Medford mail tribune., September 20, 1917, Page 6, Image 6

ARE VALIDATED
(Continued trom F"age Ont.)
lnimt, tlie assessment mid the appor
tionment of the cost. Tim city njrrccf
to permit the owner to pay his as
sessment in installments in consider
ation of the witiverj Hie owner nfjrees
to waive irregularities and defects in
consideration of the privilege of pay
iii in installments; each pnrty tfives
nnd receives a consideration; nad in
the end the parties have made n eon
tract. The obligation of the nily is
to permit the owner to pay in install
menls in the uinoiinU and nt the lime
jireserihed hy the Bancroft hoiidinc
net, and the obligation of the owner
is to pay at the limes and in the
mnoiints specified. The city cannot
by amendment to its charter change
Iho terms of the contract without the
consent of the owner.
Men of Hanson I'laii.
The Hanson plan alleniptn lo
change the contract made between the
city and owner by clianging the nam
ber and amount of the unpaid install
ments and extending the time over a
period of thirteen years. The right
of the city to change the very sub
Htunce of its contract does not de
pend upon whether tho change is ad
vantageous to the owner, hut it is de
pendent upon the consent of the
owner; and hence it is beside the
mark to say that the change is for
tho benefit of the owner. The linn
Son plan is not merely permissive; it
does not enable the owner to choose
for himself; but its avowed purpose
is to embrace all unpaid assessments
bv the compelling force of law; and,
therefore, the Hanson plan is unlaw
ful to tho extent that it attempts to
change the contracts which it made
under the liancroft bonding act, and
also (hose made under the charter
concerning wider main assessments.
Tho changes worked by the Han
Ron plan and of which Colby eoul
plains, mny be grouped into three
classes: (1) Thoso which ulfeet the
number and amount of the install
ments nnd timo of payment; (2)
those which act upon the modo and
method of enforcing the collection of
delinquent assessments; and (II)
those which ileal with the conse
quences of delinquency. ' j
Hum roll llomllng Act.
The liancroft bonding net is fram
ed upon the theory that the improve
ment, the apportionment and levy of
assessments, mid tho collection of
delinquencies tiro all governed and
controlled by tho city charter. When
tlie assessment is apportioned and
levied tho property owner can pre
vent the city from enforcing the im
mediate payment of the whole assess,
men! by invoking the restraining hand
of the liancroft bonding act am'.
thereby divide the assessment info in
Ktullmcnts and extend the lime of
pnymcnt iiver a period of ten years;
but if the owner permits mi install
ment to become deliiiiuent, the re
straining hand of the statute is re
moved and the city is free to em
ploy its own processes for the col
lection of whatever may be duo. The
contract between the ownere and the
city only embraces two subjects; (1)
I'ayiucnt ; and (:) waiver. Obviously
. the agreement concerning the time
, und manner of payment does not in
clude the mode of comK'1liag pay
ment or tin nseipieuees of delin
quency. When the owner contracts
"with reference to the waiver be con
cedes that an assessment is already
levied on his property and then
ligrees that he w ill not Ha mi that it
is an invalid aM'menl. Manifest
ly, the stipulation relative to the
Tvniver does not also embrace a cov.
mint relative to the mode of et'nnre
ing the colb-eiion of an assessment
or the consequences of a deliutiieney.
Tho parties have not bv their own
hands written into their contract any
stipulations about the method of
compelling payment or the con-e-queiK
es of delinquency.
Slights of my.
The city has a riuhl to change the
remedy for the collection of delin
quent assessments, and not even a
contractor who has agreed to look to
tho assessments for his compensa
tion can complain o long as the new
is as efficacious as the obi remedy,
nnd niuoh less can tt procrtv owner
complain, riven though the owner is
viewed us tho party to n contract
which creates a debt by assessment
nnd provides for the tune and
amount to be paid, he nevertheless
could not object to a more efficacious
method of compelling him to do what
lie agreed to do.
; Tho law did mil w rite into the con
tract between the owner oftbo Colby
properly and the city n stipulation
that a delinquent assessment could
! Unjy lie collec ted in the mode piovid
ed at the time the contract was made;
nor did the law insert n covenant that
the consequences of delinquency
Could not bo changed ; nnd, siuco the
parties themselves did not conlracl
about the mode of enforcing collec
tions or concerning the onnsei'iiencei
of delinquency and since the law did
not introduce into the contract any
stipulation ilHn those subjects, it
necessarily follows that the contract
clause of the federal constitution i:
not violated by the mere fact that
the Hanson plan provides for a dif
ferent procedure or imposes new nnd
milled penalties. The procedure at
tempted to be provided for by the
Hanson plan contains some features
which probably cannot be sustained
on neeount of the fact that the power
of tho legal voters of Medford is lim
ited to the enactment nnd amendment
of their municipal charter and to the
enactment of "local, special and uiu-
nicipnl legislation."
