assessments, including costs and expenses, aggregating the sum of $387.40, and that the latter thereupon executed to him a deed of conveyance, in due form of law, for said lots.

The appellant, in her said complaint, further alleged that Monastes, at said sale, purchased all the right of B. F. Dowell to said lots, and paid for it to the chief of police said sum, and received and accepted the deed; and that said money was applied in full satisfaction of said assessment; and that all prior taxes and assessments and liens created, or attempted to be created, upon the lots listed or assessed in the name of B. F. Dowell or the appellant were fully satisfied; that B. F. Dowell, in 1872, after the deeds from the Couch heirs were recorded, took actual possession of said lots, cleared off the timber, fenced them, and built a dwelling-house thereon, and leased the same, and collected and appropriated the rents to his own use, without any authority from the appellant until after said sale to Monastes; thereupon he gave the possession thereof to the appellant, and that she has had the actual possession ever since, collected the rents, and converted them to her own use, and that B. F. Dowell never claimed any title in said land except the legal title of possession, and he quitclaimed the possession in about five days after said purchase by Monastes; that on or about the sixth day of February, 1884, at the instance of Monastes, the said common council fraudulently pretended, and did formally pass an ordinance, (No. 4,142,)-as a charge and relief bill for Monastes,-declaring in said ordinance, which was approved by the mayor of said city on the seventh day of February, 1884, that the former entries of said assessment made in the docket of city liens against said lots, and B. F. Dowell as the owner thereof, were mistakes and errors; that said ordinance further directs the auditor of said city to enter a statement of the said assessment of said lots, with the costs of enforcing the same in the docket of city liens; and thereafter, on or about the fifteenth day of April, 1884, the auditor of said city, in obedience to said ordinance, proceeded to enter a statement of the assessment of said lots, and the costs of entering the same in the docket of city liens; that the deed from Lappeus to Monastes only conveyed B. F. Dowell's tenancy at will to the latter, and said ordinance is fraudulent and void against the title of appellant; that all prior taxes and assessments on said lots in the name of B. F. Dowell and appellant, or either of them, in favor of the city of Portland, were paid and satisfied prior to the passage of said ordinance No. 4,142, and the city of Portland and Monastes well knew the same prior to the time of the passage of said ordinance, and that it was made for the use and benefit of said Monastes, without any consideration whatever, and with intent to cheat and defraud the appellant out of said sum assessed upon said lots; that the city of Portland and Monastes had constructive notice prior to and at the time said lots were assessed to B. F. Dowell, and at the time of the assessment and sale, and the making and recording of said deed, that appellant

was the owner of said lots in fee-simple; that prior to the assessment to B. F. Dowell, Monastes had actual notice that appellant was the owner in fee-simple prior to and at the time said deed to him was recorded in said clerk's office, and notice that B. F. Dowell had no title to said lots, except the possession, and that he was not then nor ever had been the owner of said lots of land in fee-simple, or any part thereof; that after Monastes knew the appellant was in actual possession of and owner of said lots in fee he caused said deed from Lappeus to be recorded, and he claimed said lots and caused said ordinance 4,142 to be passed, and that said claim and ordinance depreciate the value of the lots, and injure the possession and enjoyment of them; that on or about the fifteenth day of September, 1884, in pursuance of the order and direction of the common council, the auditor issued a warrant to enforce the collection of $181.16, and costs and expenses assessed against said lots, and against the appellant as the owner thereof; that afterwards, on the seventeenth day of September, 1884, said last-mentioned warrant was delivered to the respondent S. B. Parrish, chief of police of said city; that said warrant commands the said chief of police to proceed forthwith to levy upon said lots, and sell the same in the manner provided by law, to make said assessment, costs, and expenses, and to return the proceeds of such sale to the city treasurer; and that, in obedience thereto, the chief of police, said Parrish, has pretended to and has formally levied said warrant upon said lots for sale, at public auction, to satisfy said assessment; that said Parrish, if not restrained, will sell the same, which will cast a cloud upon the title; that said common council had no power to pass said ordinance No. 4,142, or to order or direct said auditor to enter a statement of said assessments upon the docket of city liens, or to direct said auditor to issue said warrant to enforce the collection of said tax; that said Lappeus had no power or authority to sell or convey said lots to Monastes in fee-simple, or any title but the possessory title of B. F. Dowell; that said assessment levies made by virtue thereof, and deed of conveyance made to Monastes, are apparently regular on their face, conform to the forms of law, and apparently give Monastes a title to an extent calculated to deceive, mislead, embarrass, and clog appellant's title in fee-simple. The complaint contains a prayer the substance of which is that the respondents be enjoined from further proceedings to enforce said assessments, and from selling said lots 6 and 7, and to declare the said deed from Chief of Police Lappeus to Monastes only a conveyance to the latter of the possession of B. F. Dowell of said lots between the time of the sale thereof by said Lappeus to Monastes and the time he, said B. F. Dowell, gave the possession to the appellant, alleged in the complaint to have continued five days.

