Smith v. Jefferson

146 P. 809, 75 Or. 179, 1915 Ore. LEXIS 185

• Court: Oregon Supreme Court
• Decided: March 2, 1915
• Status: Published

Opinion

Mr. Justice Harris

delivered the opinion of the court.

1. The plaintiffs have urged numerous objections. It is contended that no plans or specifications were adopted by the council or filed with the city recorder. The plans and specifications received in evidence were identified and clearly shown to have been read and approved at the council meeting held February 3d. The resolution and posted notices of intention to do the work, the resolution providing for bids, the published notice for bids, and the resolution levying an assessment for the work, all directly refer to the plans and specifications as being on file or as having been adopted. The minutes of the council do not disclose any separate entry showing adoption by some motion which embraced no other subject. Although the charter does not, in express terms, require the adoption of plans and specifications, nevertheless, assuming that such action was essential, it would be sufficient if the council did in fact adopt plans and specifications, even though other matters were at the same time considered and approved. It clearly appears that the plans and specifications, referred to in the resolutions, notices and minutes, guided every step taken by the council and governed all that was done in connection with the work. No other plans or specifications were used or even prepared. Resolution No. 15, adopted February 3d, was the first step taken by the council, and that resolution recited that:

“Said improvement to be made in accordance with the plans and specifications for the same now on file in the office of the city recorder of said city.”

The action of the council, together with what followed, was an adoption of the plans and specifications: Stockton v. Skinner, 53 Cal. 85.

2, 3. S. E. Roland, occupied the position of recorder until about April 1, 1913, when he resigned, and was succeeded by a member of the council, J. J. Denson, who was appointed by the mayor. Denson did not resign as councilman, and there is no record of his appointment, although he assumed and discharged all the duties of recorder. The council, on April 14th, elected E. E. Howell, who on April '16th subscribed to an oath of office before J. J. Denson “(acting) recorder of the City of Jefferson,” and thereafter Howell served as recorder. By the terms of Section 28 the charter provides that a vacancy in office shall be filled by appointment made by a majority of the council, and Section 24 requires every officer to take and file with the recorder an oath of office. The plaintiffs take the position that Denson was not at any time the city recorder because the appointment made by the mayor was void, and that it also follows that Howell was not clothed with the authority of that office because the oath of office was administered by a person who was not the recorder. While not essentially a determining-factor in the decision, it is well to bear in mind that the resolution manifesting the intention of the council to make the improvement and the resolution declaring that the work would be done were both adopted and the notices thereof given during the incumbency of Boland, whose right to act as recorder is not questioned. If the acts of Denson and Howell can be said to have been done by de facto' officers, then such acts were valid and binding as to these plaintiffs: Hamlin v. Kassafer, 15 Or. 456 (15 Pac. 778, 3 Am. St. Rep 176); Graham v. School Dist., 33 Or. 270 (54 Pac. 185); State ex inf. v. Holman, 73 Or. 18 (144 Pac. 429): The records show, as disclosed by the minutes of the council proceedings, that while Denson acted as recorder he did so with the full knowledge and consent of the council, which is the lawful appointing power, and no person made any objection. Stated broadly, a de facto officer is one who has the possession of an office and performs the duties thereof under color of right, without being actually qualified in law so to act. A usurper is one who has neither lawful title nor color of right. The appointment made by the mayor and the acquiescence of the council furnished the element of color of right, and therefore Denson was not a usurper; and such appointment, even though made without authority, when followed by the actual performance of all the duties of the office, supplies the necessary color of title so as to render Denson a de facto recorder: People v. Roberts, 6 Cal. 214; Ray v. Murdock, 36 Miss. 692; Mallett v. Uncle Sam Gold M. Co., 1 Nev. 188 (90 Am. Dec. 484); McLean v. State, 8 Heisk. (Tenn.) 22; In re Ah Lee, 5 Fed. 899 (6 Saw. 410); Lang v. Bugonne, 74 N. J. Law, 455 (68 Atl. 90, 122 Am. St. Rep. 391, 12 Ann. Cas. 961, 15 L. R. A. (N. S.) 93). The acts done by Denson were therefore the acts of the city recorder, and the oath of office administered by Denson to Howell was sufficient. In this connection it is also claimed that Howell did not file his oath of office until July. The evidence shows that Howell subscribed to the oath of office April 16th, and that the writing was placed with the files and papers of the office. The failure of Denson or the neglect of Howell to take and file an oath of office did not prevent these persons from becoming de facto officers so far as these plaintiffs are concerned: Murphy v. Shepard, 52 Ark. 356 (12 S. W. 707); Holt County v. Scott, 53 Neb. 176 (73 N. W. 681); Rosell v. Neptune City Board of Education, 68 N. J. Law, 498 (53 Atl. 398); State v. Perkins, 24 N. J. Law 409; Gregg Tp. v. Jamison, 55 Pa. 468.

