Kerker v. Bocher

1908 OK 52, 95 P. 981, 20 Okla. 729, 1907 Okla. LEXIS 74

• Court: Supreme Court of Oklahoma
• Decided: April 13, 1908
• Docket: No. 1938, Okla. T.
• Status: Published

Opinion

Williams, 0. J.

(after stating the facts as above). In the language of counsel, “the main contention of plaintiffs in error is that, before the cost of grading streets in cities of the first class in this territory '[.state] can be -assessed against the abutting property and made a legal charge thereon, the improvement must be first authorized, ordered, and provided for by ordinance. Relying on this main contention, appellants in this particular case, in view of the proceedings or lack of proceedings of the mayor and council of the city of Shawnee, further contend that some affirmative action is necessary, either by ordinance, order, or resolution.” Plaintiffs insist that the act of 1901 (sections 443-453, Wilson's Rev. & Ann. St. 1903) cannot be reasonably construed as a complete statute upon the question of street improvements, independent of the provisions of chapter 12, Wilson’s Rev. & Ann. St., insisting that the act of 1901, which is a later act, shall be construed as merely supplementary to the provisions of said chapter 12, supra. However, it is not necessary .for the final determination of this cause to determine whether or not an ordinance-should have been passed providing for and directing the details of the paving of these streets, after the adoption of the resolution declaring. the necessity for the same and causing the publication of the notice, and the failure to file protests.

Counsel have cited the case of Newman v. City of Emporia, 32 Kan. 457, 4 Pac. 816, as sustaining their contention that the adoption of the ordinance is necessary for the making of the improvements and levying the taxes, and that, such not having been done, such acts in having paving done were as to the plaintiffs absolutely void, and could not be made valid by subsequent acts of the mayor and council as to the parties affected. Section 835, Comp. Laws Kan.. 1885 (chapter 19, art. 3, § 32), which is the identical provision that was in effect 'at the time the decision was rendered in the case of Newman v. City of Emporia, supra, provides:

“The cities coming under the provisions of this act in their corporate capacities are authorized and empowered to enact ordinances for the following purposes, in addition to' the other powers granted by this act: * * * To open and.improve streets, avenues and alleys, make sidewalks and build bridges, culverts and sewers within the city; and for the purpose of paying for the same shall have power to make assessments in the following manner, to. wit: First. For opening, widening and grading all streets and avenues and for all improvements of the squares and areas formed by the crossing of streets, and for building bridges, culverts and sewers, and footwalks across streets, the assessment shall be made on taxable real estate within the corporate limits of the city, not exceeding ten mills on the dollar, for these purposes in any one year. Second. • For making and repairing sidewalks, macadamizing, curbing, paving and guttering, the assessment shall be made on all lots and pieces of ground abutting on the improevments, according to the front foot thereof.”

It is true that in the case of Newman v. City of Emporia, supra, this statute, which is very similar to section 370, Wilson’s Rev. & Ann. St. 1903, was construed by the Supreme Court of Kansas as requiring an ordinance to be adopted before such improvements could be made. Such improvements under said provisions were ultra vires until the ordinance to that end was passed, and when the mayor and council acted without an ordinance to that effect having been enacted they were without jurisdiction as to such matter, and the same could not thereafter be ratified. However, no such provisions were in force in Kansas as are contained in sec tions 415 and 443 to 453, inclusive, Wilson’s Rev. and Ann. St. 1903.

The question necessarily arises in this case: Did and could the abutting property owners ratify the acts of the mayor and council of the city of Shawnee in having these improvements made? In the case of Noel v. City of San Antonio, 11 Tex. Civ. App. 580, 33 S. W. 266, the court says:

"Recurring to the proposition that the city is estopped, the contract having been executed, from setting up is invalidity, it may be said that as a general rule the doctrine of estoppel applies to corporations and individuals. But it cannot be applied to render valid and binding a contract that the corporation was prohibited from making. The application of the doctrine of estoppel to municipal corporations is confined to cases in which they have the power to contract. But where the act undertaken was, in and of itself, ultra vires of the corporation, m act of that body can have the effect to estop it to allege its want of power to do what was undertaken. Bigelow, Estop. 406, 467; State v. Murphy, 134 Mo. 548, 31 S. W. 784, 35 S. W. 1132, 34 L. R. A. 369, 56 Am. St. Rep. 515; Union Depot Co. v. City of St. Louis, 76 Mo. 393; Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co., 118 U. S. 290, 6 Sup. Ct. 1094, 30 L. Ed. 83; Green Bay & M. R. Co. v. Uniqn Steamboat Co., 107 U. S. 98, 2 Sup. Ct. 221, 27 L. Ed. 413; Davis v. Railway Co., 131 Mass. 258, 41 Am. Rep. 221.”

