Giles v. Roseburg
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Opinion by Me. Chief Justice Mooee.
This is an appeal by the defendant from a decree enjoining the enforcement of that part of a special assessment which undertook to impose upon the several tracts of real property in a designated district, asserted to have been benefited by a street improvement, the following charges: For engineering, $350; for interest, $108.37; for an abstract, $15.75; and for clerical work, $21.81. The question to be considered is whether either of these items constitutes a valid charge against the real property affected by the improvement.
1. In Smith v. City of Portland, 25 Or. 297 ( 35 Pac. 665 ), it was held that in the absence of a provision in an ordinance authorizing a public improvement, or a general provision in a city charter, extras or incidentals incurred in making the improvement could not be charged against the property benefited. Section 66 of the charter of the City of Eoseburg declares:
“The common council shall have power * * to levy and collect assessments upon all lots and parts of *69 lots and parcels of land specially benefited by such, improvements for the purpose of defraying the whole or any part of the cost and expense thereof.”
It appears from the testimony that the defendants’ engineer does not receive a regular salary, but is paid a stated daily compensation for the services which he renders. He received in this instance, as evidence of the remuneration due him for superintending the improvement, warrants drawn on the general fund, and not upon the fund arising from the special assessment. We have been unable .to find any clause in the charter or in the ordinance under which the improvement was made that expressly authorizes the imposition of any part of the engineer’s charges against the property benefited. When it is kept in mind that the levy of a special assessment is a proceeding in invitum, and that the authority in this instance to impose upon the real property the burden of the engineer’s charges for supervising the work is not apparent from an inspection of the charter or the ordinance under which the improvement was made, so that the owners of the land would have proper notice of the cost of the extra work, the court properly excluded the item of $350 as an incidental incurred in making the improvement.
What has been said with respect to the engineer’s charges will apply with equal reason to the items of $15.75 for an abstract, showing the names of the owners of real property affected by the improvement, and $21.81 for clerical work in making up the assessment so as to lay upon each tract of land benefited by the improvement its ratable share of the cost thereof. These items were also properly excluded.
2. The testimony shows that warrants were drawn in favor of the contractors for the value of installments of the work as they were performed, and interest on *70 these warrants, $108.37, was charged for the alleged detention of the money by reason of the nonpayment of the assessment. In Mall v. City of Portland, 35 Or. 89, 93 ( 56 Pac. 654, 655 ), Mr. Justice Bean observes:
“It is the universal rule that a special assessment, like the one in question, does not bear interest unless the law so provides.”
Section 97 of the charter of Roseburg reads:
“All general or special taxes levied, as provided and authorized in this act, and all assessments for the improvements, widening, or repairing of streets or alleys, or for laying sewers or drains, and every part thereof, shall bear interest at the legal rate from the time it is delinquent until paid or collected.”
It appears that no assessment was made for the improvement until five months after it was finished. Until an owner of the real property benefited could tell with certainty what sum he should pay as his share of the burden imposed, he could not be delinquent in withholding his part of the assessment. He was therefore not chargeable with interest until the lien attached. No error was committed in excluding that item.
The decree should therefore be affirmed, and it is so ordered. Affirmed. Rehearing Denied.
Mr. Justice Benson, Mr. Justice Burnett and Mr. Justice McBride concur.
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