Rep. 791)-by the examination of witnesses under oath, touching a criminal charge, before the accusation may be filed, without hearing any testimony under any of the rules governing even an ex parte tribunal, like a grand jury. But we have found similar statutes elsewhere, and they have been either upheld, or vigorously criticised, but never denounced as unconstitutional.

In Indiana criminal prosecutions by information of the prosecuting attorney, including all offenses intermediate between those within the original jurisdiction of justices of the peace and that of the grand jury, is permitted by statute, and the information is filed upon an affidavit lodged with the clerk of a court of record for the knowledge of the prosecuting attorney, or deposited with him. This statutory practice has been upheld by the courts of that state, and is not considered of doubtful constitutionality. See State v. Boswell, 104 Ind. 541, 4 N. E. Rep. 675, where it was held that the constitution authorized this method, but that it could only be followed where authorized by statute. In Missouri the constitution provides for procedure by indictment in felonies, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger, and that in all other cases offenses shall be prosecuted by indictment or information, as concurrent remedies. The method of procedure by information in Missouri is similar to that in Indiana, and is regulated by statute. No preliminary examination is necessary. The prosecuting attorney proceeds upon the affidavit filed either with him, or the clerk of some court of record. This statute has been upheld, and has never been questioned as unconstitutional. It has been held that the affidavit alone is not sufficient where made by a private person, but that the information must be filed by the prosecuting attorney. State v. Huddleston, 75 Mo. 667; State v. Sebecca, 76 Mo. 55; State v. Kelm, 79 Mo. 515; State v. Briscoe, 80 Mo. 643. The last two cases cited bear upon the question here, and the English common law relating to the practice by informations; and in State v. Kelm, in declaring that no private citizen should be intrusted with the power to lodge an accusation upon his own affidavit, the court say: "The injustice and abuse of such process, left at the caprice, spite, or malice of one not under the sanction of official duty, is apparent; and therefore the framers of the constitution employed the term 'information,' without more, well understanding its common-law import and meaning. And we are not authorized, nor is the legislature, to extend its meaning and use." In the case of In re Dolph, 28 Pac. Rep. 470, the supreme court of Colorado held that due process of law in a prosecution for felony does not necessarily include an indictment by a grand jury, and that

the crime may be prosecuted by information, where the probable guilt of the accused has been duly ascertained and certified by a previous preliminary examination. After stating that such a previous inquiry had been had antecedent to the information, and detailing the steps required by the statute of Colorado in such initial inquiry as to the probable cause of the guilt of the accused by a magistrate, Elliott, J., says: "Such are the safeguards for the protection of persons accused of crime, by the provisions of the act under consideration. As all these requirements have been observed in the petitioner's case, the objection that he has been deprived of his liberty, without due process of law is not, in our judgment, sustained. Whether an information filed in a case where the accused had not been previously bound over or committed upon a preliminary examination should be regarded as due process of law is a question which need not be determined, since the provisions of the statute applicable to the present controversy are distinct and separate from those providing for information in other cases." So it was held by the court in the case of In re Humason, 46 Fed. Rep. 388, where the provisions of the statute of Washington were before the United States district court for the eastern district of that state. It provided for prosecution by information by the prosecuting attorney without previous preliminary examination, and is very broad. The court strongly intimated that such a practice was arbitrary and despotic, and that arbitrary power in a single individual to bring a citizen into court, and place him on trial for a crime, may be so contrary to the spirit of the fourteenth amendment of the federal constitution as to be considered obnoxious to the provisions of that article, and it further remarks: "This court will not affirm to the contrary in the decision in this case. It is unnecessary to do so." It was held that as the act gave power to the prosecuting attorney to file informations in cases in which persons have been accused of crime before a committing magistrate, and admitted to bail or held in custody while awaiting trial, and that other statutes gave authority to magistrates to hold such examinations,-just such proceedings as were held constitutional and valid in the leading case of Hurtado v. People, 110 U. S. 516, 4 Sup. Ct. Rep. 111,-and the petitioner for the writ of habeas corpus not showing affirmatively that he was not proceeded against under such provisions of the act providing for preliminary inquiry be fore the information was lodged against him, the writ was denied. Although these cases intimate very clearly that the courts have regarded with much dislike a proceeding by information by a single official with out a previous judicial inquiry as to probable cause of guilt, as we did in the case of In re Wright, supra, it has never been held,

