Appeal from Circuit Court, Umatilla County. William W. Wells, Judge. No. 290.
Dennis A. Hachler, Pendleton, argued the cause for appellants. With him on the brief was Robert E. Ridgway, Pendleton.
Jack Olsen, Assistant District Attorney, Pendleton, argued the cause for respondent. With him on the brief was R. P. Smith, District Attorney, Pendleton.
Langtry, Judge. Schwab, Chief Judge, and Fort, Judge.
This appeal is in a Umatilla County tax foreclosure proceeding. The appealing defendants are persons who are record owners of certain tax delinquent property in the foreclosure proceeding and with whom there has been no recent contact. In an order entered in the proceeding the court appointed Dennis A. Hachler as attorney to represent these persons. This was done at the instance of the county's attorney, and it is apparent the action was taken in order to remove any question of compliance with the Soldiers' and Sailors' Civil Relief Act of 1940, 50 App USCA § 520 (1968).
On behalf of those whom he was appointed to represent Mr. Hachler filed a demurrer to the complaint in the tax foreclosure proceeding. Therein he challenged the jurisdiction of the court upon the ground that the publication of notice by which the county proceeded against the defendants' interest in the particular property involved failed to comply with constitutional guarantees of due process and equal protection of the laws.
ORS 312.040 (1) provides that:
"Notice of each foreclosure proceeding * * * shall be given exclusively by * * * publications of the foreclosure list in a newspaper * * * [I]t shall not be necessary to mail a copy of the notice to the owner or to any other person interested * * *. All persons owning or claiming to own * * * are required to take notice of such proceeding and of all steps thereunder."
ORS 312.050 (2) provides:
"* * * Each such proceeding shall be a proceeding in rem against the property itself * * *."
The constitutionality of these parts of the pertinent statutes are questioned by the defendants' demurrer. Apparently such questions regarding these statutes have not before been directly raised in tax foreclosure proceedings, although they have been raised in other proceedings after tax foreclosure proceedings have been completed.
Defendants rely principally upon cases such as Scoggin v. Schrunk, 344 F Supp 463 (D Or 1972).*fn1 That opinion was concerned with the foreclosure of residential property in the city of Portland for unpaid local improvement assessments, and in it the United States District Court Judge held that lack of proof of actual notice, or substantial effort to give ...