hardship is often imposed on property holders who can illy afford to contribute toward the making of an improvement which, to others, may appear a necessity. That may be, though it does not appear in the record, the situation of some of the parties assessed in the proceedings herein, and the learned counsel for plaintiff, not only zealous in their duty as such, but, affected perhaps also by such condition of hardship known to them, have been insistent in urging upon us the correctness of their points of view. AYe understand and fully appreciate the situation often arising as above mentioned. We, moved by sympathetic feelings no less than counsel, would only be too glad to meet and remedy such conditions whenever arising, if we legally could do so. But the court has to perform the function assigned to it by the constitution and laws of this state; and in this case the remedy, if necessary, which is sought
Rehearing denied.