59 Cal. 206 | Cal. | 1881
Lead Opinion
Ejectment to recover possession of certain premises described ■in the complaint as that portion of fifty-vara lot number 3,
The right of recovery, claimed by plaintiff, depends wholly upon a tax deed which had been executed and delivered to him in consummation of a sale of the premises, for the nonpayment of an assessment, which had been levied upon the land, for the purpose of raising a fund for the payment of interest, due and to become due, upon one thousand five hundred and seventy-five bonds, of one thousand dollars each, which had been issued under the provisions of an act entitled, “An act to1 open and establish a public street in-the City and County of San Francisco, to be called Montgomery avenue, and to take private lands therefor,” approved April 1,1872. Judgment in the- Court below-was entered in favor of the defendant, from which, and from the order denying a motion for a new trial, the plaintiff appeals.
At the trial of the cause the following stipulation was made:
“ It is hereby stipulated by and between the parties to the above entitled action, as follows: That the deed of William Mitchell, Tax Collector, to the said plaintiff, of the land in dispute in said action, offered in evidence by the plaintiff, is prima facie proof of title to said land, subject to attack by defendant upon the grounds only:
“1. That the statute under which Montgomery Avenue is alleged to have been opened, gave no authority to the Board of Public Works, or to the County Court of said City and County, to act in the premises, as in said act provided.
“ 2. That the Board of Public Works, as provided for in Said act, never acquired jurisdiction over the matters alleged to have been determined by them under the alleged authority of said act.
“ 3. That the alleged report of said Board to said County Court, as provided for in said act, was unauthorized and void.
“ 4. That said County Court had no jurisdiction to confirm said report, and that the confirmation thereof was unauthorized and void.
“ 5. That no assessment for any tax on the property in said act described, is by said act authorized.
“ 6. That by said act no power is given to any Tax Col-,
“All other defenses and objections to the plaintiffs title are hereby expressly waived; in consideration of which, each party agrees to press said case to as speedy adjudication thereof, as is possible, and either party may read in evidence on the trial, any book, petition, exhibit, or evidence used or taken in the trial of Dutertre v. Ford, case No. 4,800 in said Court, subject to any legal exceptions that may be taken thereto.”
Under that stipulation the plaintiff put in evidence his tax-deed and rested. The defendant then put in evidence the record of the petition, which had been presented to the Mayor of the City and County of San Francisco, on the 6th day of April, 1872, under section 4 of the statute already referred to, for the opening of Montgomery Avenue; a copy of the assessment roll of that city and county for the fiscal year 1871-2, the testimony of certain experts, which tended to show, upon a comparison of the petition and the assessment roll, and a computation made thereon, that the petition had not been signed by the owners of a majority in frontage as assessed on the assessment roll; and the testimony of certain witnesses, which tended to prove that the name of a corporation, to whom certain frontage was assessed on the assessment roll, was signed to the petition by officers of the corporation without authority.
It was agreed that the copy of the petition and of the assessment roll were correct copies of the originals, and no objections were made to them as evidence. But, while the witnesses were testifying, the plaintiff objected to any testimony to impeach either, upon the ground that it was irrelevant and immaterial. His objections were overruled, the testimony of the witnesses was taken over his exception, and upon the evidence thus admitted the Court found that the total frontage in the district was four hundred and twenty and six hundred and thirty-seven and one half thousandths feet, of which two hundred and ten and three hundred and nineteen thousandths feet constituted a majority. Upon its face the petition represented signatures for two hundred and twenty-five and three ihundred and twenty-four thousandths feet—being a majority.
