sum of $91.30, and that a writ of execution issue therefor."

"This cause having come on regularly for Hansen and Hans Nelson, copartners doing trial, plaintiffs appearing in person and by their business under the firm name and style of attorneys, Norblad & Hesse, defendant Astoria Hansen & Nelson, do have and recover of and Construction Company appearing by its attor- from the defendants Astoria Construction Comneys, E. E. Mathison and Charles Robison, de- pany, Massachusetts Bonding & Insurance fendant Massachusetts Bonding & Insurance Company, and New Amsterdam Casualty ComCompany appearing by its attorney, D. P. Price, pany, corporations, the sum of $3,756.35, toand defendant New Amsterdam Casualty Com-gether with its costs and disbursements in the pany appearing by its attorney, James L. Conley, and a jury having been duly sworn and impaneled to try the issues in said cause, having returned into court with their verdict in favor of the plaintiffs for the sum of $3,756.35: "Now, therefore, by reason of the law in the premises, it is hereby ordered, adjudged, and decreed that plaintiff school district No. 1 of Clatsop county, for the use and benefit of James Hansen and Hans Nelson, copartners doing business under the firm name and style of Hansen & Nelson, do have and recover of and from the defendants Astoria Construction Company, Massachusetts Bonding & Insurance Company, and New Amsterdam Casualty Company, corporations, defendants, the sum of together with its costs and disbursements in the sum of $91.30, and that a writ of execution issue therefor."

Thereafter the defendants perfected an appeal, and upon an examination of defendants' printed abstract of record plaintiffs' attorneys, for the first time, discovered that the judgment entry was a blank as regards the amount to be recovered. They then promptly filed the following motions:

"Comes now the above-named plaintiff, by Norblad & Hesse, its attorneys, and based upon the affidavit of F. C. Hesse, attached hereto and made a part hereof, moves at this time this honorable court for the entering of a judgment in favor of plaintiff and against defendants for the sum of $3,756.35, in accordance with the verdict of the jury in the above-entitled cause, together with costs and disbursements in the sum of $91.30."

Notice of the hearing upon this motion was given to defendants, who appeared, and thereafter on March 26, 1919, the court made and entered the following order:

"Now, at this time, coming on to be heard, plaintiff's motion for a judgment against defendants, in accordance with the verdict of the jury heretofore duly returned on the 20th day of December, 1918, plaintiff appearing by Norblad & Hesse, its attorneys, and defendants appearing by E. E. Mathison, one of its attorneys, and after listening to argument of counsel, and the court being fully advised in the premises, and being of the opinion that the said motion is well taken:

"Now, therefore, it is ordered, adjudged, and decreed that plaintiff school district No. 1 of Clatsop county, for the use and benefit of James

Thereafter plaintiffs filed their motion to dismiss this appeal upon the ground that the judgment from which defendants have appealed has been superseded by the later judgment entry, from which no appeal has been taken.

James L. Conley and D. P. Price, both of Portland (E. E. Mathison and C. W. Robison, both of Astoria, on the brief), for appellants.

F. C. Hesse, of Astoria (Norblad & Hesse, of Astoria, on the brief), for respondents.

BENSON, J. (after stating the facts as above). [1-3] The judgment entry which was first made is obviously no judgment at all. The jury had returned a verdict for $3,756.35, but the order as entered in the journal of the court gives the plaintiff's no sum whatever. Neither is the judgment for costs therein of any value, since, without a judgment upon the verdict of the jury, the court was without jurisdiction to award a judgment for costs. Under these conditions, the court, upon having its attention called to the condition of its record, could either amend its journal entry, thereby validating it, or it could order an entry of judgment in like manner as if no attempt had been made in that direction, under authority of section 204, L. O. L., treating the former entry as a nullity, and this is just what the court did, with full notice to and actual knowledge upon the part of the defendants. It follows that the judgment entry of March 26, 1919, is the only valid judgment that has been entered in the case, and, not having been appealed from, stands as the final adjudication of the action. However, the judgment entry of December 21, 1918, although void, is appealable. Therkelsen v. Therkelsen, 35 Or. 75, 54 Pac. 885, 57 Pac. 373; 0. R. & N. Co. v. Eastlack, 54 Or. 196, 102 Pac. 1011, 20 Ann. Cas. 692.

The order of December 21, 1918, is therefore reversed, and the cause remanded to the circuit court, with directions to enter an order vacating such entry.

MCBRIDE, C. J., and BURNETT and HARRIS, JJ., concur.

(97 Or. 441)

(190 P.)