The respondents interposed a demurrer to the complaint upon the grounds that the facts alleged did not constitute a cause of suit. The circuit court sustained the demurrer, and, the appellant having

failed to amend, entered a decree dismissing the complaint, which is the decree appealed from.

The appeliant's suit proceeded upon the theory that the assessment upon which the lots were sold by the chief of police, Lappeus, was a personal tax, and that consequently it was only a charge upon the interest which the party named as owner in the docket of city liens had in the property. I have examined that question in another case before this court, and concluded that an assessment for street improvements upon the adjoining property was in the nature of a proceeding in rem; that the charter pointed out the various steps to be taken in order to make the assessment, and that it must be strictly complied with, else the assessment, and all proceedings had thereon, will be void. The tax is against the lots charged with the expense of the improvement. The charter requires that a statement be entered in the docket of city liens, containing, among other things, the name of the owner of the lot assessed, or that the owner is unknown; and it provides also that, to ascertain the owner, the city auditor shall take the certificate of the county clerk, stating who the owner is at the date of the ordinance making the assessment. Sections 86, 87, c. 8, Charter in force in 1879. In order, therefore, to make a valid assessment, the name of the real owner must have been entered in said docket, or an entry that the owner was unknown, or the name of a person certified by the county clerk to be the owner. Either would have answered the requirements of the charter in that particular. When the name of a person is inserted in the docket as the owner of the lot who is not such owner, unless it is stated in such certificate that he is the owner the proceeding will be a nullity, for the reason that the provisions of the charter have not been observed; but where they are fully complied with, all the estate or interest therein of the owner, whether known or unknown, is conveyed, subject to redemption, to the purchaser. Section 114, c. 10, City Charter.

The nature of the proceeding, and the intention of the legislature as expressed in the charter, clearly indicate that the assessment and sale of the lot, in such a case, are designed to transfer the absolute proprietorship of it, in case no redemption is had. From the date of the entry of the assessment upon a lot, or part thereof, the sum so entered is to be deemed a tax levied and a lien thereon, which lien has priority over all other liens or incumbrances thereon whatever. Section 103, c. 10, Charter. It becomes, by force of the charter, when its provisions have been strictly observed, a jus in re, and the sale of the lot to enforce the payment of the assessment must operate to transfer the ownership, or else be wholly inoperative. The principle decided in Corporation of the City of Washington v. Pratt, 8 Wheat. 682, is decisive of this point. The sale, therefore, by Chief of Police. Lappeus to Monastes of the lots in question either conveyed an absolute title, there having been no redemption, to the latter, or it was a nullity. If the auditor had applied to the county clerk of the county of

Multnomah for a certificate as to the ownership of the lots, and the latter had furnished it, showing that B. F. Dowell was such owner, the lien would have been perfected, as it is doubtless in the power of the legislature to provide such mode for ascertaining ownership. In the case of Corporation of the City of Washington v. Pratt, supra, the court says, after concluding that the assessment there should have been made to the real owner, that, "had congress intended to lighten the labors of the corporation, or their assessor, in this respect, there was a very simple means of doing it. They might have sanctioned a designation with reference to the first or last vendee of record. Page 685.

