Rogers v. City of Salem

Mr. Justice Bean delivered the opinion of the court. The authority of the common council of the city of Salem in the matter of the construction of sewers is conferred by the city charter. Section 25 provides that: “The city council shall have power and is authorized, whenever it deems it expedient, to improve the public grounds within said city, * * to establish or alter the grade and improve any street, * * and to lay down all necessary sewers and drains. * *” The provisions for notice of improvement are as -follows : Section 26: “No grade or improvement mentioned in Section 25, except the original establishing of a grade, can be undertaken or made without ten days’ notice thereof being first given by publication in some daily newspaper published in the city of Salem.” Section 27: “Such notice must be given by the recorder, by order of the council, and must specify 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.” Section 31: “In case the notice be for the improvement of a street or part thereof, the council 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, * *” — 330 — Section 32 provides that when the probable cost of the improvement has been ascertained, and the proportionate share assessed as provided by section 31, the council must declare the same by ordinance. Sections 33 and 34 describe the docket of city liens. The provisions of section 35 are to the following effect: “A sum of money assessed for the improvement of streets cannot be collected until by order of the council ten days’ notice thereof is given by the recorder. ■* *” This section specifies the manner of notice, and that such notice shall substantially contain the matters required to be entered in the docket of city liens concerning such assessment. And section 43 provides that the proposed street improvement shall be assessed to the owners of property abutting on the street. Section 44 directs how the cost of improving the intersections of streets shall be assessed. In section 48 the following is provided: “If upon the completion of any improvement it is found the sums assessed therefor upon any lot or part thereof is not sufficient to defray the cost thereof, the council must ascertain the deficit and declare the same by ordinance; when so declared, the recorder must enter the sum of the deficit in the docket of city liens, in a column reserved for that purpose in the original entry, with the date thereof, and such deficit shall thereafter be a lien upon such lot or part thereof, in like manner and with like effect as in the case of the sum originally assessed, and shall also be payable and may be collected in like manner with like effect as in the case of such sum so assessed.” The provisions of section 52, relating to sewers and drains, are as follows: “The council shall have the power to lay down all necessary sewers and drains, and cause the same to be assessed on the property directly benefited by such drain or sewer, but the mode of apportioning estimated costs — 331 — of improvement of streets prescribed in sections 43 and 44 of this act shall not apply to the construction of such sewers and drains; and when the council shall direct the same to be assessed on the property directly benefited, such expense shall in every other respect be assessed and collected in the same manner, as is provided in the case of street improvements; provided, that the council may at its discretion appoint three disinterested persons to estimate the proportionate share of the cost of such sewer or drain to be assessed to the several owners of the property benefited thereby. * *” An examination of the above allegations of the .complaint discloses that. Ordinance 834, providing for the construction of a sewer, is assailed for the reason that the assessment was made in proportion to the sunerfieial area of the property, and without reference to the direct benefits derived, and that said property will not be directly benefited by the sewer. The sufficiency of the notice of intention to construct the sewer at the expense of the property owners, published June 7, 1910, is not challenged by the complaint. Plaintiffs by their supplemental complaint, however, allege that no notice was given of any intention to pass Ordinance 877, declaring and assessing the amount of the deficit in the cost of the sewer. We will first take up the question of notice in the order presented by the argument. As already noted, sections 25 and 52 of the charter of the city of Salem both provide that the city council shall have power to construct sewers; and section 26 provides 10 days’ notice thereof by publication. 1. It will also be noticed that section 52, especially referring to sewers, provides, except as prescribed in sections 43 and 44 of this act, that, when the council shall direct the expense of a sewer to be assessed upon the property directly benefited, such expense shall in every other respect be assessed and collected in the same manner as provided in the case of street improvements. — 332 — This necessarily makes such sections in regard to street improvements, with the exceptions noted, a part of section 52 for that purpose. King Real Estate Association v. Portland, 23 Or. 199 (31 Pac. 482). These provisions, of the charter clearly require the same notice to be given before constructing a sewer as before improving a street. As stated, it is not asserted by plaintiffs that the provisions of section 26 were not complied with. However, prior to the passage of Ordinance 877 making an assessment for the deficit, the council, by resolution, caused the city .recorder to publish the second notice above set forth. Before the publication of the-, first notice, detailed specifications and plans or maps were adopted and filed in the office of the city recorder, showing the boundaries of this sewer system or district, the streets upon which the sewer mains were proposed to be constructed, the size of the pipe, the property proposed to be drained, and other details. 