190 P. 722 | Or. | 1920
The first question for consideration is that raised by the plea of the statute of limitations.
‘ ‘ The Council shall by resolution declare the district that will be benefited by the improvement for which the reassessment is made and shall direct the Auditor or City Engineer to prepare a preliminary assessment upon the property included therein within a time to be fixed by said resolution. Upon the passage of such resolution the Auditor shall, as soon thereafter as such reassessment is prepared, give notice by ten successive publications in the city official newspaper that such assessment is on file in his office, giving the date of the passage of the resolution directing the making of the same and the time at which the Council will hear and consider objections to said assessment by parties aggrieved thereby, and warning such persons not to depart until such reassessment has been completed.”
This section of the charter further requires the auditor to forthwith mail a notice to the owner of each lot. ;It permits the owners of property to file objections in writing to such assessment. The council is required to hear and determine all objections filed. The council may correct or set aside and
“But no proceedings shall be instituted for such reassessment unless within ten years of the passage of the resolution of intention for the making of the original work, improvement or repair.”
The position- of the city is that the charter provision, that no proceeding for a reassessment shall be instituted unless within ten years after the passage of the resolution of intention for making the original improvement, is not applicable, because, as claimed on behalf of the city, the reassessment in question “was initiated September 8, 1909, when the council directed the-auditor to prepare a proposed reassessment.” This is upon the theory that the prior reassessment involved in the case of Brown v. Portland, which we will refer to hereafter as the former case, was not held absolutely void or annulled. The judgment in the former case was by mandate directed to be entered in the lower court. This court found in that case, which was also a proceeding for a writ of review, that there was error as alleged, and reversed the judgment of the court below in dismissing the writ. The order entering the mandate provided among other things as follows:
“And it is further ordered and adjudged in accordance with said mandate -that defendants give the notice required by charter to appellants-plaintiffs for a hearing of objections appearing in the record and to proceed to the determination of them in accordance with the law and the opinion of the Supreme Court.”
Thereupon the council adopted Resolution No. 8383, notice was given, objections made by plaintiffs, and
“Thereupon the city endeavored to make another reassessment, but this was resisted and adjudged invalid in Brown v. City of Portland, 73 Or. 302 (144 Pac. 121), and the case sent back with permission to the city again to reassess the property.”
This plainly shows how this court understood the result of the former case, and an examination of the ..petition for a rehearing in that case does not disclose that the learned counsel, who were the same as in the present case, took any different view of the judicial determination therein as to that part. Several questions raised in this case were adjudicated in the former case. The inhibition of the statute limiting the time for the institution of proceedings for a reassessment as affecting reassessment ordinance, No. 30,287, could not have been adjudicated in the former case. It was not an issue in that case. The ordinance had not then been passed nor the proceedings for the reassessment initiated. Neither the
We are not required to determine the validity or invalidity of the. former reassessment. ' That question was adjudicated in the former case. Suffice it to say that the former levy had been considered defective in the two opinions of this court. It has been held that a reassessment may be levied where the original assessment was invalid because the ordinance was defective (Gorton v. City of Chicago, 201 Ill. 534 (66 N. E. 541), or because the improvement was authorized by resolution, instead of by ordinance (Newman v. City of Emporia, 41 Kan. 583 (21 Pac. 593). It has also been held that a reassessment may be made if the original assessment is insufficient, but is not a nullity (Foster v. City of Alton, 173 Ill. 587 (51 N. E. 76); and in cases of other irregularities-(2 Page and Jones on Taxation by Assessment, § 962).
Whether the former assessment was defective or a nullity, the fact remains that the city council commenced anew and by Ordinance No. 30,287 made a reassessment of plaintiffs’ property for the cost of, improvement: Phipps v. Medford, 81 Or. 119, 125 (156 Pac. 787, 158 Pac. 666). The period of time within which the council was authorized to make the reassessment had then expired. When the proceedings for the reassessment were instituted by the introduction and passage of Resolution No. 8383, the council was inhibited by the charter from taking such action. Whether the council initiated the proceedings strictly in conformity with the charter or. the decision of this court in the former case is unimportant. The proceedings for a reassessment that
“Institute” is defined to mean “to set up; to originate; introduce”: See Webster’s New International Dictionary; 22 Cyc. 1373. The word “instituted,” therefore, as used in the charter, means commenced or initiated.
The lawmakers in their wisdom saw fit to limit the time for making such a reassessment. There had been litigation respecting the street improvement referred to, which had continued for a long time. In the meantime the statute of limitations had run. Much the same condition exists as considered in Bessler v. Powder River Gold Dredging Co., 90 Or. 663 (176 Pac. 791, 178 Pac. 237). More than seventeen years have now elapsed since the passage of the original resolution of intention for the making of the original work. Evidently the lawmakers considered that, in fixing a limit of ten years for reassessment, the city authorities would have sufficient opportunity to make necessary reassessments and correct any errors. We have only to apply the charter as it reads: 2 Page and Jones on Taxation by Assessment, § 972; Westall v, Altschul, 126 Cal. 164 (58 Pac. 458); Doremus v. City of Chicago, 212 Ill. 513 (72 N. E. 403).
Reversed. Rehearing Denied.