In case of Zalesky v. Cedar Rapids, 118 Iowa, 714, 92 N. W. 657, the court says (quoting from section 779 of the Iowa Code as amended by chapter 27, p. 14, Acts 28th Gen. Assem.) :

"They shall have power to provide for the construction, reconstruction and repair of permanent sidewalks upon any street, highway, avenue * * * within the limits of such city or town * * * and to assess the costs thereof on the lots or parcels of land in front of which the same shall be constructed. * * * This cannot be ' construed otherwise than to meant that the city council is thereby invested with all the necessary authority to make provisions for carrying into effect the power granted. Now, municipal corporations make provision for carrying into effect or discharging the powers and duties conferred by law through the medium of an ordinance. * * * The appellants contend that even conceding the defects to which attention has been called, the same were cured, and a valid levy of assessment accomplished, by virtue of the resolution of February 15, 1901, and the notice served pursuant thereto, and the further resolution of March 8, 1901. Section 836 of the Code is relied upon as a basis for such contention. Granting that even the chapter of the Code of which such section is a part has application to the matter of construction of sidewalks — a point we do not decide —still there is no merit in this contention of appellants. The defects which may be cured by a relevy of assessment are such only as inhere in the time or manner of the proceeding; the machinery of the law having once been properly put in motion.... It was not intended that jurisdictional defects can be cured by proceedings therein directed. TJnder the ordinance in question the adoption of a resolution is a prerequisite to any further step being taken. 'Without that step there is no authority whatever to further proceed. The case is altogether different from one where, having authority to proceed, irregularities and defects in the subsequent proceedings thereafter occur which do not have the.effect to take away and substantial rights of a party interested. While having reference to a different section of the statute, yet the principle announced in City of Chariton v. Holliday, 60 Iowa, 391, 14 N. W. 775, is applicable. That was a ease in which recovery was sought under the provisions of section 479, Code 1873, which provides, in effect, that under certain specified conditions a recovery may be permitted for public improvements, notwithstanding informality and irregularity in the proceedings under which such improvements were made In the course of the opinion it was said: ‘The irregularity or defect under which this section can be disregarded must, we think, be a mere error or omission to do something which in no manner affects the jurisdiction of the city. It is fundamental that, unless jurisdiction has been acquired, the proceedings of all courts are void, and this must be so as to municipal corporations/ In that ease, as in this, the lot owner had the right, under the ordinance, to construction the walk if he saw proper. But this, it is said, he could not do until one was ordered. TJnder the ordinance it was essential that a resolution should be passed by the council, ordering the construction of the sidewalk in question. There could be no authority to make an assessment, and consequently no authority to reassess, especially as this was attempted to be done long after the walk had been actually constructed by the city.”

In the case of McLauren v. City of Grand Forks, 6 Dak. 397, 43 N. W. 710, the court says :

“The city council only had such authority as was conferred by the charter of said city, and could exercise the powers granted only in the manner and according to the. conditions imposed by the law. They only had jurisdiction to act and bind the city by what they did while acting within the provisions of the law authorizing them to act at all. Except in the instances provided by the charter itself, the officers of the city were powerless to legally grade the street. The charter provides that when the mayor and council shall deem it necessary to grade any street they shall declare by resolution that the grading of such street is necessary. It is only when necessary that the law contemplates such improvements shall be made, and whether or not the proposed improvement is necessary is to be determined by the mayqr and council, and such determination is to be evidenced by a resolution' to that effect. Until this is done they have no nower to ant, and are without jurisdiction in the premises. The lawmaking body evidently intended that before the mayor and council entered upon making improvements on behalf of the city, for the expense of which private property was' to be burdened, the necessity therefor should be considered and determined by them in their official capacity, and the .evidence preserved by proper record. This is an important provision prescribing the preliminary steps necessary when it is proposed to make public improvements, and, if disregarded or omitted, all subsequent proceedings are invalid, and of no effect. Hoyt v. City of Saginaw, 19 Mich. 39, 2 Am. Rep. 76; White v. Stevens, 67 Mich. 33, 34 N. W. 255. The other conditions imposed by the statute are equally important and. necessary of performance. It having been determined that the proposed improvement is necessary, the resolution so declaring is to be published for a stated ^period, and within a limited time thereafter, defined by the charter, the owners of the property liable to assessment for the expenses of such improvement may protest against it. These provisions of the charter were intended to preserve to the owners of the property to be affected by the proposed improvement the right for any reason they may have to protest against the making of it and to demonstrate that it was not necessary; that the benefits which would flow from it were not commensurate with its costs, etc. The giving of the notice required by law was a step essential to be taken by tbe city authorities before they could legally enter upon.the work of making the improvement. It was jurisdictional.”

