Abbildungen der Seite
PDF
EPUB

ing; so that it may be doubted whether the mere insertion of the words in the notice that objections should be made in writing, in a case where no objections of any kind were offered, would have been held to render the ordinance absolutely void. Be that as it may, it appears in this case that after the assessment was made the prosecutors presented several written remonstrances against confirming it, in none of which is the ordinance itself objected to. Notice of a proposed ordinance authorizing improvements is required, to give the parties interested, upon whom the expense must fall, an opportunity of being heard, and stating their objections, if they have any. If any such party had appeared, and desired to be heard verbally, or had made written objections, and therein expressly reserved all legal objections, as was done in the case referred to, he might with propriety afterwards insist that, so far from consenting to the improvement, he had formally dissented. But here the prosecutor offered no objections to the contemplated improvement in any way, but subsequently made objection to the amount assessed against him, for reasons which implied his assent to the ordinance itself. Under these circumstances, I think he must be held to have waived any objection he might have taken to the form of the notice, and to have consented to the passing of the ordinance, so far as his interests were concerned."

So, where the supervisors, after due notice as required by statute, met at the time and place fixed for a hearing of protests to an assessment, and, after deciding thereon, adjourned for four weeks, property owners who did not attend the hearing cannot object to the adjournment. They "were bound by the notice of the hearing previously given, and were required to take notice that a continuance might be ordered. They had the privilege of attending at the hearing, and of contesting any claim made for increase of damages. By failing to appear they waived the right and are concluded by the result." Hayne v. San Francisco (1917) 174 Cal. 185, 162

Pac. 625. See to the same effect, Telegraph Hill Neighborhood Asso. v. San Francisco (1917) 174 Cal. 814, 162 Pac. 630; Cooper v. San Francisco (1917) 174 Cal. 813, 162 Pac. 631; Simpson v. San Francisco (1917) 174 Cal. 815, 162 Pac. 631.

The fact that the notice by assessors that they had completed the assessment roll was published before the approval by the mayor of the resolutions ordering the work is an irregularity which cannot be objected to after the confirmation of the assessment. Lyth v. Buffalo (1888) 48 Hun (N. Y.) 175, wherein the court said: "It was the duty of the plaintiff to have appeared before the clerk and filed his objection to the confirmation of the roll, as required by the notice published by the clerk in accordance with the charter, and by neglecting to do so he has waived the irregularity."

[ocr errors]

In Brown v. Chicago (1886) 117 Ill. 21, 7 N. E. 108, it appeared that, after petition by property owners, an order was made by council deferring action on an improvement for two years, but before the time had elapsed the assessment roll was filed in the county court for confirmation, and notices published as required by law. It was held that an objection to the validity of the proceedings after the order of discontinuance was one properly to be raised at the confirmation of the assessment, and a bill would not lie to enjoin the collection, at the suit of a property holder, who failed so to object.

Similarly, in Hertig v. People (1896) 159 Ill. 237, 50 Am. St. Rep. 162, 42 N. E. 879, an action for judgment and sale of property for failure to pay a street assessment, the defendant offered testimony to prove that the notice of confirmation was insufficiently set out in its publication. The court excluded the testimony, saying: "The proper time to have tendered such testimony was at the hearing of the confirmation proceeding. As it was, the offer came too late, for this is a collatered proceeding, in which it is sought to attack the jurisdiction of the court to render the

[blocks in formation]

the certificate in fact insufficient, appellant could take no advantage of it in this, a collateral proceeding, for in such a case the presumption would be that the court heard and acted upon other and sufficient evidence to sustain the finding."

See to the same effect, Kirchman v. People (1896) 159 Ill. 265, 42 N. E. 884.

