169 P. 504 | Or. | 1917
delivered the opinion of the court.
“Interest thereon from the date of delinquency of the original assessment may be added at the discretion of the council.”
An examination of Ordinance No. 24,280 discloses that no interest on the several amounts assessed against the several lots was thereby ordained. It made no provision for such interest thereby indicating that in its judgment none should be charged. This assessment as declared by the ordinance was affirmed by the verdict of the jury and the judgment on the appeal; hence the computation of interest is governed by the general provision. Section 407 of the charter is as follows:
*51 “The Docket of City Liens is a public writing, and from the date of the entry therein of an assessment the sum as entered is hereby declared to be a tax levied and a lien upon such lot, part thereof, or tract of land, which liens shall have priority over all other liens and encumbrances whatsoever thereon, and the sum or sums of money assessed for any local improvement, entered upon such lien docket, shall be due and payable from the date of such entry, and if not paid, or bonded as provided by law, within ten days from the date of such entry, thereafter the same shall be deemed to be delinquent and shall bear interest at the legal rate.”
This section considered with Section 400 provides that a valid assessment shall be deemed delinquent and bear interest ten days after the entry thereof in the lien docket. Section 401 of the charter provides in part that
“any person who has filed objections to such new assessment, or reassessment, which have not been satisfied by the amendments made by the council may appeal to the circuit court of the State of Oregon for the county of Multnomah from the assessment against any property owned by him or in which he has an interest.”
The appeal transfers the assessment proceedings as to those parties who appeal to the Circuit Court: Page & Jones on Taxation by Assessment, § 1360. An assessment could not be delinquent before it is made or duly declared by ordinance and is complete; hence the most that can be claimed from this charter is that in order to give an invalid assessment sufficient force to have added to it interest from the date the original assessment would, if valid, become delinquent, the council must so declare by ordinance pursuant to the authority of that part of Section 400 above quoted. Such special assessments do not bear interest unless
“Each piece or tract of land shall be sold, separately, and for a sum equal to but not exceeding the unpaid assessment thereon and the interest and cost of advertising and sale; and when there shall be more than one bid the land shall be sold to the bidder offering to take the same for the least amount of penalty and interest.”
The point presented by plaintiff’s counsel is that the cost of advertising with reference to attempted sales which were illegal cannot be included. The city’s counsel agree to this proposition, but do not
This suit was dismissed by the trial court as to the following named plaintiffs who did not appeal from the reassessment Ordinance No. 24,280, to wit: Nellie E. Young, W. D. Helene, E. Y. Deickworth, Gr.<!II. Austin, L. Gr. Austin, L. L. Mallett, E. P. Ames, Alfred Carlberg, L. J. Winfield, Sarah A. Nolta, Bessie Smith, Ida Bush, A. E. Oberg, Walter Hughes, E. M. Orth, E. L. Casey, J ames Paulson. The decree of this court will therefore not affect their interests.
The decree of the lower court is in part as follows:
“And it is further ordered, adjudged and decreed that all entries in the docket of said liens against plaintiffs’ property, of costs and expenses of holding said treasurer’s sales of plaintiffs’ said property since the appeal of the plaintiffs from said reassessment Ordinance No. 24,280 on November 17, 1911, * * be and the same are hereby canceled and held for naught. # # ”
That part of the decree as to costs and expenses of the three attempted sales is affirmed and the decree of the lower court will be modified so as to allow the city, if necessary, to proceed with the sale of the lots for the payment of the assessment as affirmed by the verdict and judgment in the Circuit Court with interest on the various amounts at the legal rate from August 16, 1915. Under the circumstances of this case each party should pay his or its own costs in this court. Modified.