street commissioner and city inspector, is not mandatory, and a failure to file a copy in one of these offices is no ground for vacating the assessment. The property owner has a right to have the improvement made according to the general plan, but he is not interested in the filing of the map and plan in these offices.1 If the statute requires the contract for the improvement to be let out to the highest bidder, this is a provision that must be complied with to enforce the assessment against property owners. It is considered a matter of substantial justice, and not a mere irregularity.2 But where a power is given to the council of a city as to laying out and improving streets, a subsequent statute requiring all contracts for work done or supplies furnished to be let to the lowest bidder, does not so limit the power of the council that in selecting the material of which a pavement is to be made for a proposed street improvement, they must select an article not patented, in order that there may be competitive bids for the work. The general power which vested in them the discretion and choice of material, will not be revoked by implication. The charter of a city gave power to make a special assessment for a street improvement, and authority to collect the same under such regulations as might be prescribed by ordinance. The city passed an ordinance providing that the resolution of the council levying such assessment, should be published in the official paper of the city, and that thereupon the assessment should become due and payable. A publication in accordance with the ordinance was considered necessary to enable the city to enforce the assessment. When the statute makes no provision as to notice to the proprietors, it is said that the ordinance requiring the work to be done is sufficient. It is put on the ground that they are members of the corporation, and must take notice of its by-laws.5 The property owners are often entitled to notice at various stages in the proceedings. Where the assessment is made according to the benefits conferred, they are entitled to notice of the meeting of the commissioners who are to estimate such benefits. A mortgagee out of possession is not entitled to notice of such meeting. Where the 1 In re New York Prot. Ep. Public School, 47 N. Y. 557. Wells v. Burnham, 20 Wisc. 112; Kneeland v. Milwaukee, 18 Wisc. 411. 3 In re Drugo, 50 N. Y. 513. 4 Dubuque v. Worden, 28 Iowa, 571. 5 Palmyra v. Morton, 25 Mo. 593, 597. statute provides for hearing objections to the assessment before the assessors or any other tribunal, the parties assessed are entitled to notice of the time fixed for such hearing.1 If a council fix a time for hearing objections to a report, and the council does not meet at the time fixed, the assessments cannot be enforced, and no judgment will be given on such report, where the statute requires the collector to obtain judgment against the owners of property assessed in the report. But if the notice be not given, or be defective, if the party appear and make his objections, the appearance covers all such defects. Where the statute required the assessors to make assessments and file a report and map within twenty days from the passage of the ordinance for the improvement, a failure to file the report and map within that time, rendered the proceedings void. In New Jersey, if the assessment and report are made by commissioners not legally qualified, the proceedings are void; and so where the assessment is required to be made by the board of public works, consisting of two members, and one of them is disqualified on account of interest, an assessment and report signed by the other alone, is not valid. In New York, where the assessment was required to be made by three commissioners, and the report was only signed by two, it was sustained, the court considering the principle settled, that where authority to act in matters touching the interests of the public, is vested in a number of persons, all of whom are notified, and a majority of whom act, such action is valid. Such defects relating to the qualifications of the commissioners, must be taken advantage of at the first opportunity. In a case in Pennsylvania, there were three viewers who made a report, which, on appeal to the Court of Quarter Sessions was confirmed. Upon this report, a scire facias was authorized to be issued against the parties assessed to enforce the lien of the assessment. It appeared in this proceeding that one of the viewers was not a freeholder, as required by the statute. It was held that the effect of the confirmation of the report was to give it all the legal effect and incidents of a judgment of a court of competent jurisdiction, one of 1 State v. Jersey City, 3 Dutch. 536. 2 Nashville v. Weiser, 54 Ill. 245. a State v. Jersey City, 2 Dutch. 444; State v. Elizabeth, 2 Vroom, 547. 4 State v. Bayonne, 35 N. J. Law, 332. 5 State v. Mayor of Newark, 36 N. J. Law, 170. Hunt v. Chicago, 60 Ill. 183. In re John Jacob Astor, 62 N. Y. 580, 586. In California, it is said that whatever may be the number of commissioners, all must be present when the land is viewed for the purpose of making the assessment. People v. Hagar, 49 Cal. 229. 1 which was that it could not be attacked collaterally. In California, by statute, commissioners must give notice of filing their report, and objections are heard for twenty days, and the county court may recommit the first report, but their action on the second report is final and conclusive.2 In Illinois, the legislature authorized the board of public works, in opening a street, to determine the compensation to be paid the owners of lands, and declared that their decision should be final and conclusive. The court held that the determination was a judicial act which could only be performed by that department of the law. In assessing benefits for such a work, before a sale can be had of the land assessed, there must be the judgment of some court of general jurisdiction, so that all questions as to damages sustained or benefits conferred, may be raised and tried in that court. Delegation of Discretionary Powers to Commissioners.