Chandler v. City of Puyallup

Ellis, J.

The plaintiffs brought this action to quiet title to their respective properties against certain special assessments, levied thereon by the city of Puyallup for street paving. Upon a hearing, the action was dismissed by the superior court at the plaintiffs’ cost. The plaintiffs have appealed.

The appellants contend that the city council was without jurisdiction to make the assessment, because only one publication of the initial resolution was made, whereas the statute, Rem. & Bal. Code, § 7705, requires two publications. This is the only objection urged against the validity of the *633 assessments. It is not claimed that the work was not done, nor that the appellants’ properties were not benefited thereby. We think the evidence sufficiently shows that the resolution was published only once, but it does not follow that the proceedings were void. While the records of the city council are not in evidence, the .city clerk was permitted to testify from them. The time set for remonstrances by the resolution was April 28, 1909. This appeared in the resolution as published. At that time, as the clerk testified, a remonstrance was presented “by citizens,” asking the council to defer action, and the matter was continued for one week. On May 5, 1909, the time to which the hearing was continued, “a remonstrance from owners of property within bounds of the proposed district” was considered and discussed by persons both for and against the adoption, of the proposed district as outlined in the resolution, and the council overruled the remonstrances. It does not appear from the evidence whether the protestants were these appellants or other property owners. The appellants, however, in their brief admit that they appeared and protested, and that their protests were overruled. Nowhere in the evidence does it appear, nor do the appellants in their briefs claim, that the objection now urged was ever made before the city council or called to its attention. Having admittedly appeared in response to the defective notice, it was incumbent upon them to show that they then objected to the sufficiency of the notice. Otherwise we must treat that objection as waived, unless the failure to publish the notice twice was jurisdictional in the absolute sense that it could not be waived in any manner. There is much reason in the view that this notice has nothing to do with the constitutionality of the law. Its purpose was not to accord a hearing upon the validity of the assessment or as to the benefit therefrom to the property within the district, but to accord a hearing as to the limits of the district and as to whether the district should be formed at all. The publication of the initial resolution or ordinance antedating as it *634 does any assessment, cannot affect the constitutional requirement as to due process of law one way or another. The constitutional requirement is met by the fact that the lien of the assessment, if questioned, can only be asserted and the property subjected to its payment by a suit in foreclosure. Rem. & Bal. Code, § 7710.

But even assuming that the constitutional inhibition necessitates some notice of the initiation of the improvement, the constitution does not prescribe any particular form of notice. In view of that fact, the legislature might have provided for but one publication of the initial resolution, or might have provided for any other form of notice reasonably calculated to apprise the property owners of the intended improvement. To proceed under an imperfect publication was not to proceed without power. It was merely an irregular exercise of power. The appellants who actually appeared before the council in response to the notice, but failed to offer any objection as to the sufficiency of the notice, must be held to have waived that objection. Rucker Bros. v. Everett, 66 Wash. 366 , 119 Pac. 807 , 38 L. R. A. (N. S.) 582; Collins v. Ellensburg, 68 Wash. 212 , 122 Pac. 1010 ; Shannon v. City of Omaha, 73 Neb. 507 , 103 N. W. 53 , 106 N. W. 592 ; Owens v. Marion, 127 Iowa 469 , 103 N. W. 381 ; Philadelphia v. Schofield, 166 Pa. St. 389, 31 Atl. 119 ; Smith v. Tobener, 32 Mo. App. 601 .

The only function of the publication, whether made once, twice, or any number of times, was to give notice. Persons to whom it actually gave notice, and who appeared in response thereto without raising any objection to its sufficiency, should be held estopped to say that it did not perform that function. The situation is analogous to that presented by defective publication of summons in an ordinary action. In such cases, it is uniformly held that parties, by appearing generally without raising any question as to the sufficiency of the publication, waive the right to object. We are constrained to hold that the appellants, having ad *635 mittedly appeared at the hearing before the city council in response to the notice, and having failed to show that they then questioned its sufficiency, cannot now raise that question.

A notice of the time of hearing upon the confirmation of the assessment roll was also published. This was required by a general ordinance of the city of Puyallup, but is not required by the general law. The appearance of the appellants to that notice would probably be insufficient to waive defects in the proceeding. Their appearance to the original notice, the publication of which was required by the statute, did, however, constitute a waiver of any defect in the notice.

The judgment is affirmed.

Mount, C. J., Morris, and Fullerton, JJ., concur.