Davis v. Board of Commr. of Lincoln County , 45 Okla. 284 ( 1913 )

On rehearing our attention is called to the fact that we assumed in the foregoing opinion that the notice mentioned in the second section of the syllabus was not given, or, to speak precisely, that there was an entire absence of such notice, whereas, it is contended some notice was given, as disclosed by the allegations of the petition; that at most such notice was irregular only and not void; that the commissioner in acting upon it passed upon its validity and declared it valid as affording due process of law; and, as no appeal is allowed by statute from their adjudication of its validity, that their judgment was final. Pertaining to this notice, the petition states:

"* * * That the proceedings under which the said defendants are proceeding to act in the premises is illegal and void because the notice issued by the defendants of its intention to construct said ditch was not issued in compliance with the law and is void, and because the said notice was never served upon these plaintiffs as required by the laws of the state of Oklahoma, and because such notice does not contain in proper columns a tabulated description of every lot or parcel of land that would be affected by the purported improvement, and because said notice was not published for four weeks, as required by law."

Whether the allegation that the proceedings are void because the notice in question "was not issued in compliance with the law and is void, and because the notice was never served upon these plaintiffs as required by the laws of the state," are mere conclusions of law not admitted by the demurrer, we need not say; but true it is that, construed with a view to substantial justice, the pleading on closer inspection does fairly imply that a notice was given, and the only question for us to decide is whether that notice, which does not contain, as charged in the petition and admitted on demurrer, "in proper columns a tabulated description of every lot or parcel of land that would be affected by the purported improvement," omits such material matters required by statute as to render the notice void, and hence fails to afford due process of law. For the reason that the same fails to comply with the statute, the notice is not merely irregular, but void. Referring to this notice, Comp. Laws 1909, sec. 3052, requires:

"Such notice shall contain in appropriate columns a tabulated description * * * of every lot or parcel of land that will be affected by the proposed improvements. * * *"

In Merritt et al. v. Village of Portchester et al., 71 N.Y. 309, 27 Am. Rep. 47, the general rule was announced that:

"A statute delegating power to charge the property of individuals with the expense of local improvements must be strictly pursued, and any departure in substance from the formula prescribed by statute vitiates proceedings under it."

In Hopkins v. Mason, 42 How. Prac. (N.Y.) 115, the act required the commissioners to publicm a notice addressed to the owners of land within the assessment district. The notict actually published was not addressed to anybody. This was held to be a noncompliance with a jurisdictional requirement.

In Bank of British Columbia v. City of Portland, 41 Or. 1, 67 P. 1112, the fourth section of the syllabus reads:

"Under Portland City Charter, sec. 128 (Laws 1898, p. 150), providing that the city engineer shall post notices, headed, 'Notice of Street Work,' in letters of not less than an inch in length, of the fact of the council's passage of a resolution of an intention to make street improvements, together with the character of the proposed improvement, and the time within which objections thereto may be made, a notice headed, 'Notice of Street Work,' in three-quarter inch type, is insufficient to confer upon the council jurisdiction to make the proposed amendment."

Concerning which the court said:

"* * * Now, it is prescribed how the notice shall be headed; that is to say, it shall be in letters not less than one inch in length. The direction is absolutely inhibitive of the use of letters of less dimension, and there is no room for saying that the use of a three-quarter inch type is a substantial compliance, because the Legislature, by express terms, requires a literal compliance. Such a rendition and execution of the requirement of the charter may seem technical, but it is not for the courts to declare than a nonessential which the Legislature has prescribed and in language that cannot be misinterpreted, or misunderstood, to be an essential. In this connection a further reference to authorities will not be amiss. Mr. Elliott, in his work on Roads and Streets (2d Ed.) sec. 324, says: 'The form of the notice is not important unless the statute expressly prescribes a particular form, but the substance of the notice must, in all essential features, be such as the statute requires.' So in Wilson v. Inhabitants ofCity of Trenton, 53 N.J. Law, 645, 647, 23 A. 278, 279, 16 L. R. A. 200, the court says: 'The Legislature may prescribe how much notice may be given. The mode prescribed must be strictly followed, and the proceedings must show the prescribed notice.' And again, in Harbeck v. City of Toledo,11 Ohio St. 219, 224: 'The court has no discretion as to the form of the notice. It must contain, or be accompanied by, a copy of the application, and it is idle to speculate as to the object of the enactment, and what would be sufficient compliance with its spirit, rather than its letter. The language of the act is clear, distinct, and unambiguous — a copy of the application must be published with the notice of the time and place — and we are not at liberty to disregard its express requirement, or to fritter it away by mere rules of construction. If a municipal corporation avails itself of the statute to take private property without the owner's consent, it must, as we have seen, strictly follow its provisions.' See, also, State v.Shreeve, 15 N.J. Law, 57; White v. Bayonne, 49 N.J. Law, 311, 8 A. 295; Austin v. Allen, 6 Wis. 134. What notice shall be given, and the manner in which it shall be given, are matters within legislative discretion; and the courts cannot inquire as to the reasons which prompted its action, or do less than to require an observance of its mandates, unless contrary to the fundamental law."

In State v. Mayor, etc., of Bayonne, 51 N.J. Law, 428, 17 A. 971, the certiorari brought up the proceedings taken by the city of Bayonne for the opening of a certain street. The court said:

"* * * The next objections are against the notices given of the filing of the preliminary map and report of the commissioners. These notices clearly failed to comply either with the charter (section 58, ubi supra) or with the general law (Revision, p. 711). They did not contain a general description of the land taken, or the land assessed, or of the streets or section thereof, included in the assessment; that merely referred to the map on file as showing each lot or parcel of land bounded by the improvement. It is true that, in response to these notices, the prosecutor appeared; but that appearance was for the purpose of objecting to the proceedings on this ground, among others. Such an appearance is no waiver of the objections. State v. Jersey City, 26 N.J. Law, 444;State v. Perth, Amboy, 29 N.J. Law, 259; State v.Commissioners, 41 N.J. Law, 83. For this reason the notice and all subsequent proceedings are illegal, and must be set aside."

See, also, Wilson v. City of Trenton, 53 N.J. Law, 645, 23 A. 278, 16 L. R. A. 200; Barber Asphalt Pav. Co. v. Edgerton,125 Ind. 455, 25 N.E. 436; In re Palmer, 138 Mich. 36, 102 N.W. 996; Page Jones, Taxation by Assessment, secs. 750, 755; Corev. Smith, 23 Okla. 909, 102 P. 114.

We are therefore of opinion that the notice fails to comply with the statutory requirements in a material particular, and for that reason is void, and, being void, fails to afford due process of law.

We therefore adhere to the opinion as handed down except as modified hereby.

All the Justices concur, except LOOFBOURROW, J., absent and not participating.