In the case of Barker v. Commissioners, 45 Kan. 696, 26 Pac. 591, the court says:

“In view of 'other fatal defects it is not now necessary to pass upon the question as to whether or not the omission in the petition to state ‘the time for which assessments in payment thereof are to be made/ as required by the second section of the. act, is jurisdictional, or a mere irregularity that does not deprive the county board of the power to act. * * * The same facts are urged as an' estoppel against the plaintiff in error as in the other two streets. Some of these facts relied on to estop him are sustained by evidence. The others are not. We have considered these findings in the Tenth street matter. They apply to all three of these streets taken together, and are not made specific as to each street. These attempts to exercise powers not granted in (terms or fairly impied by the act under the assessments- levied on the land of the plaintiff in error for the improvement of Fifth street are void, and there are no sufficient facts pleaded or found to estop him from asserting the jurisdictional defects enumerated.”

Section 680 of the Annotated Code of Iowa (1897) provides:

“Municipal corporations shall have power to-make and publish from time to time, ordinances, not inconsistent with the laws of the state, for carrying into- effect or discharging the powers and duties conferred by this title, and such as shall seem necessary and proper to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort and convenience of such corporations and the inhabitants thereof, and to enforce obedience to such ordinances by fine not exceeding one hundred dollars, or by imprisonment not exceeding thirty days.”

Section 810, Annotated Code of Iowa (1897) provides:

“When the council of any such city shall deem it necessary, or available to make or reconstruct any street improvement or sewer authorized in this chapter, it shall, in a proposed resolution declare such necessity or advisability, stating the kind of material pioposed to be used and the method of construction whether abutting property will be assessed, and in case of sewers, the kind and size, and what adjacent property is proposed to be assessed there for, and in both eases designate the location and terminal points thereof, and cause twenty days’ notice of the time when said resolution will be considered by it for passage to be given by four publications in some newspaper of general circulation published in the city, the last of which shall not be less than two nor more than four weeks prior to the time fixed for its consideration, at which time the owners of the property subject to assessment for the same may appear and make objection to the contemplated improvement or sewer and the passage of said proposed resolution, at which hearing the same may be amended and passed, or passed as proposed.”

Section 811 of the same Code further provides:

“Upon compliance with the preceding section, the council may, by ordinance or resolution, order the making or reconstruction of such street improvement or sewer, but the vote shall be by yeas and nays, and entered of record, and the record shall show whether the improvement was petitioned for or made on the motion of the council.”

Section 407 of Wilson’s Kevised and Annotated Statutes of 1903 is substantially the same as section 680 of the Iowa Code, supra. In the case of Martin v. City of Oskaloosa, 126 Iowa, 685, 102 N. W. 530, the court says:

“We are of the opinion, however, that no general ordinance was essential to enable the city to order the improvement and take the steps necessary to a valid assessment. It certainly cannot be true that where the entire procedure is regulated by statute, and nothing is left to be determined by general ordinance, the city can derive any greater authority from an ordinance which simply reenacts the provisions of the statute. All that can be essential in such a case is that the city take the steps provided by the statute, and, if these steps are taken as required, the assessment will certainly be valid.”

Section 76, c. 19, p. 176, of the General Statutes of Kansas of 1868, provides:

“Whenever it shall become necessary in order to raise sufficient funds for the purchase of a school site or sites, or to erect a suitable building or buildings thereon, it shall be lawful for the board of education in every city coming under the provisions of this act, with the consent of the council, to borrow money, for which they are hereby authorized to issue bonds, bearing interest at the rate of not more than ten per cent., which bonds shall be redeemed in not more than twenty years from their date; and the said board of education is hereby authorized to sell said bonds at not less than seventy-five cents on the dollar.”

In the case of Board of Education v. De Kay, 148 U. S. 591, 13 Sup. Ct. 706, 37 L. Ed. 573, Justice Brewer, speaking for the court, says:

“Now, it is insisted that consent could only be given by an ordinance, and not by resolution, and in support thereof the case of Newman v. Emporia, 32 Kan. 456, 4 Pac. 815, is cited. * * * The general rule is that, where the charter commits the decision of a matter to the council and is silent as to the mode, the decision may be evidenced by a resolution, and need not necessarily be by an ordinance. * * * Nor is there anything in the.case in 32 Kan. 456, 4 Pac. 815, in conflict with this. That simply holds that, when, a charter holds that certain things be done by ordinance, they cannot be done by resolution. In this act incorporating cities of the second class there is nothing which either in terms or by implication requires that the consent of the city council be given only by ordinance. A resolution was, therefore, sufficient.”