BROWN et al. v. CITY OF SILVERTON. (Supreme Court of Oregon. June 29, 1920.) 1. Municipal corporations 46 - Charter amendments held not to supersede existing charter.

owners under Charter of City of Silverton, § 71 (as in force in 1914), held a sufficient remonstrance insufficient because of a mistake in construction of charter provisions as to sufficiency of remonstrance, did not affect the sufficiency of the remonstrance to oust the council's jurisdiction to make the improvement.

9. Taxation

2-Attribute of sovereignty. The power to tax is an attribute of sov

10. Municipal corporations 406 (1)—Special assessment based on power of taxation.

Amendments of May 7, 1917, to charter of the city of Silverton, under Const. art. 2, § 2, and article 4, § 1a, by adding thereto sec-ereignty. tions 135-138, held to merely supplement and not take the place of the then existing charter, notwithstanding Const. art. 4, § 22, requiring that the revised act or amended sections shall be set forth and published at length, such constitutional provision having no application where the legislation merely adds new sections to an existing act without modifying or altering the original act.

2. Statutes 141 (2) — Constitutional provision as to amending a statute inapplicable where new sections are added.

Const. art. 4, § 22, providing that the act revised or sections amended shall be set forth and published at length, and not merely by reference to title, does not apply where the legislation merely adds new sections to an existing act without modifying or altering the original act.

3. Municipal corporations 56-Statute conferring power must provide for jurisdictional requirements.

Statutes conferring power upon cities and towns must provide for all jurisdictional requirements compelled by the Constitution, but may, if the Legislature chooses, add to such jurisdictional requirements, though Legislature is not required to so do. 4. Municipal corporations

56-Jurisdictional

requirements must be complied with.

A city or town in exercising a given power must heed every jurisdictional requirement regardless of whether it is purely statutory or required by the Constitution.

5. Municipal corporations

443-Jurisdiction

al requirements must be complied with.

Failure to observe a jurisdictional requirement, whether organic or statutory, will usually defeat an ordinance requiring an improvement and invalidate an ordinance for an assessment. 6. Municipal corporations 298 Owners have constitutional right to be heard.

Statute providing for special improvements must entitle owners to be heard at some stage of the proceedings, the owners' right to be heard being a constitutional right.

7. Municipal corporations 297 (1)-Right to file remonstrance against improvements statutory.

The right to file an operative and self-executing remonstrance against improvements exists only where the statute creates the right. 8. Municipal corporations 297 (1)—Mistake as to sufficiency of remonstrance held not to oust council of jurisdiction.

That city council, when passing upon remonstrance to special improvements by abutting

The power to levy a special assessment, though it is to be differentiated from a pure tax, is a branch of the power of taxation, and when exercised is a manifestation of sovereignty.

II. Constitutional law 121 (2) Remonstrance to improvements held not to create contractual obligations.

The filing of an operative and self-executing remonstrance to construction of a special improvement by abutting owners under City of Silverton Charter, § 71 (as in force in 1914), conferring on abutting owners the right to file such a remonstrance, would not result in a contract with attending contractual rights and obligations, the fundamental doctrines of special assessments not being based upon the principles of contract.

12. Municipal corporations 514(2)-Legislature may reassess and cure defect.

The Legislature may ratify and cure, through reassessment, that which might have been constitutionally and lawfully authorized in the first instance, but cannot validate retrospectively what it could not have originally authorized, the power to validate a tax or assessment rendered invalid by errors or omissions being an essential attribute of the sovereign power of taxation.

13. Constitutional law 290 (5) Remonstrance held not to preclude reassessment as denying due process.

Reassessment proceedings under Charter of City of Silverton, §§ 135-138, made necessary because of invalidity of original assessment for city council's lack of jurisdiction to proceed with the improvement owing to sufficient remonstrance thereto by abutting owners under section 71, held not unconstitutional on without due process of law, since the Legislathe theory that it is the taking of property ture, in prescribing the procedure with reference to the construction of such improvement, was not required to have included the provision making a remonstrance a bar to further proceedings, and therefore the city, under the home-rule amendments, by its legislative power could amend the law so as to make the proceedings valid notwithstanding such remonstrance.

14. Statutes 263-Not construed to be retrospective unless clearly made so.

Laws will not be interpreted to be retrospective unless by their terms they are clearly intended to be so.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

15. Municipal corporations 408 (2)-Charter remonstrance was insufficient, and rendered amendments providing for reassessment held to operate retrospectively.

Appeal from Circuit Court, Marion County: sion that under the terms of the charter the Percy R. Kelly, Judge.