4-6. The plans and specifications were not formally marked and indorsed as filed, but they were at all times in the custody of the recorder as a part of the 'files of his office. The recorder did not maintain an office at the city hall, and, except during council meetings, the minute-book, plans and specifications were kept most of the time at a store where the recorder was engaged in business. The plans and specifications were delivered to the recorder with the intention that they constitute a part of the files of the office, and are referred to by various resolutions and notices as being filed. The indorsement of the recorder only serves as a memorandum and as evidence of the time of filing, but such memorandum is not essential: Conant’s Estate, 43 Or. 530 (73 Pac. 1018); Bade v. Hibberd, 50 Or. 504 (93 Pac. 364); Hart v. Prather, 61 Or. 10 (119 Pac. 489); State ex rel. v. Astoria, 63 Or. 175 (126 Pac. 999); Houghton v. Burnham, 22 Wis. 301. It is not shown that plaintiffs were injured by reason of the recorder having the records at his place of business instead of at the city hall. The court has a right to take judicial notice of the population of the City of Jefferson as declared by the census: Stratton v. Oregon City, 35 Or. 409 (60 Pac. 905). It is not usual for a municipality of the size of Jefferson to require its recorder at all times to he in an office in the city hall; but it is fair to presume that the recorder and his place of business were known to all persons in Jefferson, and as disclosed by the record there was at no time any difficulty in finding the recorder or the files of his office.

7, 8. It is next claimed that the notices of intention to make the improvement and to levy an assessment were not sufficient, that a portion of the abutting property was not assessed, and that a statement of the assessments was never entered in the docket of city liens. The charter in Section 71 provides that no improvement of any street can be made without seven days’ notice given by one publication in a newspaper, or by posting notices in three public places in the city; and by the provisions of Section 72 the 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 kind of improvement which is proposed to be made, and the time when the council will hear and determine objections and remonstrances thereto. After hearing any objections that may be made the council shall determine by resolution whether or not the improvement specified in said notice shall be made: Section 73. It is then provided in Section 74 that the council shall direct the improvement to be made by the owners of the abutting property within a specified and reasonable time, and if such owners fail to make the improvement within the time fixed the council may then proceed with the work and assess the abutting property for its proportionate share of the cost as provided in Section 75:

“Provided, that for all such improvement of streets the council shall pay out of the general fund one half the cost of improving and grading. ’ ’

Section 75 directs that when the total cost of the improvement has been ascertained, the city recorder shall then give 10 days’ notice of the fact that the council is about to assess and determine the proportionate share assessable to each portion of the abutting property—

“which notice may either be given by one publication in any newspaper published in the City of Jefferson, or by posting notices in three public places in said city, which notices shall specify the time at which the council will make such assessment.”

If the council did not acquire jurisdiction because the necessary notices were not given, then the assessment levied cannot he collected: Dyer v. Bandon, 68 Or. 406 (136 Pac. 652); Jones v. Salem, 63 Or. 126 (123 Pac. 1096). The notice of intention, by the express provisions of the charter, must specify with convenient certainty the part of the street proposed to he improved, the kind of improvement proposed to he made, and the time when the council will hear and determine objections. The notice of intention described the portion of the street as being:

“First Street (known also as Main Street) from a point 9 feet north of the south line of Hazel Street in said city to a point 9 feet south of the north line of Ferry Street in said city.”

The kind of improvement is specified as:

“Gravel concrete pavement, 48 feet wide and 6 inches deep, and by grading said portion of said First Street, said improvement to be in accordance with the plans and specifications for the same now on file in the office of city recorder of said city.”