In any case which we have found, after the most diligent search, that such a provision, however caustically it has been condemned as unwise or harsh, is obnoxious to the constitutional guaranty that no person shall be deprived of life or liberty without due process of law, or any other constitutional safeguard erected for the protection of the citizen. The matter was directly before the court in the case of Swart v. Kimball, 43 Mich. 443, 5 N. W. Rep. 635, where the act of 1857 provided for procedure by indictment or by information, without previous preliminary examination, for trespasses on the public lands. It was said that the general law providing for procedure by information after such inquiry passed two years later, but in force long before the commission of the alleged offense, might not apply to such special offenses, and that the special act might govern. The special act was denounced as unconstitutional, for the reason that it undertook to authorize a trial in some other county than that where the offense was alleged to have been committed, as not affording the accused a trial by the jury of the vicinage; but although the court speaks of the omission of the provision for a previous preliminary examination before lodging the information as a "poor and insufficient provision," and of the act generally as regardless of private rights, it was not held unconstitutional for this reason. The act provided that the charges should be verified by the affidavit of some credible person, but the verification was upon information and belief; and so it was held that the act declared unconstitutional, oppressive, and void, as providing for a trial by a jury other than that of the vicinage, was not followed. The distinction was made between the case and that of Washburn v. People, 10 Mich. 372, as to the verification of the information. In the latter case the verification of the prosecuting attorney on information and belief was held good after there had been a preliminary examination, while in the former case it was held that no such inquiry had been had. Mr. Bishop says: "Except by force of some statutory provision not found generally in our states, the preliminary examination is not necessary; being a mere expedient to prevent the suspected person from escaping, or for preserving the evidence, or keeping the witnesses within control. But in a few of the states the preliminary examination must, by statute, precede the indictment in particular cases, or in all." 1 Bish. Crim. Proc. 239a.

After a careful examination of the case, on the authorities presented, and on many we have found ourselves, we come to the conclusion that the information, under the law as it then was, could be filed by the prosecuting attorney without a previous preliminary examination or judicial inquiry of the accused on a similar accusation, and that the law authorizing such action was

not unconstitutional and void. We therefore answer the questions reserved to us by the district court of Sheridan county as follows: First, the bail bond of Krohne is not void for any of the reasons charged in the exceptions of the sureties, and which have been urged in this court; and, second, that the sureties are liable under said bond, and judgment should be rendered against them in this proceeding. The clerk of this court will transmit a certified copy of this opinion to said court, with the order herein, and it is directed to proceed to render judgment against the sureties to the bond.

CONAWAY and CLARK, JJ., concur.

(24 Or. 504) WILSON et al. v. CITY OF SALEM et al.' (Supreme Court of Oregon. Sept. 12, 1893.) PUBLIC IMPROVEMENTS-ASSESSMENT ON ABUTTING OWNERS-VALIDITY-CONSTITUTIONAL Law.

1. A city charter giving power to improve streets at the expense of adjoining property is not unconstitutional, as depriving persons of property without due process of law, because it does not expressly provide for notice to the property owners at any stage of the proceedings.

2. Under a city charter making each lot or part liable in whole or in part for the cost, as the council may determine, of an improvement on the half street in front thereof, and providing that the council may assess on each lot or part thereof liable therefor its proportionate share of said cost, it is proper to make an assessment by the front foot.

3. An abutting property owner, with actual knowledge that the work is being done, cannot wait till the completion thereof to object to the method of assessment or other irregularities in the action of the city council, which do not affect their jurisdiction.

4. On appeal from a decree for plaintiff given on demurrer to the answer, the allegations of the latter must be taken as true.

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Action by J. Q. Wilson and others against the city of Salem and H. P. Minto. From a decree for plaintiff, the city appeals. Re versed.

The other facts fully appear in the following statement by Bean, J.:

This is a suit to restrain the execution of a warrant for the sale of plaintiffs' property for delinquent street assessments, commenced after the work had been completed, and accepted by the city, and the property advertised for sale. The case comes here on an appeal from a decree in favor of the plaintiff's given by the court below, after sustaining their demurrer to the answer, and defendant refusing to further plead. From the complaint and answer it appears that some time prior to the 14th day of March, 1892, the city of Salem gave notice that on said day it would receive bids for the improvement of Chemeketa street according to the plans and specifications on file in the city surveyor's office. After the bids had been received, and the probable cost of makFor opinion on rehearing, see 34 Pac. Rep. 691

