Duniway v. Portland

81 P. 945 | Or. | 1905

Mr. Chief Justice Wolverton

delivered the opinion.

This is the second time this case has been here, so far as the present inquiries are concerned, upon substantially the same allegations of fact. It is not to be regarded as a second appeal, because a new and original suit has been instituted, and some of the original questions, which were unalterably settled by the first cause, have been eliminated. All others are now insisted upon, but some of these have been practically determined, and, being of recent investigation, we are constrained to regard them also as settled. It was eventually determined that the former case was prematurely commenced, on the ground that it was sought to enjoin the threatened adoption of an ordinance directing a reassessment of benefits; such- reassessment being, as was said, “within the jurisdiction and scope of the legislative powers of the council.” The principle upon which the holding was predicated is that it could not be ascertained in advance (1) whether the offensive ordinance would eventually be adopted, (2) whether such ordinance as the common council might in its discretion finally adopt would in any manner intrench upon plaintiffs’ rights in the premises, and (3) whether any threatened injuries to the plaintiffs might not be susceptible to redress by writ of review or an appeal from the proceedings themselves.

1. Those questions now- involved here, but practically determined by the former suit, are: (1) That section 400 of the present charter does not authorize the taking of private property without due process of law, and does not therefore contravene the Fourteenth Amendment of the Federal Constitution, and likewise it is not inimical to the provisions of sections 10 and 18 of article I of the state constitution; (2) that said section 400 does not authorize a reassessment without regard to benefits, contracts or rights, and is retrospective in its operation; and (3) that section 401 of the present charter was not inimical to section 9 of article YII of the constitution of this State, as limiting the jurisdiction of the circuitcourt inits appellate and supervisory capacity or functions. These matters we need not allude to further, and will pass to those that are essential to the final disposition of the cause.

2. Let us first inquire as to the purpose of section 400 of the charter and what procedure is authorized by its provisions. Such inquiry will aid us materially in arriving at a correct solution of the questions remaining. The section provides, in so far as it is pertinent to this inquiry, that whenever any assessment for any local improvement, which has been made or may hereafter be made by the city, has been set aside, annulled and declared or rendered void, or its enforcement refused by any court having jurisdiction, whether directly or by virtue of any decision of such court, or when the council shall be in doubt as to the validity of such assessment, it may by ordinance make a new assessment or reassessment upon the lots, blocks or parcels of land which have been benefited by such improvement, to the extent of their respective and proportionate shares of the full value thereof. It is further provided that such reassessment shall be based upon the special and peculiar benefit of such improvement to the respective parcels of land assessed at the time of its original assessment, except that interest may be added from the date of delinquency, at the discretion of the council. The manner of procedure is thereupon prescribed. The purpose of the act is manifest from its reading. It proceeds upon the assumption that assessments for benefits received by. reason of local public improvements having been made are liable to fail on account of some irregularity in the procedure or some nonobservance of jurisdictional provisions in the charter, and is designed to supply a curative procedure to supplement the preceding one that has failed. It awards a new and supplementary remedy for impressing upon the abutting property a lien for the cost of the special benefits, not to exceed the original cost of the improvement, because of the failure in the first instance to carry the undertaking to a successful termination. In order to set this statute or charter provision in motion, there must have been an actual attempt in good faith under the regular procedure to make the improvement, and to have the cost thereof assessed against the abutting property, resulting in a failure through some nonobservance of charter provisions, by oversight or mistake, which proceeding must also have been annulled by a court of competent jurisdiction by reason of such irregularity or irregularities,'Or the common council must have been in doubt as to its validity. These things are conditions precedent to invoking the aid of the provision for the new assessment or reassessment. These latter become, therefore, supplementary to the ordinary or prior regulations, whether under this or the preceding charter of 1898, for making the improvement. They are designed to take up the new assessment or reassessment where the old has failed, and to carry to a successful termination that which has been declared or considered a nullity, thus correcting and validating the whole.