And where a property owner does not file objections with the city council as provided by statute, she is estopped thereafter from contesting a street assessment on the ground of irregularity; thus, where a notice of the date of hearing of objections is two days short of the required time, it is defective only, and not void, and an owner cannot by injunction set aside the assessment, and thus collaterally attack the finding of the city council. Owens v. Marion (1905) 127 Iowa, 469, 103 N. W. 381, wherein the court said: "Plaintiff in the instant case gave no attention to the notice, and she neither filed nor offered to file any objections to the assessment as shown on the plat and schedule. The assessment was confirmed on the 8th day of September, 1902, after the giving of the notice referred to, and as plaintiff made no objection thereto, she waived all errors, irregularities, and inequalities in the making of the assessment, and in the prior proceedings and notices."

A landowner who fails to object to the city council that the notices of improvement were not posted "immediately," as required by statute, has waived such defect where it is not claimed that the notices did not stay up the required length of time after they were posted. Watkinson V. Vaughn (1920) Cal. 186 Pac.

753.

-

An objection that an assessment is invalid, because the city charter does not specify the tribunal or the time or place for hearing objections before assessments for sidewalks constructed by the city shail become final, is waived, where power is given. the city authorities to provide for such notice and such tribunal, and the property owner fails to present his objections when notified to do so. Hallett v. United States Security & Bond Co. (1907) 40 Colo. 281, 90 Pac. 683, wherein the court said: "Perhaps owners filing objections to assessments in response to the notice by the clerk, which the ordinance says shall be given to them, should have notice of the time and place when they would be considered and determined, but that right has not been denied in the case at bar, because no objections were filed, and the ordinance cannot be construed to inhibit or not to require such a notice to those who have filed objections. The charter and ordinance are not invalid because neither specifies the character of objections which will be considered in fixing the amount of the sidewalk assessments. Having provided for a hearing with respect to such assessments, it logically follows that the tribunal designated shall hear and determine all questions which would be competent to present to that tribunal, attacking the validity or amount of such assessments. . . Whether or not the charter of 1889 failed to provide a specific method for determining how the assessment against a lot to defray the expense of constructing a sidewalk in front thereof should be made, or left it with the city authorities to make such assessment according to benefits, is not presented by the record. It was the province of the city authorities to determine the rule to be followed in making, and the amount of, the assessment in the first instance. Neither appellant nor his predecessor raised any question before the special forum provided by law to determine these questions. The owner must avail himself of the opportunity afforded to appear and make objections to special assessments in

the special forum which the law has designated for that purpose. Otherwise, he will not be heard to object in any other forum."

Where a property owner fails to avail himself of the remedy provided by law, a court of equity will not set aside a judgment and restrain the collection of a street assessment on the ground of want of notice, where such defect does not appear on the face of the record. Craft v. Kochersperger (1898) 173 Ill. 617, 50 N. E. 1061.

But where a statute provides that a notice of assessment shall be served on the owners of property, so that they may make objection at the confirmation of the assessment, the requirements are to be strictly followed, and, on failure to prove the proper service, the owner may contest the assessment on the application for a judgment of confirmation. Murphy V. Peoria (1887) 119 Ill. 509, 9 N. E. 895.

So, the objection that no notice was given to property owners, and that, therefore, there was no opportunity to be heard on the assessment roll, is not waived by failure to appear at the confirmation proceedings, and may be heard in an application for judgment of sale. "The failure to give notice to the property owners, and to afford them an opportunity to be heard before the confirmation of the assessment, was fatal to the jurisdiction of the county court, and the court did not err in sustaining the objection." People ex rel. George v. Phinney (1907) 231 Ill. 180, 83 N. E. 143.

Nor does the confirmation of the report of viewers preclude a property owner who has had no notice of the filing of the report nor opportunity to be heard as to his objections; hence he may be heard in defense on a scire facias lien. Hershberger v. Pittsburgh (1886) 115 Pa. 78, 8 Atl. 381, wherein the court said: "If the defendant had no notice, he had no opportunity to make defense before the viewers or in court; in such case the confirmation of the report of the viewers amounts to nothing as respects the defendant; he may make his defense on the scire facias."