But of the two hundred and twenty-five and three hundred and twenty-four thousandths feet signed, eight and nine hundred and ninety-one and one half thousandths feet were signed for by executors, administrators, agents, etc., to whom the frontage wasnot assessed upon the assessment roll; four and two hunhundred and seventy-three thousandths feet thereof were signed for by persons whose names were not on the assessment roll at all; seventeen and one hundred and seventy-three thousandths feet thereof were signed for by one only of several tenants in common, but not by all the persons to whom the property was assessed on the assessment roll; seven and six hundred and seventy-one and one half thousandths feet thereof were assessed to the United States and other parties, but were not signed for by the United States; thirty-nine and eight hundred and forty-two thousandths feet thereof were assessed on said roll to the North San Francisco and Railroad Association, a corporation, and appeared to be signed for by one F. S. Spring, President, and -Barry, Secretary, who had no authority from the Board of Trustees of the corporation, or otherwise, to sign the petition; and twenty-nine and nine hundred and fourteen thousandths feet thereof were assessed on said roll to the same corporation jointly with other parties, some of whom owned undivided interests in certain lots—seven/and seven hundred and thirty-nine thousandths feet of which were signed by the owners, six and one hundred and thirty-six thousandths feet d£ which were not signed by the owners, and eleven and thirty-seven thousandths feet were signed for in the name of the corporation by F. S. Spring, President, and-Barry, Secretary, who had no authority from the Board of Directors, or otherwise, to sign. Subtracting these several amounts from the two hundred and twenty-five and three hundred and twenty-four thousandths feet appearing on the petition, there remained a balance of several thousand feet frontage less than a majority of the owners in frontage; from which the Court deduced the fact that the petition, which had been presented to the Mayor, was not signed by a majority of the owners in frontage as required by the statute ; the petition was, therefore, wholly insufficient, and was as so petition^ and, therefore, the.. Board of Public. Works, created.
The appellant assigns as error that the findings of fact are not sustained by the evidence, and that the conclusions of law are not sustained by the findings.
The petition and assessment roll in evidence disclosed all the facts upon which the Court made its findings as to the quantum of frontage, signed by those who are represented on the petition as executors, administrators, agents, and tenants in common. The assessment-roll showed that there had been no assessment to them; there was, therefore, no conflict of evidence. If there was any conflict, it existed only in the testimony of the witnesses upon the question of authority in those who signed the name of the Homestead and Railroad Association to the petition. But, at the least, there was sufficient in the testimony to justify the Court in finding, as it did, that the signature of the corporation to the petition by the President and Secretary of the corporation was wholly unauthorized. That being the case, the burden is upon the appellant, who assigns as error that the finding is not sustained by the evidence, to show that the finding is contrary to the evidence. We have carefully examined the record on that subject, and fail to find any evidence whatever of authority from the Board of Directors to the President or Secretary to sign the name of the corporation to the petition. The officers who affixed the signatures of the corporation to it deny that they had any special authority. In his testimony, the President says: “ I signed the petition because I personally wanted the avenue opened, and I thought it was well for the Association to have it opened.” “ I do not remember that I ever consulted the Directors in relation to signing the petition, or that they ever knew that I had signed, or that the matter was ever talked over at any meeting of the Directors.”
Appellant, however, contends that the Directors knew that the petition was signed, and that they assented to it and ratified it, because it was shown by the evidence that nine days before the act of 1872 was passed and two months before the
• “Besolved, that the.President be and is hereby authorized to take such steps as he may.deem advisable for the purpose of securing the passage of the bill for opening Montgomery Avenue, and the sum of. five hundred dollars be and is hereby appropriated out - .of any moneys in the treasury and placed at his disposal for the purpose of defraying the necessary expenses of such action in the premises as he may determine upon.”
And the President testified that “the- five hundred dollars referred to in the resolution of March 20th, 1872, was paid to some one that had it; I could not say exactly to whom. It was paid after the passage of the act, because my signature was made for it. ■ My recollection is, that I signed an agreement with some one to pay five hundred dollars if a certain bill then before the Legislature was. passed. I think the bill was amended considerably. I paid the money for the passage of this act.”
