Wilson v. City of Salem

• Decision Date: 12 September 1893
• Parties: WILSON et al. v. CITY OF SALEM et al. [1]
• Court: Oregon Supreme Court

34 P. 9

24 Or. 504

WILSON et al. v. CITY OF SALEM et al. ^[1]

Supreme Court of Oregon

September 12, 1893

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Action by J.Q. Wilson and others against the city of Salem and H.P Minto. From a decree for plaintiff, the city appeals. Reversed.

The other facts fully appear in the following statement by Bean J.:

This is a suit to restrain the execution of a warrant for the sale of plaintiffs' property for delinquent street assessments commenced after the work had been completed, and accepted by the city, and the property advertised for sale. The case comes here on an appeal from a decree in favor of the plaintiffs given by the court below, after sustaining their demurrer to the answer, and defendant refusing to further plead. From the complaint and answer it appears that some time prior to the 14th day of March, 1892, the city of Salem gave notice that on said day it would receive bids for the improvement of Chemeketa street according to the plans and specifications on file in the city surveyor's office. After the bids had been received, and the probable cost of making the proposed improvement thus ascertained, the recorder, on the 15th day of March, 1892, in pursuance of the terms of an ordinance passed in 1891, entitled "An ordinance to provide for notice to parties in relation to assessments for street improvements," duly published, as in the said ordinance provided, the following notice "Notice of assessment: Notice is hereby given that the common council of the city of Salem, Oregon, will at 8 o'clock p.m. of the 5th day of April, 1892, at the common council chambers at Salem, Oregon, proceed to assess upon each lot or part thereof liable therefor its proportionate share of the cost of grading, graveling, and curbing all that part of Chemeketa street described as follows, [here follows a particular description of that portion of the street to be improved,] according to the plans and specifications thereof, on file in the office of the city surveyor of Salem, Oregon. Done by the city of Salem, Oregon, this 15th day of March, A.D.1892. M.E. Goodell, Recorder." At the time and place stated in the notice, the council convened for the purpose indicated, but, a quorum not being present, adjourned until the following day, when it proceeded to ascertain and determine, and did then and there determine, the proportionate share of the cost of making the proposed improvement, to be assessed upon each lot and part thereof liable therefor, by estimating the same according to frontage, none of the plaintiffs appearing or making any objections thereto. On the 3d day of May, 1892, the council passed Ordinance No. 242, for the improvement of the street, in which it declared that it was expedient to grade, gravel, and curb the street, and do all things required by the specifications, except that selected gravel was substituted for screened gravel; that the proposed improvement should be made wholly at the expense of the abutting property, and be assessed upon said property "in proportion to the number of front feet abutting on the street;" and that the probable cost thereof was $7,084. This ordinance also declares the proportionate share of the cost of making such improvement, assessed upon each lot or part thereof liable therefor, as previously ascertained and determined by the council, except that a reduction was made on account of the change in the specifications from screened to selected gravel, and directs the recorder to enter a statement thereof in the docket of city liens. It also recites that Archie Mason is the lowest and best bidder for the work, and awards the contract to him for $7,084. The improvement was completed in pursuance of this ordinance, and accepted by the city. The validity of this assessment is challenged by the plaintiffs, who are the owners of property abutting upon this street, and who, being residents of Salem, had actual knowledge of said improvement as the same was being made. The decree of the court below was in favor of plaintiffs, and the city appeals.

D'Arcy & Bingham and J.J. Shaw, for appellant.

R.P. Boise and Tilmon Ford, for respondents.

BEAN J., (after stating the facts.)

The only question necessary to consider on this appeal is one of jurisdiction and notice to interested parties; for if the city had power to make the improvement, and in doing so violated no express provision of its charter, and the abutting property owners had notice of, and an opportunity for, a hearing upon the question as to the proportionate share of the cost of the proposed improvement to be assessed against their property before the same became irrevocably fixed, a court of equity will not, after the work is completed, restrain the enforcement of the assessment on account of irregularities in the proceedings. The provisions of the charter of the defendant bearing on the question before us, in force at the time of this improvement, are as follows: "Sec. 46. The council is authorized to improve or repair any street or part thereof whenever it deems it expedient, and to declare by ordinance before doing the same whether the cost thereof, in whole or in part, shall be assessed upon the adjacent property or be paid out of the general fund of the city. Sec. 47. If the council declares that a proposed improvement or repairs shall be at the cost in whole or in part, of the adjacent property, the proposed improvement or repairs shall be made accordingly; but if it declares that the cost thereof, in whole or in part, shall be paid out of the general fund, such repairs may be made as the ordinance may provide, and be paid for accordingly." "Sec. 24. Whenever the council of the city of Salem deems it expedient to improve a street or part thereof, it may proceed to ascertain and determine the probable cost of making such improvement, and assess upon each lot or part thereof liable therefor its proportionate share of such costs." "Sec. 38. Each lot or part thereof within the limits of a street *** shall be liable for the cost, in whole or in part, as the council may determine, of making a proposed improvement upon the balance of the half street in front." "Sec. 25. Whenever the probable costs of the improvements have been ascertained and determined, and the proportionate share thereof of each lot or part thereof has been assessed, as provided for in section 24, the council must declare the same by ordinance, and direct the city recorder to enter a statement thereof in the docket of the city liens as provided for in the next section." "Sec. 11. A sum of money assessed for the improvement of a street cannot be collected until, by order of the council, ten days' notice thereof is given by the recorder by the publication in a weekly or daily newspaper, published in the city of Salem. Such notice must substantially contain the matters required to be entered in the docket of city liens concerning such assessment. Sec. 12. If, within five days from the final publication of the notice prescribed in section 11, the sum assessed upon any lot or part thereof is not wholly paid to the city treasurer, and a duplicate receipt therefor filed with the recorder, the council may thereafter order a warrant for the collection of the same to be issued by the recorder, directed to the city marshal or other person authorized to collect taxes due the city." These provisions of the charter contain a general grant of power to improve a street at the expense of the abutting property, and the mode of its exercise is not restricted, except as to the manner of making the cost thereof a charge upon the abutting property. The wisdom and expediency of the improvement, the character and cost of the work, the manner of letting the contract or doing the work, are all matters of legislative control, and vested by the charter in the discretion of the council, and upon which the property owners have no constitutional or charter right to be heard. Paulsen v. City of Portland, 13 S.Ct. 750; Spencer v. Merchant, 100 N.Y. 585, 3 N.E. 682; Id., 125 U.S. 345, 8 S.Ct. 921. It is contended, however, that the charter is unconstitutional, because it makes no provision for notice at any stage of the proceedings to the property owners. We do not understand that it is essential to the validity of a city charter, granting power to improve a street, that it should contain a provision for notice to...