Davis v. Board of Commr. of Lincoln County

HATES, C. J. (after stating the facts as above). The statutes controlling the questions this proceeding presents are to be found in chapter 32, Comp. Laws 1909. The board of county commissioners are invested with power at any regular meeting, when the same shall be conducive to public health, or where it will be a public utility or benefit to agricultural interests or to the soil of the lands affected, to cause to be constructed, straightened, or widened any underground or tile ditch or drain, or natural stream of water within the county. Said commissioners are invested with exclusive jurisdiction to hear and determine all contests and objections to the creation of such district. Before any district shall be established, however, there must be filed with the clerk of the county a petition signed either by 15 per centum of the owners or by the resident owners of 15 per centum of the *288 aggregated acres of land to be benefited or affected by the improvement and to be assessed for the construction thereof. Upon the filing of such a petition, the county commissioners are required to appoint three resident freeholders of the county, possessing certain qualifications named in the statute, who, assisted by the surveyor, shall proceed at once, under the direction and order of the commissioners, to view the line of the proposed drain or improvement and to report whether the proposed improvement is practical and necessary, and whether it is a private or public utility and benefit. After the report of the viewers is filed, the county clerk is required to fix by order of record the time for hearing the petition and report of the viewers, and cause notice to be given by publication for two weeks in some newspaper printed and of general circulation in the county of the pendency of the petition and of the date fixed for the ’hearing thereon. If upon its hearing the commissioners shall find that the proposed improvement is necessary or will be a public utility, they shall cause to be entered upon the record a finding to that effect, together with an order directing the viewers previously appointed to go upon the line described in the order, and to establish the precise location of the improvement, and to make a schedule of all lots and parcels of land, together with the names and residences of the owners that will be benefited, damaged, or condemned by or for the improvements, and to make a schedule of damages or benefits to each tract of 40 acres or less, and to make separate estimates of the cost of location and construction, and to apportion same to each tract and to apportion the benefits or damages that may result to each. When this report is filed in the office of the county clerk, it is the duty of the county clerk immediately to set a hearing of same for some day during the next regular meeting of the board of county commissioners, and thereupon to issue in the name of the state a notice directed by name to every person returned by the viewers as the owner of any lot or parcel of land affected *289 by the improvements or of any interest therein, and also by name to all others who in any manner may be ascertained to own such land or any part thereof; and also, generally, to all other persons without mentioning their names who may be interested therein, notifying them of the petition and report and of .the date on which the petition and report will be heard, and requiring all such persons notified to appear on that date to show cause, if any they have, why the report shall not be confirmed as made or a's the same may be amended by the commissioners, and the assessments therein described or reported shall not be made as reported or as amended. If the commissioners find that due notice has been given, they shall examine the report of the viewers and surveyor, and if they find that the assessments of the cost of location and construction and of damages and benefits to each tract are correct, and that the apportionment of cost is in proportion to the benefits, and that the assessed damages of each tract are fair and just, they shall approve and confirm the report. But if they find it unjust or erroneous, they may amend the report upon evidence so as to make the apportionment fair and just in proportion to the benefits or damages. All lands benefited by the drain or improvement are required to be assessed in proportion to the benefits for the construction thereof. From the order of the commissioners approving the schedule of the assessments, an appeal may ble prosecuted to the district court by .any person aggrieved; and upon such^appeal there may be determined either or any of the following questions: First, whether just compensation has been allowed for property appropriated. Second, whether proper damages have been allowed for property prejudicially affected by the improvement. Third, whether the property for which an appeal 'is prayed has been assessed more than it will be benefited, or more than its proportionate share of the cost of the improvements. As to those alleged irregularities which resulted in assessing the property of plaintiffs a greater amount than the property will *290 be benefited, or more than the proportionate share of the cost of .the improvement than should be assessed against the .properties of the respective plaintiffs, an adequate remedy by appeal is afforded by the statute to plaintiffs, if the commissioners acquired jurisdiction to make the order confirming the report of the viewers. Where a commission or the public officials, authorized by law to levy assessments against property for special benefits resulting from local improvements, obtain jurisdiction to levy the assessment, and an opportunity is given by appeal to the property owner to protect him against any irregularities in the