City of Stanfield v. Burnett

Decision Date15 June 1960
Citation353 P.2d 242,222 Or. 427
PartiesCITY OF STANFIELD, Appellant, v. William C. BURNETT (also known as W. C. Burnett) and Anna W. Burnett, husband and wife, Irene Hogg, First Federal Savings and Loan Association of Pendleton, an Oregon corporation, Frank Sloan and Nettie E. Sloan, husband and wife, and N. D. Bard, Respondents.
CourtOregon Supreme Court

Robert W. Collins, Pendleton, for appellant. On the briefs were Fabre, Collins & Kottkamp, Pendleton.

Edward Joel Clark, Pendleton, for respondents. On the brief were Peterson, Clark, Clark & Peterson, Pendleton.

Before McALLISTER, C. J., and WARNER, PERRY, SLOAN, O'CONNELL, GOODWIN and MILLARD, Justices.

MILLARD, Justice (Pro Tempore).

Plaintiff appeals from that portion of a decree rendered in the circuit court of Umatilla county which sustained a demurrer filed by part of the defendants as to plaintiff's first and second causes of suit and granted judgment to defendants as to such causes.

In each of these causes of suit the plaintiff, a municipal corporation, was attempting to obtain foreclosure of alleged city assessments against property owned by the defendants. This was pursuant to Ordinance No. 117, duly enacted by plaintiff city on August 28, 1951, a copy of which is attached to the complaint and made a part thereof. The ordinance, after declaring plaintiff's intention pursuant to general law and the city charter to acquire, own, construct, equip, and operate a sewer system and disposal plant within and without the city limits, provided for the levy of charges as follows:

'Section 2. There is hereby levied and imposed upon all water users within the City of Stanfield, Oregon using water from the Stanfield Water System, irrespective of whether or not said premises so served are connected with the city sewer system, and also against all premises connected with the city sewer system, irrespective of whether said premises be within or without the city limits of the City of Stanfield, Oregon, and further irrespective of whether or not said premises so connected be served by water from the Stanfield Water System, and also against any and all platted lots and unplatted area are vacant and be within 200 feet of any sewer installation in any street, just and equitable charges for service or subsequent service, maintenance, operation, extension and reconstruction, and the payment of principal and interest on bonds, if any so exist, to establish funds for the foregoing purpose, said funds to be established as hereinafter provided in Sections 3 and 8 hereof.

'Section 3. The just and equitable charges aforesaid are hereby established, determined and declared to be as follows:

'For each sewer user, per month $2.00

For each vacant lot within 200 feet of sewer, per month .25

For each acre of unplatted ground within 200 feet of sewer, per month .25

Garages, per month 7.50

Restaurants and nightclubs, per month 10.00

Service Station, per month 7.50

Hotel, per month 15.00

Creamery (processing mills) per month 15.00

Schools, per month 15.00

Cold storage, per month 3.00

Stores, per month 3.00

Tavern, per month 10.00

Apartments, each per month 2.00

Motels, for business, per month 2.00

for each unit, additional 1.00

All charges herein provided, or hereafter provided shall be charged, paid and collected monthly, and said charges shall be upon a monthly basis only.

* * *

* * *

'The basis for determining charges as set forth above is adopted for the purpose of establishing a fund for financing the construction and operation of sewers and sewage treatment plants, said rates may be adjusted by the Council after construction is completed and the construction and operating costs are more accurately known, but may not be reduced lower than the amounts as set forth above. All moneys thus collected shall be placed in the 'Sewage Fund' and shall be used solely for the purpose of the payment of principal and interest on bonds, and the operation and maintenance of said sewer system.'

Following that, among other things, the ordinance provided that for collection of rates and charges, delivery of water might be withheld or the city might 'use such other and further means as may be provided by the laws of this State of Oregon or permitted by the Charter and Ordinance of the City of Stanfield, and delinquencies may be certified for collection in the manner provided by § 95-1809, OCLA,' or recovered in an action at law.

Plaintiff is attempting in its first cause of suit to collect in the aggregate $450 for alleged 'sewer assessments' on real property located in the city within 200 feet of a sewer, due on account of alleged default in making payment, together with costs and attorney's fees. Plaintiff claims that it has a lien for these sewage charges and is seeking foreclosure. There is no allegation that any use was actually made of the sewer nor that the sewer was connected to the property.

The second cause of suit is identical except as to different property, and the principal amount of the lien is alleged to be $433. It is also alleged that in addition to being within 200 feet of the sewer line, there are houses on the parcels of property that use water from the city water system. Again there is no allegation that the sewer system was being used by this property or connected therewith.

