Sharpstein, J., concurring: I concur in the affirmance of the judgment of the Court below. Section 19 of the act of April 1, 1872, declares that the Mayor, Tax Collector, and City and County Surveyor shall constitute a Board of Public Works within the meaning of that act; and section 5 provides that “ whenever the owners of a majority in frontage of the property described in section 4 of this act as said owners are or shall be named in the last assessment roll for the State, City and County taxes, shall petition the Mayor of said City and County, in writing, for the . opening of Montgomery avenue according to the provisions of this act, the Board of Public Works, as created by section 19 of this act, shall proceed to organize,” etc.
The act did not authorize the Board to organize until after the owners of a majority of the frontage of the property, described in section 4, had petitioned the Mayor in writing for the opening of the avenue. As the Board was required to organize before proceeding to do anything else, it would seem that its right to do anything under the act depended upon the presentation of a sufficient petition to the Mayor, for the [235]opening of said avenue. If it was necessary that any petition should be presented to the Mayor before said Board could legally act, it was necessary that a petition of the owners of a majority of the frontage of the land described in section 4 should be so presented, before said Board could legally act. The difference between a petition by the owners of less than a majority of said frontage, and no petition at all, would be in a case like this immaterial. That Board derived its power to act solely from the statute, and the statute did not authorize it to take the first step before a petition of the owners of a majority of said frontage had petitioned the Mayor for the opening of said avenue. It may be conceded that the Legislature might have authorized the Board to do all the acts enumerated in said statute without a petition. Still it can not be denied that the Legislature might have made the authority of the Board to proceed at all depend upon the presentation of just such a petition as is prescribed by the act before us.
It appears from the record that no such petition was presented, in this case, to the Mayor, but that a petition of the owners of less than a majority of said frontage was presented to him; and that the Board organized, and did all the acts which it might lawfully have done if a sufficient petition had been presented to the Mayor. Were those acts valid? It is claimed that they were: 1. Because the Mayor or the Board, or both, had to determine whether the owners of a majority of frontage had petitioned; 2. Because the County Court was authorized to hear and determine any objection which any person interested in any of the land situated within the district benefited might make to any of the proceedings of said Board.
As before stated, it does not appear that the Board was authorized by the statute to do anything until the owners of a majority of frontage had petitioned the Mayor. The power is not directly given to any one to determine whether the requisite number had at any time so petitioned. The reason for that omission may have been, that the fact whether they had or not, was capable of mathematical demonstration. It only required a knowledge of the whole number of feet frontage, and a comparison of the petition with the last assessment roll of the city and county, to enable any one to de[236]termine to a mathematical certainty whether or not the petitioners were the owners of the requisite frontage.
I think, however, that neither the determination of the Board, or of the County Court, or of both, would be anything more than prima facie evidence of the presentation of such a petition, as the law required; and that a petition of the owners of a majority of frontage was a condition precedent to the right of said Board to proceed at all in the matter.
Nothing is better settled than that, “ where special authority is delegated by statute to particular persons, or to an inferior tribunal, affecting the property of individuals against their will, the course prescribed by law must be strictly pursued, and appear to be so upon the face of the proceedings, or the power is not well executed. And it makes no difference in the application of the principle, whether the question comes before the Superior Courts by certiorari or collaterally.' If the law has not been strictly complied with, the proceeding is a nullity, and the adjudication gives it no additional validity.” (Blackwell on Tax Titles, 39.)
And when the requirement is, that an improvement shall be ashed for or assented to by a majority, or some other proportion of those who would be taxed, a want of compliance with that requirement is fatal to any stage of the proceedings. “And any decision or certificate of the proper authorities, that the requisite application or consent had been made, would not be conclusive, but might be disproved,” (Cooley on Taxation, 465.) So held in Sharp v. Spier, 4 Hill, 76, and in Henderson v. Baltimore, 8 Md. 352.
No Court or officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the facts on which jurisdiction depends. (People v. Cassels, 5 Hill, 168, per Bronson, J.; Starback v. Murray, 5 Wend. 158; S. C., 21 Am. Dec. 172; Shumway v. Stillman, 6 Wend. 452.)
The statement or recital, in a record of an inferior Court or tribunal, of facts constituting jurisdiction, may be received as prima facie evidence of such facts. (Barber v. Winslow, 12 Wend. 102; 11 Johns. 226; Hubbell v. Ames, 15 Wend. 372.) It was accordingly held, in Harrington v. The People, 6 Barb. 607, that if a statute authorized Commissioners to proceed and lay out a highway, upon the application of some person [237]liable to be taxed therefor, and they laid it out without such application being first made, the whole proceeding was void; and that an order made by a County Judge on appeal, affirming the action of the Commissioners, was likewise void. The Court said: “If the Commissioners had no jurisdiction of the application to lay out the road, their determination was void; and the appeal from that determination and the decision on the appeal were also void.” That case was overruled in Gould v. Glass, 19 Barb. 179, as to the requirement of the statute, that an application should be made to the Commissioners before they could legally act. But it is not intimated that if the statute had required an application to be made before the Commissioners acted, that the doctrine of the earlier case would not be sound.