Colby Not Injured.
The contention that Colby will be
injured, if, lit the sale of land for
delinquent nssessincnts, property is
struck off to the city when there is
nn better offer to pay the full amount
due, may be dismissed with the stnto
nient that it is conictent to author
ize n municipality to purchase in the
absence of bidders even though the
legislation conferring the authority
is enncted after the assessment is
made and before the sale.
The next contention made bv Colby
is that the levy of taxes for tho bur
pose of paying interest nn bonds in
1014, 191.1 and 1010, nnd tho puyment
of tho taxes by the properly owners
created a contract which obligates
the city to waive the liens on prop
erty charged with SM'eial benefit as
sessments nnd to pav tho entire in
debtedness bv general taxation. The
right to tax does not. grow out of nor
does it depend upon n contract be
tween the property owner and the
state or its ngency; nnd hence it enn
nnt bo successfully contended that
tho levy and collection of tnxes for
tho purposo of paying interest in
those three years created a contract.
Oncml Obligations.
Proceeding with his contention,
Colby insists that even though n con
tract was not created by tho levy of
taxes for the payment of interest on
bonds, nevertheless it will bo inequit
able to enforce the collection of as
sessments, and that the oity should
thorefore bo obliged to pay the whole
of tho indebtedness by general tax
ation. The bonds issued under the
Bancroft bonding net are general ob
ligations of the city. Thero is no pro-
vision in tho statute limiting the pay
ment of tho bonds lo funds derived
from special benefit assessments;
but, on the contrary, n reading of the
Hnnerolt bonding act makes it plum
that the statute contemplates that the
bonds shall be regarded as liabilities
of the city and that the city is obli
gated to pay the full amount of ev
ery bond without regard to whether
the assessments have been or can be
collected.
Itlghts Not Invalidated.
It is true that the city did not at
tempt to enforce the collection of uny
assessments by selling tho assessed
property, but it is also truo that ac
cording to the admitted facts the city
could not have sold all tho delinquent
property lor enough to satisfy the
full amount of the delinquencies.
Laying aside the pessimistic, views
taken by the plaintiffs, it neverthe
less plainly is'iirs from the admit
ted facts that to luivo sold delinquent
proerty in 1014, 101.") nnd lOlti
would merely havo postponed the ne
cessity of resorting to general taxa
tion, because it is conceded that a
deficit will reinuiu after the property
of non-paying owners is sold for de
linquent assessments and sooner or
later this deficit must bo satisfied
with funds derived from general tax
ation. It is not necessnry to decide
whether the city could have been
compelled to sell delinquent properly
before levying a general tax, for it
is sufficient to say that the tax was
levied and collected without ally at
tempt to prevent it, and the property
owners cannot now compel the city
to naive its liens and pay all it sin
dchtedncss by general taxatiou.
Must Pay Interest. '
Colby tendered the principal of the
installment due on his property in
101 1, but he refused lo pay tlie inter
est on the theory that be had paid
the interest by paying his taxes.
Taxes were levied on all taxable
properly in Medford, and out of these
tuxes the city paid the interest due
on tin1 outstanding bonds. H is true
that when Colby uiil his taxes the
city used the money for the payment
of interest due on bonds which the
city had issued on account of the
Colby assessment, and nlso for the
payment of interest due on bonds
which the city had issued on neeount
of assessments against the property
of other persons; but it is also true
that persons who had paid their as.
scssments in full as well as owners
of proH'iiy which had never been
charged with any local assessment
were required to pay their tnxes and
these taxes were used to pay the in
terest due on bonds, including the
bonds which were issued on account
of the Colby assessment. Ail owner
whose pnqierty had never been
charged with n local assessment
could not have defeated the lax; nor
could the owner of property on l!raxr
street havo avoided paying the tax
hy showing that he had fully puid the
street assessment levied against his
own properly. Payment of the tax
was not payment of any part of the
assessment.
Itelicf Not Justifiable.