2. The power conferred by the charter to assess the cost of sewer upon the property directly benefited necessarily implies the authority to define the area to be drained. That which is implied in a statute is as much a part thereof as what is expressed. Minard v. Douglas County, 9 Or. 206. 3. In adopting these plans or maps and specifications, and prescribing the limits of the area to be drained by the sewer, no notice thereof to the taxpayers was necessary. Paulson v. City of Portland, 16 Or. 450 (19 Pac. 450: 1 L. R. A. 673: 149 U. S. 30, 40: 13 Sup. Ct. 750: 37 L. Ed. 637). The construction of a sewer by a city is the exercise of the police power for the health and cleanliness of the municipality, and such power is exercised solely at the legislative will. The determination of a territorial district to be taxed for a local improvement is within the province of legislative discretion. Paulson v. City of Portland, 16 Or. 450 (19 Pac. 450: 1 — 333 — L. R. A. 673: 149 U. S. 30, 40: 13 Sup. Ct. 750: 37 L. Ed. 637), citing Willard v. Presbury, 14 Wall. 676 (20 L. Ed. 719) ; Spencer v. Merchant, 125 U. S. 345, 355 (8 Sup. Ct. 921: 31 L. Ed. 763). 4. Under this charter, notice must be given to the taxpayers, before an assessment for the construction of a sewer can be sustained, as in any other demand upon the individual for a portion of his property. Paulson v. City of Portland, 61 Or. 450 (19 Pac. 450: 1 L. R. A. 673: 149 U. S. 30, 40: 13 Sup. Ct. 750: 37 L. Ed. 637). Where the charter of a city granting the power to construct sewers expresses the time and manner of giving notice thereof, compliance with such statute is sufficient to confer upon the council jurisdiction to act in the matter. The mode of exercising the authority is the measure of power. 2 Elliott, Roads and Streets, § § 665, 699, and 700. We quote from the latter part of section 699 as follows: “The only defensible rule is that which requires that as some stage of the proceedings before the judgment or decision becomes conclusive the land owners should have notice and an opportunity to be heard. We do not say that he is entitled to be heard on every question, but we do believe that before the final determination, he is entitled to be heard upon questions which vitally touch the validity of the proceedings. What we mean is that upon such questions he cannot be denied the right to a hearing which the organic law intends to secure to every citizen before his property rights are actually and materially affected. * *” In section 700 we find the following language as to the sufficiency of the notice: “* * The nature of the notice and hearing may be determined and prescribed by the legislature, so long at least as no constitutional limitations or rights are violated. The statute on the subject must be complied with and any failure to give the statutory notice and hearing will usually invalidate the assessment. Where — 334 — the statute does not prescribe any particular form or time of notice, the notice should be reasonable and given for a reasonable time, and if the time is reasonable and the notice apprises the interested parties of the location and nature of the improvement and property to be assessed, and, when required, the time and place for hearing it will usually be sufficient. Where the statute is specific it has been held that no restrictions or limitations can be added by the municipality; and it has also been held that an agreement by city officials that they would give notice of future proceedings does not bind the city so as to require it to give notice in addition to that provided for by statute. In some instances, however, ordinances may provide for a certain notice. * *” It will be seen that section 26 prescribes the time and manner of notice, and section 27 directs that the notice must specify with convenient certainty the sewer or street proposed to be improved and the kind of improvement to be made. The form of the notice is not prescribed therein, nor is the time and place for hearing required to be inserted. From the charter we find that no notice of ascertaining and declaring the amount of the assessment is required after giving the notice as a prerequisite to the construction of the sewer. While the notice of making the assessment and commanding all interested parties to appear before the council and present their objections, if any, was published for three days in a newspaper, there was no requirements that such action should be taken. This second notice was in addition to that mentioned in the charter, and was in the nature of an extension of time or superfluous. The question remains: Was the notice of June 7th sufficient? Although this question is only raised indirectly by the averment in the complaint as to the want of notice of a passage of Ordinance 877, the point contended for by plaintiffs’ counsel in their argument and