“Section 6 of the act to provide for work upon the streets, approved March .18, 1885, (St. 1885, p. 151, c. 153), which provided ‘that the city council may by general ordinance prescribe general rules directing the superintendent of streets and the contractor as to the materials to be used, and the mode of executing the work on all contracts thereafter made/ is permissive, and not mandatory upon the city council, and the prescribing of general rules is not a condition precedent to the jurisdiction of the council to order a street improvement, where both the order and the contract for doing particular work sufficiently specifies the material to be used and the mode of doing the work.” (Santa Cruz Rock Pavement Co. v. Heaton, 105 Cal. 168, 38 Pac. 693.)

In the case of National Tube Works Co. v. City of Chamberl ain, 5 Dak. 54, 37 N. W. 761, the court says:

“This is not strictly a question of ultra vires, for it is admitted that the city council has the power, under the charter, to build and maintain a system of waterworks and contract for that pur pose. But counsel for appellant insist that before such authority could be exercised it was necessary to pass an ordinance for that purpose. This might be true, if the city charter put such a limitation on the powers of the council on this subject, expressed or implied. After a careful examination of that instrument we find no such limitation, and therefore conclude that it was unnecessary that an ordinance should have been enacted. Gas Co. v. San Francisco, 9 Cal. 453; Green v. City of Cape May, 41 N. J. Law, 45; City of Quincy v. R. R. Co., 92 Ill. 21; Messenger v. City of Buffalo, 21 N. Y. 196. But, conceding that an ordinance of the city council should have preceded this contract, and that there was, for this reasonj a technical want of power to make it, still the appellant received and retained the property of the respondent, furnished at its instance and request, and enjoyed the use and benefit thereof. It cannot, therefore, be heard to object that it was not empowered to do what it promised in return simply because the manner of entering into the contract was not strictly in accordance with the mode prescribed by its charter, but not ultra vires as to its provisions. Hitchcock v. Galveston, 96 U. S. 341, 24 L. Ed. 659; Moore v. Mayor, 73 N. Y. 238, 29 Am. Rep. 134; Board, etc., v. Railway Co., 47 Ind. 407, 17 Am. Rep. 702. In the case last cited the court says: “Although there may be a defect of power in a corporation to make a contract, yet if a contract made by it is not in violation of its charter or any statute prohibiting it, and the corporation by its promise induced a party, relying on the promise and in the execution of the contract, to expend money and perform his part thereof, the corporation is liable on the contract.’ ”

There are authorities that go further in recognizing the doctrine of estoppel, the leading one of which is the case of Tones’ Executors v. City of Columbus, 39 Ohio St. 281, 48 Am. Rep. 438; 3 Amer. & Eng. Corporation Cases, 656, wherein the court said:

"We have already seen that a petitioner for the improvement 'has the right to rely on the city council proceeding legally and regularly upon his petition. Certainly one who is not a petitioner has the same right. There can be no waiver of this defect, and no estoppel which will prevent him from asserting it after the work is completed, if he is ignorant of it before the work is completed, unless, indeed, circumstances exist which made it his duty to inform himself, or show his ignorance to be culpable. Just how this knowledge is to be shown it is not easy to say. That it may be shown by circumstances, in this as in any other case where knowledge is an essential element, is no doubt true. Infirmities in the public statute he may be presumed to know, but not in the proceedings of the council or municipal officers, whose acts, as we have seen, he has the right to presume are regular. Undoubtedly those petitioning in this case for the privilege of the act, or voting for the commissioners, or acting as commissioners, or talcing any active part under the statute in causing the improvement to be made, may be presumed to know that the improvement is being made, and that its cost is to be assessed under the provisions of the statute, upon abutting property. This presumption, in even these respects, cannot extend to those who have taken no such part, but are charged with silence only. When the above-named requirements are found, and it is shown that the property owner has been benefited by the improvement, at least to the extent that he has been thus benefited, he will be estopped from denying his liability to pay. It then became his duty to act upon his rights, before the city, for his benefit, expended its money in making the improvement upon the faith that he would pay his just share thereof. Had he spoken then, all that he now asserts as illegality would have been corrected, or the expenditure stopped; or, if not, then it was not at his peril that the expenditure was made. It was as much his duty under these circumstances to make known his objections and assert his rights as if he saw another person making improvements and expending money for his benefit under the .erroneous impression that he was liable and expected to pay for the same. If, with knowledge of the facts, he failed to speak, but allowed the improvement anfi expenditure to be made, he would not be permitted to enjoy the benefits conferred and refuse to pay for them. He would be estopped to deny his liability to pay the fair value of what he received. There is no material difference, under these circumstances, whether the improvement is directly on the land of the owner, or upon the highway upon which such land abuts, nor that the expenditure was made by the city and not by an individual. The presumption that the city was acting in good faith, the owner's knowledge that they were acting without authority, that the improvement was for his benefit, that it was made upon the faith that he would pay for it, demanded of him, in fairness, that he make known his rights and intentions then, or afterwards keep his peace. In either case, to the extent that the benefit has accrued to him, equity will require him to make compensation.

