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About La Grande evening observer. (La Grande, Or.) 1904-1959 | View Entire Issue (Aug. 28, 1911)
JUL ORAKDE EYENIXfi Or-RlTT? vro xrnvn r f - t . V ' - PAGE 6 LA GRANDE EVENING OBSERVER, MONDAY, AUGUST 28, 1911 PAGE 2 :CISI! ILffl T STHEET HL'G Points of law Involved in the opln- to an exercise of the power conferred, ion handed down by Circuit Judge have been observd." Knowles last Saturday afternoon : a the case of Town vs. Klamath dealing with the Sixth street paving "county, supra, th.3 supreme court of question, are set forth In the append-' tbjB Btate ln Its opinion says: ed excerpts from tha opinion itself: , ,Th of Nor!nern Paclflc Ter. The proceedings of the city coun-( n,jnai company vs. city of Portland. il relative to the Improvement of u ore., 24, is not In point here be Sixth street and certified to this court cau8e jt involves the validity of the show that a meeting of the council was held on the 17th day of June, 1910. at which time a resolution was ' adopted by thj council appointing Councilman A. V. Andrews, Bernard ' Logsdon and G. T. Fleming, commis-; uioners and authorizing and requiring said commissioners "without unrea ( onable 51ay to make a report n Bet forth the following: . First, the ( confemd upon lt t0 Jay out and wid hounda of the district to benefited en streets, etc., which it may exercise nr nffprted hv the lmnrnvemnnt. Bsc' t ul .t.. -i - . ---- Dy complying wuu mo tuaiici. nd, the character and description of j n a contended however, by counsel the Improvement proposed. Third, or thj) defendants that the making of the estimated cost of the proposed Im- j fhe pport ts simply for the purpose provement. Fourth, an estimate of the of advising the members of the coun valuaflon and extent, If any, of the fll whether or not It Is advisable to tenants to be derived by each &3par- jmpr0ve the street and therefore the ate lot or tract of said property by ( maklng of tha report is not jurls Teason of said improvement and the fictional. name of the owner or repu'rtd owner : We cannot accede to this contention. f each separate lot or tract within, Bald district." That thereafter two of said cona miasloners, towit: A. V. Andrews and the council "shall" appoint threa com i G. T. Fleming, filed with the city re-' mlssloners who "shall make an exam corder their report as such commis-, jnatlon of all property upon which loners. . ' said assessment is to be levied as to It Is contended by counsel for the the valuation and extent, If , any of 'plaintiffs that the proceedings of the the' benefits to be derived' by said council of the city in the matter of property by rearfbn of said improve the improvement of this street are ments." This subdivision of section void, among other grounds for tha rea-1 35 further provides that the commis son that the report should have been sloners shall make their report to made by all the three commissioners the council ln writing and that befor-9 and that a report made by two com-1 an assessment is levied that the coun miasloTwrs, although a majority, does, cil shall give notice to the respective not comply with the charter of the property owners to be affected by the lty. ' ' ( proposed Improvement that the coun- lt is 'well settled in this state that 11 wl'l t a designated time meet and In the matter of assessing property consider the proposed lavy and grant- for street Improvements that the char tor provisions must be strictly fol lowed, Smith vs. Minto, 30 Ore., 351, Applegate vs. city of Portland, 53 Ore. 152, and that compliance with the charter provisions and requirements must appear from an inspection of the record, Applegato" vs. city of Portland, supra, Northern , Pacific Terminal company vs. city of Portland, 14 Ore 24, TownB vs. Klamath county, 33 Ore. 255. In the ease of Smith vs 1111110, supra, the supreme court of mm omio in us opinion yB:, . "The power of a city council In the matter of stnet Improvements is a specially delegated authority and Its acts are legal only when In strict con formity with the authority conferred." ' Also In the case of Applegate vs. lty of Portland, 53 Ore., 552. thi su preme court of this state In Its opin ion says: "An attempt on the part of munici pal authority to subject private prop erty to the burden of an assessment for a local Improvement is a proceed ing m uivuum io upnoia wnicn against direct attack, It must ppear from an InBpei tlon of the record of the trlbun- al that the statutory requlr-meniS . prescribed as a condlilop nrerodent ' ; AM UMMER uggestions i ? Take two-thirds cparlding SAM-O, I any of the following fruit juices: Lemon, Orange, Pineapple or Grape "Mcasare It rljrht ni mix It together '.: ' It's good for wbaV alls jon In thl Unfl of weathfr." Sill ilil proceedIngs of ths common council of Jtae city of portiand ln appropriating r,.,..r.oo r Jllvai9 y 'M11 1 J . w i imJ )ui iuog v. opening and establishing a street and ag said by the writer of th opinion. i a subsequent case (Bewley vs. oraws. 