A statute of California authorized the opening of a street in
San Francisco, to be known as Montgomery Avenue, the cost and
expenses to be assessed on certain specified lots in proportion to
the benefits accruing therefrom, and provided that when a majority
in frontage of the owners of these benefited lots should petition
certain officials for the opening, those officials should
Page 117 U. S. 684
organize into a board and proceed to open it and to apportion
the cost in the manner pointed out by the statute. A petition being
presented to the designated officials, they organized and certified
that the petition had been subscribed by the owners of the
requisite amount of frontage, and proceeded to lay out the street
and apportion the costs and expenses among those benefited in the
manner provided by the statute. They reported their action to the
county court as required by the statute, and the report was
confirmed by the court. A tax was thereupon levied in the ordinary
way in 1878-1879 to meet the portion of the costs and expenses
payable that year by the terms of the statute. H, an owner of a lot
thus assessed and
levied on, declining to pay, the land was seized and sold for
the default to Z, who thereupon brought ejectment to recover
possession.
Held, that on the trial of this action, H was
not estopped by the acceptance of the petition by the officials and
their certificate upon it or by the judgment of the county court
confirming their report from showing that the petition for the
opening was not signed by the owners of the requisite amount of
frontage.
Mulligan v. Smith, 59 Cal. 206, approved and
applied.
The court below having found that the property in dispute is
worth $5,000, this Court, on motion to dismiss, disregards
affidavits that it is worth less, although, taken by themselves,
the affidavits show that it may be worth less than that sum.
Ejectment. Motion to dismiss. The case is stated in the opinion
of the Court.
MR. JUSTICE WAITE delivered the opinion of the Court.
This was an action of ejectment brought by Henry Zeigler for a
lot in the city and County of San Francisco, and his right to
recover depends on the validity of a sale of the property for
nonpayment of a tax levied and assessed under "An act to open and
establish a public street in the city and County of San Francisco,
to be called "Montgomery Avenue," and to take private lands
therefor," approved April 1, 1872. Stat.Cal. 1871-1872, 911. By
that act, a strip of land particularly described was taken for
Montgomery Avenue, and the cost and expenses "incidental to the
taking and opening of said avenue" were
Page 117 U. S. 685
to be assessed on certain "lots, pieces, and subdivisions of
land," particularly described, "in proportion to the benefits
accruing therefrom to said several lots, subdivisions, and pieces
of land, respectively, which said lands" were "declared to be
benefited by the opening of said avenue." By ยง 5, it was provided
that "whenever the owners of a majority in frontage" of the
property declared to be benefited, "as said owners are or shall be
named on the last preceding annual assessment roll for the state,
city, and county taxes," should "petition the mayor of said city
and county in writing for the opening of Montgomery Avenue," a
"board of public works," to be composed "of the Mayor, the Tax
Collector, and the City and County Surveyor of the City and County
of San Francisco," should "proceed to organize by the election of a
president." This board was to ascertain and
"set down in a written report . . . the description and actual
cash value of the several lots and subdivisions of land included in
the land taken for said Montgomery Avenue, and the amount of damage
that will be occasioned to the property along the line and within
the course of said avenue."
The same board was also to ascertain and "set down in a written
report a description of the several subdivisions and lots of land
included" in those which by the law were to be assessed, and the
amount which, in the judgment of the board,
"the said lot or subdivision has been or will be benefited by
reason of the taking and opening of said avenue relatively to the
benefits therefrom accruing to the other lots or subdivisions,
respectively."
This report when completed was to be kept at the office of the
board for thirty days, open for inspection by all parties
interested, and notice thereof given by publication. Any person
interested who felt himself aggrieved "by the action or
determination of said board, as shown in said report," was
permitted to apply to the county court of the city and County of
San Francisco within a limited time for a review, and from the
action of the county court on such a petition an appeal could be
had to the supreme court. If no application for review was filed in
the court within the time fixed, it was made the duty of the board
to submit the report to the court, with a petition that it be
approved and confirmed.
Page 117 U. S. 686
The court was authorized to make, or cause to be made,
alterations or modifications, if in its opinion necessary, and,
when completed to its satisfaction, "to approve and confirm said
report." When the report was approved, and the action thereon had
become final, the board was required to prepare and issue coupon
bonds, to be known and designated as "Montgomery Avenue Bonds,"
payable in thirty years from their date, with interest at six
percent per annum, to the amount necessary to pay and discharge the
damages, costs, and expenses incident to the taking and opening of
the avenue. These bonds could be taken by the parties interested in
payment of the amounts due to them respectively, or the bonds could
be sold by the board, and the proceeds used for that purpose. By an
express provision of the act, the City and County of San Francisco
was not, in any event, whatever, to be liable for the payment of
these bonds, and any person purchasing them, or otherwise becoming
the owner thereof, was to take them "upon that express stipulation
and understanding." It was, however, provided that
"there shall be levied, assessed, and collected, annually at the
same time and in the same manner as other taxes are levied,
assessed, and collected in said city and county, a tax upon the
lands"
which had been declared to be benefited by the opening of the
avenue, "sufficient to pay the interest upon said bonds" as it
matured, and also "a tax of one percent upon each hundred dollars
valuation, which shall constitute a sinking fund for the redemption
of said bonds." The money arising from these taxes was to be paid
to the treasurer of the city and county, and by him used for the
purposes intended. These taxes were to be assessed upon the "values
of the respective parcels of land as fixed in the said . . . report
of said board."