However suggestive .this testimony may be of some things, of which, in the judgment of. charity, the witness may be entitled to the benefit of a reasonable doubt, it does not tend to prove authority in the. officers of the ■ corporation to • sign the name of the corporation to the petition for the opening of the avenue. Mor does a resolution of the Board, passed several months after the petition was signed, authorizing the President “ to subscribe, on behalf of the Association,. to a fund with a view to procure such action as will result in levying the Montgomery Avenue tax on the whole City of San Francisco,” show such authority, or that the Directors knew that the name of the corporation had been signed to the petition by its President and Secretary, or that they approved of it, or acquiesced in.it, or ratified it.
The findings are, therefore, sustained by the evidence, and the conclusions. of law drawn from them are correct. For, while it is- true,' that a corporation can act only by its agents, and-the-presumption is, that an act pertaining to its ordinary business is, when performed by its President and Secretary, legally done, and is binding upon the corporation (Smith v. Smith, 62 Ill. 493), yet no such presumption prevails when
It is also equally clear, as a conclusion of law, that executors, administrators, and agents, to whom, as such, no frontage was assessed on the assessment roll, were not owners, within the meaning and intent of the statute, who were authorized to petition for the opening of the avenue.
Executors and administrators are but the legal personal representatives of the decedents whom they represent. They are but agents of their constituents, created by law, whose duties and powers are prescribed by law. Whatever they do must be done according to law, and within the authority of the law; for the acts of an agent are binding only when done within the scope of the authority conferred upon him. In any transaction in which executors or administrators pretend to act as such, they can not create any liability on the estate of which they are the representatives. They have no power to charge or incumber, or sell and convey, the real property of the estate, unless authorized by the law under which they are acting. In favor of such an act there is no legal presumption. If it purports to be done by authority, the authority should be produced. The signatures of the executors, administrators, and agents to the petition were, therefore, ineffectual as signatures of the frontage for which they, signed.
And where real property is assessed upon an assessment roll to two or more persons, the legal presumption is that aliare joint owners. Being the common property of all, one of' the joint owners or tenants in common can not do any act in hostility to the common title. He can not, by his act alone, attempt to incumber or charge the estate of his co-tenants^
But it is contended, and the next assignment of error is, that the Court below erred in admitting any evidence at all to contradict the petition, because it was not essential to the exercise of the powers conferred by the statute upon the Board of Public Works for the opening of the avenue; because the certificate of the Mayor, that the petition was sufficient, was conclusive as an adjudication of the fact, which could not be called in question in a collateral proceeding; and because, as the defendant had failed to question its sufficiency or validity in any of the tribunals provided by the statute for that purpose, while the proceedings, which the petition had inaugurated, were in fieri, he and the other property owners, affected by the proceedings, were estopped. If the petition was essential, it was not error to allow accountants to compute the frontage of the assessment district, and to examine and compare the petition and the assessment-roll, to ascertain and testify to the number of .feet frontage represented on the petition and the number assessed on the assessment-roll. It is true, that the petition and roll were both before the Court as unquestioned evidence; and the Court, in the exercise of its judicial functions, could have contrasted the two documents, and ascertained and computed any discrepancies existing between the frontage represented on the one and that assessed on the other. But it had the power, as every Court has, to take the testimony of experts to assist it in getting at those results, so that, upon a judicial examination of the documents themselves, it may be enabled intelligently to deduce a correct conclusion upon the question, whether the number of feet frontage as represented on the petition consisted with the names of the owners and the frontage represented by them on the assessment-roll
Nor was there any error in admitting the testimony of witnesses to prove that the signatures of the Homestead and Railroad Association to the petition were, signed by persons
In considering them, it must be borne in mind that this is not an action upon the bonds issued under the provisions of the statute; it is an action of ejectment, pure and simple, in which the plaintiff seeks to cut off the title of the defendant to the land in controversy by statutory proceedings, taken against the property, by agents of the State, in the exercise of the powers of eminent domain, assessment, and taxation. The two actions are essentially different. An action upon the bonds would be an action on contract, in which- the defendant to the action might be estopped from calling in question the validity of the proceedings under which the bonds were issued. While in an action of ejectment to recover property upon the validity of such proceedings, the owner would not be estopped from questioning them where they were taken against his will, and he was not a party to them.-