“Whether the assessment itself is to be considered a fair apportionment of the benefits conferred, even prima facie as against an owner estopped by his silence, or whether the limitation upon •the power of assessment to 25 per centum of the value of the •property, found in the municipal code, is applicable to this case, are questions which are not now material for us to consider. It is'safe to assume, however, that no application of an equitable •rule will be made that will operate inequitably. It is not so much in cases of this kind that the estoppel, which arises from silence, gives validity to an invalid proceeding or contract, as that the party estopped will not be permitted to repudiate it, except on equitable terms. Am. Dock & Imp. Co. v. School Trustees, 35 N. J. Eq. 181. The inequity exists in claiming that the benefits which accrued to him-thereby shall be enjoined without compensation. The maxim, ‘ex aequo et bono/ should govern. * * * • I am not quite able to see why, if inaction or silence, with knowledge, works an estoppel where a permanent improvement of a public street is made notwithstanding the tribunal had not jurisdiction to order it, by reason of the nonexistence of a condition precedent fact, it does not work an estoppel, although the tribunal had no jurisdiction to order the improvement, by reason of the unconstitutionality of the statute under which such- order was made, unless, indeed, the acts arc per se illegal or malum prohibitum. In either case there was a want of power in the tribunal ab initio. Where the infirmity of the act of the corporation is that it was ultra vires, but not prohibited by the,, charter or public law, an estoppel may arise, either from acts or inaction, which will prevent the corporation, a stockholder, or an individual dealing with it from asserting such infirmity. When, however, it is a question not between the corporation and individuals, but the public at large is interested, as in the case of an act per se wrong, or prohibited, no act can give it validity. See Hitchcock v. City of Galveston, 96 U. S. 341, 24 L. Ed. 659, and cases cited; Kent v. Quicksilver Mining Co., 78 N. Y. 184

“In the latter case the rule'is thus stated by Folger, J.: ‘In the application of the doctrine of ultra vires, it has to be borne in mind that it has two phases — one where the public is concerned, and one where the question is between the corporate body and the stockholders in it, or between it and its stockholders, and third parties dealing with it, and through it with them. When the public is concerned to restrain a corporation within the limit of the power given to it by its charter, and assent by the stockholders to the use of the unauthorized power by the corporate body will be of no avail. When it is the question of the right of the'stockholder to restrain the corporate body within its express or incidental powers, the stockholder may in many cases be denied on’ the ground of his express assent, or his intelligent, though tacit, consent to the corporate action. A corporation may do acts which affect the public to its harm, inasmuch as they are per se illegal, or are mahm prohibitum. Then no assent can validate them. It may do acts thus illegal though there is a want of power to do them, which affect only the interest of the stockholders. They may be made good by the assent of the stockholders, so that strangers dealing in good faith with the corporation will be protected in a reliance upon those acts. Bissel v. Mich. So. R. R. Co., 22 N. Y. 269; 2 L. R. (Exch.) 390; Whitney Arms Co. v. Barlow, 63 N. Y. 63, 20 Am. Rep. 504; L. R. (7 Com. Pl.) 43; L. R. (H. of L.) 249. * * * And where third parties have dealt with the company, relying in good faith upon corporate authority to do an act, there is not needed that there be an express assent thereto on the part of the stockholders to work an equitable estoppel. Their conduct may have been such, though negative in character, as to be taken for a,n acquiescence in the act, and, when harm would come to such third parties if the act were held invalid, the stockholders are estopped from questioning it. We suppose acquiescence, or tacit assent, to mean the neglect to promptly and actively condemn the unauthorized act, and to seek judicial redress, after the knowledge of the committal of it, whereby innocent parties have been led to put themselves in a position from which they cannot be taken without loss. It is the doctrine of equitable estoppel which applies to members of associated or corporate bodies, as well as to individuals.-’

“We presume the estoppel in such case would apply as well to third persons dealing with the corporation and receiving the benefit of the ultra vires act or contract as to members of the corporation, and would arise from the same facts. It may be suggested here that while there was a want of power to order this improvement under the act in question, and perhaps a total want of power to issue the bonds, there was ample power vested in the corporation to make the improvement and assess the cost of it under valid existing law; and, whatever may be said about the rights of the holders of the bonds thus issued without authority, it dóes not necessarily follow that the question between the city and the property holders, or the contractors doing the work, is the same. Hitchcock v. City of Galveston, supra. Several of ,the plaintiffs allege that they were married women, owning in their own right and as their separate property the lots of lands abutting upon the street upon which the assessment is charged. The improvement in question, being for the benefit of such separate property and relating thereto, and the benefits accruing therefrom attaching to such separate property, the rules heretofore announced apply to them as fully as if they were femes sole. As such owners they were vested with the full right to petition, to vote, and to act precisely as any other owner, and whatever would act as an estoppel, were they sole, will, with respect to such separate property, have the same effect notwithstanding their cover-ture.”

