Houck v. City of Roseburg

• Decision Date: 26 April 1910
• Citation: 56 Or. 238,108 P. 186
• Parties: HOUCK et al. v. CITY OF ROSEBURG et al.
• Court: Oregon Supreme Court

108 P. 186

56 Or. 238

HOUCK et al. v. CITY OF ROSEBURG et al.

Supreme Court of Oregon

April 26, 1910

Appeal from Circuit Court, Douglas County; J.W. Hamilton, Judge.

Suit by Mary E. Houck and others against the City of Roseburg and others. From a decree for defendants, plaintiffs appeal. Affirmed.

This is a suit by plaintiffs to enjoin the defendant city from collecting a sewer assessment. On December 5, 1904, the city council of defendant city decided to construct a sewer on the south side of Oak street, from Chadwick street to Main street, and by ordinance declared that the cost thereof should be assessed upon the property directly benefited thereby. On December 15, 1904, at a meeting of the council the mayor appointed W.S. Hamilton, F.W. Haynes, and J.F Barker viewers of the sewer, which appointment is recorded in the minutes of that meeting of the council as business transacted by the council. On January 5, 1905, the viewers filed with the city recorder their report that they had investigated the location of the sewer, that the sewer is badly needed, recommended its construction, and found that the following property (with the names of the owners thereof) will be directly benefited by the improvement, viz "Geo. E. Houck, Lot 5, Block 42. Sol Abraham Estate, Lot 4, Block 41. M.C. Gregory, Lot 5, Block 41. Orville Wilson Lot 4, Block 40. City of Roseburg, Lot 5, Block 40." They also recommended that the cost of the sewer be assessed to the above-named property, each lot to bear its proportionate share of such expense, according to the number of lots adjacent to and benefited by the improvement. Thereafter, on the same date, the recorder of the city published in the "Plaindealer," a weekly newspaper published in Roseburg, for a period of 20 days, a notice that the city had determined to construct the sewer, and that the viewers had ascertained and determined that the lots named in the viewers' report, describing them, with the names of the owners, would be directly benefited by the construction of the sewer, according to the number of lots owned by each person, each lot to bear its proportionate share of the expense of such construction. No objection to the findings and determination of the viewers was filed by the owner of any of the property within 10 days from the final publication of the notice, which last publication was the 6th of February, 1905. The council determined the probable cost of the construction of the sewer, and an ordinance was presented, assessing upon each of the lots one-fifth of the estimated cost, which ordinance appears to have been read the first and second time on April 3, 1905, but was not finally passed upon until February 5, 1906. In this ordinance each of the lots was assessed $56. The sewer was constructed prior to April 3, 1905. On May 1, 1905, plaintiff Leona Abraham filed with the recorder a protest, directed to the council, against the assessment of the cost, on the ground that the assessment is upon the property on one side of the street only, whereas direct benefits accrue to the property on both sides alike. By the complaint it is alleged that the five corresponding lots on the opposite side of the street are equally benefited with the lots on the south side, and that the action of the council in omitting from the assessment the lots on the north side of the street "was willful, arbitrary, and intentional, and was purposely done," knowing that the property so omitted was equally benefited with the property of plaintiffs. By sections 98, 99, 100, and 101 of the charter of the city of Roseburg (Laws 1895, p. 548) it is provided that the council shall have power to construct sewers, and to declare, by ordinance, before doing the same whether the cost thereof shall be assessed upon the property directly benefited thereby; that, if it so declares, the council shall appoint disinterested freeholders to view the street and location of the proposed sewer, who shall ascertain and determine what property is directly benefited by such sewer, and the extent and proportion thereof. Upon the report being filed, the recorder shall immediately give notice thereof by publication for 20 days in some newspaper published in the city, specifying with convenient certainty the streets on which the sewer is to be located and the property ascertained and determined by the viewers to be benefited thereby. Within 10 days from the final publication of such notice the owner of any property ascertained to be directly benefited may file with the recorder any objections he may have to such findings, and the council shall at the next meeting consider such objections.

The answer denies parts of the complaint, and alleges that the plaintiffs appeared before the council by their attorney, and asked that the sewer be constructed on the south side of Oak street, as there was urgent need of it by the property owners along the south side of that street, and, further, pleads the ordinances and other proceedings by the council in relation thereto as a compliance with the terms of the charter.

The cause was tried upon the evidence, and findings and decree rendered for defendants. Plaintiffs appeal.

Albert Abraham, for appellants.

A.N. Orcutt, for respondents.

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

But one question is raised by the brief of appellants, viz.: Is the assessment of the cost of the construction of the sewer upon the property on the south side of the street void because it does not include all the property directly benefited? It may be stated as a rule in proceedings for the levy of an assessment for a street improvement that, if the council has acquired jurisdiction, equity will not grant an injunction to prevent the collection of...