17 Ore.. 274) the common councii Cannot be said to be a court", jn any sense of that term but It has In the .first place subdivision 9 of sec- tion 35 of the charter of the city of La Grande above quoted provides that tng to any person feeling aggrieved, a hearing before said council. If the position of counsel for the defendants is correct that In the adoption of thu new charter that Ordinance No. 4, series of 1893 Which provided for 8 not!ce to the property owners of any proposed improvement of a street might be defeated by a remonstrance signed by two-thirds of the abutting property owners, was repealed by im plication then the above provision is tho only provision that provides for any notice to the property owners of the special assessment for street im provements and giving him an oppor tunity to object." It Is well settled that ln the matter of street Improvements by special assessment that the proper ty owner must be given an opportun ity at some time during the proceed ings and prior to the final assessment to'ob3ct. Furthermore," subdivision nine of section 35 after providing that three commissioners shall be appoint ed and that they shall make their re port to the council and that the coun council shall give notice to the prop erty owners Interested that at a des ignated time It -will consider the pro- I posed levy and hear objections there- to also provides "After a compliance -rlth this sub-division, the council of a glass of cold J add one-third of It shrll be deemed to have acquired jur isdiction to order the making of such Improvements." Clearly showing that under the terms of the charter Itself 'bat the making of the report Is jur isdictional. In the case of Kouck vs. city of Roseburg, 108 Pac. 186, Judge Eakln, ln rendering the opinion of th.3 court, says: "The proceedings necessary to jurisdiction are that the council, hav ing determined to construct a sewer at some designated location shall de clare by ordinance whether the cost thereof shall be assessed to the prop erty directly benefited, the appoint ment of the council of disinterested viewers who shall view the street and location of the proposed sewer and ascertain and determine what proper ty Is directly benefited thereby and the extent and proportion of such benefits and publication by the recor der of the notice provided by section 100 of the charter." '' ' Again It Is contended by counsel for the defendants that a report signed by two of the three commissioners U ' The great weight of authority ap-' pears to be against the defendants upon this proposition. Hlnckle , vs. city of Mattoon, 48 N. E. 908. Mark ley'vs. Chicago, 48 N.,E. 952. McChes ney vs. People, 35 N. E. 734. Hamil ton on Special Assessments. Sec. 517. In the case of Hmckle vs. City of Mattoon, .supra, the supreme court of Illinois, In Its opinion, says. , "There was no claim or evidence that the report was1 made In writing bylthe three members of the commit tee. It was signed , by only two of them and was correctly set out ln the original petition. It was the rule at common law that 'where a number of persons were intruBted -with powers, not of mere private confidence', but in some respects of a general nature. and all of them are regularly assem bled, the majority will conclude the minority and their act will be the act of the whole. Under this view. where three viewers were appointed by the county court In a proceedings estab lishing a highway. It was held, that where all were present and consulting the 'majority might decide. Louk vs. Mills, 15 Ills., 256 f The ninth clause of section one of chapter 131 of the revised statutes provides 'Words pur porting to give a joint authority to three or more public officers or other persons shall be construed as giving such authority to a majority of such officers or persons.' In the case of public officers who constitute a cor poration, the rule goes further, and all net d not be present if there Is a quor um of majority for the transaction of business. A committee appointed to make an estimate has none of the qualities of such a corporation, and hence does not come under the latter rule; but, when all are presenfand consulting, a majority may determine upon the estimate which shalrbe re ported as that of the committee. They are required to report their action In writing to the city council and their report Is the evidence of the action taken by them under their appoint ment., It is urged that the report need not be signed, but we think that the requirement for a report In writing Implies that It must be signed by those making It, and that a taper not signed or