The daily morning Astorian. [volume] (Astoria, Oregon) 1883-1899, 1897-03-31
THE REBUTTAL
TESTIMONY IN
MisIaid DocumenlSC Concerning Smiths
Point Road Pound By County CLERK.
ROAD is STILLACoUNTY ROAD
City Attorney rileS An0thtS 0piaioa. Which
radorses ArtioG Of Street comm,tte-ln-
teryieM With M. g. {. Faiton
ROAD is sTILLACoUNTY ROAD

Asto4ia, March s0.--(Editor ASt"riafJ
In your issdp ~ this moFn'lg n
given irtrr from Jas W weich
oracle II ihs city council. IN ,he Suo-
jcot of Smiths Point Road
SIR we.rh' Slrpng point of cont, n
ton il that The G muion council mdst
be governed by the ci'y a,tornry's % n
ion. Whereas he has riia heretofore
that he would No; xiv" - Tor an
opinion from this o,Hccr. Herewith Z
hand you the latest opinion received
from the city attorney ON this subject.
and suggest thd, councilman welth
might take his pick, u is further
contanded by Nir wslch that aerta n
papers n ,he supposed vacation pro
ocedings hay, mysirriSusly dlsap.
pcarc1 from ;h, once 81 the county
clerk. whereas should infer from the
city attorney opinion that all paprs
were on lie and hence there Il no
chance .o.' 10 charge OF iob5sry
~ shAlrmin ~ the street COMMITTEES
have not intended 10 ovcrstcp any
charter provision nor u further ary
iqdividual Interests and think an inves.
tigaiion would clear me OF any such
charges.
FRAN : l. PARKER
chaiIsugn Commiites on Streets and
Public wI.k
oI.gNIoS or CITY ATTORNEY.
Hon r L. Parker. Chairman Com
lion. T.. l.. Pas n. Chairman Com
.nittce IN Streets ami Public Ways.
In reply TO your r-quest for an opinion
AS 10 the status Of iht Smiths Point
road. beg leave 10 submit the follow
ing report;
In December. 1898, an attempt was
ipadc. on the petition Of the Pcnlnsu-
lar Land q Trus, Co. 60 have the county
road around Smiths Point vacated. 4
petition was Med IN the oiilce u the
county clerk. Rfiidavits OF posting no.
tic,s. etc. were also filed. and AN entry
made in the Journal OF the county court
proceedings re-iting the fact that the
petition had be~n nlsd, and ordering
tina, the road be vacated and It was
~ declared by ,he county court
The question Il. did the county court
acquire jurisdiction over the matter.
and was the order made and entered
legal as TO the proceedings
The laws OF Oregon, pages 1921 and
i72s. are indefinite as 10 laying out
county roads. and vacatlng them. II
the two sections. 1861 and 1867 can be
construed together. there would be- no
dinculty to determine whether the
Legislature intended that a petition
should be signed by twelve household
ers, but that a petition 10 Vacate a
county road ne,.d only be signed by
one, am OF the opinion that the
two sections should b. construed to-
gcther, The question then is, was the
petition sufficient TO give the court
Jurisdiction?
The petition Is Signed by twelve
householders, but is defective in that
Il does not describe the road. either
the commencement. terminus or inter
mediate points. Another petition is filed
by the Peninsula Land & Trust Co,
which does give the intermediate points
and gives a sufficient description Of the
land or road TO be- vacated, but It Is
only signed by one person,
The law requires that notice, or
four notices, shall be posted In con-
splouous places. The notice filed In
these proceedings Is signed by two
persons. neither OF whom are on the
petition, and Is not verined-is, there
fore, insufficient, The law also requires
that viewers shall be appointed, but
as 10 whether they are to be appointed
In vacattng a county road does not
seem TO me necessary, and the laws
are 50 misleading that 1t is impossible
10 give an opinion as to their intent
or meaning.
But the petition and the notice be-
Ing insufficient. as required by the
laws of Oregon, conferred no jurisdic-
ton ON the county court to vacate
the road, and all proceedings there
under are therefore void,
After a careful examination Of all
the papers and the law bearing on
the question, although not as clear
in my mind as II should be, am
however, OF the opinion that the county
road around Smiths Point has never
been legally vacated and that 1t still
exists as a county road.
Respectfully submitted
C. ]. CURTIS,
City Attorney