187 P. 306 | Or. | 1920
“Whenever an assessment for the opening, altering, or grading of any street, or construction, reconstruction, or repair of any sewer, or for any local improvement which has been or may hereafter be made by the city, has been or shall hereafter be set aside, annulled, declared or rendered void, or its enforcement refused by any court of this state, or any federal court having jurisdiction therein, 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, or any part thereof, the council 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 respective and proportionate shares*383 of the full value thereof. 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 making, but shall not exceed the amount of such original assessment. * * Such reassessment shall be made in an equitable manner, as nearly as may be in accordance with the law in force at the time it is made; but the council may adopt a different plan of apportionment of benefits when, in its judgment, essential to secure an equitable assessment. The proceedings required by this charter to be had prior to the making of the original assessment shall not be required to be taken or had within the intent of this section. Such reassessment shall be made and shall become a charge upon the property upon which the same is laid, notwithstanding the omission, failure, or neglect of any officer, body, or person to-comply with the provisions of this charter connected with or relating to such improvement and assessment,' and notwithstanding the proceedings of the council, executive board, board of public works, or any officer, contractor, or other person connected with such work, may have been irregular or defective, whether such irregularity be jurisdictional or otherwise # * .”
Section 265 of the present Charter of the City of Portland reads:
“The council shall have the right, power and authority to determine whether any railroad crossing of any street or highway within the corporate limits of the City of Portland is dangerous, and to provide for the elimination of any grade crossing of any railroad on such street or highway, whenever, in the opinion of the council, it is necessary to eliminate the same.”
The contention of the plaintiff that the former decision of the Circuit Court enjoining the collection of the assessment there involved bars the present suit cannot be sustained. All that decree pretended to determine was the validity of that particular assessment. It is
“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.” (Citing authorities.)
The reassessment system devised by Section 400. would be empty and meaningless if the former decree described in the complaint should be construed absolutely to bar for all time any effort of the city to collect by assessment the expense of a really completed and useful betterment.
The decree of the Circuit Court is reversed and one here entered dismissing the suit.
Reversed and Dismissed. Rehearing Denied.