Now the statute made the petition an essential initiative of the proceedings under which the plaintiff claims title to the property in controversy. By the statute the Legislature came into the municipality of the City and County of San Francisco, to open and establish a public street therein. That was the sole object, as expressed in the title of the Act. To carry out that object, the Legislature, by section 1 of the Act, described a tract of land, by metes and bounds, and by courses and distances, which it declared as taken and dedicated for the purpose of establishing the street. That that tract of land is now known as Montgomery Avenue. And in order to raise funds to pay the cost of opening the avenue, the Legislature, by section 3 of the Act, defined what should constitute the “cost;” and by section 4 it established an assessment district, described its boundaries, and declared that all the lands situated within those boundaries would be benefited by the opening of the avenue; and that the “cost” of open
Having thus taken and dedicated the land for a public street, established an assessment district, declared the lands which would be benefited by the opening of the street, apportioned the benefits, prescribed the means, and appointed the agents for the accomplishment of the objects of the act, the Legislature made the organization of the agency and the exercise of its powers dependent upon the will of the owners of a majority in frontage of the lands, which were subjected to the burdens of paying for the improvement, to be manifested by petition to the Mayor of the city, who was president of the Board. By section 5 of the act it was provided that “ whenever the owners of a majority in frontage of the property described in section 4 of this act, as said owners are or shall he named in the last preceding annual assessment roll' for the State, city, and county taxes, shall petition the Mayor of said city and county, in writing, for the opening of Montgomery Avenue, according to the provisions of this act, the Board of Public Works, as created by section 19 of this act, shall proceed to organize hy the election of a President,” etc.
How, assuming that the State may-come into a municipality for the purpose of exercising, by its agents, the power of assessment, to pay for land within the municipality which it had taken and dedicated for a public highway, it must come under the statute which has determined the necessity for the appropriation and conferred the powers to be exercised; and statutory powers, under such circumstances, must be exercised under the limitations and circumstances prescribed by the statute itself. Hone of the safeguards created by it for the protection of the citizen can be disregarded. “ The power of the State,” says Mr. Cooley, in his work on Constitutional Limitations, “ to appropriate private property for public use by taking it under the power of eminent domain, or of taxation by way of assessment, however absolute in the abstract, is a dormant power until legislative action is had, pointing .out the occasion, the mode, the condition, and agencies for the
When, therefore, the Legislature prescribed that a petition from the owners of a majority in frontage of the property to be charged with the cost of the improvement was necessary to set the machinery of the statute in motion, no step could be taken under the provisions of the statute until the requisite petition was presented. It was the first authorized movement to be made in the opening of the avenue. When taken, officers who were to constitute and organize a Board of Public Works were authorized to organize. Until it was taken they had no such authority. They could not legally act at all; or if they acted, their proceedings would be unauthorized and void. The presentation of the petition required by the statute was therefore essential. It was, as other courts, in construing similar statutes, have expressed it, a jurisdictional fact, that may not be presumed or inferred, upon which rested all the subsequent proceedings authorized by the statute. (Matter of the City of Buffalo, 78 N. Y. 362; People ex rel. Rogers v. Spencer, 55 id. 1; Litchfield v. Vernon, 41 id. 123; People v. Smith, 55 id. 135; Sharp v. Spier, 4 Hill, 87; Graves v. Otis, 2 id. 466; Dampe v. Town of Dane, 29 Wis. 419.) “A common requirement,” says Mr. Cooley, in Ms work on Taxation, 464, “ is that the improvement shall be asked for or assented to by a majority or some other proportion of those who would be taxed. The want of a compliance with this requirement is fatal in any stage of the proceedings.”
But it is urged that, as a petition sufficient upon its face was presented, and as the Mayor to whom it was presented, certified it to be in all respects in accordance with the statute, the defendant is now estopped from questioning the validity of the petition or of any of the proceedings under which Ms property has been assessed and sold; first, by the certificate of the Mayor, and secondly, by the judgment of the County
The statute required the petition to be made to the Mayor; but he was charged with no duties in connection with it. He was not authorized to enter into any investigation of the frontage as represented by the petition, or to adjudicate its sufficiency, or to make any record in reference to it. He did append to it a certificate, but this certificate was unauthorized; and it is difficult to see how the unauthorized certificate to a document of a ministerial officer constitutes an estoppel.
