Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-15
Kirkpatrick V. The City of Dallas,
ct al, Polk County.

e, c. Kirkpatrick, respondent, V.
The City of Dallas, Polk County, Or
egon, and T. A. Odom as Marshal of
said City of Dallas, Oregon, appel
lants. Appeal from the circuit court
for Polk county. The Hon. William
Galloway, Judge Argued and sub
mitted April 20, 1911. John H. Nc
Nary and &c. L. McNary on brief) for
respondent. Walter L. Tooze, Jr.
and Oscar Hayter, for appellants.
Mcbride, ]. Affirmed.
This is a suit to restrain the City
of Dallas and T. A. Odom, city mar
shal, from levying upon and selling
plaintiffs real property for the COL
lection Of an alleged delinquent as
sessment.
Plaintiff alleges that he is the own
er and in possession of certain real
property in the City of Dallas; that
the city claims lien thereon by rea-
son of the construction of sewers
along and across the streets, with
branches and laterals extending
therefrom; that the city has no
claims against the premises by vir-
tue of the construction of the sewers
for the reason Q) that the property
does not abut upon the streets or
parts of streets where any of such
sewers, branches or laterals are laid
as provided by ordinance No. 112.
passed by the common council of the
City of Dallas, July q 1908, and ap-
proved by the mayor on the same
date; (2) that such property has not
been directly or indirectly benefited
by or through the construction of the
sewers, branches or laterals, as pro-
vided by Sec, S4 of the city charter:
(S) that the city did not give a no.
tice of its intention to construct the
sewer and assess the cost thereof
upon the property directly or indi-
rectly benefited thereby, as required
by Sec, 63 of the city charter; that
the city has issued a warrant and
placed 1t in the hands of the defend
ant Odom, the city marshal, direct
ing him to levy upon such property
and sell the same on June 10, 1909,
in order to satisfy the amount of
money which the city has attempted
to assess against the property for the
construction of the sewer; that, un-
less restrained the marshal will sell
such property under the warrant, to
the great and irreparable injury to
plaintiffs title.
To this complaint there was a de-
murrer upon the following grounds:
~ that the court has no jurisdiction
OF the subject of the suit; (2) that
there is defect of parties defen-
dant; (3) that the complaint does
not state facts sufficient to consti-
tute a cause of suit; (4) that plain
tiff has plain, speedy and adequate
remedy at law. The demurrer was
|overruled and defendants, choosing
to rely thereon, declined to answer,
whereupon the court rendered a de-
cree in favor of plaintiff from which
defendants appeal.
Mcbride j.: We are of the opin-
ion that the complaint stated a
cause of suit and that the interposi-
ton of a court of equity was proper
ly invoked
Section 6S of the charter of the
City OF Dallas (Spec. Laws 1901, S4)
provides that no street improvement
shall be undertaken or made without
first giving notice thereof by publica-
tion for two weeks or by personal
notice upon the owners of all prop
erty within the limits of the pro-
posed Improvement; and Sec. "a
makes the above mentioned provision
applicable to sewer improvements,
The complaint alleges that no notice