Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-04

Hue 10 huSSell SLTeel- ne COulTdCl,
dated February 10, 1904, under which
it is alleged the work was performed
and accepted by the city refers to the
material provisions of the city or
dinance, authorizing the street i'm
provement, and is fully set out in the
complaint The complaint also con-
tains copies Of the several warrants,
some Of which are dated September
19, 1904. and the remainder October
20, 1904, amounting in the aggregate
to $7171.7S, the general form of which
warrant Is as follows:
''No. 1910.
Portland, Or. Sept 10, 1904.
To the Treasurer of the City of Port
land:
Pay 10 the U. S. National bank, or
order, seven hundred thirty-seEen and
77-1OO dollars out of that particular
portion Of the fund for the improve
ment of Goldsmith street from Albina
avenue to Russell street, Weinhard
tract No. 10, assessed against the
property liable to assessment for this
work for which this warrant is issued.
GEO. H. WILLIAMS,
$737.H Attest: Mayor
TH0S. c. DEVLIN,
Auditor of the City of Portland.
By S. Grutze, Deputy"
The warrants were endodsed to
plaintiff, who is and has been the
owner and holder thereof for more
than four years prior to July Z, 1909,
the date on which the complaint was
filed. BY the terms of the contract,
and the charter and ordinance of the
city Of Portland, made a part of the
same, 1t was the duty of defendant to
provide the special fund for paying
the warrants. On August IS, 1904,
and November 1S, 1905, respectively,
the city passed ordinances, making an
assessment and reassessment for the
improvement OF Goldsmith street and
attempted to provide a special fund
for the payment of the warrants, but
such ordinances have been adjudged
wholly void. By reason of the city's
negligence in not enacting a valid Or
dinance and making such assessment,
and not exercising due diligence in
prosecuting to speedy conclusion the
suits involving the validity of the as
sessments, defendant has wholly failed
to provide said special fund, although
nearly five years have elapsed since
the warrants were issued; no part
thereof has been paid, and plaintiff
has thereby been damaged in the sum
of T,171.73, the amount of said war
rants, and interest thereon.
The contract was upon the condition
that the contractor should look alone
for payment for material and work to
the fund to be assessed upon the
liable to pay for such i'm
provement and paid into the city treas
ury for that purpose.
In the presentation of his claim.
plaintiff has complied with section 9
Of the city charter. Defendant filed
demurrer to the amended complaint.
The circuit court sustained the de-
murrer and dismissed the action, from
which Judgment plaintiff appeals.
Bean, j. The only question pre-
Sented in this case is the ruling of
,he circuit court upon the demurrer.
The contention of plaintiff is that the
city, for nearly five years, has failed
20 comply with the essential require
nents of it's charter; has not exercised
iue diligence in the matter, and has
1egligently failed to provide the spe-
'ial fund for the payment of plaintiffs
warrants; that there has been in this
'espect an unreasonable delay on the
part of defendant, and that it is re-
iponsible in damages.
Counsel for defendant, in upholding
he contention that plaintiffs amended
complaint does not state facts suffi- |
'lent to constitute cause of action,
maintains that the complaint should
show that the city is making no effort
o supply the fund, and that as long
is its rights of continuous reassess-
nent remains it cannot be held liable
or failure to create such fund.
Portland's charter of 1908, section
I2l, provides that the city shall not
'e held liable for any portion of the
expense of any street improvement
assessed upon the property benefited
hereby, by reason of the inability of
he city to collect assessments levied
or the payment thereof, but the con-
ractors doing such work shall be re-
Iuired to rely solely upon the fund
ccruing from the property benefited.
and liable Hereunder, and
hall not compel the city to pay the
anne out of any other fund, except in
ases where for any reason such as
essment shall be invalid.
In this state is is now the settled
aw that where the expense of i'm
rowing a city street is to be paid from