But it is urged that while the statute has not, by direct terms, conferred power upon the Mayor to decide upon the sufficiency and validity of the petition, he, of necessity, had such power, because the statute required that it should be presented to him, and, as it is not to be presumed that the Legislature intended a vain thing, it must be inferred that the officer to whom it was presented was authorized by the statute to determine whether it was in accordance with the statute or not, and that his determination of that fact was in the nature of an adjudication. But, even if that were so, the adjudication of the question would not be conclusive. A property owner would have the right to rebut it as evidence, when called upon for the first time to defend his rights to property affected by the proceedings of which the petition was the initiative, unless the statute provided for giving him notice of the presentation of the petition, and notice was in fact served upon him. If he had no such notice, and no opportunity to be heard upon it, it is difficult to see how he can be concluded by an adjudication to which he was not a party and of which he had no notice. For it is a principle which underlies all forms of government by law, that a citizen shall not be deprived of life, liberty, or property, without due process of law. The Legislature has no power to take away a man’s property, nor can it authorize its agents to do so, without first providing for personal notice to be given to him, and for a full opportunity óf time, place, and tribunal, to be heard in defense of his rights. This Constitutional guaranty is not confined to judicial proceedings, but extends to every case in which a citizen may be deprived of life, liberty, or property, whether the proceeding be judicial, administrative, or
In no part of the statute does it appear that any provisions were made for any notice to be given to property-owners of the proceeding authorized to be taken before the Mayor, or of the proceedings by the Board of Public Works, or in the County Court, against the property declared to be benefited by the opening of the avenue. No personal notice was in fact given to the defendant of the presentation of the petition or of any of the acts of the Board. Neither the Mayor nor the Board was required to give notice until the Board had completed the report of its work. Then the statute required it to publish a notice for twenty days, in two daily newspapers printed and published in the City and County of San Francisco, that the report would be open for the inspection of all parties interested, at the office of the Board, every day during ordinary business hours, for thirty days. (§ 6.)
This notice was not directed to the defendant or any property owner by name. It was not personal notice. It was simply a general notice that the report of the Board was open for inspection. It did not notify or summon any property owner to appear before the Board or the County Court, or any other tribunal, at any time or place, to file objections, or assert rights to or against anything which had been done by the Board in its proceedings against the property to be charged with the cost of opening the avenue. It is true that if any property owner felt himself aggrieved by the report, he had the right, under the statute, at any time within the thirty days specified in section 6, to apply to the County Court of the city and county for an order on the Board re quiring it to file its report in the County Court. Upon such an application the County Court was empowered to grant or deny the order. But if no such application was made the Board itself was required after the thirty days to present the report to the County Court, arid ask for its approval and confirmation. (§ 7.) But whether the report was brought before the County Court upon an order made on the application of a party in interest, feeling himself aggrieved, or by the Board itself, the Court had only such jurisdiction of the subject-matter of the report as was conferred upon it by the
These constituted the only powers which the County Court, as a Court of special and limited jurisdiction, was authorized to exercise. The principal thing with which the Court had to deal was the report, and “ such data or documents' as had been used by the Board in its preparation.” Its entire duty, as derived from the statute, was to approve and confirm the report, or refer it back to the Board for the purpose of changing it in such respects as the Court might by its orders direct; and when changed or modified as directed, and returned, to then approve and confirm it. Of course the exercise of that jurisdiction involved a judicial examination of the report and of such data or documents as had been used in preparing it; but it extended no farther than a review of such matters for the single purpose of approval and confirmation of the report in its original form or as changed and modified by order of the Court. What the nature, character, and contents of the report were, and what the jurisdiction of the Court over it, are distinctly set forth in sections 6 and 7 of the act. Nowhere in the statute is the petition made part . of the report, or of the data or documents used in making it..