proceedings, the rule which seems to us to be supported by the sounder reason, and which, in so far as we have been able to investigate the authorities, is supported by the weight of authority, is that, .whether the property owner has taken advantage of the appeal or not, the opportunity of a remedy by appeal will prevent him from obtaining an injunction as to any defect which might have been remedied by appeal. Gardiner et al. v. City of Blufton, 173 Ind. 454, 89 N. E. 853, 90 N. E. 898, 22 Ann. Cas. 713; Cauldwell et al. v. Curry et al., 93 Ind. 363; Caskey v. City of Greensburgh, 78 Ind. 233; Jones v. Gable, 150 Mich. 30, 113 N. W. 577; Minn. & St. L. Ry. Co. v. Linguist, 119 Iowa, 144, 93 N. W. 103; Lyman v. City of Chicago, 211 Ill. 209, 71 N. E. 832; President & Fellows of Yale College v. City of New Haven, 57 Conn. 1, 17 Atl. 139. If the commissioners in the instant case acquired jurisdiction to make the assessments against the property of plaintiffs, and plaintiffs had an opportunity to be heard upon the objections thereto, they cannot now he heard to say in this proceeding that the assessments levied are greater than the benefits received, or are not in proportion to those levied upon other property receiving-corresponding benefits. On the other hand, if the commissioners did not acquire jurisdiction — to which question we shall next advert — the assessment is void, and further consideration-of these alleged irregularities need not be made. *291 Where local or special assessments are made against property •to pay for local improvements and the cost of the improvements is by such assessments apportioned to the property owners in proportion to the benefits received, it is clear, by the great weight of authority, that at some stage in the proceedings some form of notice of the assessments to the property owners and an opportunity to be heard upon exceptions or objections to the assessments must be given; and statutes that fail to provide or to authorize such notice are declared void, because in violation of the federal constitutional provision which forbids the taking, of property without due process of law. The statute in the case at bar provides for service of notice by publication, but does not provide for personal service of such notice; and it is alleged in the petition that no personal notice was served. But the absence of provision for personal notice in the statute and the failure to give personal notice does not render the statute invalid and does not result in the proceeding denying to the property owners due process of law, if some other form of notice is provided and given which fairly and reasonably apprises the property owners of the proceeding to assess their -property and gives them an opportunity to be 'heard upon the merits of their objections to the assessment. 'Where the statute provides for notice by publication, that accomplishes the purpose, and it is not void as being in violation of the constitutional provision which prohibits the taking of property without due process of law. Bellingham, Bay & British Columbia Ry. Co. v. New Whatcom, 173 U. S. 314, 19 Sup. Ct. 205, 43 L. Ed. 460; Wight v. Davidson, 181 U. S. 371, 21 Sup. Ct. 616, 45 L. Ed. 900; Ballard v. Hunter, 304, U. S. 241, 27 Sup. Ct. 261, 51 L. Ed. 461; Ritter v. Drainage Dist. No. 1, 78 Ark. 580, 94 S. W. 711, section 131, Page & Jones on Taxation by Assessment. This statute prescribes that notice shall be given by publication for four weeks in some newspaper printed and of general circulation in the county, the last insertion to be before the day *292 set for the hearing on the report of the assessment of benefits and damages by the viewers; but the publication of this notice was not made. There is no' allegation in the petition whether the notice of the hearing on the petition and upon the report of the viewers as to whether the proposed improvement is practicable and necessary, or will be of benefit, or of public utility, was given. Since the presumption in this proceeding is that the officers discharged their duty and that the proceedings are regular, except as they are shown to he otherwise, the question might he suggested, although it has not been by counsel, whether plaintiffs, having received notice and had an opportunity to he heard at the hearing on the petition for the formation of the district and construction of the ditch and upon the report of the viewers as to its practicability and necessity, will not be held bound to take notice of subsequent proceedings; and failure to publish the notice of the hearing upon the assessment, although an irregularity, does not render the assessments void for want of jurisdiction of the commissioners. In People ex rel. Barber v. Chapman, 127 Ill. 387, 79 N. E. 872, the court considered a statute that provided that after the commissioners shall classify the lands within the drainage district, and that when they have established or properly tabulated, or shown by a map such classification, the same shall be filed in the office of the town clerk for inspection and shall remain as a basis for levy of such taxes as may be needed for the purpose of the drainage district. The statute also provided that notice should be personally served upon all persons owning lands to be affected by the proposed work, notifying them of the time and of the place where the drainage commissioners would meet to hear any and all objections that might he made to the classification of lands. This notice was given, but the property owners complained that no notice was given or hearing had before resolution or order of the commissioners making the special assessments, or of the making and filing of the assessment rolls, and that they did not *293 learn of such facts until after the time allowed by statute for an appeal therefrom had expired. It was held