Statutes of similar purpose are not without precedent, and are founded in justice and equity. They afford an adequate remedy for the enforcement of payment of the costs of local improvements against persons who have been peculiarly benefited thereby, through the enhancement of the value of their property and the rendering of it more accessible and useful, and who ought, therefore, in morals and public justice, to bear such burden to the extent of the benefits received, if necessary; otherwise, they will escape, although they have profited materially and perhaps largely by the venture of which they complain. The remedy is not for a collection of the old assessment as was that afforded by section 156 of the old charter, but for a reassessment of benefits derived from the failed improvement, not failed because not made, but failed because of an irregularity in the procedure for impressing the lien for the costs of the benefits, and a collection of such reassessment. In support of the procedure and principle involved, see Thomas v. Portland, 40 Or. 50 (66 Pac. 439); Cooley, Taxation (2 ed.), 306; Frederick v. Seattle, 13 Wash. 428 (43 Pac. 364); Cline v. Seattle, 13 Wash. 444 (43 Pac. 367); State ex rel. v. City of Newark, 34 N. J. Law, 236; City of Emporia v. Norton, 13 Kan. 569; Schenley v. Commonwealth, 36 Pa. 29 (78 Am. Dec. 359); City of St. Paul v. Mullen, 27 Minn. 78 (6 N. W. 424); Mattingly v. District of Columbia, 97 U. S. 687 (24 L. Ed. 1098); Spencer v. Merchant, 125 U. S. 345 (8 Sup. Ct. 921, 31 L. Ed. 763.)

3. Now it is strenuously insisted that the work was not performed or the improvement made by the contractors in accordance with the specifications of their contract with the city. We may well assume, and we think it to be the law — at least, it is reason and conformable to justice — that the contract must have been substantially complied with, or the improvement made in substantial accord with the undertaking, otherwise, it would not be allowable under' any conditions to make the reassessment. It is plain that an assessment could not be levied for a different improvement than the one contemplated by the regular procedure, and for a like reason one could not be levied for an improvement that was not made to conform in all material respects to the one proposed. Mr. Cooley says : “In the new proceedings the party concerned will have the opportunity to watch the various steps, and to be heard in review of them, that he has in any case, and will he precluded by nothing that has taken place in the proceedings which have proven abortive. The reassessment will be for the purpose merely of enforcing against him a duty which he was likely to evade, by reason of nonfeasances or misfeas-ances of the officers who ought to have enforced it”: Cooley, Taxation (2 ed.), 310. And, in further elucidation of the subject, Mr. Justice Taylor says, in Rork v. Smith, 55 Wis. 67, 82 (12 N. W. 408, 414): “The city authorities have no power to charge the plaintiff’s land with any amount as a special tax for doing work in grading the street in front of his lot, unless such grading was done in substantial accordance with the plans and specifications previously adopted by the city authorities.” This was a reassessment proceeding. By the provisions of the section under consideration notice is required to be given to the abutting property owners, and they may file objections in writing to the reassessment. As to these, the common council must grant a hearing and determine their validity.

Plaintiffs filed written objections, as indicated by the complaint; but it is not clear from their reading whether they were intended to call in question the manner in which the work was done, or whether in accordance with the specifications. But, however this may be, the council, as we shall see presently, presumably passed upon the objections, and the plaintiffs are now'precluded from again raising the issue in this collateral way, except it be shown that the council has itself proceeded fraudulently: Elliott, Roads & Streets (2 ed.), § 608; Chance v. Portland, 26 Or. 286 (38 Pac. 68); Callister v. Kochersperger, 168 Ill. 334 (48 N. E. 156); Craft v. Kochersperger, 173 Ill. 617 (50 N. E. 1061); McEneney v. Town of Sullivan, 125 Ind. 407 (25 N. E. 540); De Puy v. City of Wabash, 133 Ind. 336 (32 N. E. 1016); Cason v. City of Lebanon, 153 Ind. 567 (55 N. E. 768).

4. No fraud, as it pertains to the common council, is adequately alleged. The fraud must relate to the proceeding on the reassessment, because the original proceeding is an invalidated past transaction, and we look in vain for any implication of fraud as it respects the action of the common council in this latter relation.

5. Furthermore, to put at rest any controversy touching the action of the board of public works in accepting the improvement in the first instance, we may say that the allegations of fraud, as it relates to their action, are insufficient, tested as they are by demurrer. The pertinent averment is that the board, in reliance upon the fraudulent representations of said contractors and the said city engineer and his deputies and inspectors, undertook to and did accept said street. This falls far short of charging the board of public works even with fraud in the premises, so that their acceptance of the improvement must be held to be valid and binding in any collateral attack wherein it is sought to question the manner in which the work was done. We hold, therefore, that the case made is insufficient to warrant inquiry touching the manner in which the work was done or improvement made.