brief is that the second notice contains no description of the property to be assessed. — 335 — 5. The first notice, however, sufficiently apprises the interested parties that the council proposes to construct and establish a sewer system at the expense of the property owners within the limits of such district according to the plans and specifications adopted, in which the boundaries of the district are more particularly described, and plainly referred to in the notice. We think this was a sufficient description of the property to be assessed. In the case of Clinton v. City of Portland, 26 Or. 410 (38 Pac. 407), it was claimed that, the city charter having provided that the notice must specify with convenient certainty the kind of improvements to be made, no reference could be had to any plans or specifications to aid such notice. Mr. Justice Moore, speaking for the court, at page 416 of 26 Or. (at page 409 of 38 Pac.) said: “* * Where an ordinance or notice, after describing generally the kind of improvement proposed to be made, refers for a specific description to maps, plans, specifications or other details of such improvement on file in a public office, and accessible to interested parties, they thereby became a part of such ordinance or notice, render the description complete, and comply with the statutory requirements”— citing Beach, Public Corporations, § 1182; Stone v. Cambridge, 6 Cush. (Mass.) 270; Ladd v. Spencer, 23 Or. 193 (31 Pac. 474) ; Becker v. City of Washington, 94 Mo. 375 (17 S. W. 291). The plans and maps of the sewer system in question were accessible to the taxpayers, and furnished information as to the lines of the sewer district; the boundaries being marked and explained on the map thus: “| | | | | | |.” This description of the property proposed to be taxed rendered the notice complete in such respect. Rubin v. City of Salem, 58 Or. 91 (112 Pac. 713). The provision contained in the charter and the notice given by the city, pursuant thereto, afforded a reasonable opportunity for — 336 — the interested parties to make and file objections to the passage of the ordinance, and to have the same heard by the council. 6. Section 32 of the charter makes provisions for an assessment of the probable cost of the improvement, and section 48 provides for the assessment of a deficit when the original sums assessed therefor are found to be insufficient to defray the cost thereof. No additional notice of such deficit assessment is required by the charter. This is but a completion of the original assessment, and no further notice to the taxpayers is necessary until that provided for in section 35. 7. While it is claimed that this apportionment was prematurely made, yet the contract had been let and the total cost ascertained, and it does not appear that there is any error in the amount, although the work had not then been completed. The deficit assessment made by Ordinance 877 is based upon the same foundation as the original assessment, and it must stand or fall therewith. 8. We come now to the important question of making the assessment for the expense of the sewer upon the property directly benefited. Plaintiffs allege that the council neglected to determine by Ordinance 834 that their respective lots or parcels of land in the district were “directly benefited” by the sewer or drain, and failed to assess the same according to, or in proportion to, the direct benefits, but arbitrarily assessed the land in proportion to the superficial area. In the case of Beckett v. City of Portland, 53 Or. 169 (99 Pac. 659), the complaint was on the ground that the plaintiffs’ property would not be benefited by the sewer on account of the situation of the land, and the necessity of making deep tunnels below the surface of the ground through a watershed at an increased cost. It was held in sustaining a demurrer to the complaint that under — 337 — the charter of the city of Portland the action of the council in establishing a sewer district, finding that the property situated therein would be specially benefited by the construction of the sewer, and ascertaining the amount of such benefit, and making an assessment therefor, was conclusive on the courts in a collateral attack, unless the act of the municipal body were so unreasonable, oppressive, and subversive of the rights of the citizen as to indicate an abuse rather than a legitimate exercise of the power — citing many author-ties. Mr. Justice Bean, speaking for the court, states the general rule at page 173 of 53 Or. (at page 660 of 99 Pac.), as follows: “* * Where a municipality has authority to establish assessment districts and assess the cost of constructing sewers on property therein, it is not essential to the validity of an assessment that the property shall abut upon the street or place where the sewer is laid. The question of benefits is one of fact, and, if it be determined by the proper tribunal that the property is specially benefited by the construction of the sewer, as assessment is proper to the extent of such benefit, whether the property is abutting or contiguous to the improvement or not.” Many authorities are cited. In the case at bar the claim is similar to the one in the Beckett case. The plaintiffs do not allege that their property cannot be drained into the North Salem sewer, but they base their claim on the general assertion that their lands will not be benefited thereby, and with the additional averment that some of their number already have their property connected with, and amply drained by, certain sewer construction through the city by the State of Oregon. A general objection that such an assessment is not made according to benefits is insufficient. Hughes v. City of Portland, 53 Or. 370, 391 (100 Pac. 942). 