The time for hearing objections was fixed for Monday, February 17th, at 8 o’clock p. m. No more definite description of the street could be given, the kind of the improvement is stated, and the details of the specified kind of improvement were to be found in the plans and specifications which are expressly referred to in the notices, and had been adopted and were on file with the recorder. The specifications state that they are “for concrete pavement on Main Street in the City of Jefferson,” and they describe the kind of work to be done, as well as how that work shall he done. The plans consist of two blue-prints. One blue-print is marked, “Map showing the boundary of the proposed concrete pavement in the City of Jefferson,” and shows Main Street with the property and cnrh lines thereof, the termination of the proposed improvement, the intersecting streets, and the block numbers; and the other blue-print is marked “Map showing the area of the cement street improvement in the City of Jefferson,” shows Main Street with the north and south end of the proposed improvement, the intersecting streets, the frontage of the parcels of abutting property, with the names of the owners marked on such parcels, and the numbers of the lots and blocks are given. The notice as supplemented by the plans and specifications was clearly sufficient, and fully complied with the rule established by prior decisions: Clinton v. Portland, 26 Or. 410 (38 Pac. 407); Rubin v. Salem, 58 Or. 91 (112 Pac. 713); Rogers v. Salem, 61 Or. 321 (122 Pac. 308); Jones v. Salem, 63 Or. 126 (123 Pac. 1096); Dyer v. Bandon, 68 Or. 406 (136 Pac. 652).

9, 10. It is further objected that the notice is not properly signed. The charter designates the recorder’s name of office as “recorder of the City of Jefferson”: Section 62. The notice is signed, “S. E. Roland, City Recorder,” and the official seal of the City of Jefferson is attached. The signing is sufficient particularly when considered in connection with the statement in the notice that it is posted by order of the council “of the City of Jefferson in Marion County, Oregon. ’ ’ The notice was headed thus: “ To Whom It may Concern. Notice of Resolution No. 15”- — and such heading was sufficient. The charter provides for the substance of the notice, and does not prescribe any form of notice. No particular heading is necessary, and hence the rule in Bank of Columbia v. Portland, 41 Or. 1 (67 Pac. 1112), does not apply: See, also, 28 Cyc. 981.

11. The notices and other proceedings refer to the improvement as being on First Street (also known as Main Street). It is claimed that the street was dedicated as Main Street, bnt it appears from the evidence that it was known both as First Street and also as Main Street. The council only made “assurance doubly sure” by using both names for the same street. The improvement is sometimes referred to as Main Street and sometimes as “First Street (also known as Main Street),” but never as First Street alone.

12. By the terms of Section 74 the charter provides that in case a part of a street is improved, the council shall direct such improvement to be made by the owners of the abutting property within a specified and reasonable time; and if the owners fail to make the improvement within the time fixed by the council, that body may then proceed to do the work and assess the expense, as provided in Section 75; provided, that for all such improvement of streets the council shall pay out of the general fund one half of the cost of improving and grading. The plaintiffs cannot complain about the time allowed for the work to be done by the property owners, because neither the plaintiffs nor any of the property owners expressed a desire to do the work and took no steps in that direction, and, moreover, the evidence fails to inform us what time was necessary or reasonable. It is further contended that the notice was not properly signed. The notice was signed “S. E. Boland, City Becorder,” and has the seal of the City of Jefferson attached. The body of the notice refers to the council as being “of the City of Jefferson in Marion County, Oregon,” and is therefore properly signed. The notice given pursuant to Section 75 was also sufficient.

13. The notice of intention is given by “posting notices in three places in said city,” and like notice must be given before making the assessment. The charter does not provide for any form for proof of posting. In each instance the proof is that notices were posted in the City of Jefferson in three public places, and such places are specifically named; the proof is supplemented by the recorded finding of the council that notices were posted as required by the charter; it sufficiently appears that the notices were posted in the City of Jefferson in Marion County, Oregon; and the proof of posting the notices of intention is further strengthened by the parol evidence of S. E. Roland, the recorder who did the posting: Clinton v. Portland, 26 Or. 410 (38 Pac. 407); Reiff v. Portland, 71 Or. 421 (141 Pac. 167-170). All the notices were posted for the time and at the places required by the charter: Minard v. Douglas County, 9 Or. 206; Sweek v. Jorgensen, 33 Or. 270 (54 Pac. 156); State v. Officer, 4 Or. 181; Vedder v. Marion County, 22 Or. 269 (29 Pac. 619).