Section 348, Wilson’s Rev. & Ann. St. 1903, provides that “the powers granted to and conferred upon cities of the first class shall be exercised by the mayor and council of such cities as provided by law.” Section 370, Wilson’s Rev. & Ann. St. 1903, provides that “cities coming under the provisions of this act in their corporate capacities, are authorized and empowered to enact ordinances for the following purposes, in addition to the other powers granted by law.” One of those purposes is for bringing streets to grade, and for paving, macadamizing, curbing, and guttering all streets, avenues, and alleys, the assessment to be made for each block separately on all lots and pieces of ground, etc. Now, prior to the enactment of section 415, Wilson’s Rev. & Ann. St. 1903, by the Legislature of Oklahoma Territory in the year 1895, the sole power to pave and macadamize streets was by virtue of the passage of an ordinance for that purpose; but since the enactment by the Legislature in 1895 of said section 415, Wilson’s Rev. & Ann. St. 1903, identically the same, to the extent quoted, as section 444 of Wilson’s Rev. & Ann. St. 1903, it is provided:

“When the city council shall deem it-necessary to grade, pave, macadamize, gutter, drain or otherwise improve any street, alley, avenue or lane, or any part thereof, within the limits of the city, ' for which a special tax is to be levied as herein provided, such council shall by resolution declare such work or improvement necessary to be done, and such resolution shall be published for four consecutive weeks in some newspaper of general circulation in the city; and if the owners of a majority of lots or parcels of land liable to taxation therefor, shall not, within twenty days thereafter, file with the clerk of said city, their protest against such improvements, then such council shall have the power to cause such improvements to be made and to contract therefor and to levy the taxes as herein provided.”

The declaring by resolution and the publication of the same for four consecutive weeks in some newspaper of general circulation in the city is a condition precedent to jurisdiction, and, when that is done without protest on the part of the property owners to be affected, then the council shall have the power to cause such improvement to be made. Prior to the enactment of that section cities were authorized and empowered to enact ordinances for the purposes of paving, and, of course, when no ordinance was enacted, there was no power in the council to have it legally done. At that time the passage of the ordinance was a condition precedent to the mayor or council having jurisdiction or power to cause such (improvements to be made. It would be the better practice for the council to direct all such acts by first passing an ordinance or resolution; but, as before stated, it is not necessary to determine as to whether or not an ordinance is required, in order to decide this case.

Section 444 further contains a proviso to the effect:

“The property owners on any street of not less than two thousand feet in length, may, by petition signed by a majority of such property owners, request the city council to pave such streets or part of street with any material used for standard paving, to be designated in such petition. And it shall thereupon be the duty of the city council to proceed to pave such street in accordance with the prayer of such petition, and no resolution or notice of intention to pave or publication thereof shall be necessary.”

This provision, when, considered with the other sections of the act of the Oklahoma Legislature of March 5, 1901, strongly indicates that no ordinance was required after the resolution declaring the necessity therefor had been duly passed and publication, thereof made, as required by law. But how could the property owners be injured by the fact that no ordinance directing the paving to be done was passed? Had the ordinance been passed, how would it have benefited the abutting property owners? The declaring of the necessity by resolution and the publication of the same was for the benefit of the abutting property owners. So that if a majority of such property owners did not desire the improvements to be made, and were not willing to be taxed therefor, within 20 days they would be permitted to file with the clerk their protests and thereby arrest such improvement. In other words, said section 444, in providing for this resolution and the publication thereof, and for the filing of protest by the majority of abutting property owners, provided a referendum for such property owners as to such proposed improvement. And further on the proviso therein contained provides for an initiative; that is, where a majority of such property owners requested the city to pave such streets or parts of streets with any material used for standard paving by designating the same in such petition, that thereupon it be the duty of the city council to proceed to pave such street in accordance with the prayer of such petition, and that no notice of publication of the resolution should be necessary. This affords, as to the kind of material, the exercise of the principle of the initiative.

Section 445, Wilson’s Rev. & Ann. St. 1903, provides that:

“The abutting lots, pieces or parcels of ground shall be charged with the cost of making any improvements herein specified, to the centre of the block, where the abutting way is on the exterior of the block, and to the exterior of the block where the improvement is made on an alley or other public way in the interior of such block, each quarter block shall be charged with the due proportion of paving both the front and side streets of such block, together with the area found by intersections and alley crossings, which cost shall be apportioned among the lots and subdivisions of such quarter block according to the benefits to be assessed to each lot or parcel. If any portion of the improved district shall not be platted into lots and blocks, the council shall include such ground in the proper quarter block district for the purpose of appraisement and assessment as herein provided.”

