Rubin v. City of Salem

Opinion by Mr. CHIEF JUSTICE Eakin. 1. Plaintiffs concede that the main question presented by the record is: Did the city acquire jurisdiction to make the improvement set out in the answer? The notice, which is a publication of the resolution of the council proposing the improvement, describes it as follows : To improve the following described part of Commercial Street in said city by grading the same with proper crown and gutters to a point eight inches below the established grade thereof, and by then macadamizing the ,same with crushed rock eight inches deep. The same to be properly spread and rolled”; the improvement to be made at the expense of the owners of the adjacent property. This notice was published on April 18, 1905. [94] The council, on June 2, 1905, adopted the plans and specifications, which, among other things, provide that the contractor shall remove from the street the crosswalks, and that the curbing shall consist of lumber 3x12 inches in size, nailed to oak posts six feet apart. Plaintiffs contend that these two elements are not included in the notice published, and by reason thereof it is insufficient. The charter (Sp. Laws 1899, p. 936) does not authorize the city to make the improvement if the owners of more than two-thirds of the superficial area of the property adjacent to the street, remonstrate against it, and therefore in the present instance the council could only propose the improvement by directing the recorder to give the notice specified in section 27, which must “specify with convenient certainty the street proposed to be improved and the kind of improvement which is proposed to be made.” If no such remonstrance is made and filed, the council may commence to make the proposed improvement, by determining its probable cost, and assess upon each lot its proportionate share. Although the notice provided for in section 27 is jurisdictional, it is not necessary to set out the plans and specifications, or do more than specify in general terms with convenient certainty the kind of improvement which is proposed to be made. The removal of crosswalks only relates to obstructions in the way of the work and, as the improvement is to be provided with gutters, a curb may be deemed to be a necessary part of the improvement, and specifying in- the notice that the street is to be improved with crown and gutters and macadamized eight inches deep is a sufficient general designation of the kind of improvement proposed to be made. As supporting the contention of plaintiffs, we are referred to the cases of Ladd v. Spencer, 23 Or. 193 (31 Pac. 474), and Clinton v. Portland, 26 Or. 410, 412 (38 Pac. 407), which construe the charter of East [95] Portland of 1885, in which the terms of the charter upon this matter are almost identical with the Salem charter. In the first case mentioned the specification of the improvement is, “by building to the established grade an elevated roadway 36 feet wide,” in which it was held that such a specification was wholly insufficient, and correctly so, as it gives no intimation of the character of the improvement proposed. In the latter case the description in the notice is identical with that in Ladd v. Spencer, 23 Or. 193 (31 Pac. 474), with the addition that it is to be built “according to the plans and specifications now on file,” in which it is held that, without referring to the specifications, the notice would have been insufficient. But the notice in the present case contains a specific designation as to what the improvement shall consist of, except it does not expressly mention the curbs. But we think it sufficiently comprehensive to include them. The charter provisions relating to this question are (section 25) : “The city council shall have power and is authorized whenever it deems it expedient, * * to establish or alter the grade and improve any street or part thereof * * within the limits of said city, and to lay down all necessary sewers and drains; and to build and maintain, or cause to be built or maintained, any streets or parts thereof; and they shall establish the grade * * and direct the character of materials to be used in the improvement thereof, and the manner of such improvement, and the said improvement of streets and sidewalks and crosswalks herein provided for shall be done at the expense of the owners of adjacent property.” Section 26 provides that no grade or improvement mentioned in section 25 can be undertaken without ten days’ notice thereof being first given by publication. Section 27 provides that “such notice must be given by the recorder by order of the council, and must specify [96] 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.” There is no requirement in the charter that the council shall prepare plans and specifications or by resolution describe the work in detail before directing the notice to be issued. No mention is made of any particular kind of improvement, but the council is authorized to improve the street and direct the character of material to be used. 2, 3. Plaintiffs cite the case of Beaudry v. Valdez, 32 Cal. 269, and Schwiesau v. Mahon, 128 Cal. 114 (60 Pac. 683), to the effect that no improvement can be made other than that which is specifically described in the resolution and notice. But the California statute of 1863 and 1864, p. 333, by section 2, provides that the council is authorized to order any streets to be paved, repaved, macadamized, piled; to order sidewalks, sewers, manholes, curbing and crosswalks, and other work to be done, which shall be necessary. Section 3 provides that the council may order any work authorized by section 2 to be done after notice of their intention to do so, in the form of a resolution “describing the work,” has been published for a period of ten days. Thus, by the statute, each kind of improvement is specifically designated, and therefore it is held that the resolution ■ and notice of the proposed improvement, naming one kind, does not include the other. The requirements of the resolution and notice therefore are different from those of the Salem charter, which only requires the notice to specify with convenient certainty the “kind of improvement” which is to be made. The curbing in this case, as is shown by the specifications, is only an incident to the macadamizing and a very inconsiderable part of the expense, and may well be deemed essential to the macadamizing within the terms of the notice published. [97] In Harney v. Heller, 47 Cal. 15, it is held that the notice of intention need not set out the specifications of the improvement, and in Emery v. San Francisco Gas Co., 28 Cal. 345, 376, the notice was held sufficient which described the improvement as “grade and macadamize.” In Mason v. City of Sioux Falls, 2 S. D. 640 (51 N. W. 772: 39 Am. St. Rep. 802), construing a statute, in which paving, macadamizing, and curbing are each mentioned, as a definite kind of improvement, it is held an assessment for curbing is not within the notice which did not mention it, but it is by the terms of the statute that this becomes necessary. The council having acquired jurisdiction to make the improvement, the ordinance adopting the plans and specifications cannot be attacked collaterally and whether the work was completed according to the contract and specifications does not go to the jurisdiction of the council. 4. It is admitted by plaintiffs that the council accepted the improvement as being made according to the plans and specifications, and this is conclusive in a collateral attack, jurisdiction having been obtained: Wingate v. Astoria, 39 Or. 603, 604 (65 Pac. 982); Clinton v. Portland, 26 Or. 410 (38 Pac. 407); Barber Asphalt Pav. Co. v. Edgerton, 125 Ind. 455 (25 N. E. 436). No objection was raised to the action of the council in making the improvement, except that plaintiffs’ grantor filed a protest against the assessment on the ground that the council had no jurisdiction to make it. Whether the improvement was made on the established grade cannot be questioned in this suit, jurisdiction being established and plaintiffs having waived all irregularities in the proceedings: Wilson v. Salem, 24 Or. 512 (34 Pac. 9, 691); Wingate v. Astoria, 39 Or. 604 (65 Pac. 982). The decree of the lower court is affirmed. Affirmed.