ing the proposed improvement thus ascertained, the recorder, on the 15th day of March, 1892, in pursuance of the terms of an ordinance passed in 1891, entitled "An ordinance to provide for notice to parties in relation to assessments for street improvements," duly published, as in the said ordinance provided, the following notice: "Notice of assessment: Notice is hereby given that the common council of the city of Salem, Oregon, will at 8 o'clock p. m. of the 5th day of April, 1892, at the common council chambers at Salem, Oregon, proceed to assess upon each lot or part thereof liable therefor its proportionate share of the cost of grading, graveling, and curbing all that part of Chemeketa street described as follows, [here follows a particular description of that portion of the street to be improved,] according to the plans and specifications thereof, on file in the office of the city surveyor of Salem, Oregon. Done by the city of Salem, Oregon, this 15th day of March, A. D. 1892. M. E. Goodell, Recorder." At the time and place stated in the notice, the council convened for the purpose indicated, but, a quorum not being present, adjourned until the following day, when it proceeded to ascertain and determine, and did then and there determine, the proportionate share of the cost of making the proposed improvement, to be assessed upon each lot and part thereof liable therefor, by estimating the same according to frontage, none of the plaintiffs appearing or making any objections thereto. On the 3d day of May, 1892, the council passed Ordinance No. 242, for the improvement of the street, in which it declared that it was expedient to grade, gravel, and curb the street, and do all things required by the specifications, except that selected gravel was substituted for screened gravel; that the proposed improvement should be made wholly at the expense of the abutting property, and be assessed upon said property "in proportion to the number of front feet abutting on the street;" and that the probable cost thereof was $7,084. This ordinance also declares the proportionate share of the cost of making such improvement, assessed upon each lot or part thereof liable therefor, as previously ascertained and determined by the council, except that a reduction was made on account of the change in the specifications from screened to selected gravel, and directs the recorder to enter a statement thereof in the docket of city liens. It also recites that Archie Mason is the lowest and best bidder for the work, and awards the contract to him for $7,084. The improvement was completed in pursuance of this ordinance, and accepted by the city. The validity of this assessment is challenged by the plaintiffs, who are the owners of property abutting upon this street, and who, being residents of Salem, had actual knowledge of said improvement as the same was being made.

The decree of the court below was in favor of plaintiffs, and the city appeals.

D'Arcy & Bingham and J. J. Shaw, for appellant. R. P. Boise and Tilmon Ford, for respondents.

BEAN, J., (after stating the facts.) The only question necessary to consider on this appeal is one of jurisdiction and notice to interested parties; for if the city had power to make the improvement, and in doing so violated no express provision of its charter, and the abutting property owners had notice of, and an opportunity for, a hearing upon the question as to the proportionate share of the cost of the proposed improvement to be assessed against their property before the same became irrevocably fixed, a court of equity will not, after the work is completed, restrain the enforcement of the assessment on account of irregularities in the proceedings. The provisions of the charter of the defendant bearing on the question before us, in force at the time of this improvement, are as follows: "Sec. 46. The council is authorized to improve or repair any street or part thereof whenever it deems it expedient, and to declare by ordinance before doing the same whether the cost thereof, in whole or in part, shall be assessed upon the adjacent property or be paid out of the general fund of the city. Sec. 47. If the council declares that a proposed improvement or repairs shall be at the cost, in whole or in part, of the adjacent property, the proposed improvement or repairs shall be made accordingly; but if it declares that the cost thereof, in whole or in part, shall be paid out of the general fund, such repairs may be made as the ordinance may provide, and be paid for accordingly." "Sec. 24. Whenever the council of the city of Salem deems it expedient to improve a street or part thereof, it may proceed to ascertain and determine the probable cost of making such improvement, and assess upon each lot or part thereof liable therefor its proportionate share of such costs." "Sec. 38. Each lot or part thereof within the limits of a street shall be liable for the cost, in whole or in part, as the council may determine, of making a proposed improvement upon the balance of the half street in front." "Sec. 25. Whenever the probable costs of the improvements have been ascertained and determined, and the proportionate share thereof of each lot or part thereof has been assessed, as provided for in section 24, the council must declare the same by ordinance, and direct the city recorder to enter a statement thereof in the docket of the city liens as provided for in the next section." "Sec. 11. A sum of money assessed for the improvement of a street cannot be collected until, by order of the council, ten days' notice thereof is given by the recorder by the pub lication in a weekly or daily newspaper, published in the city of Salem. Such notice