The case was tried in the court below without a jury, and comes
here on a finding of fact, which shows that a petition, regular in
form, for the opening of the avenue, was presented to the mayor of
the city and county in the month of April, 1872, but which was not
in fact subscribed by the owners of a majority in frontage of the
land declared to be benefited "as said owners" were "named in the
last preceding annual assessment
Page 117 U. S. 687
roll for the state, city, and county taxes," although it
purported on its face to have been so signed. After the filing of
this petition, the persons at that time filling the offices,
respectively, of mayor of the city and county, tax collector, and
surveyor annexed thereto their several certificates that the
petition had been subscribed by the owners of the requisite amount
of frontage. This being done, the board of public works, consisting
of the mayor, tax collector, and surveyor, organized, opened the
avenue, and assessed the benefits conferred on the property
declared to be benefited, for the purposes of taxation. Their
report, after being left at their office for thirty days, and the
requisite notice thereof given, was filed with and confirmed by the
county court. The lot now in question was among those declared by
the law to be benefited, and was assessed by the board for the
purpose of taxation. A tax levied for the year 1878-1879 upon this
assessed value, to meet the annual obligations under the law, was
not paid by the owner, and for this default the sale was made under
which Zeigler now claims title. Upon these facts the court below
gave judgment against him, and to reverse that judgment this writ
of error was brought.
There is in reality but a single question presented for our
consideration in this case, and that is whether, in an action of
ejectment brought to recover the possession of lands sold for the
nonpayment of taxes levied to defray the expenses of opening
Montgomery Avenue generally, and not in obedience to an order of a
court of competent jurisdiction to meet some particular liability
which had been judicially established, the land owner is estopped
from showing, by way of defense, that the petition for the opening
presented to the mayor was not signed by the owners of the
requisite amount of frontage, and this depends on whether the owner
is concluded (1) by the acceptance of the petition by the mayor,
and his certificate as to its sufficiency, and the action of the
board of public works thereunder, or (2) by the judgment of the
county court confirming the report of the board of public
works.
This precise question was most elaborately considered by the
Supreme Court of California in
Mulligan v. Smith, 59 Cal.
206,
Page 117 U. S. 688
and decided in the negative, after full argument. With this
conclusion we are entirely satisfied. It is supported by both
reason and authority. The opinions of Justices McKee, Sharpstein,
and Ross, which are found in the report of the case, leave nothing
further to be said on the subject.
"A petition from the owners of a majority in frontage of the
property to be charged with the cost of the improvement was
necessary to set the machinery of the statute in motion,"
and "no step could be taken under the provisions of the statute
until the requisite petition had been presented." Neither the mayor
nor the county court was
"authorized to enter into any investigation of the frontage as
represented by the petition, or to adjudicate its sufficiency, or
to make any record in reference to it. . . . The only powers which
the county court, as a court of limited jurisdiction, was
authorized to exercise,"
were such as related to the matters contained in the report of
the board of public works, and this did not include the
petition.
The case has been argued here as though it was between the
taxpayers and
bona fide holders of negotiable securities
issued by them, or for their account, but nothing of that kind is
presented by the record. It does not appear affirmatively that a
bond was ever issued. But if we are to presume from the finding
that after the presentation of the petition the "mayor, tax
collector, and surveyor proceeded to perform the duties imposed
upon the board of public works," bonds of some kind were put out,
it does not appear either that they were in such a form as to make
them valid in the hands of
bona fide holders if they were
in fact issued without authority, or that there are any such
holders. No other questions are now to be considered than such as
would arise if it appeared affirmatively on the face of the record
that the tax was levied simply to raise the means to pay the
members of the board their own salaries as specially provided for
in the act. All we are now called on to decide is whether the
presentation to the mayor of a petition, signed by the owners of
less than a majority in frontage of the property to be assessed, as
they were named in the last preceding annual assessment roll, was
sufficient to authorize the levy of the tax for which the lots in
controversy were sold, and we have no
Page 117 U. S. 689
hesitation in saying it was not. It will be time enough to
consider the rights of
bona fide holders of "Montgomery
Avenue Bonds," if there be any, when a case arises which involves
such questions.
It remains only to dispose of a motion which has been made by or
on behalf of Albert S. Rosenbaum, who claims to be a holder of
Montgomery Avenue bonds, to dismiss the case (1) because the value
of the matter in dispute does not exceed $5,000, and (2) because
the suit is colorable only, and got up by collusion, so as to
preclude a decision favorable to the holders of Montgomery Avenue
bonds. Without deciding how far it is allowable for persons not
parties to a suit to intervene with a motion of this kind, it is
sufficient to say that we see no evidence of any improper collusion
in this case. We are entirely satisfied that the suit was
instituted in good faith, by real parties, for the determination of
a substantial right, and that it fairly presents the questions
involved. The court below found as a fact that the value of the
premises in dispute exceeds $6,000, and this appears on the face of
the record. While the affidavits as to value presented by
Rosenbaum, taken by themselves, show that possibly the property may
be worth less than $5,000, they are not enough to overcome the
finding of the court below that it was actually worth more than
that sum.
Affirmed.