99 P. 890 | Or. | 1909
Opinion by
This is an appeal by the plaintiffs from a judgment dismissing a special proceeding instituted to review the action of the council of the City of Portland in attempting to reassess certain real property for benefits resulting from the improvement of a street. The circuit court for Multnomah County, pursuant to a petition therefor, caused to be issued a writ of review, the return to which, as disclosed by the transcript, sets forth certified copies of the proceedings relating to such improvement, showing that on November 2, 1904, a resolution was adopted, the preambles to which stated that the council was in doubt as to the validity of the assessment for the improvement of Albina Avenue from the north line of Page street to the center line of River street in that city; and
“Your committee submits herewith an ordinance making said reassessment, and further recommends that said ordinance do pass and that said objections be placed on file.”
This report was adopted by the council, which passed the ordinance so proposed.
“At the time appointed in such notice the council shall hear and determine all objections which have been filed by any party interested.”
It will be remembered that the record of the council shows that the objections interposed by the plaintiffs were read and referred to the committee on streets which reported that having had the same under consideration they recommended “that said objections be placed on file,” which report was adopted by the council. These objections having been “read,” the council evidently “heard” them in the popular sense of giving heed to the perusal, but no determination of the objections was made except to place them on file. The power to “hear and determine” is an essential ingredient of jurisdiction, and the quoted words refer to a judicial investigation and settlement of an issue of fact, which implies the weighing of testimony offered by both sides, from a consideration of which the relief sought by the moving party is either granted or denied. 4 Words & Ph., p. 3235.
A few averments of fact, however, were made in the exceptions which- ought to have been “heard and determined”; but by reason of the failure of the council to observe the plain mandate of the city charter the judgment is reversed, and the cause remanded, With directions to set aside the proceedings instituted to reassess the property for the street improvement.
Reversed.