that, since the statute did not require a notice of the subsequent proceedings to be given, the property owners were required1 to take notice thereof; and that the proceedings might be likened to a suit in a court, and, the commissioners having acquired jurisdiction over the person of the property owners, they are required to take notice of the different steps taken in the cause, without further notice. Provision for notice of every step in assessment proceedings is not necessary in order to render a statute not subject to attack for denying due process of law; but the question here presented is not whether the statute is void because it takes property without due process of law, but whether the statute, having provided that two notices shall be given, the second notice must be given before the commissioners acquire jurisdiction to make the assessment and proceed to issue bonds and contract for the construction of the ditch. Statutes which authorize the taking of private property for public use are to be strictly construed. It is clear that it was not the intention of the Legislature to impose upon the property owners the burden and duty, after they had been given notice of the hearing upon the petition for the improvement and the report of the viewers thereon as to its practicability and necessity, to inform themselves thereafter at their own risk of the time and place where hearing would be had upon the report of .the viewers as to the assessment of benefits and damagas; for, if such had been the intention of the Legislature, the second notice provided for by the statute would not have been required. At the second proceeding and at the second hearing a judicial power is exercised, and the property owners are vitally interested in it; for it is upon this hearing damages for property taken are awarded, and the cost for the benefits received are proportioned and assessed. To hold that the commissioners may dispense with the second notice required by the statute, and that an' assessment without giving such notice is valid, would be to render *294 the statute a snare; for by it the property owners would be lulled into depending upon such notice to inform them of the place and time of the hearing at which their property would be taken, and the burden of improvement assessed against their property and be deprived of a hearing, whereas without the requirement of this notice they would exercise diligence to inform themselves of the time and place of such hearing. The rule of strict construction applicable to this character of statute requires that it shall be held that the provision for the second notice is mandatory; and that it was intended by the Legislature that the hearing upon the petition for the formation of the district and upon the advisability of the improvement, and upon whether the proposed improvement is practicable and necessary, and that the hearing upon the report of the viewers reporting the assessment of damages and benefits shall be treated as separate proceeding, and that the notice prescribed to be given for the original proceeding confers upon the commissioners jurisdiction only for that proceeding, and without the second notice, the commissioners are without jurisdiction and authority to confirm the report of the viewers upon the assessment of damages and benefits, and to make the assessment for the cost thereof against the property of the owners. The statute requires that the viewers, before entering upon the discharge of their duties, shall take and subscribe an oath faithfully and impartially to discharge their duties as such viewers and truly and correctly make and return the report required by the statuté. It is alleged that this oath was not taken. The text-writers generally declare that the failure to take the oath in substantially the form prescribed by the statute renders all the proceedings of the viewers invalid. Section 281, Page & Jones on Taxation by Assessment; section 629, Lewis on Em. Domain (3d Ed.). In support of this declaration, however, the text-writers above referred to cite cases in which the irregularity’ of the viewers or appraisers was attacked both in proceedings in the nature of a review and in proceedings in the nature of collateral *295 attacks. We have examined the decided cases with considerable thoroughness. In the following eases, wherein the proceeding was in the nature of a review of the action of the viewers, it was held, without discussion of what would be the effect of such irregularity upon collateral attack, that the failure to take the oath was such an irregularity as required the report to be set aside: Cambria Street, 75 Pa. 357; Latah County v. Hasfurther, 12 Idaho, 797, 88 Pac. 433; Frith v. Justices of Inferior Court, 30 Ga. 723; State et al. v. Mayor and Alderman of City of Paterson, 37 N. J. Law, 409; State et al. v. Perth Amboy, 38 N. J. Law, 425; Hendrickson v. Point Pleasant, 65 N. J. Law, 535, 47 Atl. 465. In the following cases the validity of the proceeding was attacked collaterally, and the rule announced by the court sometimes without discussing the character of the proceeding, was that the failure to take the oath as prescribed by the statute renders the proceeding void: Merritt et al. v. Village of Portchester et al., 71 N. Y. 309, 27 Am. Rep. 47; Brevoort v. City of Brooklyn, 89 N. Y. 128; Shattuck et al. v. Bascom, 105 N. Y. 39, 12 N. E. 283; Wheeler et al. v. City of Chicago, 57 Ill. 415; Crossett v. Owens et al., 110 Ill. 378; Hentig v. Gilmore, 33 Kan. 234, 6 Pac. 304. On the other hand, some of the cases have held that failure to take the oath is not such an irregularity as to render the assessment void on collateral attack. Trinity College v. City of Hartford, 32 Conn. 452; Caskey v. City of Greensburgh et al., 78 Ind. 233; Walker et al. v. People ex rel. Kochersperger, 