Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-15
on in such apportionment and as
sessment."

on In such apportionment and as
sessment."
Sections 1 and 4 of ordinance No.
112, which is the ordinance authoriz-
ing the improvement in question, Iead
as follows: Sewers, with branches
or laterals extending from such sew
ers to the property line of each lot,
tract or parcel of ground adjacent to
and abutting upon the streets or
parts of streets where such sewers
are to be laid, as hereinafter speci-
fed, shall be constructed and laid on
each of the following described
streets and parts of streets in the
city of Dallas Oregon, to-wit;" (De-
scription of streets follows). Sec. H.
"The sewer Improvement provided
for, in this ordinance shall be COM
pleted withirf 10 days from the date
of the APPROVAL of this ordinance and
the cost of such sewers shall be as
sessed to the property abutting upon
the streets or parts of streets where
the same are laid and benefited
thereby"
The power of the city to assess
property adjacent to the proposed but
benefited thereby is ample under Sec.
"a of its charter, but the exercise of
that power is optional with the coun-
Gil, and we do not think the language
employed in Sec. 4 Of the ordinance
above mentioned indicates clearly an
intention to exercise it in this in
stance The language used, "the cost
of such sewer shall be assessed to the
property abutting upon the streets or
parts of streets where the same are
laid and benefited thereby" if given
its usual and ordinary meaning, indi-
Gates an intention that only abutting
property shall be assessed, and that
only when it is benefited by the i'm
provement. Statutes imposing bur-
dens upon the property by way OF
lien or assessment should not be en-
larged by construction.
1t is contended that the remedy in
! this case should be by review and moi
by resort to equity. Both remedies
have been employed in this state but
the complaint here presents severa
/ issuable facts. For instance, the 10.
cation of the property would MOI
necessarily appear upon the record
of the proceedings of the council, be.
sides we think the general trend Of
authority in this state is that equity
will interfere to prevent the sale Of
property upon void assessment OF
for an Illegal tax although the right
to do this seems to be doubted by
Thayer, c. j., in Sperry V. Albina, II
Or. 481, This court has so frequently
exercised the jurisdiction to enjoir
such sales that it may be said to be
the settled practice in this jurisdic.
tion so to do. Such a sale mus
necessarily cloud the title of the own.
er even if the proceedings antecedent
to it are entirely void. In the case
at bar, for instance, suppose that the
city marshal should be permitted tt
sell the plaintiffs property on this
void assessment. The newt step nat.
urally would be the issuance to tht
purchaser of deed regular upon its
face and apparently conveying title
the next step would be the recordine
of this deed. A person seeking tt
purchase the property from plaintiff
would naturally search the records
and find this deed, making an appar.
ent breach in plaintiffs title. Should
he seek advice of plaintiffs attorneys
he would be told that it was valid ant
that plaintiff had nothing to convey
, If able counsel differ in court upor
the question of the validity of these
proceedings, it is fair to presume
that they would differ to a like de
gree outside of court and the intend
Ing purchaser would avoid tn,
chance of buying a lawsuit by refus