Southern Construction Co. v. Howells

California Court of Appeal Feb 26, 1913 No. Civ. No. 1272.Published

Before: James

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Holding. The court held that a city council lacks jurisdiction to determine an appeal regarding a street assessment unless notice of the hearing is published for five days as required by statute, regardless of whether an individual property owner appeared at the hearing.

Issues

Whether a city council's failure to publish notice of a hearing on a street assessment appeal renders the council's subsequent order null and void.
Whether a property owner who appears at an improperly noticed hearing waives the statutory requirement for published notice.

Disposition. affirmed

Quotations verified verbatim against the opinion

“No hearing can be had before a published notice is given which will bind any of the parties assessed.”

“The statutory direction to the city council was imperative, and the appellant, and all other parties assessed, might safely rest until due notice was given.”

Synopsis

Municipal Corporation—Street Assessment—Appeal to CouncilEstoppel to Deny Notice.—In an action to recover a street assessment levied under the Vrooman Act, a property owner is not es-topped from urging as a defense that the city council failed to publish notice of the hearing of an appeal taken to the council by the defendant and other property owners, although defendant appeared and urged his appeal -before the council without objecting to the failure to publish the notice. The publication is imperative.

Id.—Notice op Hearing op Appeal—Necessity and Manner op Giving. The city council, when it proceeds to give a hearing on an appeal against a street assessment under the Vrooman Act, cannot assume jurisdiction to make any order of determination therein until all property owners affected by the assessment, whether parties to the appeal or not, have been given notice of the hearing. There is but one way provided by the statute for the giving of this notice, and that is that it shall be published for five days.

JAMES, J.

The city council of San Diego, in the year 1907, initiated proceedings under the Vrooman Act to have performed the work of grading certain portions of Tide Street. The work was completed, but within the time allowed by statute certain property owners made appeal to the city council, objecting to the assessment levied as being excessive, and also upon the ground that the work had not been performed according to the specifications of the contract. The property owners so objecting did not constitute all of the property owners who were affected by the assessment. Thereafter the city clerk mailed a notice to the agent who represented the objecting

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property owners, which notice set forth the day when hearing would be had upon the appeal so taken. The hearing came on before the city council, when the appealing property owners were heard through .their agent and attorney, and the council made an order in the form of a resolution denying the appeal and affirming the assessment. Thereafter this action was commenced by the contractor to recover the amount assessed against defendants’ property on account of the street improvement work performed by it. The defendant Howells was one of the property owners who joined in the appeal made to the city council, and she was represented at the hearing thereof by the same agent and attorney who represented the other contestants. The city council caused no notice by publication to be given of the hearing to be had on the appeal of the property owners, and the trial court sustained the contention of defendant that until publication of such notice had been had in accordance with the requirements of the statute, any purported hearing of the appeal was null and void and that in consequence this action was prematurely brought. By section 11 of the Street Law under which the improvement of Tide Street was had (Stats. 1885, p. 147, and as subsequently amended), it is provided that after an appeal has been filed with the clerk of the council, “notice of the time and place of the hearing . . . shall be published for five days.” Section 12 of the same act contains a provision that at any time after five days have elapsed from the decision of the council made after hearing of the appeal of property owners, the contractor, or his assignee, may sue the owner of the land or lots assessed and recover the amount of the unpaid assessment. The trial judge failed to make findings of fact as to material issues presented by the pleadings, and made only a single finding determining that notice of the hearing of the appeal to the city council had not been published as required by law or at all. Of course, if the evidence sustains this finding, then the plaintiff, which appealed from the order denying a motion for a new trial, cannot be said to have been prejudiced by the omission of the court; for the reason that if it was an essential prerequisite that notice of the hearing referred to should have been published before the council was authorized to determine the merits of the objections, then the plaintiff was not in a position entitling it to bring this action at the time it filed

Southern Construction Co. v. Howells

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Synopsis

JAMES, J.

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