Williams v. Bergin
Williams v. Bergin
Opinion of the Court
Action upon a street assessment. After the work had been completed to the satisfaction of the superintendent of streets, that officer made an assess
Section 11 of the Street Improvement Act (Stats. 1885, p. 156), after providing for an appeal from any act of the superintendent, declares: “ Notice of the time and place of the hearing, briefly referring to the work contracted to be done, or other subject of appeal, and to the acts, determinations, or proceedings objected to or complained of, shall be published for five days.” In the present case the board of supervisors fixed the time and place for hearing the appeal by the following resolution:
“Resolved, That Monday evening, June 6, 1892, at 8 o’clock p. m., be fixed as the time for hearing said appeal by this board, in their chamber, at the New City Hall, at which time and place all appellants are required to appear, when they will be heard in relation to said appeals.
“And the clerk is hereby directed to publish this resolution in the San Francisco Daily Report newspaper, for five days, as and for the notice required by law.”
This resolution was published as therein directed, and was the only notice of the hearing of the appeal authorized or given by the board of supervisors.
The act of the superintendent in making the assessment is in the nature of a judgment by a tribunal of
The only “ notice” that was given in the present case is that contained in the resolution aforesaid, and the only portion of this resolution that has any of the qualities of a notice is contained in the clause, “ all appellants are required to appear, when they will be heard in relation to said appeals.” All else is only the fixing the time and place for hearing the appeal, and directing the clerk to publish the resolution. Although the statute merely declares the manner in which the notice shall be given, and does not indicate the persons who are to be notified, yet it is a rule of universal application in all proceedings by which a person’s property is to be taken, or to be charged with a burden, that he shall have notice of the proceedings, and the notice which is here required to be given necessarily includes every one who is to be affected by the appeal. A notice which, by its terms, is limited to a portion of those who may be so affected cannot be held to extend to others who may be also interested in the appeal, and is not a compliance with the statute. The direction to the clerk to publish the resolution, “as and for the notice required by law,” can have no effect to enlarge the notice which was actually published, or to change its character from the terms in which it is expressed. The direction in this clause limited the notice to the appellants, and cannot be construed as a notice to all persons interested in the subject matter of the appeal. It was an express notice to the appellants alone, and by its terms implied that they only would be heard, and it must be construed as a notice only to them. By reason of its limitation to the “ appellants,” it failed to be a notice to the defendant, and the supervisors acquired no jurisdiction to act upon the appeal.
The effect of the appeal was to suspend all action for the collection of the assessment until after its deter-
The judgment and order are reversed.
Van Fleet, J., and Garoutte, J. concurred.
Reference
- Full Case Name
- L. C. WILLIAMS v. THOMAS I. BERGIN
- Cited By
- 26 cases
- Status
- Published
- Syllabus
- Street Assessment—Jurisdiction oe Street Superintendent—Change of Judgment.—The act of the superintendent of streets in making a street assessment is in the nature of a judgment by a tribunal of special jurisdiction, whose power is exhausted after its judgment has once been exercised, and, in the absence of statutory authority for its revision, the judgment cannot be changed. Id.—Increase of Amount of Lien—Notice to Owner.—If the lien charged upon the land of the owner for a specified sum is to be increased it is essential that the owner shall have notice thereof, and an opportunity to be heard thereon. Id.—Appeal by Contractor to Supervisors—Notice—Jurisdiction.— Upon an appeal by the contractor to the supervisors for an increase of the amount of the lien the notice to the owner is in the nature of process by which the board of supervisors may acquire jurisdiction to act upon the appeal and change the assessment, and the means provided by the law to warn the owner of an intended increase of the lien upon his property must be followed in order to effect an increase thereof. Id.—Mode the Measure of Power — Revision of Assessment.—The mode which the statute prescribes for a revision of the assessment is the measure of the power, and, unless that mode is followed, any attempted revision will be nugatory. Id.—Notice not the Equivalent of Knowledge.—Notice, when required by statute, is not the equivalent of knowledge, and the supervisors gain jurisdiction to act upon the appeal only by giving the notice that the statute requires, and in the manner that is required, and not by the fact that the parties interested may have knowledge of their intended action. Id.—Notice must be Authentic.—The term “notice” of itself imports that the information given thereby comes from an authentic source, and is directed to some one who is to act, or refrain from acting in consequence of the information contained in the notice. Id.—Insufficient Notice of Appeal to Supervisors — Notice to Appellants Only—Void Increase of Assessment.—Where, upon an appeal by a contractor from a street assessment, the board of supervisors ordered the publication of a resolution requiring all appellants to appear and be heard'iu respect of their appeals, without specifying the owners of the property, or the defendants against whom the appeal is taken, the supervisors acquire no jurisdiction to act upon the appeal, and their increase of the assessment upon such appeal is void. Id.—Effect of Appeal—Suspension of Collection—Suit by Contract- or.—The effect of an appeal from an assessment by the street superintendent is to suspend all action for the collection of the assessment until after its determination, and, until the confirmation of the assessment by the board of supervisors, or the making of a new one under its direction, the contractor cannot sue upon an assessment made by the supervisors without authority.