9. The necessity and propriety of laying this sewer, — 338 — except in the case of fraud or want of authority, was a question for the exclusive determination of the common council. Applegate v. City of Portland, 53 Or. 552 (99 Pac. 890). 10. It was incumbent upon the parties interested bo have acted promptly, making their objections to the council and specifying the reason why their property would not be benefited by the sewer, or wherein the assessment would be unjust and oppressive, and, then, if the council had failed to give a proper hearing, their action could have been reviewed. This remedy was adequate. Hughes v. City of Portland, 53 Or. 380 (100 Pac. 942) ;Michell v. City of Portland, 53 Or. 548 (99 Pac. 881: 101 Pac. 388). No objections having been made to the improvement in question, until after the ordinance providing for. the construction of the sewer and the apportionment of the expense was passed, and the contract for the construction let, and the work partially performed, any irregularities occurring in the proceedings for such an improvement after the common council had acquired jurisdiction should not be considered in a suit to avoid the entire assessment. Clinton v. Portland, at page 419 of 26 Or. (38 Pac. 407) ; Houck v. City of Roseburg, 56 Or. 238 (108 Pac. 186). 11. In such a case, where the property owners have had notice and an opportunity to be heard in regard to an assessment for a public improvement, a court of equity will not grant relief against such assessment as unequal, where they, failed to appear and make their objection at the proper time. Wilson v. Salem, 24 Or. 504 (34 Pac. 9, 691). 12. It is contended by counsel for plaintiffs that Ordinance 834 did not assess the estimated cost of the sewer upon the property “directly benefited” as required by the charter, but merely made the assessment upon the — 339 — property “benefited.” While the ordinance does not contain the word “directly” in this connection, it recites that the land assessed is drained by the sewer which shows that it is directly benefited. 13. It is objected that the assessment was made according to the superficial area. An assessment made according to the area is generally regarded as a just means of apportioning the special benefits, particularly in the case of sewers, and is upheld in a proper case upon the same principle that upholds frontage assessments. 2 Elliott, Roads and Streets, § 688. An assessment under the rule of benefits is not necessarily yitiated by an assessment according to area or frontage. Hamilton, Special Assessments, § 481. “A finding by the equalizing board that the lots affected ‘are specially benefited, and shall be assessed for the full cost of construction of such sewers according to their foot frontage,’ although informal, does not invalidate the assessment, as the finding that the property is especially benefited, and should be assessed as stated, is tantamount to a statement that the benefits are equal and uniform.” Hamiltion, Special Assessments, § 605. 14. Passing to the merits of the controversy as shown by the evidence in the case, it is contended that this sewer system is not beneficial for the reason that the water mains have not yet been extended to that portion of the city. The fact that the land will not receive as great a benefit from the sewer as it would if the mains of the city waterworks were extended along the streets upon which the land to be assessed is situated does not prevent an assessment for such improvements, if it, in fact, does confer a benefit. 1 Page and Jones, Taxation by Assessment, § 324. 15. The action of the council in defining the lines of the sewer system was, in effect, a determination of what property would be directly benefited by the sewer. It — 340 — is not intended to suggest that the city could arbitrarily, or in any manner, include in such system property which would not in fact be so benefited, or make a levy substantially in excess of such benefits. Kadderly v. Portland, 44 Or. 118, 155 (74 Pac. 710: 75 Pac. 222); Strout v. City of Portland, 26 Or. 294 (38 Pac. 126). The evidence shows that all the land embraced within these limits can be drained by this system. It does not appear from the evidence that these tracts are not enhanced in value to the full amount of the tax, or that the assessment is unjust or oppressive. It will not be assumed, nor is it shown, that the city council did not have full knowledge of the topography and value of the land, and all the circumstances touching the matter of benefits, or did not take the same into consideration in making the apportionment of the expense of the sewer. 16. Objection is made that the expense was incurred for main or trunk sewers, and that the ordinance does not provide that the plaintiffs shall have a right to attach to the sewer. We think this claim is without foundation. The whole purport of the ordinance is to construct a sewer system to drain the property of plaintiffs in this district, and for that purpose branch sewer connections were put in at various street intersections and other places into wihich lateral sewers could be discharged. 