Polk County observer. (Monmouth, Polk County, Or.) 1888-1927, 1911-05-12

main to his lot on that street, and It'll
was suggested to him that he extend
this lateral across the Robb street lot
to his residence on the Main street
lot. AS an inducement to him to ac-
cept this proposal, the council offered
to pay to Mr.. Kirkpatrick some or ~
to assist him in extending the lateral
across his back lot. This proposal was
rejected on the ground that the
amount offered would be only frac-
ton of the cost of the extension, and
sfor the further reason that it would
be impossible to lay deep sewer ana
secure the proper fall in lateral OF
such length.
The city then proceeded to build
the Robb street main and to assess
both lots for the Improvement. Mr..
Kirkpatrick paid the assessment ON
the Robb street lot, but refused to
nav on the lot fronting on Main
street The city then undertook to en-
force the collection of the assessment
and advertised the property for sale.
Mr.. Kirkpatrick Immediately brought
suit to enjoin the city from selling
the property, and an injunction was
granted by Circuit Judge Galloway.
When the case came on for hearing
before Judge Galloway, the attorneys
for the city interposed a demurrer
upon several grounds, chief of which
was that the plaintiffs remedy lay
in a review of the acts of the councli
in a court of law, rather than in an
Injunction proceeding. The demurrer
was overruled by Judge Galloway,
and the city, choosing to rely there
on refused to answer whereupon the
court rendered a decree in favor OF
Mr.. Kirkpatrick. From this decree,
the city appealed.
AS the suit has created much in
terest among the taxpayers, and as
several important points are involved
in the Supreme Courts decision, the
opinion of Justice Mcbride Is mere
printed in full. He says:
City's Powers Defined.
eve are of the opinion that the
complaint stated a cause of suit ana
that the interposition of a court OF
equity was properly invoked. We VIII
now consider the right OF the CITY,
under its charter and ordinances, to
levy an assessment against plaintiff
property
"Section "a of the charter of Dali
las reads as follows; The councii
shall have the power and is author
lied to lay down all necessary sewers
and drains and bitches, and cause the
cost of the same to be paid out of the
General Fund of the city, or 10 pe
apportioned and assessed on all the
property directly or indirectly bene-
dted provided the council shall
NOT necessarily be limited to the
property Immediately adjacent there-
TO or abutting thereon in such appor-
tionment and assessment
| SECTIONS 1 and 4, of Ordinance III,
which is the ordinance authorizing
the improvements in question, reau
as follows: Sewers, with branches or
laterals extending from such sewers
to the property line of each lot, trae'
or parcel of ground adjacent to ana
abutting upon the streets or parts oil
streets where such sewers are TO DE
laid. as hereinafter specified, shail De
constructed and laid on each of the
following streets and parts of streets
and the cost of such sewers
shall he assessed to the property
abutting upon the streets or parts oil
streets where the same are laid and
benefted,thereby.'
Must Clearly Explain Intention.
.gThe mower of the city to assess
property adjacent to the proposed
Il sewer. but benefited thereby, is ample
under Section 81 of its charter, bu'
: the exercise of that power is optional
with the council, and we do not think
the Language employed in Section OF
tho ordinance above mentioned indi'
Gates clearly an intention to exercise
Il in this instance. The Language
used. the cost Of such sewer shall b'
assessed TO the property abutting up
on the streets or parts OF streets
, where the same are laid or benehtec
thereby II given its usual and ordin'
airy meaning. indicates an Intention
Y that only abutting property shall b'
assessed. and that only when II u
benefited by the Improvement stat
utes imposing burdens upon th'
property by way OF lien or assessmen
should not be enlarged by eonstruc
tion.
1t is contended that the remedl
in this case should be by review, ans
not by resort 70 equity. Both rene
dies have been employed in thu
state. but the complaint here pre-
sents several issuable facts For IN
stance. the location OF the proPeru
would not necessarily appear upoi
the record OF the proceedings OF IN
council; besides We think the genera
T trend Of authority In this state is tha
b equity will interfere 20 prevent IN
/ sale Of property upon a void assess
ment or for an illegal tax. althouEl
the right to do this seems TO b
! doubted by Thavcr, Chief Justice u
q Sperry v. AIbina. NJ or. ash
d This court has 80 frequently exer
n cisaa the jurisdiction to ehioin sue
e sales that it may b. said 20 pe IN
4 settled practice In this jurisdiction :
a 30 %. such q sale must necesSarii
n cioud tire title of the owner. even
j. the prcceedines antecedent 70 Il ar
r entirely void. In the case az bar, %
Instance. suppose that the city MAJ
shal shcuid BE- permitted 20 sel IN
plaintiffs property on ms void =.
ses1nsnt The next step natarail
I would bs the iEsuance % the purchai
I, 81 cf q deet regular upon its face an
apparently coureyinE ttiei the ne'
= step Eculd - the recording % IN
daed A rsrscn seskinE % rurcnaa
a NJ properly fron ne riaindn "e''
Il naturally ssarch fhr records sra ~
las aaed rnatInr 60 appare1t trtac