(190 P.)

may, by ordinance, make a new assessment or reassessment upon the lots, blocks or parcels of lands which have been benefited by such improvement, to the extent of their respective and proportionate share of the full value thereof. Such reassessment shall be based upon the special and peculiar benefit of such improvement, to the respective parcels assessed, at the time of the original making of the improvement, but shall not exceed the amount of such original assessment. Interest thereon at the legal rate may be added from the time when such improvement was completed at the discretion of the council. Such reassessment shall be made in an equitable manner, and as nearly as may be in accordance with the provisions of the charter in force at the time it is made. But the council may adopt a different plan of apportionment of benefits when, in its judgment, essential to secure an equitable assessment. The proceedings required by this charter to be had prior to the making of the original assessment shall not be required to be taken or had within the intent of this section in the making of such reassessment.

tice shall be mailed to such owner or agent at Silverton, Marion county, Oregon.

"Sec. 137. The owner of any property which is assessed on such reassessment, or any person having interest therein, may, within ten days from the date of the last publication of the published notice, file with the recorder objections in writing to such assessment. At the time appointed in such published notice the council shall hear and determine all objections which may have been filed by any interested party. The council shall have the power to adjourn such hearing from time to time and, in its discretion, to revise, correct or set aside such preliminary assessment and order the remaking thereof, and pass an ordinance approving and confirming such reassessment as corrected and remade by it. And the decision of the council shall be final with respect to the regularity, validity and correctness of the reassessment. When such reassessment is completed and confirmed it shall be entered in the docket of city liens, and shall be enforced and collected in the same manner that other assessments for local improvements are enforced and collected under this charter and the laws governing the city of Silverton."

Pursuant to the authority conferred by the amendment, the council on August 6, 1917, regularly declared its intention to reassess the "adjacent" lands benefited by the inprovement to the extent of their proportionate share of the cost. The council also de fined the district which had been benefited by the improvement, and directed the record

"Sec. 136. Such reassessment shall be made and shall become a charge upon the property upon which the same is laid, notwithstanding the omission, failure or neglect of any officer, body or person to comply with the provisions of the charter of the city of Silverton, or laws of the State of Oregon, connected with or relating to such improvement or assessment, and notwithstanding the proceeding of the council, or any other officer, board or body, or public authority, contractor or any other person connected with such work or contract may have been defective, irregular or void, and notwith-er to prepare a preliminary assessment upon standing any such irregularity or defect may be jurisdictional, and the provisions hereof authorizing a reassessment shall apply where an improvement has been made, notwithstanding a remonstrance sufficient to defeat the same shall be filed, in the same manner and to the same

extent as the provisions hereof would apply in the case of any other defect, irregularity or circumstance rendering the proceeding void. The council shall, by resolution declare the district, and designate the properties that have been or will be benefited by the improvement for which the reassessment is made, and shall direct the recorder to prepare a preliminary assessment upon the property included therein, within a time to be fixed by such resolution. Upon the passage of such resolution the recorder shall, as soon thereafter as such reassessment is prepared, give notice by two successive publications in one of the city newspapers that such preliminary assessment is on file in his office, giving the date of the passage of the resolution directing the making of the same, and stating the time at which the council will hear and consider the objections to said reassessment by parties aggrieved thereby and notifying such persons not to depart from any such hearing or meeting until such reassessment has been completed. And the auditor shall forthwith, following the passage of such resolution also mail to the owner of each lot thereof, or tract of land affected by such assessment, or to his agent, at the last known postoffice address thereof, notice substantially similar to that required to be published. If the postoffice address be unknown, then such no

such designated property. The recorder made a preliminary assessment, and a notice was duly published stating that the council would convene on September 4, 1917, and hear any objections that might be made. The plaintiffs appeared and interposed objections to the proposed reassessment; but the council disållowed the objections, and then passed a reassessment ordinance charging the cost of improving McClaine street "against the property adjacent to and abutting upon said portion of said street which has been specially and peculiarly benefited by such improvement to the extent of its respective and proportionate share of the full value thereof." After the enactment of the reassessment ordinance the plaintiffs brought this suit for the purpose of annulling the reassessment proceedings. A trial in the circuit court resulted in a decree dismissing the suit without the costs, and the plaintiffs appealed.

W. C. Winslow, of Salem, and Richard W. Montague, of Portland, for appellants.

John H. McNary of Salem (McNary & McNary and E. M. Page, all of Salem, on the brief), for respondent.

