Brown v. City of Silverton

• Decision Date: 29 June 1920
• Citation: 97 Or. 441,190 P. 971
• Parties: BROWN ET AL. v. CITY OF SILVERTON.
• Court: Oregon Supreme Court

190 P. 971

97 Or. 441

BROWN ET AL. v. CITY OF SILVERTON.

Supreme Court of Oregon

June 29, 1920

Department 1.

Appeal from Circuit Court, Marion County: Percy R. Kelly, Judge.

Action by J. M. Brown and others against the City of Silverton. Decree of dismissal, and plaintiffs appeal. Affirmed.

This is a suit to enjoin the city of Silverton from collecting a reassessment made on account of a street improvement. Section 71 of the municipal charter, which was in force in 1914 empowered the council to improve the streets; but this section of the charter also provided that "the owner or owners of two-thirds of the property next adjacent thereto may make and file with the council a written remonstrance against the proposed improvement, and thereupon the same shall not be proceeded with." The charter made the abutting property liable for the cost of street improvements. Laws 1891, pp. 539 and 542. In April, 1914, the council ordered that McClaine street be covered with a hard-surface concrete pavement, and caused notices to be published of its intention to pave the street. Witbin the time fixed by the charter the plaintiffs and other abutting owners filed a remonstrance against the proposed improvement. Acting on the theory that only the front footage of the adjacent property should be counted on the remonstrance, the council decided that the remonstrance did not represent "two-thirds of the property next adjacent" to the improvement, and a contract for laying the pavement was let to C. A. Hartley on July 15, 1914. The contractor laid the pavement, and on October 21, 1914, upon the recommendation of the city engineer, the council accepted the improvement. Subsequently in conformity with the directions of the charter, the council passed an ordinance assessing the cost of the improvement against abutting property.

On June 14, 1914, J. G. Lais, together with J. M. Brown, E. J. Brown M. Small, J. H. Brewer, A. F. Blackerby, and Sophia Blackerby, the plaintiffs in the present suit, commenced a suit to enjoin the municipal authorities from letting the contract and proceeding with the improvement. The city answered by claiming that the remonstrance did not represent the necessary number of front feet to make it effective. After hearing the evidence in that case the circuit judge decided that the remonstrance was insufficient, and rendered a decree dissolving a preliminary injunction and dismissing the suit, and then the plaintiffs in that case appealed. Instead of discontinuing the work pending the appeal, the city proceeded with the improvement and completed it before the appeal was heard in this court. The appeal finally terminated on January 16, 1917, in a decree enjoining the city from assessing the abutting property with the cost of the improvement. The decree in this court was based upon our conclusion that under the terms of the charter the sufficiency of the remonstrance should be measured by the superficial area of the abutting property, and not by the number of front feet "adjacent" to the improvement and that when so measured the remonstrance was sufficient to prevent the improvement. Lais v. Silverton, 77 Or 434, 147 P. 398, 150 P. 269, 151 P. 712; Lais v. Silverton, 82 Or. 503, 162 P. 251.

Acting under the authority of article 2, § 2, and article 4, § 1a, of the state Constitution, the legal voters of Silverton at an election held on May 7, 1917, amended the charter by adding to it sections numbered 135, 136, 137, and 138. The amendment, so far as it is material here, reads as follows:

"An act submitted by the common council of the city of Silverton, Marion county, Oregon, to the legal voters thereof to amend an act entitled 'An act to incorporate the city of Silverton, Marion county, state of Oregon,' filed in the office of the secretary of state on the 18th day of February, 1891, to provide that whenever any assessment to cover the cost of any public improvement heretofore or hereafter made shall be annulled, set aside, or declared to be invalid, or shall be repealed by any court or other tribunal, or by the council, the council may, by ordinance, reassess the cost of such improvement upon the properties benefited to the extent of their respective and proportionate share of the full cost of said improvement.