The jurisdiction conferred upon the County Court in this case was purely special, and depended, I think, as much upon the presentation of a proper petition to the Mayor as that of the Board did. Besides, it does not seem to have been contemplated in the act that the question of the sufficiency of the petition should be considered by the Court. There is no evidence of a waiver by the defendant of his right to contest the legality of the acts of the board in any proceeding based upon them which might affect his property. He waived nothing by his silence, and his right to resist the collection of the tax is not affected by the unauthorized acts of others.
In Carron v. Martin, 26 N. J. L. 594, the question was whether the proceedings of the Common Council of the city of Newark, in opening the street for which the assessment was made, were void for want of a proper application of the land owners for that purpose, so that the sale of land made to raise the sum assessed thereon was void and conferred no title on the purchaser. The Court in a lengthy and able opinion discussed the various points raised by counsel, and arrived at the conclusion that the want of an application such as the law prescribed, made the subsequent proceedings of the board coram non judice and void; and liable to be attacked in a collateral proceeding like the present.
If it had been the intention of the Legislature to make the determination of the Board, or of the County Court, conclusive upon the question of the sufficiency of the petition, [238]we might reasonably expect to find some provision in the act for a hearing upon that question. But there is none. Nor" is there any provision for giving notice of the presentation of such a petition to the Mayor. It is said that the parties interested were bound to take notice of the law. If that be so they took notice that the Board was not authorized to proceed until such a petition as the law prescribed had been presented to the Mayor, and they had a right to assume that the Board would not attempt to proceed until after such a petition had been presented. And the Legislature seems to have so assumed. Otherwise it would have made some provision for the determination of that question. The provision that the Board after their report was completed should give notice by publication in a newspaper that it was open for inspection in their office was not notice to any one that a petition had ever been presented to the Mayor for the opening of said avenue, and the law did not intend that it .should be.
It is true that any person interested in any land within the district, “ feeling himself aggrieved by the action or determination of the said Board as shown in said report” (the report which the law required the Board to make), might apply to the County Court for an order requiring the Board to file their report in the County Court. But the law does not require that the petition or a copy of it shall be set forth, or that any reference shall be made to it, in said report. From which it is obvious that the petition would not be before that Court. And this is made more clear by the following provision: “The Court shall have power to approve and confirm said report, or refer the same back to the said Board, with directions to alter or modify the same in the particulars specified by the Court.” But the person who makes the application is not, nor is any one, required to give any other party in interest any notice whatever of such application, or of any proceeding under it.
Therefore, it seems to me, that if a petition of the character specified in the act was a condition precedent to the right of the Board to proceed, nothing has occurred since which can be construed as a waiver of that condition, or which es-topped the respondent in this case from attacking the validity .of the proceedings of the. Board.on the ground that such a, [239]petition as the law required as a foundation for such proceedings was never presented to the Mayor.
Thornton, J., concurred in the above opinion of Mr. Justice Sharpstein.
Ross, J.: I concur in the judgment. I think it beyond question that the act of the Legislature adopted April 1st, 1872, required, as a condition precedent to the opening of Montgomery avenue, the presentation to the Mayor of a petition in writing by the owners of a majority in frontage of the property declared to be benefited, and therefore assessed to pay the costs, as such owners should be named in the last preceding annual assessment roll for the State, city, and county taxes. Such petition lay at the foundation of the whole proceeding. Without it, no step could be taken looking to the opening of the avenue. It was jurisdictional in the strictest sense. The statute did not in terms provide how or by whom should be determined the question whether a majority of the owners in frontage of the property to be assessed had in fact petitioned for the opening of the avenue; but it is strenuously urged by some of the learned counsel for the appellant that the Board of Public Works of necessity had to decide it, and that their determination is conclusive. It is undoubtedly true that the members of the Board were called upon to decide for themselves whether a case had arisen in which it was proper for them to act. Indeed, by the express letter of the statute the Board could not even organize until a majority of the owners in frontage of the property to be assessed should petition for the opening of the avenue. While, therefore, the members of the Board were, from the very nature of the ease, called on to decide for themselves whether such petition had been presented as authorized them to organize and proceed with the work, yet their determination was not conclusive upon any one. As said by Judge Bronson, in speaking of the action of certain trustees in respect to a similar petition, in Sharp v. Spier, 4 Hill, 88, “they could not make the occasion by resolving that it existed. They had power to proceed if a majority petitioned, but without such a petition they had no [240]authority whatever. They could not create the power hy resolving that they had it.” To the same effect is the language of Judge Cooley in his work on taxation, at pages 464, 465, where, in speaking of proceedings in assessment, he says: “A common requirement is that the improvement shall be asked for or assented to by a majority or some other proportion of those who would be taxed. The want of a compliance with this requirement is fatal in any stage of the proceedings. And any decision or certificate of the proper authorities that the requisite application or consent has been made, would not be conclusive, but might be disproved.”