14. Some of the abutting property was not assessed. All that part of the improvement immediately opposite the end of Union Street, the nine feet extending into the intersection with Hazel Street, and -the nine feet extending into Ferry Street were assessed to the city for the reason that the charter requires the city to pay all the expense of improving street intersections. The owner of the abutting property opposite the end of Union Street voluntarily paid for that part of the improvement, and half of the nine feet on each end of the improvement was likewise voluntarily paid. The assessments against the property of plaintiffs were neither enlarged nor diminished; hence the plaintiffs were not injured and cannot complain: Barber Asphalt Pav. Co. v. Garr, 115 Ky. 334 (73 S. W. 1106); Balfe v. Bell, 40 Ind. 337; Gilbert v. City of New Haven, 39 Conn. 467; Humphreys v. Bayonne, 60 N. J. Law, 406 (38 Atl. 761); 28 Cyc. 1170.

The charter, by the terms of Section 77, directs a statement of the assessments to be entered in the docket of city liens; and Section 78 defines such docket as a book in which must be entered, a particular designation of tbe tract assessed, tbe name of tbe owner or reported owner thereof, or that tbe same was unknown, tbe sum assessed upon such tract of land and tbe date of entry. Tbe city bad such a book, and the charter requirements were observed in every particular.

15. The next contention arises out of the fact that tbe assessments were made according to tbe front-foot rule. Prior to making the improvement tbe surface of the street was somewhat irregular. The deepest cut was about 13 inches, and the deepest fill was about tbe same. The sections of tbe Jefferson charter material to tbe question involved are 92, 74, 75, 76 and 120, and in tbe order named are substantially tbe same as or almost identical with Sections 82, 64, 65 and 110 of tbe Newberg charter: Laws 1893, p. 282. Construing tbe Newberg charter, this court, speaking through Mr. Justice Eakin, in Oliver v. Newberg, 50 Or. 92 (91 Pac. 470), ruled that the charter authorized a pro rata assessment according to the frontage on the street. The plaintiffs did not complain, until the commencement of this suit, of the method employed for making the assessment, and furthermore there is no evidence showing that they were injured.

16. The council is empowered to loan the credit of the city to an amount not exceeding $1,000: Section 23. One half the cost of a street improvement shall be paid ont of the general fund; and the street intersections shall be improved at the expense of the city. There is no merit in the contention of plaintiffs that the council violated Section 23 of the charter. At the close of business on April 17th the treasurer had $1,684.00 in the general fund, and there was practically no indebtedness that would require any portion of that sum. At the time of the trial only about $200 was unpaid on the city’s part of the improvement, but at that time the treasurer had in the general fund $345.74, with no outstanding warrants, except possibly a $5. warrant, and there were ample funds available for the payment of interest on the light plant bonds.

17. It is true that the street committee did not sign a formal written report on the work until June 30th, and the street commissioner did not sign a formal certificate until September 6th, but it is also true that the council approved and accepted the work; and, under these circumstances, the validity of the assessments is not affected. The taint of fraud is not charged, nor does it appear in the evidence: Hendry v. Salem, 64 Or. 152 (129 Pac. 531). Furthermore, the complaint filed by plaintiffs does not tender any issue as to whether the work was properly done.

It is further contended that plaintiffs did not have notice that the improvement would be made at the expense of the abutting property. The posted notices of the various steps taken by the council and the express provisions of the charter served fully to notify all abutting property owners that this property would be assessed for the improvement.

18. W. L. Jones was the owner of 7% feet of lot 11, block'6, but this property was assessed to Mrs. M. Banks. Before making the assessment the frontage along the entire improvement was measured, the names of the owners inquired about, and then the official ownership records were examined. W. L. Jones had a deed to the strip mentioned, but his deed was not recorded at the time the assessments were levied, nor even at the time of trial; hence he cannot complain because the assessment was made to the person who appeared from the records to be the owner.

19. By force of Section 120 the charter imposes the cost of a street improvement upon the adjacent or abutting property for a distance of 100 feet back from the street. The lots on the east side of Main Street are 141.5 feet in length, and the lots on that side of the street, including the property of Smith & Fontaine, of W. L. Jones, and the Eades estate, were assessed as a whole. On the west side of Main Street some lots are more and some are less than 100 feet deep. The property owned by O. O. Morrill, as well as the land owned by H. L. Ward and S. P. Ward, is less than 100 feet in depth. The objection that the respective properties of Smith & Fontaine, W. L. Jones, and the Eades estate are assessed for a distance of more than 100 feet is not one in which the remaining plaintiffs have any interest. The objection is not common to all the plaintiffs, and the same is true with reference to the assessment of the properties of Morrill and the Wards located on the west side of the street: Hendry v. Salem, 64 Or. 152 (129 Pac. 531).

The decree rendered by the trial court is affirmed.

Affirmed.

Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Bean concur.