Couch v. Marvin

• Decision Date: 11 November 1913
• Parties: COUCH v. MARVIN, Sheriff, et al.
• Court: Oregon Supreme Court

136 P. 6

67 Or. 341

COUCH v. MARVIN, Sheriff, et al.

Supreme Court of Oregon

November 11, 1913

In Banc.

Appeal from Circuit Court, Wallowa County; J.W. Knowles, Judge.

Suit by L. Couch against Edgar Marvin, as Sheriff and Tax Collector of Wallowa County, and the City of Lostine. Decree for complainant, and defendants appeal. Affirmed.

This is a suit to enjoin the collection of a tax levied by the city of Lostine upon certain lots and blocks of land owned by plaintiff, situated in the town of Evans, Wallowa county. The complaint shows that the plaintiff is the owner of the real estate assessed for the year 1911 for state, county, and school district taxes, for which payment has been tendered and resists the tax levied by the city of Lostine for that year for the reason that the property is not within the limits of the municipality. The complaint describes the limits of the city of Lostine as established by an act of the Legislature of December 28, 1903, and shows that the real estate of plaintiff is outside the city limits as defined by the charter of that date. The answer admits many of the allegations of the complaint, and as a defense it is alleged that an election was held in the city of Lostine on November 10, 1910, at which the charter of the city was revised and so amended as to include within the boundaries of the city the lots and blocks of plaintiff. Exhibits are attached to the answer, showing the procedure adopted in revising the charter. The answer shows that at this election the electors of the city voted to extend the limits of the municipality by adding a few acres on the east, and also by annexing a narrow strip, 320 feet wide, extending from the north boundary of the corporate limits a distance of about three-fourths of a mile, and then spreading out the lines so as to embrace all of the town site of Evans, with the exception of blocks 1, 2 and 3, thereby annexing the lots and blocks described in the complaint and the depot grounds of the Oregon Railroad &amp Navigation Company.

J.A Burleigh, of Enterprise, for appellants.

A.S. Cooley, of Enterprise (Sheahan & Cooley, of Enterprise, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

The legality of the acts of the city in making the extension of its boundaries is the sole question involved upon this appeal. The trial court sustained a demurrer to the answer and defendants, refusing to plead further, entered a decree enjoining the collection of the taxes, for the reason that the acts of the city in annexing the new territory did not comply with the requirements of the law. The question of the amendment of the charter of the city and the extension of the boundaries was submitted to the legal voters of the city by the council thereof. No election for this purpose was held within the limits of the territory proposed to be annexed. It appears that by not including said blocks 1, 2, and 3, there were only two legal voters residing within such area. These two electors requested to be taken within the city, and were permitted to vote at the election. The notices of election referred to the amendments of the city charter, and did not describe the territory proposed to be annexed, or refer to any record where the same could be found, or in any manner comply with the requirements of section 3209, L. O.L. Under the ruling in Thurber v. McMinnville, 63 Or. 410, 128 P. 43, the election as to the acquisition of new territory was invalid.

It is claimed by counsel for the defendant city that in the proceedings for the annexation of the proposed land there was a substantial compliance with the statute of 1893 (L.O.L. § 3209); that there could not be a strict compliance with that law for the reason that there was not a number of voters residing within the territory desired to be added, sufficient to hold an election. It is contended by counsel for plaintiff that the procedure by the city was not in compliance with the statute or Constitution of the state, and further that the undertaking was not a reasonable exercise of legislative authority on the part of the city of...