"Be it enacted by the people of the city of Silverton, Marion county, state of Oregon:

"Be it enacted by the common council of the city of Silverton, Marion county, state of Oregon:

"The city charter of the city of Silverton, Marion county, state of Oregon, is hereby amended to read as follows:

"Sec. 135. Whenever any assessment for the opening, altering, grading or other repair or improvement of any street, or the construction, reconstruction or repair of any water or sewer plants, systems, mains or laterals, or for any local improvement whatsoever which has heretofore, or which may hereafter be made by the city has been, heretofore, or shall hereafter be, set aside, annulled, vacated or declared void, or its enforcement enjoined or refused by any court, directly or indirectly, or when the council shall be in doubt as to the validity of any assessment, or any part thereof, the council may, by ordinance, make a new assessment or reassessment upon the lots, blocks or parcels of lands which have been benefited by such improvement, to the extent of their respective and proportionate share of the full value thereof. Such reassessment shall be based upon the special and peculiar benefit of such improvement, to the respective parcels assessed, at the time of the original making of the improvement, but shall not exceed the amount of such original assessment. Interest thereon at the legal rate may be added from the time when such improvement was completed at the discretion of the council. Such reassessment shall be made in an equitable manner, and as nearly as may be in accordance with the provisions of the charter in force at the time it is made. But the council may adopt a different plan of apportionment of benefits when, in its judgment, essential to secure an equitable assessment. The proceedings required by this charter to be had prior to the making of the original assessment shall not be required to be taken or had within the intent of this section in the making of such reassessment.

"Sec. 136. Such reassessment shall be made and shall become a charge upon the property upon which the same is laid, notwithstanding the omission, failure or neglect of any officer, body or person to comply with the provisions of the charter of the city of Silverton, or laws of the State of Oregon, connected with or relating to such improvement or assessment, and notwithstanding the proceeding of the council, or any other officer, board or body, or public authority, contractor or any other person connected with such work or contract may have been defective, irregular or void, and notwithstanding any such irregularity or defect may be jurisdictional, and the provisions hereof authorizing a reassessment shall apply where an improvement has been made, notwithstanding a remonstrance sufficient to defeat the same shall be filed, in the same manner and to the same extent as the provisions hereof would apply in the case of any other defect, irregularity or circumstance rendering the proceeding void. The council shall, by resolution declare the district, and designate the properties that have been or will be benefited by the improvement for which the reassessment is made, and shall direct the recorder to prepare a preliminary assessment upon the property included therein, within a time to be fixed by such resolution. Upon the passage of such resolution the recorder shall, as soon thereafter as such reassessment is prepared, give notice by two successive publications in one of the city newspapers that such preliminary assessment is on file in his office, giving the date of the passage of the resolution directing the making of the same, and stating the time at which the council will hear and consider the objections to said reassessment by parties aggrieved thereby and notifying such persons not to depart from any such hearing or meeting until such reassessment has been completed. And the auditor shall forthwith, following the passage of such resolution also mail to the owner of each lot thereof, or tract of land affected by such assessment, or to his agent, at the last known postoffice address thereof, notice substantially similar to that required to be published. If the postoffice address be unknown, then such notice shall be mailed to such owner or agent at Silverton, Marion county, Oregon.

"Sec. 137. The owner of any property which is assessed on such reassessment, or any person having interest therein, may, within ten days from the date of the last publication of the published notice, file with the recorder objections in writing to such assessment. At the time appointed in such published notice the council shall hear and determine all objections which may have been filed by any interested party. The council shall have the power to adjourn such hearing from time to time and, in its discretion, to revise, correct or set aside such preliminary assessment and order the remaking thereof, and pass an ordinance approving and confirming such reassessment as corrected and remade by it. And the decision of the council shall be final with respect to the regularity, validity and correctness of the reassessment. When such reassessment is completed and confirmed it shall be entered in the docket of city liens, and shall be enforced and collected in the same manner that other assessments for local improvements are enforced and collected under this charter and the laws governing the city of Silverton."

Pursuant to the authority conferred by the...