Mor does the failure of the defendant to resort to legal remedies against the proceedings while in fieri constitute an equitable estoppel. It was the duty of those who were authorized to exercise powers, which might bind the real property of the defendant, to see that the provisions of the statute under which they acted were complied with. • Their acts, in that respect, were either valid or void. If valid, a legal charge was created upon the property of the defendant. If void, a court of equity would not have afforded him any relief against them. It would have left him to stand on his legal rights. Under these circumstances, defendant was not bound to attempt resistance against the proceedings, until his right to his property affected by them, was called in question by some one claiming title to it through them. The plaintiff claimed such a title; and when he brought his action to establish a right of entry upon the land of the defendant, the latter was called upon, for the first time, to defend his rights. In such an action the plaintiff must recoy.er upon the strength of his title»
It follows that the ruling of the Court below, in admitting evidence to show that the petition was not signed by the owners of a majority in frontage of the lands assessable for the opening of the avenue, under the statute, was correct; that the findings were sustained by the evidence; that the judgment is sustained by the findings, and that there is no prejudicial error in the record.
Two questions, one as to the constitutionality of the act of 1872, and the other as to the validity of the Montgomery Avenue bonds, have been elaborately argued by counsel. But as the one is not necessarily involved in the case, and the other is wholly outside the record, we express no opinion upon them.
Judgment affirmed.
Concurrence Opinion
I concur in the affirmance of the judgment of the Court below. Section 19 of the act of April 1, 1872, declares that the Mayor, Tax Collector, and City and County Surveyor shall constitute a Board of Public Works within the meaning of that act; and section 5 provides that “ whenever the owners of a majority in frontage of the property described in section 4 of this act as said owners are or shall be named in the last assessment roll for the State, City and County taxes, shall petition the Mayor of said City and County, in writing, for the . opening of Montgomery avenue according to the provisions of this act, the Board of Public Works, as created by section 19 of this act, shall proceed to organize,” etc.
The act did not authorize the Board to organize until after the owners of a majority of the frontage of the property, described in section 4, had petitioned the Mayor in writing for the opening of the avenue. As the Board was required to organize before proceeding to do anything else, it would seem that its right to do anything under the act depended upon the presentation of a sufficient petition to the Mayor, for the
It appears from the record that no such petition was presented, in this case, to the Mayor, but that a petition of the owners of less than a majority of said frontage was presented to him; and that the Board organized, and did all the acts which it might lawfully have done if a sufficient petition had been presented to the Mayor. Were those acts valid? It is claimed that they were: 1. Because the Mayor or the Board, or both, had to determine whether the owners of a majority of frontage had petitioned; 2. Because the County Court was authorized to hear and determine any objection which any person interested in any of the land situated within the district benefited might make to any of the proceedings of said Board.
As before stated, it does not appear that the Board was authorized by the statute to do anything until the owners of a majority of frontage had petitioned the Mayor. The power is not directly given to any one to determine whether the requisite number had at any time so petitioned. The reason for that omission may have been, that the fact whether they had or not, was capable of mathematical demonstration. It only required a knowledge of the whole number of feet frontage, and a comparison of the petition with the last assessment roll of the city and county, to enable any one to de
I think, however, that neither the determination of the Board, or of the County Court, or of both, would be anything more than prima facie evidence of the presentation of such a petition, as the law required; and that a petition of the owners of a majority of frontage was a condition precedent to the right of said Board to proceed at all in the matter.
Nothing is better settled than that, “ where special authority is delegated by statute to particular persons, or to an inferior tribunal, affecting the property of individuals against their will, the course prescribed by law must be strictly pursued, and appear to be so upon the face of the proceedings, or the power is not well executed. And it makes no difference in the application of the principle, whether the question comes before the Superior Courts by certiorari or collaterally.' If the law has not been strictly complied with, the proceeding is a nullity, and the adjudication gives it no additional validity.” (Blackwell on Tax Titles, 39.)
