Watkinson v. Vaughn

This is an appeal from a judgment in favor of the defendants in an action brought by the plaintiff as the owner of some twenty lots in the city of Richmond, to quiet her title to, and to enjoin the defendants from proceeding to the sale of, such lots to satisfy a lien thereon on account of the nonpayment of certain installments due on a series of street improvement bonds issued by the city of Richmond to pay for the improvement of Cutting Boulevard, in that city. The work was done and the bonds issued pursuant to proceedings under "the improvement Act of 1911" (Stats. 1911, p. 730). Section 4 of the act reads, in part, as follows:

1. "Whenever the contemplated work or improvement, in the opinion of the city council, is of more than local or ordinary public benefit, . . . the city council may make the expense of such work or improvement chargeable upon a district, which the said city council shall, in its resolution of intention,declare to be the district benefited by said work *Page 57 or improvement, and to be assessed to pay the costs and expenses thereof." (Italics ours.)

The resolution of intention passed by the city council, and under which the work was done, declared that the work was of more than local or ordinary benefit, and made the expense of the improvement chargeable on a district which was described, and which was declared to be the district to be assessed to pay the expense. The resolution, however, failed, as required by the section of the act just quoted, to declare expressly that the district described and so to be assessed was the district benefited, and this omission is the principal defect in the proceedings relied upon to establish the invalidity of the bonds.

In view of section 82 of the act, that it should be liberally construed, and in view, also, of the fact that the act of the city council in assessing the cost of the work on the district very clearly implies a finding that the district described is the district to be benefited, a very serious question arises as to whether the omission of the express declaration that the district is the district benefited is a substantial defect such as would, under any circumstances, invalidate the proceedings. Passing this question, however, and assuming, without deciding, that the omission would constitute a substantial defect such as the property owner would have the right to rely upon, if advantage were taken of it at the proper time and place, the further question immediately arises as to whether this defect was not cured both by the admitted failure of the plaintiff to make objection to it pursuant to the provisions of section 16 of the act, and by the fact that the bonds in question were issued without objection by the plaintiff, and such issuance is made conclusive evidence of the regularity of the proceedings upon which the bonds are based by section 66 of the act.