When the resolution declaring the necessity of such improvements and notice was given, there could be no other presumption or fact carried to the abutting property owners than that such pavement, when done, should be paid by a special tax levied upon them. No protest of any kind was lodged with the clerk against such proposed improvement, and the referee found: “That the plaintiffs, as citizens of Shawnee, received notice of said improvement, and permitted said work to be done without objection to the city council, and knowingly received the benefits thereof.” Under the authorities heretofore cited they are estopped, and will not be heard to question the authority to have such improvements made.

As to assessment: In the case of French v. Barber Asphalt Paving Co., 181 U. S. 344, 21 Sup. Ct. 632, 45 L. Ed. 879, the court says:

“This array of authority was confronted in the courts below with the decision of this court in the case of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, which was claimed to overrule our previous cases, and to establish the principle that the cost of a local improvement cannot be assessed against abutting property according to the frontage, unless the law under which the improvement is made provides for a preliminary hearing as to the benefits to be derived by the property to be assessed. But we agree with the Supreme Court of Missouri in its view that such is not the necessary legal import of the decision in Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443. That was a case whereby, by a village ordinance apparently aimed at a single person, a portion of whose property was condemned for a street, the entire cost for opening the street including not only the full amount paid for the strip condemned but the cost and expenses of the condemna-ation proceeding, was thrown upon the abutting property of the person whose land was condemned. This appeared both to the court below and to a majority of the judges of this court to be an abuse of the law, an act of confiscation, and not a valid exercise of the taxing power. This court, however, did not affirm the decree of the trial court awarding a perpetual injunction against the making and collection of any special assessments upon Mrs. Baker’s property, but said: ‘It should be observed that the decree did not relieve the abutting property from liability for such amount as could be properly assessed against it. Its legal effect, as we now adjudge, was only to prevent the enforcement of the particular assessment in question. It left the village, in its discretion, to take such steps as were within its power to take, either under existing statutes or any authority that might thereafter be conferred upon it to make a new assessment upon the plaintiff’s abutting property for so much of the expense of the opening of the street as was found upon due and proper inquiry to be equal to the special benefits accruing to the property. By the decree rendered the court avoided the performance of functions appertaining to an assessing tribunal or body, and left the subject under the control of the local authorities designated by the state.’

“That this decision did not go to the extent claimed by the plaintiff in error in this case is evident, because in the opinion of the majority it is expressly said that the decision was not inconsistent with out decisions in Parsons v. District of Columbia, 170 U. S. 45, 56 18 Sup. Ct. 521, 42 L. Ed. 943, and in Spencer v. Merchant, 125 U. S. 345, 357, 8 Sup. Ct. 921, 31 L. Ed. 763. It may be conceded that the courts of equity are always open to afford a remedy where there is an attempt, under the guise of legal proceedings, to deprive a person of his life, liberty, or property without due process of law. And such, in the opinion of a majority of. the judges of this court, was the nature and effect of the proceedings in the case of Norwood v. Baker. But there is no such state of facts in the present case. Those facts are thus stated by the court' of Missouri: ‘The work done consisted of paving with asphaltum the roadway of Forest avenue, in Kansas City, 36 feet in width, from Independence avenue to Twelfth street, a distance of half a mile. Forest avenue is one of the oldest and best improved residence streets i,n the city, and all of the lots abutting thereon front the street and extend therefrom uniformly the depth of an ordinary city lot to an alley. The lots are all im proved and used for residence purposes, and all of the lots are substantially on the grade of the street as improved, and are similarly situated with respect to the asphalt pavement. The structure of pavement along its entire extent is uniform in distance and quality. There is no showing that there is any difference in the value of the lots abutting on the improvement.’ What was complained of was an orderly procedure under a scheme of local improvements prescribed by the Legislature and approved by the courts of the state as consistent with constitutional principles.”