And when the requirement is, that an improvement shall be ashed for or assented to by a majority, or some other proportion of those who would be taxed, a want of compliance with that requirement is fatal to any stage of the proceedings. “And any decision or certificate of the proper authorities, that the requisite application or consent had been made, would not be conclusive, but might be disproved,” (Cooley on Taxation, 465.) So held in Sharp v. Spier, 4 Hill, 76, and in Henderson v. Baltimore, 8 Md. 352.
No Court or officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the facts on which jurisdiction depends. (People v. Cassels, 5 Hill, 168, per Bronson, J.; Starback v. Murray, 5 Wend. 158; S. C., 21 Am. Dec. 172; Shumway v. Stillman, 6 Wend. 452.)
The statement or recital, in a record of an inferior Court or tribunal, of facts constituting jurisdiction, may be received as prima facie evidence of such facts. (Barber v. Winslow, 12 Wend. 102; 11 Johns. 226; Hubbell v. Ames, 15 Wend. 372.) It was accordingly held, in Harrington v. The People, 6 Barb. 607, that if a statute authorized Commissioners to proceed and lay out a highway, upon the application of some person
The jurisdiction conferred upon the County Court in this case was purely special, and depended, I think, as much upon the presentation of a proper petition to the Mayor as that of the Board did. Besides, it does not seem to have been contemplated in the act that the question of the sufficiency of the petition should be considered by the Court. There is no evidence of a waiver by the defendant of his right to contest the legality of the acts of the board in any proceeding based upon them which might affect his property. He waived nothing by his silence, and his right to resist the collection of the tax is not affected by the unauthorized acts of others.
In Carron v. Martin, 26 N. J. L. 594, the question was whether the proceedings of the Common Council of the city of Newark, in opening the street for which the assessment was made, were void for want of a proper application of the land owners for that purpose, so that the sale of land made to raise the sum assessed thereon was void and conferred no title on the purchaser. The Court in a lengthy and able opinion discussed the various points raised by counsel, and arrived at the conclusion that the want of an application such as the law prescribed, made the subsequent proceedings of the board coram non judice and void; and liable to be attacked in a collateral proceeding like the present.
If it had been the intention of the Legislature to make the determination of the Board, or of the County Court, conclusive upon the question of the sufficiency of the petition,
It is true that any person interested in any land within the district, “ feeling himself aggrieved by the action or determination of the said Board as shown in said report” (the report which the law required the Board to make), might apply to the County Court for an order requiring the Board to file their report in the County Court. But the law does not require that the petition or a copy of it shall be set forth, or that any reference shall be made to it, in said report. From which it is obvious that the petition would not be before that Court. And this is made more clear by the following provision: “The Court shall have power to approve and confirm said report, or refer the same back to the said Board, with directions to alter or modify the same in the particulars specified by the Court.” But the person who makes the application is not, nor is any one, required to give any other party in interest any notice whatever of such application, or of any proceeding under it.
Therefore, it seems to me, that if a petition of the character specified in the act was a condition precedent to the right of the Board to proceed, nothing has occurred since which can be construed as a waiver of that condition, or which es-topped the respondent in this case from attacking the validity .of the proceedings of the. Board.on the ground that such a,
Thornton, J., concurred in the above opinion of Mr. Justice Sharpstein.