6. In this view of the allegations of the complaint, the procedure cannot be regarded as an attempt under the taxing power of the municipality to raise money for private use; that is, for the contractors, and for Cook, a holder of the warrants, contrary to the Constitution of Oregon, Article XI, Section 9.

7. The case being such that the abutting owners were not allowed to go behind the action of the board of public works or of the common council in accepting the improvement, to inquire into the manner of doing the work, it cannot avail plaintiffs against the contractors and the holders of the warrants, and their demurrer to the complaint is just as effective as that of the city.

8. Objections are made to the manner of inaugurating the reassessment proceeding. The first step was the adoption of a resolution, which, after reciting that the original proceeding had been declared void by a decree of the circuit court for Multnomah County, and that the abutting property had been peculiarly benefited by the improvement, defined the district specifically and peculiarly benefited, and directed the city auditor to prepare within 10 days a preliminary reassessment upon the lots,'blocks and parcels of lands within the district, to the extent of their respective proportionate shares of the full value of the improvement, and to give due notice to the property owners affected. In this relation it is alleged that the resolution was adopted arbitrarily, without notice to plaintiffs or an opportunity to be heard with reference thereto; but it is a sufficient answer thereto that the charter provides for ho such notice or hearing.

In pursuance of the resolution, the auditor published a notice as follows:

“Reassessment for Improvement of East Burnside Street.

In compliance with a resolution adopted at the regular meeting of the council, held February 18,1903, declaring the district benefited by the improvement of East Burnside Street, from the east line of East Eighth- Street to the west line of East Twenty-eighth Street, and directing the auditor to prepare a preliminary assessment upon the lots, blocks, and .parcels of land within said district: Now, Therefore, Notice is Hereby Given that such assessment is now on file in the auditor’s office, and. that any objections to such assessment must be filed in writing with the auditor within 10 days from the 18th day of March, 1903, the last day of publication of this notice, and notice is further given that said objections will be heard by the council at a meeting to be held on the first day of April, .1903, and all persons aggrieved thereby or interested therein must be present at said meeting, and are warned not to depart therefrom until such reassessment has been completed.

Thomas G. Devlin, Auditor.

Portland, Oregon, March 7, 1903.”

It is then further alleged that the auditor did not forthwith mail to the property owners any kind of notice whatever, and that the only notice sent to them was a copy of the published notice. The preliminary reassessment consisted in adopting the old assessment in all material respects, but adding interest when the assessment had not been paid, as section 400 prescribes.

9. As against these preliminary steps in the procedure, looking to a reassessment of benefits, many objections, other than those just alluded to, were interposed. Among these, it is insisted that the resolution should have contained findings touching the substantial completion of the improvement, its value, and the benefits conferred; that the auditor did not make the preliminary assessment within 10 days; that the notice published did. not comply with the resolution or section 400 of the charter, nor did it state the amount of the assessment, nor that it was upon any property, nor what property, nor the amount of the assessment against any parcel; and counsel conclude by requesting the court to consider “whether this general notice published in this case is sufficient notice to make due process of law, when it is the only notice given.” In answer to these manifold objections it is only necessary to observe that the common council has followed in all essentials the requirement of section 400.

10. A resolution defining the district benefited by the improvement, and directing the auditor to make the preliminary assessment, and fixing the time within which it should be done, was adopted. The auditor gave notice ample in form to notify interested parties of all that was being done, and this was properly served by publication. The published notice being regular, an irregularity attending the further giving of personal notice through the mails is not fatal to the procedure: Section 420, Charter. This is’all that need be said touching the regularity of the preliminaries of the reassessment proceeding. The notice provided was sufficient to give the plaintiffs their day in court upon the reassessment of benefits, and, having been given in the essential manner designated, they are precluded by the record.

