129 P. 538 | Or. | 1913
delivered the opinion of the court.
“Whenever three freeholders of any road district in this State shall petition the road supervisor of such district to call a district road meeting of the legal voters of the district and shall state in such petition the object for which the meeting is desired, the supervisor shall cause written notices of such meetings stating the objects thereof and the time and place of holding the same and signed by himself to be posted in three public places in the district at least ten days before the day appointed for the meeting and the said supervisor shall make due proof of the giving of such notice by affidavit, which proof together with the petition calling for the meeting shall be filed with the secretary of the meeting and shall become a part of the minutes thereof.” Section 6384, L. O. L.
“District road meetings legally called shall have power to determine what, if any, county roads or portions thereof of the road district shall be improved in any special manner and to determine the extent and character of the improvement or improvements they shall make thereon * * and shall have power to levy a special tax not to exceed ten mills on the dollar upon all the taxable reaj and personal property of the district for the purpose of raising money with which to defray the expense of such special improvement or improvements. * * ” Section 6386, L. O. L.
“If any road district in this State shall determine to specially improve any county road or roads or portions thereof in such district and to levy a special tax to defray the expense thereof as provided in the last preceding section they shall do so by proper resolution describing
“The county road supervisor shall be ex officio chairman of all road district meetings of the district to which he belongs and in case of his absence or inability to act the meeting shall proceed to elect a temporary chairman from among their own members who shall be a legal voter of the road district holding the meeting and they shall also elect a competent secretary whose duty it shall be to keep the minutes of the meeting which minutes shall be submitted to the chairman of the meeting for his approval or correction and as so approved or corrected shall be signed by the chairman and secretary and certified by the chairman of the meeting, shall be transmitted to the clerk of the county court who shall preserve it on file with the other records of such road district.” Section 6390, L. O. L.
In 1909 the legislative assembly amended Section 34 of the original act by making an addition thereto which appears in codification as Section 6321, L. O. L., as follows:
“The taxpayers of any road district in any county of this State may vote an additional tax for road purposes, providing that at least ten per cent of the taxpayers of said district shall give notice by posting notices in three public places in said road district and one in court house, and publish one notice three weeks in one weekly newspaper of general circulation, signed by at least ten per cent of the taxpayers of said road district, giving time, place and object of said meeting, which meeting shall be held in the month of December, and at the time of said meeting it shall be organized by the election of a chairman and a secretary, and at such meeting they may, by a majority vote of such taxpayers, levy such additional tax as they .may deem advisable to improve the roads of said district, and if a tax be levied it shall be the duty of said
It is surmised that the proceedings of which the plaintiff complains were undertaken by virtue of the amendment just quoted. In the case of Hood River Lumbering Co. v. Wasco County, 35 Or. 498, 512 (57 Pac. 1017, 1021), Mr. Justice Bean, quoting with approval the language of Mr. Justice Earl in Stuart v. Palmer, 74 N. Y. 183 (30 Am. Rep. 289), says: ' “The constitutionality of a statute must be determined by what can be done under it and not by what actually takes place.” Adverting to the terms of Section 6321, L. O. L., we observe that it does not direct whether notice be given prior or subsequent to the meeting; that it does not in express terms authorize the taxpayers to call such a meeting; that it does not specify the length of time for which notice shall be given; and, finally, that it does not in any manner prescribe a method of proving that notice has been given or that the persons participating in the meeting are taxpayers. For all that appears in the statute last quoted nonresident owners of land liable to be taxed in any road district might with impunity style themselves secretary and chairman of an imaginary meeting as set forth in the certificate quoted, execute such a document, send it to the county clerk, and afterwards give the notices mentioned in the section, all within the letter of the law.
Section 6384 provides for the proof of giving the notice, and the petition calling for the meetings, both of which shall become a part of the journal of such assembly. The minutes of a meeting containing such elements, to
Other questions were presented at the argument, but we deem it Unnecessary to consider them. It was error to sustain the demurrer to the bill.
The' decree is reversed, and the cause remanded for further proceedings. Reversed.