To relieve Colby from paying in
terest on his assessment would be to
extend to him a fnvor not accorded
to those who have paid both their
taxes nnd their assessment. There
uro no equities exempting Colby from
the payment of interest on his as
sessment. Wo have thus far considered and
disposed of all the objections which
Colby bus urged against the Hanson
plan. There is yet another objection
which must bo noticed because it is
neeessurily involved in this suit. The
liancroft bonding act was passed by
the legislative assembly and it is a
statute of statewide application, for
it embraces every city and town in
tho state.. Tho lluncroft bonding net
possesses just as much validity now
08 it did when originally enacted, for
it governs, controls and dominates
every incorporated city and town in
Oregon. When n property owner
brings himself within the Hnncroft
bonding net he puts into operation
a. state law which completely con
trols the city so long ns the owner
promptly pays his installments nnd
interest. The city is utterly power-
less to enact and enforce municipal
legislation which overrides this state
law. The liancroft bonding net doe
not compel nny owner to come with
in its embrace, but it merely holds
out nn offer which an owner may ac
cept or declne as he chooses. The
city can legislate concurrently on the
same subject provided its legislation
does not attempt to coinjiel owners
to come within its embrace.
Conclusions Summarized,
Tn its present form tho Hanson
plan attempts by force of law t:
bring all assessed property within its
embrace and it is therefore void lo
the extent that it attempts to oper
ato upon properly which has been
brought under the protection of the
lluncroft bonding act.
Our conclusion thus far express
ed concerning the Hanson plan may
bo summarized thus: As against up
plicants under the Bancroft bonding
net and nlso as against applicants
under the water main provisions of
the charter the Hanson plan cannot
bo sustained because it attempts eom-
ptilsorily to change tho contract be
tween the city and owners relative to
tho number and amount of install
ments nnd the lime of payment ; ns
against applicants under the Ban
croft bonding act the Hanson plan is
void, becauso the attempted munici
pal legislation conflicts with the
state legislation; but neither the con
tract nor the state law would be
violated if the Hanson plan were per
missive instead of compulsory.
The printed brief for the plaintiffs
in the Stailey case suggests several
other objections, but it is sufficient
to sny that we have examined them
and conclude that they are without
merit. Stailey is not entitled to a
cancellation of the assessments lev
ied upon his property.
Assessments rnnsNiilliihlo.
Although it may be assumed that
the Hanson plan would not violate
any rights of owners who are neither
within the protection of tho Han
croft bonding act nor within the pro
tection of the city charter provis
ions concerning water mains, yet the
assessments which nre protected by
tho charter and the liancroft bonding
act constitute such a large part of
the total amount covered by the Han
son plan anil so materially enter into
the very framework and purpose of
the plan itself as to destroy the
whole measure.
The circuit court correctly decreed
that the pmcecdings for the improve
ment of drape street and for the as
sessment of the cost of the improve
nient were unassailable, Htid tluit the
GLADYS HULETTE
1 "THE CANDY GIRL"
j CIIARMINK STONY, HKAl'Tl FTt.LY POHTRAYED.
LAST PKKSKNTATION TONIGHT.
"Lonesome Luke, Messenger" 1
Kl'NNIKST FAKCK OF HIS
I "When Mary Took the Count"
: KEATI'RIN'U 5
BILL1E RHODES
I SCINTILLATING, ItEAl'TlEl'L, Sl'R PASSING.
Lower floor,
K.c.
' I
LoRet. 2.'.c. I
RADICALS GAM
UPPER HAND IN
RUSS COUNCILS
- PF.TROOHAI), Sent. 10. Wednes
day. Tfie growing supremacy of the
Ilolshcviki element in the Councils of
the Soldiers' and .Workmen's dele
gates here and at Moscow, their rad
ical programs eliminating nil property-owning
classes from a voice in
the government, is a development
which is causing great concern. The
resignation of the executive commit
tee of the council Tehezze, Skohe
loff, Tseretelli and TVheiuoff und
others came ns a direct result of the
adoption on September ID by a large
majority of a resolution committing
the soldiers' nnd workmen's dele
gates to an ultra-socialistic line of
conduct.
Further to verify the temper of the
council nnd in view of the fact that
thero were many absentees at the
ijmo 0f t,0 adoption of the program
in question, the retiring members of
the executive committee will offer
themselves for re-election nt the com
ing meeting, niuking efforts in the
meantime to insure a full attendance.