must substantially contain the matters required to be entered in the docket of city liens concerning such assessment. Sec. 12. If, within five days from the final publication of the notice prescribed in section 11, the sum assessed upon any lot or part thereof is not wholly paid to the city treasurer, and a duplicate receipt therefor filed with the recorder, the council may thereafter order a warrant for the collection of the same to be issued by the recorder, directed to the city marshal or other person authorized to collect taxes due the city." These provisions of the charter contain a general grant of power to improve a street at the expense of the abutting property, and the mode of its exercise is not restricted, except as to the manner of making the cost thereof a charge upon the abutting property. The wisdom and expediency of the improvement, the character and cost of the work, the manner of letting the contract or doing the work, are all matters of legislative control, and vested by the charter in the discretion of the council, and upon which the property owners have no constitutional or charter right to be heard. Paulsen v. City of Portland, 13 Sup. Ct. Rep. 750; Spencer v. Merchant, 100 N. Y. 585, 3 N. E. Rep. 682; Id., 125 U. S. 345, 8 Sup. Ct. Rep. 921. It is contended, however, that the charter is unconstitutional, because it makes no provision for notice at any stage of the proceedings to the property owners. We do not understand that it is essential to the validity of a city charter, granting power to improve a street, that it should contain a provision for notice to the property owners. It is enough if the power is granted in general terms; for, as was said by Mr. Justice Brewer in the recent case of Paulsen v. City of Portland, supra: "The city is a miniature state; the council is its legislature; the charter is its constitution; and it is enough if in that the power is granted in general terms, for, when granted, it must necessarily be exercised subject to all limitations imposed by constitutional provisions, and the power to prescribe the mode of its exercise is, except as restricted, subject to the legislative discretion of the council. Thus, in the case of Gilmore v. Hentig, 33 Kan. 156, 5 Pac. Rep. 781, it was held that where a statute authorizes a city to provide for the construction of sewers and drains, and to tax the costs thereof upon the adjacent property owners, but does not require that any notice shall be given to the property owners, held, that such failure to require notice does not render the statute unconstitutional or void, but notice must nevertheless be given, and the city would have a broad discretion with reference to the kind of notice and the manner of giving the same." See, also, Cleveland v. Tripp, 13 R. I. 50; Williams v. Detroit, 2 Mich. 560; Gatch v. Des Moines, 63 Iowa, 718, 18 N. W. Rep. 310. Under a general grant of power to do work of this kind, the city may, by ordi

nance, as was done in this case, provide for notice to the property owner, and the rule is that, if provision is made "for notice to and hearing of each proprietor at some stage of the proceedings upon the question of what proportion of the tax shall be assessed upon his land, there is no taking of his property without due process of law." McMillen v. Anderson, 95 U. S. 37; Davidson v. New Orleans, 96 U. S. 97; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 4 Sup. Ct. Rep. 663; Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. Rep. 921. Now, in this case notice and an opportunity to be heard were given to the plaintiffs in pursuance of an ordinance of the city providing therefor, and prescribing its terms, before any assessment was made or attempted to be made. They did not see fit to avail themselves of the opportunity thus afforded, but now seek relief in a court of equity, because, as they allege, the assessment as made was unequal and unjust. This they cannot be allowed to do. Having had notice and an opportunity to be heard, they should have appeared before the council and made their objection at the proper time, and, not having done so, are now bound by the assessment.

It is next contended that the assessment in this case is void because made according to frontage. Section 38 provides that each lot or part thereof shall be liable in whole or in part for the cost, as the council may determine, of making a proposed improvement upon the half street in front thereof; and section 24 provides that the council may assess upon each lot or part thereof liable therefor its proportionate share of said costs. It thus seems that the rule for estimating the cost of making the improvement in front of a lot or part thereof, and the proportionate share to be assessed thereon, is not prescribed by the charter, but is left to the judgment and discretion of the council. In such case an assessment by the front foot is held valid and constitutional by numerous authorities; and while it may be admitted that such a measure of apportionment seems arbitrary, and likely to operate inequitably in some cases, and liable to other objections of more or less validity, yet, as Judge Cooley says, "the question is a fairly debatable one whether they are likely to be more serious or more frequent than those which are to be anticipated from the selection of some other rule." Cooley, Tax'n, 451. And this question must be deemed settled by the legislative judgment of the council where no mode is prescribed by the charter. King v. City of Portland, 2 Or. 146; Sheley v. City of Detroit, 45 Mich. 431, 8 N. W. Rep. 52; Norfolk City v. Ellis, 26 Grat. 224; Davis v. City of Lynchburg, 84 Va. 861, 6 S. E. Rep. 230; Farrar v. City of St. Louis, 80 Mo. 379. But, whatever may have been the equitable or just mode of assessment under the charter, the one actually adopted by the city, if unwise, was at most only an irregularity,

