Fey v. City of Salem

Mr. Justice Bean delivered the opinion of the court. The defendant city sets forth all the proceedings leading up to the making of the assessment which it asserts is a valid lien upon the real property. Plaintiffs contest the sufficiency of the procedure to support the assessment and claim that the city authorities had no jurisdiction or authority to make the same. It will be' observed that the notice to the property owners of the proposal to make the improvement of South High Street described the part to be paved as being “from the south line of Mill Greek to the south line of Bush Street,” while the resolution of the common council authorizing the notice mentions that part to be improved as “South High Street from the south line of Mill Street to the south line of Bush Street.” It is contended by counsel for plaintiffs that the notice as published was materially different from the one directed by the council and was not in conformity with the city charter; and that the recorder had no authority to publish such a notice. Bush Street is located south of Mill Street. South High Street crosses Mill Creek at right angles some three or four hundred feet south of Mill Street; hence, that much of the street designated in the resolution was left out of the notice. Mill Creek is a good-sized stream with a well-defined south line or bank. In ascertaining whether the required remonstrance to defeat the improvement could be obtained an owner of adjacent property between the “south line of Mill Creek and the south line of Bush Street” who would be governed by the notice would not take into consideration the realty adjacent to that part of the street not contained in the notice. The owners of the latter property would have no notice whatever. It is manifest, therefore, that the omission [189] affects the substantial rights of the property owners interested. All realty holders on the entire portion of the street to be paved have a common interest in the right to remonstrate. The matter, however, is controlled by the city charter, Section 45 of which confers upon the city council the power and authority, whenever it deems it expedient, to improve or build any street or part thereof within the city at the expense of the owners of adjacent property. Section 26 provides in part as follows: “The council in improving any street or streets, or any part or parts thereof within the city of Salem, Oregon, shall require from the city engineer plans, specifications and estimates for two (2) or more kinds of appropriate improvements at least one of which musí be of a non-patentable kind, and the city engineer shall file said plans, specifications and estimates in the office of the city recorder of the city of Salem, Oregon. If the council shall find such plans, specifications and estimates to be satisfactory it shall approve the same, and shall determine the limits of the street pioposed to be improved, and the council shall, by resolution declare its purpose and intention of making said improvement and determine the portion of the street to be improved. * * Provided, that no grade or improvement mentioned in this section or in section 25, except the original establishing of the grade, can be made without ten (10) days’ notice thereof being first given by publication in some daily newspaper published in the city of Salem, Oregon; Provided, however, in case of the improvement of any street or any part thereof, such notice shall not be required to be published until the council has determined the kind and character of the improvement to be made as herein specified. * * ” The next section reads thus: “Section 27. (What Notice Must Specify.) Such notice must be given by the recorder, by order of the council, and must specify with Convenient certainty the [190] 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. (S. L. 1901, p. 284.) ” It is argued by counsel for the city that the notice as published is good as to the owners of property adjacent to the portion of the street described, which would include the plaintiffs. By the plain mandate of the charter the city council shall by resolution “determine the portion of the street to be improved”; and, further, “such notice must be given by the recorder by order of the council” and must specify with convenient certainty the street or part thereof proposed to be improved. The recorder is not empowered to determine what part of a street shall be improved, and any notice of street improvement given by that official without the sanction of the city council is not effective. It is further claimed on behalf of the city that as the notice refers to the plans, specifications and estimates for the improvement of “said South High Street from .the south line of Mill Street to the south line of Bush Street” on file in the office of the city recorder, the erroneous description is cured. Reference to the plans and specifications appears to be made in the notice as a means of ascertaining the details and kind of improvement and not in order to contradict or delineate the description of the portion of the street determined to be improved. It will also be seen by reading the charter that in the regular order indicated the part of the street proposed to be paved would be determined after the plans and specifications were filed and would not necessarily be of the same extent as indicated therein. The plans and specifications were not referred to in the notice as a part of the description of the street nor for the purpose of aiding the property owners in determining the property to be [191] affected by tbe improvement. The notice in question is not similar to the one in Rogers v. City of Salem, 61 Or. 321, 325 (122 Pac. 308). The notice as published was not authorized by the common council, and did not confer power or jurisdiction upon that body to take the subsequent proceedings for the improvement of South High Street from the south line of Mill Street to the south line of Bush Street, nor to assess the cost thereof against any of the abutting property. The assessment was invalid. The adjacent property owners are entitled to know what portion of the street is proposed to be improved in order to give them an opportunity to remonstrate. The requirement of the city charter that ten days’ notice of intention to improve a street be given to the property owners must be complied with by the city authorities before the council has jurisdiction to make the improvement at the expense of the abutting property owners: Sections 43 and 44, Rev. Charter City of Salem, as amended December 4, 1911; Paulson v. Portland, 16 Or. 450 (19 Pac. 450, 1 L. R. A. 673, 149 U. S. 30, 37 L. Ed. 637, 13 Sup. Ct. Rep. 750); Ladd v. Spencer, 23 Or. 193 (31 Pac. 474); Smith v. Minto, 30 Or. 351, 354 (48 Pac. 166); Bank of Columbia v. Portland, 41 Or. 1 (67 Pac. 1112); Jones v. City of Salem, 63 Or. 126 (123 Pac. 1096); Johns v. City of Pendleton, 66 Or. 182 (Ann. Cas. 1915B, 454, 46 L. R. A. (N. S.) 990,134 Pac. 312); Dyer v. Bandon, 68 Or. 406 (136 Pac. 652); Watson v. City of Salem, 84 Or. 666 (164 Pac. 567). This conclusion renders it unnecessary to consider several irregularities complained of. The decree of the lower court will therefore be affirmed. Affirmed. Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Harris concur.