HARRIS, J. (after stating the facts as above). The plaintiffs contend: (1) That the pavement was not laid in accordance with the terms of the contract; (2) that because of its form the amendment adopted by the

legal voters of Silverton in 1917 displaced was there ruled that the amendment was not and supplanted the original charter, with controlled by article 4, § 22, of the state the result that the amendment alone con- Constitution, which commands that "no act stitutes the whole charter; and (3) that the re- shall be revised or amended by mere referassessment proceedings are unconstitutional ence to its title, but the act revised or secand void for the reason that they amount tions amended shall be set forth and pubto a taking of property without due process lished at length." of law.

The complaint alleges that the contractor failed to comply with his contract by failing to roll the subgrade with a 10-ton roller "until same made no impression thereon"; by estimating the component parts of the pavement instead of measuring them; by using cement without submitting samples to the city; by neglecting to tamp the mixture placed in position on the street with ironshod rammers;

[2] Even though we assume, without deciding, that article 4, § 22, of the state Constitution, governs not only the legislative assembly when adopting an act, but also controls the legal voters of cities and towns when exercising the power of the initiative, nevertheless this section of the Constitution does not apply to the amendment of 1917, for the reason that legislation which does no more than to add new sections to an existing act, and by permitting heavy without modifying or altering the original loads to be hauled over the pavement before act, does not come within the embrace of conit hardened. The same contention, based stitutional provisions like article 4, § 22, of upon the same grounds of alleged failure of our Constitution. 25 R. C. L. 875. performance, was urged in McClaine v. Silverton, 83 Or. 26, 162 Pac. 496, where, when speaking of the same contract and the same improvement as are involved here, it was said that the evidence submitted there did not justify this court in reviewing the conclusion of the municipal authorities that there was a substantial compliance with the contract. A transcript of the evidence submitted in McClaine v. Silverton was by a stipulation of the parties here received as evidence in the present case. In addition to the transcript referred to, the trial court heard the testimony of eight witnesses, of whom three were called by the plaintiffs and five by the defendants. The trial court in the instant case found from the evidence that "said improvement was completed substantially as agreed upon." Here, as in McClaine v. Silverton, the evidence is conflicting, and after a careful examination of the whole record we do not feel justified in disturbing the findings of the trial judge.

The principle announced and applied in Nottage v. Portland, 35 Or. 539, 58 Pac. 583, 76 Am. St. Rep. 513; Phipps v. Medford, 81 Or. 119. 156 Pac. 787, 158 Pac. 666'; Wagoner v. La Grande, 89 Or. 192, 173 Pac. 305-supports the conclusion that the reassessment proceedings are constitutional and valid. See, also, Wilson v. Portland, 87 Or. 507, 514, 169 Pac. 90, 171 Pac. 201; Ukase Investment Co. v. Portland, 186 Pac. 558; Gardner v. Portland, 187 Pac. 306. Although our conclusions could be securely rested upon the precedents already mentioned, yet, because of the earnest and learned arguments made by counsel for the plaintiffs in their written brief and at the hearing, we have examined the subject anew.

The

Jurisdictional requirements concerning street improvements and special assessments may, for the purposes of this discussion, be divided into two classes: (1) Those which arise out of and are compelled by organic [1] The contention that the amendment law; and (2) those which arise out of and constitutes the whole charter is without mer- are compelled only by statutory law. Gray it. In 1891 the Legislature enacted a charter on Limitations of Taxing Power, 616. consisting of 130 sections. Laws 1891, p. 530. first class finds its source in written constiIn 1911 the legal voters exercised the power tutions; the other in legislative assemblies. of the initiative, and added sections 131, 132, [3] When any given power is, by a statute 133, and 134 to the charter. The amendment enacted by a legislative assembly, conferred of 1917 merely enlarges the then existing upon cities and towns, that statute must, in charter by adding four sections, and by num- order to make such power available, provide bering them consecutively with reference to for all jurisdictional requirements compelled the 134 sections of the then existing charter. by the Constitution; but the Legislature need The amendment of 1917 conferred the pow-not, although it may if it chooses, add to such er of reassessment where that power did not jurisdictional requirements as are compelled previously exist. The amendment of 1917 by the Constitution. Jurisdictional acts made was not enacted as a revision of the original necessary by the organic law may for prescharter, nor as a substitute for all that had ent purposes be termed indispensable, for the been done before; but it was passed as a sup- reason that any attempt by legislation to conplement to the then existing charter. The fer a power is ineffective unless provision is amendment did not change or modify a single made for such jurisdictional acts; while those word in any of the 134 preceding sections. made necessary by statute only, and not reSheridan v. Salem, 14 Or. 328, 12 Pac. 925, is quired by the Constitution, may be called disa precedent squarely in point, for there the pensable, for the reason that the Legislature facts were like those presented here, and it is not obliged to provide for them, although