-The power which is delegated to the city or town, to be exercised by a council or board of trustees, cannot be delegated by them. They may execute the power through the instrumentality of commissioners, boards of public works, or a city engineer, but they must themselves determine what extent of territory is to be improved, and how it is to be improved. These matters cannot be left to the discretion of such officers. The following examples will illustrate the doctrine. The power was conferred on the council to designate the streets to be repaved, and they authorized the mayor to designate the streets, and empowered the city engineer to decide what part of the designated street should be repaved, and to choose the mode of macadamizing, of erecting curbstones, and the kind and quality of material to be used. This was considered a delegation of discretionary power. Where a council was authorized to build sewers, and prescribe their dimensions by ordinance, a direction to the city engineer to determine the size and the character of material to be used, is a delegation of discretionary power.5 So an ordinance directing the macadamizing of a particular street between given points, without giving any directions as to the manner of doing the work, is discretionary. But an ordinance to pave need not give the precise thickness of the curbstone, nor the nature of the stone, or manner of dressing; it is sufficient if it give the minimum thickness and depth of curbstones. An ordi 5 Murphy v. Clemens, 43 Mo. 395; City of St. Louis v. Clemens, 52 Mo. 134. Haegle v. Mallinckrodt, 46 Mo. 577. Sheehan v. Gleeson, 46 Mo. 100. nance directing the city engineer to have a particular street graded according to law, is valid, where there is in force a general ordinance prescribing the manner in which all streets are to be paved, giving in the detail the manner of doing the work.' The same principle is illustrated in the Illinois cases. An ordinance directing a street to be curbed with curb walls where they are not already built, and curb walls to be rebuilt where they are not in a good and sound condition, confers discretionary power on the commissioners who are directed to have the work done. So does an ordinance that does not designate the part of the street to be improved; but a direction to commissioners to improve a street in a designated portion, with curb wall where curb walls are not already built, is not discretionary.* 3 Errors Waived and Cured.-Appearance before assessors or any of the tribunals acting in the matter, cures all defects as to notice where that is necessary. If a person aids in the passage of an ordinance, it is said that he cannot vacate an assessment made under it when others have incurred expense on the strength of the proposed improvement. So one standing by and seeing the work done cannot. enjoin the whole assessment because defective materials have been used. Errors and irregularities are often cured in local assessments as in other modes of taxation. The principle is the same: mere defects in the mode of proceeding may be cured, but that which is void cannot be aided by subsequent legislation of the city, nor can new life be imparted to nullities. The ordinance of a council directed work to be done, but did not specify what amount of the expense should be assessed on the property benefited, and what amount should be chargeable to the general fund. This defect, under the Illinois practice, was attempted to be remedied by a second assessment based on the first, but the first assessment being void, a second one based on it could not aid it. But if the defects in the first assessment were merely the want of proper notice, when asking for a confirmation of their report by the commissioners, such a defect would be cured by a 1 Moran v. Lindell, 52 Mo. 229. If a defect as to discretionary power be remedied by ordinance before the work is completed, the assessment becomes valid. City v. Schoeneman, 52 Mo. 348. 455. 2 Moore v. Chicago, 60 Ill. 243. Page v. Chicago, 60 Ill. 441. 3 Bryan v. Chicago, 60 Ill. 507. 5 State v. Hudson, 34 N. J. Law, 25; State v. Mayor of New Jersey, 35 N. J. Law, Evansville v. Pfisteierer, 34 Ind. 36. But one who signs a petition may raise the objection that it is not signed by a majority as required by statute. In re Sharp, 56 N. Y. 257. See ante, Ch. 15, § 104, and cases cited; Ch. 20, § 139. Bowen v. Chicago, 61 Ill. 268; Union Building Association v. Chicago, 61 Ill. 439. new proceeding ordered on the subject, taking the first assessment as a basis of action.1 Under an ordinance passed in January, 1867, a sewer district was established by the council of St. Louis, and the work was constructed and the assessment made. The ordinance was defective in giving discretionary power to the city engineer as to the dimensions and materials of the sewers, and the assessment was declared void. The legislature, in March, 1870, passed an act reciting that the ordinance had failed to comply with the charter, and the tax bills could not be collected, and authorizing a reassessment of a special tax on the adjoining property for the work done. The court held that the city could only charge the owners of the property at the time of the contract for the improvement, with the expense of it, by a compliance with the charter. Having failed to comply with the charter, the doing of the work created no obligation on the property owners to pay for it. The liability was created for the first time by the act of March, 1870, which is retrospective and void, because it violates that provision of the Constitution of Missouri which provides "that no ex post facto law, or law impairing the obligation of contracts, or retrospective in its operations, shall be passed." The case was distinguished from the cases of Howell v. City of Buffalo, and Schenley v. Commonwealth, where local assessments were directed after the improvement was completed, principally on the ground that in these States there was no constitutional provision as to retrospective laws. 4 3 Where there is no provision in the Constitution of the State against retrospective laws, it is difficult to perceive how the power of the legislature can be affected by the fact that the improvements have been completed. When the proceedings in an assessment are void for failure to comply with the act conferring the power, it is just as if there had been no act on the subject, and the question is as to the power of the legislature to apportion the tax to pay the expense of an improvement completed, on those who have received a benefit therefrom. It is difficult to distinguish such acts from those making valid a tax voted in favor of a railroad, or a bounty to soldiers, where the city or town had no authority at the time of voting the tax. § 150. Collection of Assessments, and Defenses which may be made to Them.-The modes of collecting these special assessments are as numerous as the States in the Union, and in the same State it 1 Burton v. Chicago, 62 Ill. 179; 8. P. In re Lewis Van Antwerp, 56 N. Y. 261. City of St. Louis v. Clemens, 52 Mo. 134. 3 37 N. Y. 267. 4 36 Penn. St. 29. |