Where notice of the report of viewers and hearing thereon was served on the husband of the owner of property, she is not estopped by the confirmation of the report from objecting to the assessment. Watson v. Sewickley (1879) 91 Pa. 330, wherein the court said: "It is the intendment of the statutes relating to boroughs that notice shall be given to every person of a proceeding to fix him for a debt. Not only is it directed of the incipient action to ordain or change streets or alleys, but it is implied in the provision for assessment of damages and benefits. How can parties choose to contest, and have a hearing in court, unless they have been notified? And how can a decree be final upon a stranger to the record? What matters it that the assessment is on property, when the owner is entitled to a hearing before it can be made? His right to contest is the same, whether the assessment be a personal debt or charge on land."

"If the property owner has notice, his only method of questioning any error or irregularity in the proceeding is by objection before the city council and appeal to the district court. It is well settled that when a special tribunal is provided for determining such questions, the property owner, with notice of the proceeding, must avail himself of the special remedy by objection and appeal, and cannot maintain an equitable action to enjoin the enforcement of the assessment. . . . It is quite evident that if the property owner has no notice whatever he is not bound to make objections before the city council; for the want of notice deprives him of legal opportunity or duty to make such objections. . . If, however, as in this case, the property owner has received notice, and has had opportunity to make his objections, we think it is in accordance with the theory of the statute, and also in accordance with general equitable principles, that he should make such objections and prosecute his appeal if he is dissatisfied with the action of the council." Shaver v. J. W. Turner Improv. Co. (1911) Iowa, 133 N. W. 770.

[ocr errors]

Failure to file objection at a confirmation of a paving assessment, because no notice of the application for the judgment of confirmation had been received, will not estop a property owner from having the question litigated in an action for judgment of sale. Phillips v. People (1905) 218 III. 450, 75 N. E. 1016, wherein the court said: "The statute requires that a notice shall be sent by mail, postpaid, to each of the persons paying the taxes on the respective parcels of property on the assessment roll for the last preceding year during which taxes were paid, and if such notices were not mailed the county court did not acquire jurisdiction to enter the judgment of confirmation. If the fact was as alleged, and the want of jurisdiction appeared upon the face of the record of the proceeding to confirm the assessment, appellants had a right to make proof of the fact. The answer of counsel, to the assignment of error that the court struck the objection from the files, is that the record of the proceeding for confirmation is not contained in the record in this case, and that therefore it will be presumed that the court, in confirming the assessment, proceeded regularly and had jurisdiction, and that all notices required by law were given. What would have been proved by the record of the proceeding for confirmation, if the objectors had been permitted to make the proof, of course, does not appear, but the complaint is that the court refused to allow them to show the fact. The collector's report, with proof of publication thereof and notice of application for judgment, made a prima facie case for the collector. . . The objectors had a right to meet the prima facie case by showing a want of jurisdiction upon the face of the record of the former proceeding, and when they filed their objection it was their right to have it heard. The court erred in striking the objection from the files."

So, where a property owner fails to appear on the hearing for judgment, and interpose an objection of want of notice of the application to the common council for confirmation of an

assessment for grading, he is not estopped from questioning the assessment in later proceedings, since the notice is essential to the validity of the action of the city council in confirming the assessment. Sewall v. St. Paul (1874) 20 Minn. 511, Gil. 459.

On the contrary, a notice of a sidewalk assessment which is technically defective, but which did not mislead property owners, since it contained all the essentials required by law, cannot be objected to in a later proceeding, where the owner did not appear and raise the objection at the hearing for such purpose. State v. Norton (1896) 63 Minn. 497, 65 N. W 935.

(e) Contract for improvement.

An objection that the notice to bidders was insufficient in that it failed to state when the work was to be done, kind of material to be used, etc., does not go to the jurisdiction, and is waived by a failure to appear before the tribunal named by statute to hear such protests. Owens V. Marion (1905) 127 Iowa, 469, 103 N. W. 381.