But we cannot presume, as urged by one of the appellant's counsel upon the argument we should, that that was done; though I am convinced that, as the auditor failed to enter in said docket the name of the rightful owner, the assessment was incomplete and ineffectual for any purpose, and the tax failed to become a lien upon the lots; and that the attempt of the city officers to sell them under the proceedings specified above was a void act. But I am satisfied that the power of the city was not exhausted in consequence of such failure. In Himmelmann v. Cofran, 36 Cal. 413, in a similar case, Judge SAWYER uses this language:

"In this case the statute makes it the duty of the superintendent, after the fulfillment of the contract to his satisfaction, to make an assessment to cover the sum due for the work performed in accordance with the provisions of the act, and afterwards to issue a warrant thereon. No time is limited in which the assessment must be made. Time is therefore not of the essence of the power. In this case, under the decision in the case cited, (Dougherty v. Hitchcock, 35 Cal. 512,) he has never made an assessment in pursuance of the provisions of the act. His act was utterly void, and of no more legal force than so much blank paper. His act, in legal contemplation, was no act. The warrant issued, based upon his blank and void assessment, and all subsequent proceedings, were void. They created no lien or charge upon the land, in no way affected the rights of the parties. The superintendent has not performed the duty enjoined upon him by the act, and we know of nothing that stands in the way of his performing it now."

The right to exercise the power to assess the property in the above case, under the circumstances surrounding the affair, was much more. questionable than that of perfecting the lien in the case under consideration. Here the assessment was complete, so far as it went. Notice had been given of the contemplated improvement of the street. No remonstrance by two-thirds of the owners of the property adjacent thereto had been signed or filed. The council had proceeded to ascertain and determine the probable cost of making the improvement, and had assessed each lot and part thereof liable therefor its proportionate share of such cost, and the same was declared by ordinance. All that remained was for the auditor to enter the statement referred to, and the cost would then become a lien upon the lots. It stood like the recovery of a judgment in a court of justice before docketing it. The lots were a fund out of which to pay the expenses of the improve

ment, but the auditor, in entering the said statement, inserted the wrong name as owner of the lots in question. The council had directed him to file a statement as required by the charter, and he failed to do it. Now, how can it be claimed, in reason and justice, that the council cannot again direct him to do his duty? He had not carried out the direction of the council, and it was certainly the duty of that body to require him to perform it. Can it be maintained that the council, where it has directed a ministerial officer to perform a ministerial duty, and the officer has not done it, is functus officio in regard to the matter? That would certainly be the height of absurdity. If the charter should have required, in order to complete the lien, the recording of a copy of such entry in the county clerk's office, and the council had directed the auditor to have the same so recorded, but in attempting to comply there with he had taken it to the wrong clerk's office; or, in making a copy, had made a mistake,-would any one pretend that it could not be corrected without a proceeding de novo? What wrong could accrue to the lot-owner in consequence of such a correction? Must he be permitted to shirk his share of a common burden because of the neglect to observe some nicety that does not affect his rights in the least? Is the law made up of mere refinements and quibbles?

In this case the city gave notice of a proposal to improve North Fifteenth street. The owners of the lots adjacent thereto could have defeated it by a remonstrance. The city had no way of raising a fund to defray the expenses except to charge it upon such lots. The lotowners, by neglecting to file a remonstrance, tacitly assented to the improvement, knowing that the costs must be charged upon the lots. The costs were so charged, the contract let, and the improvement completed. The burden is apportioned. The lots have received the full benefit. All the lot-owners are supposed to have paid their share except the appellant, who insists that she should not be compelled to pay her proportion because the auditor, in entering the assessment in the city lien docket, after the council had ascertained and determined the proportionate share of the cost to be assessed to the lots and declared the same by ordinance, had inserted her father's name instead of hers in the docket as owner. And when the mistake has subsequently been discovered, and the auditor is directed to do what he at first should have done in order to enforce an obligation that equality and the law demand, she comes into a court of equity to have it exercise its restraining power to shield her from being compelled to do that which natural justice dictates she ought to do. I must confess that I am unable to discover any grounds for equitable interference in such a case even though the city council had no power to cause the said entry to be properly made. I do not believe that it is within the province of equitable cognizance to shield a party against the enforcement of a just claim in any case, nor that there is any stronger moral obligation than that which requires a party who has been the recip