195 P. 828 | Or. | 1921
Section 383a substantially adopts what is popularly known as “the Bancroft Act,” as a system for the benefit of the rate-payer in allowing his assessment to be paid in ten equal installments. That act is embodied in Chapter XV of Title XXVII, Or. L., and, according to Colby v. Medford, 85 Or. 485 (167 Pac. 487), is paramount in its operation as a general state law, and must prevail over the charter in case of a conflict. In substance, the act provides respecting street improvements that when the city shall have proceeded to improve a street and shall have assessed the cost thereof to the property benefited thereby or liable therefor according to the provisions of the municipal charter, the owner of property assessed for $25 or more, at any time within ten days after the notice of the assessment is first published, may file with the auditor or other official keeping the records of the town, a written application to pay the assessment in installments. The applicant and property owner is required to waive in his petition all irregularities and defects, jurisdictional or otherwise, in the proceedings for the improvement for which the
Under Section 394 of the charter, after the completion of any improvement, or when it has reached a stage so that the whole cost can be determined, the city engineer shall file with the auditor a report of the cost of the betterment. The latter officer “shall apportion the cost thereof (except the share to be paid in ease of a street improvement by railroad or street railway companies, by reason of their use of the streets) upon the lots, parts of lots, and parcels of land benefited thereby and within the assessment district.” The cost within the terms of this section is the contract price, plus cost of right of way, expense of condemnation, and a sum not to exceed 5 per cent of the contract price, for advertising, engineering and superintendence. After the apportionment, the auditor gives notice of the same in the manner provided, declaring that the assessment has been apportioned,
Section 389 provides that if it be found upon the completion of the improvement that the sum assessed therefor is insufficient to pay the cost thereof, and the amount charged to any lot or part thereof or tract of land, is less than the benefits accruing thereto, the council must ascertain the deficit and by ordinance reassess the land so benefited in excess of the original assessment. The assessment for the deficit is entered in a separate column in the docket of city liens, with the date thereof, and becomes thereafter a lien upon the lot, the same as the sum originally assessed.
It is set down in Section 400, known as “the reassessment section,” that when any'assessment has been set aside, annulled, declared, or rendered void or its enforcement refused by any court of this state or any federal court having jurisdiction, or when the council shall be in doubt as to the validity of the assessment or any part thereof, that body may by ordinance make a new assessment or a reassessment upon the lots, blocks, or parcels of land which have been benefited by the improvement, to the extent of their respective and proportionate shares of the full value thereof; but the assessment shall not exceed the amount of such original assessment, and the council may adopt a different plan of apportionment of such cost, when in its judgment necessary to secure an equitable assessment. It is said in that section:
Provision is made for giving notice of the reassessment and fixing a time when the council will hear and consider objections thereto by the parties aggrieved. Within ten days after the last publication of the notice, the owner of any property, or anybody having an interest therein, may file his objection in writing to such assessment, with the auditor. The hearing appointed may be adjourned from time to time by the council, and that body has power'to revise and correct or to set aside and order the remaking of such assessment, and shall pass an ordinance approving and confirming such reassessment as corrected and remade by it, and such decision shall be a final determination of the regularity, validity, and correctness of the reassessment, except as otherwise provided in the charter. The reassessment is to be entered in the docket of city liens and enforced and collected in the- same manner that other assessments are enforced. All sums paid on the former assessment shall be- credited to the property on account of which the same were paid, as of the date of such payment.
“Some days ago we received from you a notice of preliminary reassessment for the improvement of Kingston Avenue et al. streets, such notice states
“We beg to advise you that on behalf of the owners of several hundred lots in Arlington Heights, that at this time we object to the reassessment being made to this street as a whole, inasmuch as this property was sold with the understanding and agreement that the assessments against the several lots would not exceed a specific amount. There was published on June 1, 1914, a price list which set out the release amount in one column and the bonded indebtedness in another. That was the reason it was impossilble for the Malinda Heights Realty Syndicate to take any action on account of a letter written on August 25th by the city attorney, W. P. La Roche, regarding a petition and waiver which was filed with the city auditor on May 27, 1914, and on behalf of the owners I am protesting against this reassessment and contend that the assessment should only be made on lots belonging to ‘the Syndicate and not on lots that were sold or contracted on the representation of the price list of June 1, 1914, enclosed herewith.
“I beg to submit you a memorandum of unsold lots on which the Syndicate would like this assessment placed in order not to disturb the several purchases which were made, as we have said before, based on the representation that the bonded indebtedness against the several pieces were as set out on the sheet enclosed herewith, and became a part of our contract with the purchaser. [Then follows a list of many lots.]