11. Another insistence of counsel for appellants is that, if the.common council proceeded regularly in the acquirement of jurisdiction to make the reassessment, it lost such jurisdiction before taking action respecting the objections filed, or adopting the ordinance approving and confirming such reassessment. It is alleged that on April 1, 1903, the date fixed for hearing objections to the preliminary reassessment, that being a regular meeting of the common council, there was no quorum present, and the chief of police did not notify the members of the council as required by Ordinance 10906, and that, in violation of such ordinance, the council adjourned until April 2, at 9.30 a. m., which was not a day for the regular meeting of the council. It is further alleged that on said 2d day of April the common council on motion continued the hearing of said objections until the next regular meeting, being April 15. These proceedings, it is urged, deprived the council of further jurisdiction in the premises, by reason of the adjournment to April 2 and not to the next regular meeting,’because not in consonance with rule 1, adopted by said Ordinance No. 10906 for the government of the meetings of the council. The rule provides that, “should there not be a quorum present, it shall be the duty of the chief of police immediately to inform the absent members (except those known to be unavoidably detained) that their presence is required to enable the common council to proceed to business. Should they fail to appear on such notice, the members present shall adjourn to the next regular meeting which may have been established by the common council.” From the allegations it will be seen that the chief did not'notify the absent members as the rule requires, and it does not appear that any were unavoidably absent, so that the conditions did not exist which made it incumbent upon the common council to adjourn until the next regular meeting. Looking to the charter (section 66), we find that a majority of the members of the council shall constitute a quorum to do business, except as otherwise provided, but a less number may meet and adjourn from time to time, and may compel the attendance of the absent members. This regulation permits just such an adjournment as was taken, and rule 1 is not inconsistent therewith, as it contemplates that the adjournment shall be to the next regular meeting only when the efforts by taking action as therein prescribed have been unavailing to get a quorum.

12. The presumption is always in favor of the regularity of the meetings and adjournments of such deliberative bodies, and, unless it is otherwise affirmatively shown by appropriate allegations and proofs, they must be deemed authoritative and effective: State v. Smith, 22 Minn. 218; People v. Common Council, 5 Lans. 11; Staats v. Washington, 45 N. J. Law, 318. For all that appears therefrom, the adjournment to April 2 was regularly taken, and the proceeding on that day in continuing the hearing upon the objections until the next regular meeting was regular.

Like objections are made to the adjournment from the regular meeting of March 16, 1904, to the next day, when the ordinance was finally adopted ; but these are untenable for the reasons as above.

13. At the regular meeting of April 15, 1903, on motion, “the matter of the reassessment” and the remonstrance were “continued on the table until the next regular meeting,” and so on from regular meeting to regular meeting until finally disposed of. It is suggested that the council lost jurisdiction by causing the matter to lie on the table. The record nowhere shows that the measures were laid on the table. The manner of continuance from meeting to meeting was h}*- motion that they be continued “on the table.” There was no 'meeting that it was not thus continued, so that the matter was kept in hand, as though it was thought to be necessary to regularly continue the business, or else the council could not finally act upon it. While the language employed was not altogether appropriate for a continuance in the regular way from meeting to meeting, it was not effective to lay the matter on the table, and should be resolved in accordance with the plain and obvious intention of the council, which was simply to effect a continuance of the business from meeting to meeting. The objection is not, therefore, well taken.

14. It is next objected that the council refused to consider the objections, but merely ordered them to be placed on file. The fact is that the minutes of the meeting as set out by the complaint do not show what was done with the objections. A remonstrance was placed on file, but we cannot say that this means the objections. The record being silent as to the objections, we must assume that they were considered and found to be without merit, because the council subsequently passed the reassessment ordinance as though they were not in the way. This is in accordance with the rule above discussed in favor of the regularity of the proceedings, unless affirmatively shown to be otherwise.

15. This leaves but one other question for consideration, which is as to the alleged invalidity of the warrants issued in payment of the improvement. The contention is that, as the former proceeding was invalidated, the warrants were also without validity, and should be declared void. The nature, however, of the present proceeding, as we have seen, is to supplement the regular proceeding, and to carry to a successful termination that which was inaugurated primarily ; and it is effective, if regularly pursued, not only to secure a valid assessment of benefits, but to reach back and validate the warrants, so far, at least, as the reassessed benefits are sufficient for that purpose, and they will not be invalidated in any respect or in any amount until the occasion arises therefor.

Finding no errors in the record, the decree of the circuit court will be affirmed. . Affirmed.