I concur in the judgment. I think it beyond question that the act of the Legislature adopted April 1st, 1872, required, as a condition precedent to the opening of Montgomery avenue, the presentation to the Mayor of a petition in writing by the owners of a majority in frontage of the property declared to be benefited, and therefore assessed to pay the costs, as such owners should be named in the last preceding annual assessment roll for the State, city, and county taxes. Such petition lay at the foundation of the whole proceeding. Without it, no step could be taken looking to the opening of the avenue. It was jurisdictional in the strictest sense. The statute did not in terms provide how or by whom should be determined the question whether a majority of the owners in frontage of the property to be assessed had in fact petitioned for the opening of the avenue; but it is strenuously urged by some of the learned counsel for the appellant that the Board of Public Works of necessity had to decide it, and that their determination is conclusive. It is undoubtedly true that the members of the Board were called upon to decide for themselves whether a case had arisen in which it was proper for them to act. Indeed, by the express letter of the statute the Board could not even organize until a majority of the owners in frontage of the property to be assessed should petition for the opening of the avenue. While, therefore, the members of the Board were, from the very nature of the ease, called on to decide for themselves whether such petition had been presented as authorized them to organize and proceed with the work, yet their determination was not conclusive upon any one. As said by Judge Bronson, in speaking of the action of certain trustees in respect to a similar petition, in Sharp v. Spier, 4 Hill, 88, “they could not make the occasion by resolving that it existed. They had power to proceed if a majority petitioned, but without such a petition they had no
How could the rule be otherwise in a case like the one at bar, where the statute makes the petition the basis of the proceeding which is to culminate in divesting the title of the owner of land against his consent, and makes no provision for the owner to be heard upon the question of the sufficiency of the petition? Nowhere does the statute provide for notice to the owners of the land to be assessed of the presentation of the petition to the Mayor, nor are such owners afforded an opportunity to contest before the Mayor or the Board of Public Works the sufficiency of the petition. Under such circumstances, to hold the owner conclusively bound by the determination of the Mayor or the Board, or both combined, would be, in effect, to deprive him of his property without due process of law, contrary to the provisions of the Federal and State Constitutions.
Nor did the statute give to the County Court jurisdiction to inquire into the sufficiency of the petition. Every one must admit that, in the matter in question, that Court had only such power as was expressly or by necessary implication, conferred upon it by the statute itself. Looking at the statute, it is seen that the Board of Public Works, after organizing upon the condition stated and adopting surveys, plans, etc., was required to state and set down in a written report, to be signed by at least a majority of the Board, the description and actual cash value of the several lots and subdivisions of land included in that taken for the avenue, the amount of damage that would be occasioned to the property along the line and within the course of the avenue, and, also, a description of the several subdivisions and lots, of land included in
The statute next authorized any person interested in any of the land situated within the district declared to be benefited, or in any of the land taken for the avenue, or in any improvements damaged by opening the avenue, who should feel himself aggrieved by the action or determination of the Board, as shown in its report, to apply by petition, at any time within the thirty days already mentioned, to the County Court of the City and County of San Francisco, setting forth his interest in the proceedings had before the Board, and his objections thereto, for an order requiring the Board to file with the Court its report, and such other documents or data as should be pertinent thereto in the custody of the Board and used by it in preparing the report. After notice to the Board the Court was empowered to hear the application and. take testimony, and to allow or deny the order as to it should seem proper. If granted, the Board was required to obey the order. -In the event no such application was made to the Court within the time limited, the Board was required to present the report to the County Court, with a petition that the same be approved and confirmed. In no event was anything but the report, and such documents .and data as were used by the Board in its preparation, to be brought before the County ■Court. Nowhere did the statute expressly or by implication
In view of these provisions of the statute, and in view of the fact that the County Court had no jurisdiction, except such as was conferred by them, there is, and can be, in my opinion, no ground for the assertion that that Court could have set aside the report and dismissed the whole proceedings for the opening of the avewae, which, of course, it could have done, and would have been bound to do, could it have inquired into the petition presented to the Mayor, and ascertained that it was not made by a majority of the owners of the property to be assessed for the improvement.
The statute having failed to provide the parties in interest an opportunity to be heard upon the question of the sufficiency of the petition, on which the whole proceeding was made to depend, I consider it very clear that such parties can not be conclusively bound by the ex parte determination of that question by anybody. It is the rule, everywhere recog
Concurrence Opinion
To what has been said, I add: In my opinion, the statute provides no notice or process, by means of which the property-owners can be subjected to the judgment of the County Court. The act is therefore void. (Stuart v. Palmer, 74 N. Y. 183; Murray’s Lessees v. Hoboken Land and Imp. Co., 18 How. (U. S.) 272; Cooley on Tax. 266.)