“The Syndicate has, you will see, plenty of property left to take care of this additional assessment without embarrassment either to the Syndicate or without in any way jeopardizing the interests of the city, but to make it a blanket proposition covering the whole tract, which you will note has been largely sold, would not only be embarrassing to us but might lead to litigation which would be expensive and the ultimate results might be in doubt.
“Yours truly,
“Malinda Heights Realty Syndicate.
“By C. H. Jackson,
“President-Manager.”
Attached thereto is a printed price list dated June 1, 1914, stated therein to be “subject to change without notice.” It is headed “Arlington Heights.” The first item will be sufficient as indicative of the whole, reading thus:
“Price Release Amt. Bonded
“Block 1, Loti 1750.00 715.65 168.08.”
Attached to the letter of the syndicate as quoted, are 47 other letters, all addressed to “Mr. C. H. Jackson, Manager, Malinda Heights Realty Syndicate, 509 Lumbermen’s Building, Portland, Oregon,” all exactly alike except as to the description of the property involved. Some of these are signed by some of the plaintiffs, and others by strangers to the record. In each case the writer recites that he is the owner of certain described property in Arlington Heights, Multnomah County, Oregon, and the letter then goes on to state as follows:
“There is now being published in the Daily Official Abstract, a newspaper in Portland, Oregon, what is entitled ‘Notice of Preliminary Re-Assessment for the improvement of Kingston Avenue, et al. streets.’ The first publication was made on February 4, 1916, and the last will be published on February 15, 1916. This publication is signed A. L. Barbur, Auditor of the city of Portland.
“As I understand it, this plan would create a lien upon the property I have above mentioned. I do not believe that this is fair to me. At the time I purchased this property there was furnished me by Malinda Heights Bealty Syndicate, a memorandum of the amount of public charges against this property,
“I further understand that this is an old matter and I believe I should have been advised of it. You are president and manager of. Malinda Heights Realty Syndicate and I think I have a right to' ask you to bring about the proposition I have hereinabove set out.
‘‘ Kindly keep me advised as to what you are doing, and oblige.”
(Signature.)
We find in the record another letter, dated “Portland, Oregon, February 21, 1916,” addressed to the mayor and council of Portland, signed by Etta Osborn Bailey, inclosing notice of reassessment for the improvement of Kingston Avenue and other streets, to which she objects, without giving further reason than that she had purchased the lot in September, 1914, and had paid in full for the same, all sewer and other indebtedness on the same and for the improvements to date, and that she considers the reassessment an injustice. Mrs. Delia Hodler addressed a letter to the city auditor, saying in substance that “in connection with the proposed reassessment” she wished to object thereto, and desired an opportunity to be heard on the first of March, 1916. The Bailey and Hodler letters may be laid out of the case, because the writers are not parties to this proceeding on review. Moreover, neither of them gives any reason for objecting, and on that account is insufficient.
Further, a strict search throughout the return fails to disclose that there was at any time any application on behalf of any of the parties to this proceeding in review, for permission to pay by installments the original assessment levied on the property. In brief, in the return there is no trace of any operation under the Bancroft Act; in the absence of which there did not arise any contract, the obligation of which would be impaired by a reassessment. Neither the letter of the syndicate itself addressed to the city auditor, nor the stereotyped protests addressed to the syndicate by the plaintiff Fay and others, state any facts whatever amounting to a specific remonstrance against the reassessment. As a matter of law, therefore, they are insufficient to constitute a valid objection to the proposed action of the council. The question argued at the hearing, about impairing the obligation of a contract supposed to arise from operations under the Bancroft Act, is not presented by the record before us.
We find the following in the minutes-of April 5, 1916, after the entry of this report:
“By unanimous consent the council considered the remonstrances, remonstrators having been called for (under order of business ‘Matters Continued’), and no one appearing, the council found that the apportionment of the reassessment is equitable and just, and the facts stated in the remonstrances, so far as the same apply thereto, are not true.
The ordinance was passed. This clearly indicates that the owners of property had their opportunity to be heard. They did not present objections which were sufficient as a matter of law to challenge the jurisdiction of the council to make the reassessment. Moreover, the council found that the statement of facts was not true. That has been held sufficient as a finding of fact as well as of law, in the opinion of Mr. Justice Bean in Irelan v. Portland, 91 Or. 471 (179 Pac. 286).
The record discloses that the contentions of the. petitioners for the writ are without merit and that the judgment should be reversed and the writ dismissed.
It is so ordered. Reversed. Suit Dismissed.