Dyer v. Bandon

136 P. 652 | Or. | 1913

Opinion by

Mr. Chief Justice McBride.

1. We are not compelled to go beyond the decisions of our own court for authority decisive of the questions raised on this appeal. The case of Ladd v. Spencer, 23 Or. 193 (31 Pac. 474), is exactly in point. The provisions of the charter of East Portland quoted in the opinion in that case are practically identical with Sections 57 and 58 of the Bandon charter. The notice in that case described the nature of the improvement as follows: “From the center line of Seventh Street to a point at the west line of Ninth Street, by building to the established grade an elevated roadway thirty-six feet wide and elevated sidewalks twelve feet wide.” It will be noticed that the description above given was quite as definite as that given in the case at bar; yet the court held the proceeding void; Mr. Justice Moore using the following language: “Respondent claims that the first notice was insufficient and void because it did not describe with any certainty the kind of improvements required, and that the second notice was issued and published without authority and therefore void. Do the words, ‘by building to the established grade an elevated roadway 36 feet wide and elevated sidewalks 12 feet wide,’ give with convenient certainty the kind of improvement required for that part of said street lying between the center line of Seventh and the west line of Ninth Street? It cannot be ascertained with convenient or any certainty from an inspection of the published notice, nor from an examination of said petition, the description of which is copied in the said notice, what kind of material, nor the size, quality or character thereof, was required for this elevated roadway. The owner of each lot abutting upon this street whose property might b.e benefited or injured by the proposed improvement was entitled to know just what kind of improvements were contemplated. The legal issue of the notice and its proper publication were for his benefit and protection and were the means by which the council acquired jurisdiction to subject his property to the burden necessary to defray the expense of making the improvement. This was not such a notice as the charter prescribed nor such as the owner of property adjoining said street was entitled to, since it did not inform him of the charaeter, nor conld lie from it estimate the probable cost, of the proposed improvement. No jurisdiction to levy a special assessment could possibly be claimed by the publication of such a notice, and any proceedings had thereupon were void.” This holding has been approved in Clinton v. City of Portland, 26 Or. 410 (38 Pac. 407); Bank of Columbia v. Portland, 41 Or. 1 (67 Pac. 1112); Rubin v. City of Salem, 58 Or. 91 (112 Pac. 713; Jones v. City of Salem, 63 Or. 126 (123 Pac 1096). It follows from the reasoning of these decisions that the notice published was invalid and that the council never obtained jurisdiction to make the proposed improvement, unless plaintiffs in standing by and making no protest against the work are estopped from asserting the invalidity of the proceedings by which it was initiated.

2. Where there is an entire lack of jurisdiction to order .the improvement, as is the ease here, it has been invariably held in this state that a property holder is not estopped from asserting the invalidity of the proceedings by reason of his having failed to assert their invalidity before the work is completed: Strout v. City of Portland, 26 Or. 294 (38 Pac. 126), and cases there cited; Jones v. City of Salem, 63 Or. 126 (123 Pac. 1096).

3. It is also contended that there is an improper joinder of parties plaintiff. The plaintiffs all have one common ground for relief, namely, the lack of jurisdiction in the council to order the improvement. In this the case differs from Hendry v. City of Salem, 64 Or. 152 (129 Pac. 531), cited by counsel for defendants.

It follows that the decree of the Circuit Court must be reversed and a decree entered here for plaintiffs.

Reversed : Decree Rendered.

Mr. Justice Bean, Mr. Justice Eakin and Mr. Justice McNary concur.