authenticated in any way by ths signatures of the committee would not be a compliance with the statute. As the report Is evidence of what the commlt'e does, it should show tho presence of all, and If there Is a dis agreement or a mere majority report the fact should be brought to the no tice of the council, according to th usual practice, by the report, for the action of the, council thereon. It Is true that In some cases. wher a re port has been signed by only two of tore persons authorized to act. It has been presumed that the third one was present and consulting;' but we have not applied such a pn'sumptlon In cases of this kind. In a direct pro ceeding to review the judgment," Our own supreme court has never passed directly upon the sufficiency of Y report signed by two of the three commissioners. In the case of Beek man vs. Jackson county. 18 pre. 28S, Chler Justice Thayer ln rendering the opinion of the court says. "The appel lants counsel complains tn regard to the action of the county court ln set ting aside the report of the first view ers and 'appointing .others tn their places. I think, however, that there were more grounds for complaint apalnst the court In its acting upon the view and report of the second viewers as It appeals that only two of them met and exercised the authority conferred upon the three." The language of Justice Thayer in the above opinion was .referred to in the opinion in the case of Jones vs. Polk county. 36 Cre. 539. In 37 Cyc. at page 94 the author Bays, "In layln? out of streets and roads where com-j mlssloners have been appointed, they must act as a body end not separate ly and if there be a vacancy in the board the remaining members cannot' ant Avon i t n-iolra. a Tartnyt " rf I - : . . Also at page 93 of the same work as follows: "Under some of the statutes' It is held that a majority of the com-' mlssloners or viewers can act in lay- ing out the road. This Is, of course, where the statute expressly so pro vides or even where there ts a general statute providing that majorities of boards of this kind can act. Under other statutes it is held that when sev eral persons are authorized to view a road they muBt all deliberate and view the proposed road, although a major ity may decide or make the report, un less the statute otherwise expressly provides." - u nno-A 08-?s Cvo.- we have the following, "A report signed by only two' of the three commissioners ap pointed is nugatory.". Pag' and Jones on Taxation by As sessment, a very modern work, ln Vol. 2 at page 901 says, "Where less than all may act, failure to give notice to one of the commissioners so as to enrble him to take part in the pro ceedings, invalidates the proceedings.'' This notification to the other mem ber not acting and Joining ln the re port must affrmatively appear from the record of the proceedings. Apple gate vs. city .of Portland, Northern Pacific Terminal company vs. city o; Portland, Towns vs. Klamath county, Hinkle vs. city of Mattoon," supra. It follows from the above conclusions that the 'writ should be sustained and the proceedings of the council of the city of La Grande regarding the im provement of Sixth street annulled. We have reached this conclusion with a great deal of nsluctance on ac count of the expense and trouble the city has Incurred In attempting, to make this Improvement. ' Subdivision nine of section 35 of the char'er, however, contains ample pro visions for re-assessment of the prop erty benefitted by this Improvement. It is as follows, "If any assessment is set aside by order of any court, the council may cause a new one to be made ln like manner for the same purpose,;, for the collection of the amount Bo assessed." J W. KNOWLES. ; Circuit Judge. ST i:CERTAIX WHAT BUSINESS MEX WILL DO ABOUT NEW LINE l'lnn to IIuul Freight From Station by Trucks, It Is Said. , (Union Scout.) . From all reports that can be learn ed the C. of 0. will have their new tracks laid to Hot Lake within the next ten days, but it is understood that regular trains will not be put oa the, new road for a month or so. There Is a move on foot among the business men to have their freight brought from the pressnt depot to the city In case the old road to the depot Is abandoned. They say this method will be used until a better means can be afforded. There is considerable talk about building an electric road from the present depot to the city In case the old road Is vacated nd to form a stock company and extend the line up Catherine creek to the timber belt. By this means our city could have the benefit of saw mills affording a pay roll that the city at present Is much In need of. .... " The sentiment Is so strong about abandoning the old depot, that this weiek O, W. Huffman is taking the sen timent of all .business men who have freight hauled from the O.