It will thus be seen that insofar as can be determined from the complaint, none of the real property is connected to plaintiff's sewer installations. Further, there is no allegation to be found in either cause of suit to the effect the amounts alleged to be due were ever certified to the county assessor for assessment. The trial court found in effect that even if the charges were valid, plaintiff was limited in its remedy as to either cause of suit by the provisions of ORS 224.220, and that there is no provision for the foreclosure of a lien in such statute. 1 The court further held that since the title to this ordinance provided for 'Just and Equitable Charges upon water users from the Stanfield Water System and upon premises in the city served by the sewer' and since defendants as to the first cause of suit were not as to their property either water users or users of the sewer, this cause of suit could not be sustained.

Plaintiff's sole assignment of error is concerned with the action of the trial court in sustaining a demurrer to each of these causes.

Plaintiff contends that it is entitled to enforce its alleged lien by virtue of ORS 224.400, which provides as follows:

'(1) Each muncipality financing the cost of a sewerage system under authority of ORS 224.310 to 224.420 shall submit to the State Treasurer for approval a schedule of its rates and proposed method of collection of of its sewerage charges. The rates shall be such as, in the judgment of the State Treasurer, shall provide sufficient funds with other revenues, if any, and ad valorem property taxes to liquidate, during the period approved by the State Treasurer, the indebtedness incurred by the municipality to defray the cost of the sewerage system and its appurtenances. Should the rates prove to be insufficient for such purpose, the State Treasurer may direct the municipality to increase the rates to the point at which the sewerage project becomes self-liquidating, and the municipality shall establish forthwith the rates prescribed by the State Treasurer.

'(2) If the State Treasurer so directs, delinquent assessments for sewerage charges shall be certified to the assessor of the county in which the municipality is located and shall be entered upon the tax rolls of the county and be collected and accounted for in the same manner in which city taxes are collected and accounted for. The charges shall constitute liens against the real property of the person against whom they are assessed.

'(3) If required by the State Treasurer, the municipality shall obtain from the State Treasurer approval of the annual budgets and tax levies of the municipality, before they are certified to the clerk and assessor of the county...

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7 cases
  • Ponderosa One Ltd. Partnership v. Salt Lake City Suburban Sanitary Dist.
    • United States
    • Utah Supreme Court
    • June 4, 1987
    ...payments for services furnished. Home Builders Association, 503 P.2d at 452. That characterization is echoed in City of Stanfield v. Burnett, 222 Or. 427, 353 P.2d 242 (1960), overruled on other grounds, Aloha Sanitary Dist. v. Wilkens, 245 Or. 40, 420 P.2d 74, 77 (1966), where property own......
  • K.R.A.M. Corp. v. City of Vernonia
    • United States
    • Oregon Court of Appeals
    • April 28, 1989
    ...also moved for summary judgment on the question of liability, and that motion was denied.2 The parties discuss City of Stanfield v. Burnett et al, 222 Or. 427, 353 P.2d 242 (1960), overruled on other grounds, Aloha Sanitary Dist. v. Wilkens, 245 Or. 40, 420 P.2d 74 (1966), and Hayes v. City......
  • State v. Bartos
    • United States
    • Arizona Supreme Court
    • February 10, 1967
    ...charge to be a debt based on a contractual relationship. See Opinion of the Justices, 93 N.H. 478, 39 A.2d 765; City of Stanfield v. Burnett, 222 Or. 427, 353 P.2d 242; In re Petition of Philadelphia, 340 Pa. 17, 16 A.2d 32; v. City of Duluth, 91 Minn. 53, 97 N.W. 450. In Opinion of the Jus......
  • Hummings v. City of Woodbine
    • United States
    • Georgia Supreme Court
    • September 6, 1984
    ...of the sewer system is not compulsory, although the base payment is required.2 Plaintiffs rely upon such cases as City of Stanfield v. Burnett, 222 Or. 427, 353 P.2d 242 (1960); City of Maysville v. Coughlin, 399 S.W.2d 297 (Ky.1966); Rock Hill Sewerage Disposal Corp. v. Town of Thompson, 2......
  • Request a trial to view additional results
1 books & journal articles
  • Chapter § 57.2 ORIGIN, STATUTORY SCHEME, AND DEFINITIONS
    • United States
    • Oregon Real Estate Deskbook, Vol. 5: Taxes, Assessments, and Real Estate Disputes (OSBar) Chapter 57 Special Assessments
    • Invalid date
    ...municipality's right to enter into a contract. The charge is based on the amount used. City of Stanfield v. Burnett, 222 Or 427, 434-35, 353 P2d 242 (1960), overruled in part on other grounds by Aloha Sanitary Dist. v. Wilkens, 245 Or 40, 420 P2d 74...

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