It is significant that the Moscow
Council of Soldiers' und Workmen's
delegates yesterday nlso adopted a
program along virtually the same
lines as that of the Petrograd coun
cil by the vote of 355 against 252,
and demanded the resignation of the
government commissioner, Kishkin,
who is n constitutional democrat.
The Petrograd executive commit
teemen, in uniioiinciiig their resigna
tion, declared themselves out of sym
pathy with the program, asserting
they could not take responsibility for
the action of the Council of Soldiers'
and Workmen's delegates to with
draw its representatives from any
cabinet the constitutionalist demo
crats are represented. Avskcntieff,
a social revolutionist, and Skobeleff,
a social democrat, according to re
ports, mny withdraw their resigna
tions later.
DIED
HAKNISH Susanna, wifo of S.
II. llaruish of Kagle Point, died of
heart trouble at her home in Kagle
Point, Wednesday, September 10, af
ter a brief illness, '' She had reisded
in Kagle Point for tho past seven
teen years, and leaves, besides her
husband, three children, who lire: H.
L llaruish, Kay Ilaniish and Mrs.
Dottie Dutton. The funeral services
will he belli at the' family homo Fri
day, September 21. The burial will
be in the Central Point cemetery.
assessment against the Stailey prop
erty was n valid clinrge; and, there
fore, this part of the decree is af
firmed; but, for the reasons already
stated, it was error to hold that the
Hanson plan was a valid amendment
to the city charter, und consequently
this part of t lie decree is reversed.
Tho city is entitled to a judgment
ngainst Stailey for costs and dis
bursements, while Colby is entitled to
a judgment against the city for his
costs and disbursements.
How's This?
We offrr One Hiintlrtst Dollar Itewanl far any
cam- of Cn tm rb bat i-auuul be curvd bj llalla
Catarrh Cure.
F. J. CHENEY CO., Toledo. O.
Wf. th nnderclmril. have known F. J.
Cbt'iit'j for tho last 13 yvnni, an J bvllTe him
pfrffvtly biiimrablc In all bunhn- lraiiav-t1ona
and financially able to carry out anj ulillgatUins
made br bis Brm.
NAT. BANK OF COM MKRCF.
"Volt-do. Ohio.
Tlnll'i Catarrh Cure la tnkt'ti Interim Hy, art Inn
.Itroi-tlr uintti tlio ttlinxl nml imieouii Mirfno'a of
the Kjatoin. """sttnionUlu int frvi-. I'rktt 7tv
enta per bottle. Sold hy ail DrtijotlMi,
Take Hall's Family IMUa for cuDntlnatloa.
SKXSATIOXAI. CAUEKH.
Telephonen z
490 279-L
II. H. Brlgham, and G. G. Goodman
of Eugene, K. K. Wade of Salem, U.
I Without Reservation
All America has been captivated by the refresh
ing goodness of I
8Wgrjj Those who have tasted it have spread the news
ts deciusness- Those who have tested it I
wisMff testify to its purity, wholesomeness and nutri
iU t've i63 HI
llilufa That's why, throughout the country north, I
fell l cast, south and went in cities and villages III
'r M cn land and water among civilians, soldiers
IJi S w and sailors are found hosts of enthusiastic
. Eg l ! 1 'friends of
lillSNv Bvo tie aH-year-fround soft drink
ij """l Cct Devo at tuns, rzitsurants, erocer:, department and drujf atoreo, picnic
I 'j'i c-funua, Luicball parka, coda fountains, iL.it rig cars, ateamalup-i, and other ' II II
; j Vjy,K7V;'lv L'ir iitS lj I laccB wlieia refreshing beverage arc sold. OuarJ aga.rut aubat.tu,; have I I (
' 'I tfijSvrntyy le lottlo opened in front of ycu. I I f
' I'WYOT JPrV. ' lievo it sold in bottles only and U bottled exclusively by Ml II
j fOJP ' " ANHEUCER-BUSCH ST. LOUIS I '!
p ' iLUiViAUER & KOCirl - 1 :i.
1 Powers of Corvalllx and Floyd 11.
Howard of Butte Kails are amonaday.
Heat and friction .
cannot hurt this tire
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Get a sample strip of this wonderful new rubber. Try to
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Sold where good goods are recommended
Afad In tht Styttth Black Tread
W. R. DeLay, Agent
'Jill) West. Main, Mwlfurtl.
the Oregon
visitors in the city to-