Watson v. City of Salem

• Decision Date: 10 April 1917
• Citation: 164 P. 567,84 Or. 666
• Parties: WATSON ET AL. v. CITY OF SALEM. [a1]
• Court: Oregon Supreme Court

164 P. 567

84 Or. 666

WATSON ET AL. v. CITY OF SALEM. ^[a1]

Supreme Court of Oregon

April 10, 1917

Department 2.

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

Suit by George J. Watson and others against the City of Salem. Decree for plaintiffs, and defendant appeals. Affirmed.

This suit involves the validity of a local assessment for a street improvement. Notwithstanding a remonstrance filed by certain property owners the city entered into a contract for the paving of South Twelfth street between Mission street and the south city limits; and upon the completion of the improvement a special assessment was levied upon the abutting property for the cost of the pavement. Claiming that the assessment was void George J. Watson and 22 others commenced this suit for the purpose of freeing their respective parcels of land from the incumbrance of the attempted assessment. Asserting that the assessment was valid in all particulars, the city resisted the suit, but a trial resulted in a decree for the plaintiffs, and the defendant appealed.

B. W Macy and Grant Corby, both of Salem (Wm. H Trindle, H. D. Roberts, and Rollin K. Page, all of Salem, and W. T. Slater, of Portland, on the brief), for appellant. John H. Carson and Claire M. Inman, both of Salem (John A. Carson of Salem, on the brief), for respondents.

HARRIS J. (after stating the facts as above).

The plaintiffs contend that the assessment is void because a sufficient remonstrance was filed against the proposal to pave the street, and because the notice for bids was not published in conformity with the provisions of the charter.

Section 28 of the charter directs that a proposed improvement shall not be proceeded with "if the owners of more than two-thirds majority of the superficial area of the property adjacent to such street or part thereof" file a written remonstrance within a specified time. Earnestly arguing that the remonstrance filed did not contain the necessary "more than two-thirds majority of the superficial area" of adjacent property, the city contends that the total superficial area is 1,261.011 square feet; that to be valid the remonstrance must have represented 840.675 square feet; and that the remonstrance was insufficient since it only contained 763.588 square feet. The plaintiffs insist that the remonstrance represented a larger area of superficial square feet than was admitted by the city, and that it contained the necessary "more than two-thirds majority" of property. The difference between the calculation made by the city and that contended for by the plaintiffs arises out of an attempted replatting of some of the property adjacent to the street. All the land had been platted previous to the commencement of the street improvement proceedings. After the proceedings had been begun, but prior to the expiration of the time allowed for the filing of a remonstrance, and before the contract was let for paving the street, an attempt was made to replat some of the land abutting upon the street without first vacating the previous plat. The plaintiffs base their calculations upon what we shall designate as the attempted plat while the city makes its estimate from the lots and blocks as shown by the previous plats on the theory that the attempted plat is void, since no steps were taken to secure the formal vacation of any of the previous plats. For the purposes of this litigation it will not be neccessary, however, to do more than to call attention to the controversy about the remonstrance, since the view we take concerning the publication of the notice for bids is determinative of the suit.

The legal voters of the city of Salem amended their charter in 1911, and among the provisions of section 26 is the requirement that upon the passage of a resolution by the council declaring its intention to improve a street and approving the plans, specifications, and estimates of the city engineer, "the recorder shall duly give notice by publication for not less than five (5) successive days in a daily newspaper published in the city of Salem, Oregon inviting bids for making said improvement." The common council adopted a resolution on June 3, 1912, approving the plans, specifications, and estimates of the city engineer, declaring its intention to improve South Twelfth street, and directing the recorder to publish a notice inviting bids. A notice inviting sealed bids, and stating that "said bids will be opened on or after the 10th day of June, 1912, at or about 7:30 o'clock p. m. in open council in the city hall," was published in the Daily Oregon Statesman "for five consecutive issues in said paper, to wit: In the issues of June 5, 6, 7, 8, 9, 1912." The council met on June 10, 1912, at 8:10 p. m., and after opening bids referred them to the street committee. Subsequently, on June 24th, the council named the lowest bidder, and authorized the mayor and recorder to enter into a contract with such bidder. The plaintiffs contend that the notice was not published "for not less than five (5) successive days," while the city argues that a publication of the notice in the daily issues of the newspaper for June 5, 6, 7, 8, and 9 fully met the requirements of the statute.

At the very outset of the inquiry we must remind ourselves that the provision of section 26 of the charter prescribing the publication of the notice for bids is mandatory. The notice for bids must be published for the time and in the manner required by the charter; and since the mode is the measure of the power, a failure to follow the prescribed mode will invalidate an attempted special assessment. Jones v. Salem, 63 Or. 126, 132, 123 P. 1096; Matter of Pennie, 108 N.Y. 364, 15 N.E. 611; Upington v. Oviatt, 24 Ohio St. 232; Breath v. City of Galveston, 92 Tex. 454, 49 S.W. 575; Tifft v. City of Buffalo, 25 A.D. 376, 49 N.Y.S. 489; Michel v. Taylor, 143 Mo.App. 683, 127 S.W. 949; Polk v. McCartney, 104 Iowa, 567, 73 N.W. 1067; Meuser v. Risdon, 36 Cal. 239; Kretsch v. Helm, 45 Ind. 438; 28 Cyc. 1027.

Analyzing section 26 of the charter it will be observed that the language embraces two elements: (1) The period of publication; and (2) the manner of publication. The period of publication must be "for not less than five (5) successive days." "In a daily newspaper" is the prescribed manner of publication.

The term "for" and the words "not less than" appear in the quoted provision. When used in the connection in which we now find it the term "for" means "through; throughout; during the continuance of." Century Dictionary. If the charter read that the notice must be published "for five days," by the overwhelming weight of authority it would be interpreted to mean a publication through, throughout, during the continuance of five full days. 3 Words and Phrases, 2858; 2 Words and Phrases, Second Series, 594; Northrop v. Cooper, 23 Kan. 432; Bacon v. Kennedy, 56 Mich. 329, 22 N.W 824; Wilson v. Thompson, 26 Minn. 299, 3 N.W. 699; State v. Cherry County, 58 Neb. 734, 79 N.W. 825; Dever v. Cornwell, 10 N.D. 123, 86 N.W. 227; Wilson v. Northwestern Mut. Life Ins. Co., 65 F. 38, 12 C. C. A. 505; Finlayson v. Peterson, 5 N. D. 587, 67 N.W. 953, 33 L. R. A. 532, 57 Am. St. Rep. 584; 19 Cyc. 1104. The words "not less than," like the language "at least," signify "in the smallest or lowest degree; at the lowest estimate"; and legislation prescribing "not less than" or "at least"...