So, an objection that a contract for a street improvement was not let within the time limit prescribed by statute is one which should be made at the confirmation of the assessment, and is waived if not made at that time. Gage v. People (1904) 213 Ill. 410, 72 N. E. 1084, wherein the court said: "There is nothing in the record to show that appellant was in any way injured by the contract, and if he had been, he had adequate remedy under the statute, and it was his duty to act promptly. Section 80 of chapter 24 . (Hurd's Stat. 1903, p. 409) provides that the owners of a majority of the frontage may take the contract from the successful bidder if they think they can profit by so doing. The appellant could have availed himself of this provision, or he could have objected to the board of local improvements on the ground that the contract was not let within the time authorized by law, or he could have made the objection in the county court at the time the board of local improvements filed their petition for a hearing, after the completion of the work.

Having failed to take advantage of any of these opportunities, and having received the benefit of the work, and in the absence of any proof of injury, the county court committed no error in overruling the objection."

Similarly, a property owner is not estopped to deny the validity of an assessment for paving by the failure of his predecessor in title to appear and present his objections, where it appears that the proceedings are wholly void because the mandatory provisions of the city charter in letting the contract were · not complied with. Moundsville v. Yost (1914) 75 W. Va. 224, 83 S. E. 910, wherein the court said: "The charter requires notice to be published for four weeks in one or more newspapers of the city for bids and proposals for the work. This provision is intended to protect the property owners liable to special assessment, as well a the general taxpayer, by ample notice to prospective bidders, and is also mandatory. The bill shows that it was not complied with. The advertising, by the express terms of the resolution, was to be for only fifteen days. The allegation that the work was not let to contract until four weeks after the first publication of the notice does not show a substantial compliance with the statute. It should have been published for four weeks as the statute requires."

Where it is evident that defects in the proceedings could not have been remedied or avoided by a city council on an objection to an assessment, a property owner is not estopped by reason of his failure to file such objection. Manning v. Den (1891) 90 Cal. 610, 27 Pac. 435. In that case it appeared that the city council awarded to the assignors of the plaintiff a contract for doing the work upon which the assessment in question was afterwards issued; that the clerk posted a notice of said award "on the 17th day of October, 1883, and for five days thereafter;" that afterwards, on the 22d day of October, 1883, the street superintendent entered into a contract with the plaintiff's assignors to do said work, and thereafter made the assessment upon which the action was

[ocr errors]

brought. Section 5 of the Act of March 18, 1885, authorizing street improvements, provided as follows: After the contract has been awarded, "notice of such awards of contracts shall be posted for five days, in the same manner as hereinbefore provided for the publication of proposals for said work. The owners of the major part of the frontage of lots and lands upon the street whereon said work is to be done may, within ten

days after the first posting of notice of said award, elect to take said work, and enter into a written contract to do the whole work at the price at which the same has been awarded. Should the said owners fail to elect to take said work, and to enter into a written contract therefor within said ten days, it shall be the duty of the superintendent of streets to enter into a contract with the original bidder, to whom the contract was awarded at the prices specified in his bid." The court said: "The provisions of this section make it clear that the superintendent is not authorized to enter into a contract with the person to whom it has been awarded, until after the expiration of ten days from the first posting of the notice of award. During that period the owners of the land to be assessed are allowed the privilege of electing to take the work, and enter into a written contract to do the same at the price at which it was awarded. The power of the superintendent to enter into a contract with the 'original bidder' does not arise or come into existence except upon a failure of the owners to make their election within the statutory period; and any contract entered into by him with the bidder before the time when, by the statute, he has the power to enter into such contract, is without authority and void, and consequently cannot be the basis of a valid assessment. . The provision in the latter part of § 11 that 'no assessment shall be held invalid except upon appeal to the city council,' etc., has no application to a case in which an appeal is not authorized, or in which, even if taken, the city council could not have remedied the defect. The

« ZurückWeiter »