Rogers v. City of Salem

• Decision Date: 02 April 1912
• Citation: 61 Or. 321,122 P. 308
• Parties: ROGERS et al. v. CITY OF SALEM.
• Court: Oregon Supreme Court

122 P. 308

61 Or. 321

ROGERS et al. v. CITY OF SALEM.

Supreme Court of Oregon

April 2, 1912

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Suit by Dr. E.F. Rogers and others against the City of Salem. From a decree granting insufficient relief, both parties appeal. Modified and affirmed.

This is a suit to enjoin the collection of an original assessment and a subsequent deficit for the construction of a sewer in the city of Salem, Or. The trial court rendered a decree sustaining the original assessment and restraining the collection of the deficit assessment over and above the amount of the estimated cost. Both parties appeal therefrom. On June 6, 1910, council for the city of Salem adopted and filed in the office of the city recorder plans and specifications for the installation of certain sewers in the district comprising that portion of the city north of Mill Creek not already provided with sewerage. By direction of the council, the recorder published for 10 days in a Salem daily newspaper of general circulation, a notice, the substance of which reads as follows:

"Notice of Intention to Construct a Sewerage System for North Salem.

"Notice is hereby given that the common council deems it expedient and proposes to construct and establish at the expense of the property owners within the limits of said district a sewer system, to be known as the North Salem sewer, according to the plans and specifications adopted for such sewer, and on file at the office of the city recorder, the boundaries of which are more particularly mentioned and described in said plans and specifications which are hereby referred to the same as if fully written herein, and on file at the office of the city recorder. ***"

After the expiration of 20 days, from the publication of such notice, there being no objections to the improvements filed the council directed a second notice to be published in a like manner for three days, the contents of which are as follows:

"Notice of Assessment; North Salem Sewer.

"Notice is hereby given that the Common Council, will at or about 8 o'clock p.m. on Monday the 25 day of July, 1910, at the common council chambers at Salem, Oregon, proceed to assess upon each lot or parcel of land liable therefor its proportionate share of the costs of the North Salem, sewer according to the maps, plans and specifications adopted for such sewer by the council, and on file at the office of the city recorder, reference to which is hereby made for a more perfect description thereof. All persons interested in said assessment shall appear at said time before said council and present objections if any they have to said assessment. Done by order of the common council of the city of Salem Oregon, this 18th day of July, 1910. W.A. Moores, City Recorder."

On July 25, 1910, no objections having been filed, Ordinance 834 was passed, directing that the work be performed according to the plans and specifications adopted, levying an assessment upon the lots and parcels of land benefited, and making an apportionment of the benefits to be paid by the several tracts of land affected. After advertising for bids one was finally filed and accepted in the sum of $87,952.40, and a contract entered into for the construction of the sewer. This bid was based upon the engineer's estimate of quantities. The contract and specifications required that the contractor should be paid only for the actual amount of work performed and material used in constructing the sewer. The difference between the engineer's preliminary estimate of the probable cost as first determined by the council, and the final estimate after the contract was awarded, created a deficit in the amount of $28,054.67. On December 19, 1910 the council passed an ordinance providing for an assessment of the latter amount on the property benefited, in addition to the original assessment, and declaring the same to be a lien upon each lot or parcel of land thereof according to the deficit assessment roll, and directing the city recorder to enter a statement thereof in the docket of city liens as a deficit assessment. As the reasons why such assessment should not be collected, the plaintiffs allege the following "That in their attempt to pass said ordinance the city council of said defendant city of Salem, Or., failed and neglected to examine into and determine by their said ordinance or otherwise that the respective lots or parcels of land belonging to each of the respective owners within the sewer and assessment district attempted to be established by said ordinance and particularly the lands of these plaintiffs and interveners were or are directly benefited by said drain or sewer in the amount of the special tax attempted to be levied against each of said respective tracts, and failed to direct the same to be assessed on the property directly benefited, and said defendant willfully, arbitrarily, and intentionally omitted and refused to assess each of the lots or parcels of land belonging to these plaintiffs and interveners in proportion to the direct benefits thereto, and willfully, arbitrarily, and intentionally assessed each and all of the respective lots and parcels of land within said pretended sewer district attempted to be established by said ordinance, in proportion to the superficial area of each, and without any reference to the direct benefits derived from said sewer to each of said lots or parcels of land. That said assessment for the construction of said sewer was not and is not in and by said ordinance levied in proportion to the cost thereof upon the or any property which is or may be directly benefited by the construction of said sewer, and the respective lots and parcels of land of said plaintiffs and interveners herein and each of them are not and will not be directly benefited by said drain or sewer in the amount of the respective tax assessments against them, or any other sum or amount, and by reason of the foregoing facts said city council has exceeded its authority in said attempted assessment, and said ordinance is void and of no effect, except that the same constitutes and is a cloud upon the title of the respective lots and parcels of land belonging to each of said respective plaintiffs and interveners herein." It is also alleged that Dr. E.F. Rogers, W.W. Walker, J.F. McDonald, and Harrison Doe already have their property amply drained by connection with certain sewers constructed through the city by the state of Oregon, pursuant to an agreement between the city of Salem and the state. A particular description of the land belonging to each of the respective plaintiffs and interveners, who will hereinafter be called plaintiffs for the sake of brevity, with the amount of assessment against each tract, is set forth in an exhibit attached to the complaint. By supplemental complaint the plaintiffs allege the passage of Ordinance 877, and aver "that no notice was given or attempted to be given by said defendant to the plaintiffs or interveners herein, or to any of the persons owning property within said attempted sewer district of the or any intention to pass said or any ordinance increasing the amount of money to be raised for the construction of said North Salem sewer." The plaintiffs further assert that said ordinance is void, and constitutes a cloud upon the title of their property. The defendant, by its answer, denies the gist of the complaint, and sets out the proceedings taken by the common council of the city of Salem in adopting the plans and specifications and publication of the notice of the proposed sewer, the passage of the ordinances referred to, providing for the construction of the sewer, and assessing the cost thereof upon the property in such sewer district. The city alleges that no remonstrance or objection to the construction of the sewer was made or filed, and "that the property and premises of each of the plaintiffs in this suit is situated within the boundaries and limits of said sewerage district, and will be and is directly benefited by the construction of said sewer system, to the full amount of the cost of the construction thereof, assessed against the property and premises of said plaintiffs. ***" The defendant further alleges the advertising for bids and the letting of the contract for the construction of the sewer according to the plans and specifications. The plaintiffs' reply puts in issue the affirmative matter contained in the answer.

Grant Corby and John H. McNary (R.K. Page, on the brief), for appellant.

M.E. Pogue and W.T. Slater, for respondents.

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

The authority of the common council of the city of Salem in the matter of the construction of sewers is conferred by the city charter. Section 25 provides that "the city council shall have power and is authorized, whenever it deems it expedient, to improve the public grounds within said city *** to establish or alter the grade and improve any street, *** and to lay down all necessary sewers and drains. ***" The provisions for notice of improvement are as follows: Section 26: "No grade or improvement mentioned in section 25, except the original establishing of a grade, can be undertaken or made without ten days' notice thereof being first given by publication in some daily newspaper published in the city of Salem." Section 27: "Such notice must be given by the recorder, by order of the council, and must specify with convenient certainty the sewer or street, or part thereof, proposed to be improved, or of which the grade is proposed to be established or altered, and the kind of improvement which is proposed to be made." Section 31: "In case the notice be for the improvement of a street or part thereof, the council may proceed to...