-W., as to giving him a contract for the hauling of the same. It has been reported to a Scout representative that the ma Jorlty of the business men have ex pressed their desire to contract with Mr. Huffman for the purpose of haul tng their freight In case the old line Is vacated. Mr-Huffman tells us th.nt IN in in the event he gets enough freight guaranteed him, that he will in the near future put on an up-to-date wag on to properly carry all kinds of freight from the O. W. depot to the city ln a satisfactory manner. . The management of the railroad is not saying what they will do in the matter and it is hard to &ni out exact ly what their pressnt intentions are, excepting that they are going to run trains to Hot Lake. As to when this will be done and as to whether they will abandon the old track or not, nothing is being said by the manage ment. . ' : ' The breach between the manage ment and the citizens . seems to be wtdsnlng and as to Just what both parties will do in the matter Is being watched with interest. There are par ties here' who seem to not care where the track or depot Is, so long as they can t good transportation service, while the business men seem to be unanimous In holding the present line to the present depot on the O.-W. '.' : Monday. Annual championship tournament of Women's Western Golf association begins at Chicago. - Opening of fall race meeting of the Windsor (Ont.) Fair Grounds ant Driving park association. , . ' Opening of four days' horse show at Ohio state fair, Columbus. Cricket contests between the Unit ed States and All-Canada traami be gin at Toronto. ; Colorado championship tennis tour nament opens In Denver. . v v International open tennis tourna ment begins at Nlaragara-ofi-the-Lake, Onf :. ' : .'' T;' r Southwestern Nebraska champion ship teoinls tournament opens at Ara pahoe, Neb. ' - Allegheny Mountains championship tennis tournament opens at Cumber land, Mr. S f "One Round" Hogan vs. Tommy Langdon, 6 rounds, at Philadelphia. Joe. Coster ii. "K&" Julian, .10 rounds at Syracuse. N. Y. - V ' ', "Knockout" Brown vs. Willie Lewis 10 rounds, at New York city. ' .;. , Tuesday. ;. ; .- - Opening of Grand Circuit race meet Ing at Readvllle, Mass. Annual tournament of Iowa State Chess association opens In Cedar Rap ids.; .. . ": Corinthian football team of England scheduled to play at Vancouver, -B. C. M Wednesday. 4 Cpening of annual regatta of the Lake Yacht Racing association at Toronto. ' ' ' Elimination races (motor boat) to select International Cup defenders bs- gln on Huntington Bay, L.-I. Annual bench show of the Wllmlng ton Kennel club, Wilmington, Pel. Opening of horse show at Warren town, Va. :, ' ' ' '' Tommy Gary vs. Grover Hayes, 10 rounds, at Cleveland, O.- v'. Matty Baldwin vs. Willie Rltchey 20 rounds, at San Francisco. Thursday. Annual ) championship tournament of Michigan State Golf league opens at Grand Rapids. , . Annual fall met of the Maryland United Hunts opens at Plmlico. Pal Moore vs. Tommy Murphy, 10 rounds, at New York city. Friday. Opening of the annual national ri fle tournament at Sea Girt, N. J. ' Opening of three-day . automobile race meet at Old Orchard Beach, Me. Reliability run for truck of Chicago Motor club at Chicago. "Jimmy Clabby vs. Mike Gibbons, 10 rounds, at Milwaukee.' Mickey - Sheridan vs. Freddie Dan- HACK AND AMBULANCE worn tels, 15 rounds, at St. Joseph, Mo. Saturday. Opening of 12 annual open-air horse show at Lake Forest, 111. -Middle Atlantic association A. A. U. swimming championships at Philadel phia. '. Opening of annual fall golf tourna ment at Hotel Del Monte, California. Opening of tri-state championship tennis tournament at Cincinnati. Corinthian football team of England scheduled to play at Victoria, B. C. Frank Moran. of Pittsburg, vs. Fred DrummondJ 20 rounds, , at London, England. I ; ' ' j U! :t ' FOB SALE. Large ten room house on Sixth, close In. Renting for 150.00 which can eas ily be Increased to $75.00. Especially adapted for housekeeping suites. East frontage. Nice shade trees, cement walks, lawn. Lot 80 by 110. Excellent location for large apartment house. Easy, terms, for further particulars ap-: ply to Geo. H. Currey. 108 Elm street. 8-17-12t Savoy Hotel EUROPEAN PLAN The rooms are good and Steam heated only one block from depot D. C Brichoux, Pro A Fresh Supply : of Fruits' and Vegetables Just In BANANAS ORANGES GRAPEFRUIT PEACHES WATER MELONS CANTALOUPES ' BLACKBERRIES ' 'CABBAGE . - 'STRING BEANS 'CARROTS ' 'ONIONS 'FRESH CORN : SQUASH CUCUMBERS Royal Grocery H.Paftison, Prop. Not in the Association Cossard Tliejr lace in front Think what that means the classic back -eorrect poise beautiful lines fase of adjustment with abso. lute comfort The proof Is in the fitting Mrs. Robert Pattisoa Corsm. Phnn Ulsrlr 141. Uptown offlce Main 720 IV J o; s. Id k, A S- fd )r f . 8 "- r