In this case the procedure was inaugurated conformably to the Kansas City charter by the adoption of a resolution by the common council of the city declaring the work of paving the street, and with a pavement of a defined character, to be necessary, which resolution was first recommended by the board of public works of the city. This resolution was thereupon published for 10 days in the newspaper doing the city printing. Thereafter the owners of a majority of front feet on that part of the street to be improved had the right, under the charter, within 30 days after the first day of publication of such resolution to file a remonstrance with the city clerk against the proposed improvement, and thereby divest the common council of the power to make the improvement, and such property owners had the 'right, by filing in the same period a petition so to do, to have such street improved with a different kind of material or in a different manner from that specified in the resolution. In this instance neither such a remonstrance nor petition was filed, and the common council, upon the recommendation of the board of public works, enacted an ordinance requiring the construction of the pavement. The charter requires that a contract for such work shall be let to the lowest, and best bidder. Thereupon bids for the work were duly advertised for, and, the plaintiff company being the lowest and best bidder therefor, a contract was on July 31, 1904, entered into between Kansas City and the plaintiff for the construction of said pavement. The contract expressly provides that the work shall be paid for by the issuance of special tax bills according to the provisions of the Kansas City charter, and that the city should not in any event be liable for or on account of the work. The cost of the pavement was apportioned and charged against the lots fronting thereon according to the method prescribed by the charter, which is that the total cost of the work shall be apportioned and charged against the lands abutting thereon according to the frontage of the several lots or tracts of land abutting on the improvement. The charge against each lot or tract of land was evidenced by a tax bill. The tax bill representing the assessment against each lot was by the charter made a lien upon the tract^of land against which it was issued, and was prima facie evidence of the validity of the charge represented by it. Such lien can be enforced only by a suit in a court of competent jurisdiction, against the owners of the land charged. No personal judgment was authorized to be rendered against the owner of the land. The right was expressly conferred on the owner of reducing the amount of the recovery by pleading and proving any mistake or error in the amount of the bill, or that the work was not done in a good and workmanlike manner. The judgment was for the plaintiff for the amount due on the tax bill and for the enforcement of its lien. See statement of facts in Barber Asphalt Paving Co. v. French, 158 Mo. 534, 58 S. W. 955, 54 L. R. A. 492.

Every person, as a member of a municipal community, thereby enjoying the incident benefits, takes notice of the accompanying obligations. Streets are to be laid out, graded, paved, and lighted. The constabulary must be maintained to enforce peace and preserve order. Sewerage systems and water supplies must be provided. No o,ne is entitled to enjoy these advantages and to be permitted to successfully contend that the laws, ordinances, and resolutions under which such benefits and advantages are created, regulated, and controlled, are invalid, and thereby escape the resultant burdens. The citizen of the modern municipality and property owner thereof take notice of such necessities. He owes his personal service to maintain order and promote the public good in his municipalitjr, just as he owes to the nation his service to protect against hostile encroachments and invasion. No man can expect to have property in cities, abutting on public thoroughfares and streets, without bearing the burdens of special taxation to maintain grades, build sidewalks, and macadamize and pave the streets; and he acquires his property with the full knowledge of the fact that the legislative power of the state can be exercised to levy and provide for an assessment or special tax for such improvements. The legislative authority of the state, or, when properly authorized to be exercised, the municipality, may determine over what territory to apportion the burdens, and the whole.subject of taxing districts belongs to the Legislature, and the authority may be left to local boards or bodies. County of Motile v. Kimball, 102 U. S. 703, 26 L. Ed. 238; Bauman v. Ross, 167 U. S. 548, 17 Sup. Ct. 966, 42 L. Ed. 270; Shoemaker v. U. S., 147 U. S. 282, 13 Sup. Ct. 361, 37 L. Ed. 170. Also it is within the power of the Legislature to conclusively determine in advance what improvements shall be taxed against certain districts, and it is presumed that the Legislature has determined in advance what property shall be benefited to the extent of the cost of such improvement. French v. Barter Asphalt Co., 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879; Paulsen v City of Portland, 149 U. S. 30, 13 Sup. Ct. 750, 37 L. Ed. 637; Meier v. City of St. Louis, 180 Mo. 391, 79 S. W. 955; Cooley on Taxation (3d Ed.) vol. 2, p. 1257; Harton v. Town of Afondale, 147 Ala. 458, 41 South. 935.

There is no proof offered by plaintiffs that their abutting property is assessed for a greater proportion than same would have been, had the question of benefits to such lots been fully inquired into by the appraising board of the city council. Their finding, ivhen approved by the council, is presumed to be correct. Cooley on Taxation (3d Ed.) col. 2, p. 1258. The referee’s finding as to this matter was as follows: “But I do not find that said ap-praisement or assessment is any way inequitable or unjust.” The burden is upon the party seeking relief to show that he is entitled to same and has adopted the appropriate remedy. City of Spokane v. Browne, 8 Wash. 317, 36 Pac. 26; McHenry v. Selvage et al., 99 Ky. 232, 35 S. W. 645; Meier v. City of St. Louis et al., 180 Mo. 391, 79 S. W. 955; Matthews v. Kimball et al., 70 Ark. 451, 66 S. W. 651, 69 S. W. 547; Morse v. City of Omaha, 67 Neb. 427, 93 N. W. 734; Clinton v. City of Portland, 26 Or. 410, 38 Pac. 407; Portsmouth Savings Bank et al. v. Omaha, 67 Neb. 50, 93 N. W. 231; Cooley on Taxation, p. 1255.

There appearing no reversible error in the record, the judgement of the lower court is affirmed.

All the Justices concur.