Summary
In Will it was held that a verdict exonerating the engineer and fireman in a cause of action against the railroad on account of the negligent operation of a train absolved the company insofar as any negligence in the operation of the train was concerned because such liability is based upon the doctrine of respondeat superior.
Summary of this case from Bird v. McGuireOpinion
Department One
Appeal from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. James M. Troutt, Judge.
COUNSEL:
The appeal was sufficient in form. (Barber v. San Francisco , 42 Cal. 634.) The effect of the appeal was to suspend action upon the assessment until the appeal was properly disposed of. (Thornton v. Mahoney , 24 Cal. 583, 584; People v. O'Neil , 51 Cal. 91; Mahoney v. Braverman , 54 Cal. 570.) Notice of the hearing of the appeal was a constitutional right of which the property owner could not be deprived. (Scott v. City of Toledo , 36 F. 396; Murdock v. City of Cincinnati , 39 F. 891; City of Schenectady v. Furman, 61 Hun, 175; McLaughlin v. Miller , 124 N.Y. 517; Sligh v. Grand Rapids , 84 Mich. 504; Kuntz v. Sumption , 117 Ind. 1.) An assessment once made cannot be changed without notice to the party to be affected thereby. (Patten v. Green , 13 Cal. 329; Darling v. Gunn , 50 Ill. 428; Mulvey v. Carpenter , 78 Ill. 586.) The notice fills all the functions of process, and must be sufficient and distinct, both in respect to the subject matter of the appeal and in respect to parties to be affected thereby. (State v. Mayor of Newark , 31 N. J. L. 363; State v. City of Elizabeth , 37 N. J. L. 357.) The notice of hearing being confined to the appellants, excludes all other parties from participation in the appeal, but the assessment cannot be changed without affecting other parties. (Lowell v. Wentworth, 6 Cush. 222; Patten v. Greene, supra ; Darling v. Gunn, supra ; Hutson v. Woodbridge Protection Dist ., 79 Cal. 90, 95; Bush v. City of Dubuque, 69 Iowa 236.) It is not enough that the owner had notice in fact, but the statutory notice must be given to them. (Stuart v. Palmer , 74 N.Y. 188; 30 Am. Rep. 289.) Proceedings had without notice to the party entitled to it are, as to him, a nullity. (State v. Mayor of Jersey City , 24 N. J. L. 666; Jordan v. Hyatt, 3 Barb. 283; State v. Mayor of Orange , 32 N. J. L. 54; State v. Morristown , 34 N. J. L. 451; State v. Village of Passaic , 36 N. J. L. 387; State v. City of Elizabeth, supra ; McDermott v. Board of Police, 25 Barb. 646; People v. L. & B. R. R. Co ., 13 Hun, 212; People v. Board of Police, 26 Barb. 485; State v. Jacobs, 2 Jones, 52; People v. Tallman, 36 Barb. 224; Mulvey v. Carpenter, supra .) The appeal was never legally disposed of, and remains a pending appeal, and the superintendent had no authority to make the assessment directed by the board. (People v. O'Neil, supra ; Mahoney v. Braverman, supra .)
T. I. Bergin, for Appellant.
J. C. Bates, for Respondent.
The notice of hearing states all that the law requires, and is ample as a notice. (Wulzen v. Board of Supervisors , 101 Cal. 15; 40 Am. St. Rep. 17.)
JUDGES: Harrison, J. Van Fleet, J., and Garoutte, J., concurred.
OPINION
HARRISON, Judge
Action upon a street assessment. After the work had been completed to the satisfaction of the superintendent of streets, that officer made an assessment therefor May 6, 1892, by which the land described in the complaint was assessed in the sum of six hundred and fourteen dollars and thirty cents. Within thirty days thereafter, viz., May 14th, the contractors to whom the assessment was issued, deeming that they were entitled to receive a larger sum, appealed therefrom, by filing in the office of the [41 P. 288] clerk of the board of supervisors a notice of their appeal, in which their objections were stated in writing; and the board of supervisors fixed Monday evening, June 6th, as the time for hearing the appeal, at which time they passed a resolution setting aside the assessment, and directing the superintendent of streets to make and issue a new assessment in accordance with the claim of the contractors. The present action is brought upon the assessment made under this direction of the board of supervisors.
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 special and limited jurisdiction. After its judgment has once been exercised its power is exhausted, and, in the absence of statutory authority for its revision, the judgment cannot be changed. By the original assessment the land of the owner is charged with a lien of a specified amount, and, if the amount of this lien is to be increased, it is essential that the owner shall have notice thereof, and have an opportunity to be heard thereon. This notice is in the nature of process by which the board of supervisors may acquire jurisdiction to act upon the appeal and change the assessment. It is the only means which the law has provided to warn the owner of the intended increase of the lien upon his property, and must be followed in order to effect such increase. (Cruger v. Hudson River R. R. Co ., 12 N.Y. 201; Scammon v. Chicago , 40 Ill. 146.) 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. Where a statute prescribes the mode of acquiring jurisdiction the mode must be complied with or the proceedings will be a nullity. In State v. Jersey City , 25 N. J. L. 309, under a provision in the charter of Jersey City requiring notice to be given, in terms similar to those of the statute under consideration, the notice specified that the council would hear any objections that might be presented "in writing." It was held that, by reason of this departure from the direction of the charter, the council did not acquire jurisdiction to pass the ordinance, saying: "It may be that this departure from the direction of the charter was not calculated seriously to interfere with the rights of the property holders whose lands were to be taken, yet, in point of fact, the power delegated to the common council was not strictly pursued in this particular, and their jurisdiction to pass the ordinance therefore fails." In City of Lowell v. Wentworth, 6 Cush. 222, the officer was required, before making an assessment, to give to each person liable to be assessed a notice in writing, appointing in the notice a time and place in which all persons interested might appear and be heard in relation to the assessment. Instead of so doing he notified some of the persons interested to appear at one time, and others at a different time. This was held to be such an omission to comply with the ordinance as to render the assessment void. Notice, when required by a 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. 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. (See Fry v. Bennett, 7 Abb. Pr. 355; Minard v. Douglas County , 9 Or. 210.) A notice which, by its terms, is directed to A is ineffectual as a notice to B, even though it is delivered to B and he is thereby informed of its contents.
In the absence of any provision in the statute for the mode of giving the notice it would be necessary that every person who might be affected by the appeal should receive personal notice of the matter appealed from, as well as of the time and place fixed for hearing the same. The provision that the notice shall be given by publication for five days merely changes the mode of giving the notice, but does not change the character of the notice to be given. The publication of the notice takes the place of personal notice, but can have no greater effect as a notice than would a similar one if personally delivered to him who is to receive it. In either case it must indicate the person who is to be notified, as well as the matter of which notice is given, the object of giving the notice being to enable those to whom it is to be given to be heard upon the appeal. "It must be very plain language which will justify the court in holding that the legislature meant to substitute by way of a published advertisement any thing less explicit than would be required in a written n otice actually delivered to the person whose [41 P. 289] property was meant to be affected." (State v. Mayor of Newark , 31 N. J. L. 364.)
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 determination (People v. O'Neil , 51 Cal. 91; Mahoney v. Braverman , 54 Cal. 570); and until the confirmation of the assessment by the board of supervisors, or the making of a new one under its direction, the contractors had no right of action against the owner. It follows that the assessment sued upon was made without authority.
The judgment and order are reversed.