Watson v. City of Salem

164 P. 567, 84 Or. 666, 1917 Ore. LEXIS 278
CourtOregon Supreme Court
DecidedApril 10, 1917
StatusPublished
Cited by15 cases

This text of 164 P. 567 (Watson v. City of Salem) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Watson v. City of Salem, 164 P. 567, 84 Or. 666, 1917 Ore. LEXIS 278 (Or. 1917).

Opinions

Mr. Justice Harris

delivered the opinion of the court.

The plaintiffs contend that the assessment is void because a sufficient remonstrance was filed against the proposal to pave the street and because the notice for bids was not published in conformity with the provisions of the charter.

Section 28 of the charter directs that a proposed improvement shall not be proceeded with “if the owners of more than two-thirds majority of the superficial area of the property adjacent to such street or part thereof,” file a written remonstrance within a specified time. Earnestly arguing that the remonstrance filed did not contain the necessary “more than two-thirds majority of the superficial area” of adjacent property, the city contends that the total superficial area is 1,261,011 square feet; that to be valid the remonstrance must have represented 840,675 square feet; and that the remonstrance was insufficient since it only contained 763,588 square feet. The plaintiffs insist that the remonstrance represented a larger area of superficial square feet than was admitted by the city and that it contained the necessary “more than two-thirds majority” of property. The difference between the [669]*669calculation made by tbe city and that contended for by tbe plaintiffs arises out of an attempted replatting of some of the property adjacent to tbe street. All tbe land bad been platted previous to tbe commencement of tbe street improvement proceedings. After tbe proceedings bad been begun, but prior to tbe expiration of tbe time allowed for tbe filing of a remonstrance and before tbe contract was let for paving the street, an attempt was made to replat some of the land abutting upon the street without first vacating the previous plat. Tbe plaintiffs base their calculations upon what we shall designate as tbe attempted plat while tbe city makes its estimate from tbe lots and blocks as shown by the previous plats on tbe theory that tbe attempted plat is void since no steps were taken to secure the formal vacation of any of tbe previous plats. For the purposes of this litigation it will not be necessary, however, to do more than to call attention to the controversy about tbe remonstrance, since tbe view we take concerning tbe publication of tbe notice for bids is determinative of tbe suit.

Tbe legal voters of the City of Salem amended their charter in 1911 and among tbe provisions of Section 26 is tbe requirement that upon tbe passage of a resolution by tbe council declaring its intention to improve a street and approving the plans, specifications and estimates of the city engineer, “the recorder shall duly give notice by publication for not less than five (5) successive days in a daily newspaper published in tbe city of Salem, Oregon, inviting bids for making said improvement. ’ ’

Tbe common council adopted a resolution on June 3, 1912, approving tbe plans, specifications and estimates of tbe city engineer, declaring its intention to improve South 12th Street and directing tbe recorder [670]*670to publish a notice inviting bids. A notice inviting sealed bids and stating that ‘‘ said bids will be opened on or after the 10th day of June, 1912, at or about 7:30 o’clock p. m. in open council in the city hall” was published in the “Daily Oregon Statesman” “for five consecutive issues in said paper, to wit: In the issues of June 5, 6, 7, 8, 9, 1912.” The council met on June 10, 1912, at 8:10 p„ m., and after opening bids referred them to the street committee. Subsequently on June 24th, the council named the lowest bidder and authorized the mayor and recorder to enter into a contract with such bidder. The plaintiffs contend that the notice was not published “for not less than five (5) successive days” while the city argues that a publication of the notice in the daily issues of the newspaper for June 5th, 6th, 7th, 8th and 9th, fully met the requirements of the statute.

1. At the very outset of the inquiry we must remind ourselves that the provision of Section 26 of the charter prescribing the publication of the notice for bids is mandatory. The notice for bids must be published for the time and in the manner required by the charter; and since the mode is the measure of the power a failure to follow the prescribed mode will invalidate an attempted special assessment: Jones v. Salem, 63 Or. 126, 132 (123 Pac. 1096); Matter of Pennie, 108 N. Y. 364 (15 N. E. 611); Upington v. Oviatt, 24 Ohio St. 232; Breath v. City of Galveston, 92 Tex. 454 (49 S. W. 575); Tifft v. City of Buffalo, 25 N. Y. App. Div. 376 (49 N. Y. Supp. 489); Michel v. Taylor, 143 Mo. App. 683 (127 S. W. 949); Polk v. McCartney, 104 Iowa, 567 (73 N. W. 1067); Meuser v. Risdon, 36 Cal. 239; Kretsch v. Helm, 45 Ind. 438; 28 Cyc. 1027.

2. Analyzing Section 26 of the charter it will be observed that the language embraces two elements: (1) [671]*671The period of publication; and (2) the manner of publication. The period of publication must be “for not less than five (5) successive days.” “In a daily newspaper” is the prescribed manner of publication.

The term “for” and the words “not less than” appear in the quoted provision. When used in the connection in which we now find it the term “for” means “through; throughout; during the continuance of ”: Century Dictionary. If the charter read that the notice must be published “for five days,” by the overwhelming weight of authority it would be interpreted to mean a publication through, throughout, during the continuance of five full days: 3 Words and Phrases, 2858; 2 Words and Phrases (2d series), 594; Northrop v. Cooper, 23 Kan. 432; Bacon v. Kennedy, 56 Mich. 329 (22 N. W. 824); Wilson v. Thompson, 26 Minn. 299 (3 N. W. 699); State v. Cherry County, 58 Neb. 734 (79 N. W. 825); Dever v. Cornwall, 10 N. D. 123 (86 N. W. 227); Wilson v. Northwestern Mut. Life Ins. Co., 65 Fed. 38 (12 C. C. A. 505); Finlayson v. Peterson, 5 N. D. 587 (67 N. W. 953, 57 Am. St. Rep. 584, 33 L. R. A. 532); 19 Cyc. 1104. The words “not less than,” like the language “at least,” signify “in the smallest or lowest degree; at the lowest estimate ’ ’; and legislation prescribing “not less than” or “at least” a specified number of days is usually construed to mean clear and full days for the specified period of time: 5 Words and Phrases, 4833; 3 Words and Phrases (2d series), 631; In re Gregg’s Estate, 213 Pa. 260 (62 Atl. 856); Canadian Canning Co. v. Fagan, 12 B. C. 23; Beg. v. Aberdare Canal Co., 14 Q. B. 854 (68 E. C. L. 854); Mitchell v. Foster, 12 A. & E. 472 (40 E. C. L. 238); Chambers Elec. L. & P. Co. v. Crowe, 5 D. L. R. 545; Ward v. Walters, 63 Wis. 39 (22 N. W. 844); 5 C. J. 1438. Emphatic as is the word “for” [672]*672it is, if possible, made still more emphatic by the accompanying language “not less than”; and when combined these words unmistakably mean that the notice must be published for a period of time which cannot be less than five full successive days. In brief, the notice must be published five full days before the right to submit bids is closed.

3. We are relieved from the necessity of inquiring about the common-law rules for computing time because Section 531, L. O.

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Bluebook (online)
164 P. 567, 84 Or. 666, 1917 Ore. LEXIS 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watson-v-city-of-salem-or-1917.