4 Dillon, Municipal Corporations, § 1460. When the system is completed, there can be no doubt but that the owners of the realty which has been assessed to pay for the system will have a right to attach thereto. 1 Page and Jones, Taxation by Assessment, § 563; Snydacker v. Village of West Hammond, 225 Ill. 154 (80 N. E. 93). 17. Under some statutes, the cost of a main or trunk sewer which is intended to connect with lateral sewers and thus drain a wide area must be assessed upon all the property drained by the laterals. Page and Jones, — 341 — Taxation by Assessment, §§ 327, 563. See, also, South Highland Land & Improvement Co. v. Kansas City, 172 Mo. 523 (72 S. W. 944). In order to receive a benefit from a public improvement, land need not abut or front thereon, in the absence of a determination by the legislature or under authority of the statute that only the abutting or fronting property is benefited. Accordingly nonabutting land may be benefited by the construction of a sewer. Page and Jones, Taxation by Assessment, § § 619, 620. In Rich v. City of Chicago, 152 Ill. 18 (38 N. E. 255), it was held that in a special assessment for a sewer it is not essential that the property assessed be contiguous or abutting upon the improvement, if it is presently and specially benefited. Evidence that the market value of the property will be increased in consequence of the improvement is sufficient to establish special benefit. 4 Dillon, Municipal Corporations, § 1460. 18. It is complained that a portion of the .property taxed is unplatted acreage tracts. Mr. Elliott in his work on Roads and Streets, § 672, announces the rule that property devoted to agricultural purposes, unless exempted by constitution or statute, is subject to special assessment for special benefit. And a statute providing for an assessment of each and every lot has been held to include a tract of unplatted land. Several of the plaintiffs and their witnesses, other than those who stated that their property was connected with a sewer, testified much to the same effect as the following, given by one of the plaintiffs, Mr. George H Stoddard. The latter, after stating the number of acres he owned, its location and the amount of his assessment, to the question: “What is the fact, Mr. Stoddard, about your property being benefited as much as the amount of assessment against it by this new sewer?” answered: “I am unable to detect it will be any benefit to me at all whatever.” And to the question, “Why?” he answered: “Well, for the reason, in the first place, they haven’t. — 342 — any water there. In the second place, the benefits, the cost of making this improvement, is much in excess of the benefit to be derived even though I was to connect. I only have one house.” No statement is made by any of the plaintiffs’ witnesses as to the value of the property before the improvement compared with the value thereafter, and no facts are stated showing an inequality of assessment between the different property owners. Their complaint is based largely upon their opinion as to the advisability of making the improvement. The evidence of experienced engineers and others who testified on behalf of defendant is to the effect that the sewer system is practical and sufficient to drain all the area comprised in the limits of the district described on the map contained in the record, and that, when the system is completed by the construction of necessary laterals, the expense, so far as the location is concerned, will be practically equal. 19. Plaintiffs E. F. Rogers, Caroline Morton, Nettie G. Morton, H. V. Doe, J. F. McDonald, Cecilia Knapp, Linda A. Cotterman, and W. W. Walker show by their evidence that their property was prior, to the establishment of this drain provided with a sewer constructed across their land by the State of Oregon; that they have a right to connect with the latter, and that most of them have so connected at considerable expense; and that this sewer already constructed, which was authorized by the city, is sufficient to drain all their property. There is a clause in each of the deeds for the right of way for the State sewer, given to the State of Oregon by these plaintiffs, which is similar to the following: “In consideration of the rights hereby conveyed by said Linda E. A. Cotterman and Owen Cotterman, her husband, they shall have the right to make connections with said sewer at the places and in the manner designated, within said premises, by the Oregon State Board of Agriculture, acting for and on behalf of said State, — 343 — which connections shall be used only for the lands of said grantors crossed by said sewer.” If land is drained sufficiently by existing sewers authorized by the municipality, no assessment can be levied for the construction of a new sewer, when no benefit to the realty is derived therefrom. 1 Page and Jones, Taxation by Assessment, § § 387, 563; Potter v. Village of Norwood, 21 Ohio Cir. Ct. Rep. 461. The property of these last-named plaintiffs was not benefited by the sewer, and the municipal officers were without authority to assess the expense thereof upon the same. To this extent the assessment should be canceled. The decree of the lower court should be modified so as to sustain both the original and deficit assessments, with the exception above noted; and it is so ordered. Modified. Mr. Justice Mooke and Mr. Justice Burnett took no part in the consideration of this case.