169 Ill. 473, 48 N. E. 694; In the Matter of the Petition of Kendall, 85 N. Y. 302. The decision in the last-mentioned case was reached without criticism or referring to Merritt et al. v. Village of Portchester, et al., supra, decided by the same court in which a contrary doctrine was announced. Such is also true of Walker et al. v. People ex rel. Kochersperger, supra, in which no reference is *296 made to either Wheeler et al. v. City of Chicago, supra, or Crossett v. Owens et al., supra, from the same state. In Caskey v. City of Greensburgh, supra, In the Matter of the Petition of Kendall, supra, and in Trinity College v. City of Hartford, supra, the action of the viewers was sustained upon the ground that they are de facto officers; and that the validity of their acts cannot be called into question in a suit to which the viewers are not parties. In the following cases from a decision of the viewers it was held on appeal without deciding whether the question could be raised in a collateral attack, that their acts would not be set aside, where the complaining parties had notice of the time and place of the hearing on the viewers’ report and proceeded to such hearing without objection or exception to their action upon the ground that the oath had not been taken: Patton v. Clark, 9 Yerg. (Tenn.) 268; Petition of Gilford, 25 N. H. 124; Inhabitants of Raymond v. County Commissioners of Cumberland County, 63 Me. 110. Observing the rule of strict construction, always applicable to a statute that takes private property for public use, or that imposes taxes upon property, we think that this requirement of the statute is primarily made does nothing to waive such irregularity, failure to take.the oath renders the proceeding void, the statute should be held mandatory to the extent, at least, that, where the property owner for whose benefit the requirement of The appeal provided by the statute affords a remedy for errors of the viewers in making the assessment of damages for property taken or injured and in the apportionment of benefits for which the tax is assessed against the property. But the viewers are charged with other duties, the performance of which is not subject to review by appeal, and for which any irregularity or misconduct of the viewers cannot be corrected by resort to the appeal the statute allows. They are charged with the duty and are authorized to locate the proposed improvement; they may vary *297 its location from that described in the petition; they determine its dimensions and form; what disposition shall be made of the excavated earth; they determine the manner and time in which the improvements shall be made and completed, and let the contracts therefor. In the discharge of all these duties, it was intended by the statute 'that the viewers should act under the influence of a solemn oath laid upon their consciences to discharge such duties, including the assessment of damages and apportionment of benefits, faithfully and> impartially. To disregard the requirements of the statute would be to encourage a laxity in the discharge of official duties and endanger the rights of parties whose property the statute authorizes to be taken against their will for public purposes. We do not here undertake to decide whether, if the property owners, with knowledge of the failure of the viewers to take such oath, with notice of the hearing and opportunity to be heard, or after appearing at the hearing without notice, made no objections to such irregularity, they would not thereby waive the requirements of the statute designed for their benefit; but, under the facts alleged in this position, we hold that the failure to take the oath renders the proceeding invalid. Counsel for defendants urge that the remedy for injunction will not lie, because the assessment of benefits has already been made and the same taxed against the land of the property owners of the district. This contention requires no lengthy discussion. Under the rule announced in Marlow et al. v. School District No. 4, Murray County, et al., 29 Okla. 304, 116 Pac. 797, and supported by the authorities from this jurisdiction therein cited; this contention cannot be sustained. In that case it was said: “Equity has jurisdiction to prevent public officers and boards from letting or carrying out unauthorized and illegal contracts for public buildings, bridges, and other improvements, when such actions may cause the levy of illegal taxes, the expenditure of public funds in an improper manner, or a complication of the public business that will bring about many actions at law.” *298 It is true that, by the assessment of the benefits against the land of plaintiffs, a cloud upon their title has already been created; but these assessments are made for the purpose of paying bonds yet to be issued to pay for the construction of the ditch, the construction of which is yet to be contracted for. The bonds, when issued as provided by the statute, are to be recorded. The assessments made against the property of plaintiffs and now constituting a cloud upon their titles are for the sole purpose of paying the bonds about to be issued. If the bonds are never issued, the construction of the ditch never contracted for, it would follow that these assessments could not be collected; and, while acts have already been taken that cloud the title of plaintiffs, they are but the initiatory steps; and the issuance of the bonds and the construction of the ditch under a contract made by defendants in error would but further complicate the cloud upon their title, and give to the assessments made stronger appearances of validity. Eor the foregoing reasons, we are of the opinion that the petition states a cause of action; and the judgment of the trial court is accordingly reversed, and the cause remanded. All the Justices concur.