Jones v. City of Salem

Mr. Justice Bean

delivered the opinion of the court.

At the threshold of the case, we are met by the plaintiffs’ contention that the city officers gave the property owners no notice that their real estate was to be affected by the ordinance, for the reason that the attempted notice did not specify with convenient certainty the property included in the district and assessed for the improvement ; and that the notice, maps, plans, and specifications wholly failed to designate the boundaries of the drainage district, or to furnish a description of the property to be taxed. It is further claimed that the assessment for the construction of the sewer was not levied upon the property directly or specially benefited by such construction, in proportion to the cost thereof; that plaintiffs had no opportunity to be heard upon the matter of the apportionment; that there is no legal subdivision of the city known as South Salem; that plaintiffs’ property will not be directly benefited by the improvement; and that the assessment is void. The opinion in Rogers et al v. City of Salem, 61 Or. 321 ( 122 Pac. 308 ), a case involving the assessments for the North Salem sewer, *130 sets out at length several provisions of the charter. It will only be necessary here to refer to some of these. Section 27 of the charter requires that the notice must specify with convenient certainty the sewer or street or part thereof proposed to be improved, and the kind of improvement to be made. Section 52 authorizes the council to lay necessary sewers and drains and assess the cost thereof on . the property directly benefited, and, except as to the mode prescribed in sections 43 and 44, directs such expense tp be assessed and collected in the same manner as is provided in the case of street improvements.

1. In the notice and proceedings taken by the city council, there was no attempt to comply with the provisions of the charter by describing the boundaries of the district, or the property to be affected, except by a reference to the “maps, plans and specifications prepared by the city engineer and on file at the office of the city recorder.” In the Rogers case, this court, following the rule announced in Clinton v. Portland, 26 Or. 410 ( 38 Pac. 407 ), held that where the maps, plans, and specifications were accessible to the taxpayers, and furnished information as to the lines of the sewer district, the boundaries of the same being marked and explained on the map with a description of the property proposed to be taxed, the notice referring thereto was rendered complete. We must therefore refer to the maps, plans, and specifications in evidence to ascertain whether or not the boundaries of the sewer district, or a description of the property, are furnished therein. The vital question is: Did the property owners have notice that their real estate was to be taxed? The map in evidence is marked upon the margin as follows: “Plan of Sewer for South Salem.” It contains five designated districts, named “A,” “B,” “C,” “D,” and “E.” Neither the whole map, nor any portion thereof, is indicated as the South *131 Salem sewer district, and we find thereon no explanation or description of the exterior lines of the property proposed to be taxed. Several lots, blocks, streets, and tracts of land are shown, besides other lines and marks which are in no way explained. When we consider the resolution of the council, it is evident that the whole map was not intended to represent the South Salem sewer district, and a careful inspection thereof fails to show the area of such a tract. The map is incomplete. It does not furnish the interested property owners, either with the required information as to the lines of the sewer district, or with a description of the property proposed to be assessed. An examination of the specifications fails to disclose any description of the territory to be drained, or of the boundaries of the sewer district. The required information is not supplied by the specifications. The notice and the proceedings pursuant thereto do not afford a reasonable opportunity for the interested parties to make objections to the passage of the ordinance, or to be heard in regard to their rights in the matter. The facts in this case differ from those in Clinton v. Portland, 26 Or. 410 ( 38 Pac. 407 ). In one of the South Salem sewer cases the engineer who drew the map stated that the assessment roll could be taken to determine the drainage district. The assessment roll, however, is not referred to in either of the notices. It is clear from the whole record that interested parties would have had to seek information other than that contained in the notice, and in the records referred to therein, in order to ascertain whether or not their property was intended to be taxed.

2. Under the charter of the City of Salem, notice must be given at some stage of the proceedings to the property owners whose land is to be taxed before an assessment for the construction of a sewer can be sustained, as in any other demand upon the individual for a portion of *132 his property. This is necessary to confer jurisdiction upon the council. Paulson v. City of Portland, 16 Or. 450 ( 19 Pac. 450 : 1 L. R. A. 673: 149 U. S. 30 , 38: 13 Sup. Ct. 750: 37 L. Ed. 637 ) ; Houck v. City of Roseburg, 56 Or. 238, 243 ( 108 Pac. 186 ); Ladd v. Spencer, 23 Or. 193 ( 31 Pac. 474 ); Rogers v. Salem, 61 Or. 321 ; Rubin v. City of Salem, 58 Or. 91, 94 ( 112 Pac. 713 ).

3. It must affirmatively appear from an inspection of the records of the council in its proceedings for the levying of such assessments that the statutory requirements prescribed as a condition precedent to an exercise thereof have been observed. Applegate v. City of Portland, 53 Or. 552, 555 ( 99 Pac. 890 ); Oregon Transfer Co. v. Portland, 47 Or. 1 ( 81 Pac. 575 : 82 Pac. 16 ); Strout v. Portland, 26 Or. 294, 299 ( 38 Pac. 126 ); Bank of Columbia v. Portland, 41 Or. 1 ( 67 Pac. 1112 ).

4. It is contended on behalf of defendant that plaintiffs are estopped from questioning the validity of the assessments for the reason that a portion of the work was performed prior to the commencement of this suit. In proceedings for levying an assessment, if the common council is without jurisdiction from the beginning, a person whose property is affected by such assessment is not estopped to deny the validity of the proceedings on the ground that he made ho objection thereto, while the improvement was under progress. Strout v. City of Portland, 26 Or. 300 ( 38 Pac. 127 ). It appears that there is no legal subdivision of the city known as South Salem, or any definite limits of the locality generally known by that name. Neither is this name given in the notice as a description of the area to be drained, but merely as a designation for the contemplated sewer district. The charter requirement in regard to notice must be complied with. Any failure to give the notice required by statute will usually invalidate the assessment. 2 Elliott, Roads and Streets, § 700. The charter which is *133 the sole source of authority of the city to make the assessment prescribes the mode of exercising the power. “The mode,” it has been said, “constitutes the measure of power.” 2 Elliott, Roads and Highways, § 665; Terwilliger Land Co. v. City of Portland, 62 Or. 101 ( 123 Pac. 57, 59 ).

The defect in the first notice is not cured by the second notice, which contains no description of the property to be assessed. All the proceedings by the city council, prior to the levying of the assessment, refer in the same manner to the real estate proposed to be taxed. The notice being insufficient, the council without authority to pass the ordinances, and the assessment therefore void, renders it unnecessary to consider the other questions raised. By reason of the failure of the council to observe the mandate of the city charter requiring that notice be given to the property owners, the decree of the lower court should be modified, and the assessments levied under both ordinances set aside; and it is so ordered.-

Modified: Rehearing Denied.

Justices Moore and Burnett did not sit in this case.