How could the rule be otherwise in a case like the one at bar, where the statute makes the petition the basis of the proceeding which is to culminate in divesting the title of the owner of land against his consent, and makes no provision for the owner to be heard upon the question of the sufficiency of the petition? Nowhere does the statute provide for notice to the owners of the land to be assessed of the presentation of the petition to the Mayor, nor are such owners afforded an opportunity to contest before the Mayor or the Board of Public Works the sufficiency of the petition. Under such circumstances, to hold the owner conclusively bound by the determination of the Mayor or the Board, or both combined, would be, in effect, to deprive him of his property without due process of law, contrary to the provisions of the Federal and State Constitutions.
Nor did the statute give to the County Court jurisdiction to inquire into the sufficiency of the petition. Every one must admit that, in the matter in question, that Court had only such power as was expressly or by necessary implication, conferred upon it by the statute itself. Looking at the statute, it is seen that the Board of Public Works, after organizing upon the condition stated and adopting surveys, plans, etc., was required to state and set down in a written report, to be signed by at least a majority of the Board, the description and actual cash value of the several lots and subdivisions of land included in that taken for the avenue, the amount of damage that would be occasioned to the property along the line and within the course of the avenue, and, also, a description of the several subdivisions and lots, of land included in [241]the district declared to be benefited by the improvement, together with the amount in which, according to the judgment and determination of the Board, each lot and subdivision in the district, relatively considered, had been or would be benefited by reason of the opening of the avenue. This report, as soon as completed, was required to be left at the office of the Board daily, during ordinary business hours, for thirty days, for the free inspection of all parties interested, and notice that the same was so open for inspection for such time and at such place was required to be published by the Board daily for twenty days in two daily newspapers printed and published in the City and County of San Francisco. It is not necessary, in my view, to comment upon the nature of this notice further than to say that it directed the attention of the parties in interest only to the report of the Board, which did not embrace the petition presented to the Mayor.-
The statute next authorized any person interested in any of the land situated within the district declared to be benefited, or in any of the land taken for the avenue, or in any improvements damaged by opening the avenue, who should feel himself aggrieved by the action or determination of the Board, as shown in its report, to apply by petition, at any time within the thirty days already mentioned, to the County Court of the City and County of San Francisco, setting forth his interest in the proceedings had before the Board, and his objections thereto, for an order requiring the Board to file with the Court its report, and such other documents or data as should be pertinent thereto in the custody of the Board and used by it in preparing the report. After notice to the Board the Court was empowered to hear the application and. take testimony, and to allow or deny the order as to it should seem proper. If granted, the Board was required to obey the order. -In the event no such application was made to the Court within the time limited, the Board was required to present the report to the County Court, with a petition that the same be approved and confirmed. In no event was anything but the report, and such documents .and data as were used by the Board in its preparation, to be brought before the County ■Court. Nowhere did the statute expressly or by implication [242]authorize the County Court to inquire into the sufficiency of the petition presented to the Mayor. On the contrary, its language, already given in substance, clearly limits the action of the Court to the report and the data upon which it was based. This is further and still more clearly shown by the following provision of the statute, in terms defining the power of the County Court: “ The Court shall have power to approve and confirm said report, or refer the same back to the said Board, with directions to alter or modify the same in the particulars specified by the Court in the order referring the same back, and thereupon the said Board shall proceed to make the alterations and modifications specified in the order of said Court. The alterations and modifications aforesaid being made, the report shall be again submitted to the said Court, and if the Court, upon examination, shall find that the alterations and modifications have been made according to the directions contained in such order, the said Court shall approve and confirm the same by an order to be entered on its minutes; but if the said Board shall have neglected or failed to make the alterations and modifications set forth in the order of reference, the Court may again refer the report back to said Board, and so on until its original order of alteration and modification shall have been complied with by said Board, and then said Court shall approve and confirm said report.”
In view of these provisions of the statute, and in view of the fact that the County Court had no jurisdiction, except such as was conferred by them, there is, and can be, in my opinion, no ground for the assertion that that Court could have set aside the report and dismissed the whole proceedings for the opening of the avewae, which, of course, it could have done, and would have been bound to do, could it have inquired into the petition presented to the Mayor, and ascertained that it was not made by a majority of the owners of the property to be assessed for the improvement.
The statute having failed to provide the parties in interest an opportunity to be heard upon the question of the sufficiency of the petition, on which the whole proceeding was made to depend, I consider it very clear that such parties can not be conclusively bound by the ex parte determination of that question by anybody. It is the rule, everywhere recog[243]nized, that every statutory authority, in derogation of the common law, to divest the title of one and transfer it to another, must be strictly pursued, or the title will not pass. In this case the defendant’s right of possession is challenged by one who asserts title under such a statute. Until attacked, defendant was not called upon to defend. The asserted title is founded upon the petition to the Mayor; for, as already observed, unless a majority of the owners in frontage of the property to be assessed for the improvement petitioned for it, no step could be taken in the proceeding which was to culminate in a deed, such as the plaintiff claims under. The Court below found, upon evidence which sustained the finding, that a majority of such owners never did petition for the improvement. Hence I think the conclusion inevitable that the plaintiff has made out no title to the land in dispute.