which might have been corrected if brought to the attention of the council by plaintiffs at the proper time; but, having neglected to do this, we think they are now estopped frem objecting to the assessment as actually made. They had notice of the intended assessment, and an opportunity to be heard before it was made; and, not having availed themselves of the opportunity thus given, they are chargeable with knowledge of the method adopted by the city; and, having suffered the work to proceed to final completion and acceptance without protest or objection, and thus received the benefit of the improvement in the enhanced value of their property, they are now estopped from contesting the validity of the assessment on the ground of any irregularity in the proceedings. 2 Herm. Estop. § 1221; Elliott, Roads & S. 420; Kellogg v. Ely, 15 Ohio St. 64; People v. Utica, 65 Barb. 9; Darst v. Griffin, 31 Neb. 668, 48 N. W. Rep. 819; Lodor v. McGovern. 48 N. J. Eq. 275, 22 Atl. Rep. 199; Taber v. Ferguson, 109 Ind. 227, 9 N. E. Rep. 723; Prezinger v. Harness, 114 Ind. 491, 16 N. E. Rep. 495. In this case the council had jurisdiction under the charter to make the improvement at the expense of the abutting property, and the plaintiffs had notice and were given an opportunity to be heard before the assessment was made. This being so, it is now too late to take advantage of any irregularity which may have occurred in the proceedings. "The weight of authority," says Judge Elliott, "is very decidedly in favor of the rule that, where there is jurisdiction, the property owner who sees the improvement made, and offers no objection until after the work has been done, cannot defeat the assessment upon the ground that the proceedings have not been regular." Elliott, Roads & S. 419. If any irregularities or informalities occurred in the proceedings of the council in directing the work, or by including in Ordinance No. 242 matter that should have been in a separate ordinance, or in changing the specifications from screened to selected gravel after the assessment was made, or in any other particular not affecting the jurisdiction, it would be unjust and inequitable, after the work has been completed and accepted by the city, for a court of equity to restrain the collection of the assessment. The plaintiffs, who are residents of Salem, and had actual knowledge that the work was being done, have stood by and seen the street improved for the benefit of their property without objection, and now ought not to be allowed to shift the burden of making the improvement from themselves to the general taxpayers of the city. As sessments for street and other similar improvements are upheld upon the theory that the property within the assessment district is benefited in a special and peculiar manner in a sum equal to the amount assessed against it, and that the owner has thus received a peculiar and pecuniary benefit by

the improvement which the citizens generally do not share. Unless, therefore, the proceedings under which the improvement was made are so radically defective as to be totally void, the property owner who stood by and received the benefit with apparent willingness will be estopped to assert the invalidity of such proceedings. "He cannot enjoy the benefits, and escape the burden," says Mitchell, C. J., "unless he interferes or gives notice before the benefit is received." Ross v. Stackhouse, 114 Ind. 200, 16 N. E. Rep. 501. Whatever plaintiffs' rights may have been in the beginning, they have stood by and acquiesced until the rights of others have intervened, and they must now in equity be deemed to have made an effectual election to waive any and all irregularities in the proceedings under which such rights have been acquired. This, it seems to us, disposes of the question as to the validity of the assessment; for, as soon as it is ascertained that the council had jurisdiction to make the improvement, and the property. owner an opportunity to be heard on the question of his assessment, the other objections are mere irregularities, which cannot now be urged in a suit to restrain the tax, but which might and should have been raised by some proper proceeding before the work was completed.

It is claimed, however, that the warrant under which plaintiffs' property was advertised for sale was prematurely issued, because no order was ever made by the council authorizing or directing the publication of notice of the assessment, as required by section 11 of the charter. The notice required by this section was evidently designed to give the property owner an opportunity to pay the assessment before any costs should be made thereon, and is therefore a condition precedent to the right to order a warrant for the collection of the same to issue. It is not alleged that the notice was not in fact given; and it affirmatively appearing that an order was made by the council directing the warrant for the collection of the assessment to issue as required by section 12, which could only be done after the publication required by section 11, it would of itself probably operate as a ratification. But, however this may be, the answer denies the allegations of the complaint as to the want. of an order by the council authorizing and directing the notice to be published, and affirmatively alleges that the notice was given in all respects as required by the charter; and, as the case is here on a demurrer to the answer, this allegation must be taken as true for the purpose of this opinion, and we must therefore assume that the order authorizing the publication of the notice was in fact made. It follows from what has been said that the decree of the court below must be reversed, and this cause remanded for fr ther proceedings not inconsistent with this opinion.