Gregor v. City of Portland, 268 P. 743

268 P. 743 | Or. | 1928

This suit was instituted to enjoin the City of Portland from collecting from the numerous plaintiffs the amount assessed against them as benefits derived from the improvement of Interstate Avenue in said city. The avenue is 100 or more feet wide and extends through the city in a northerly direction two and one-half miles toward the City of Vancouver in the State of Washington. Practically all of the improvement consisted of reducing the grade of the southern portion of said avenue, which required a cut 16 feet deep for some distance. The lots owned by the plaintiffs do not border on said avenue. For the purpose of paying the damage resulting to the property adjoining the deep cut, a district was created, including a large number of lots or tracts of land, which the defendants claimed, were benefited by the reduction of the grade of the southern part of said avenue. The southern end of said avenue converges into the intersection of Morris, Delay and one other street not named on the plat in evidence, in said city. The district so created roughly resembles a bottle with the neck towards the south. Defendants claim that the entire district so created by them is benefited by the improvement, because it opens a direct and broad thoroughfare through and from said district to the business section of the City of Portland. Defendants had decree and plaintiffs appeal, assigning errors orderly stated in their brief as follows: first, that the city council of defendants did not find that the engineer's report of the assessment of benefits and damages was "reasonable and just" as required by the charter; second, that the city council after the hearing of the engineer's report did not find that it deemed it "to be a fair, just and proper assessment of the benefits"; third, that the assessment of the benefits and damages made by the council was arbitrary and, therefore, invalid; fourth, that the assessment so made was the act of the city engineer and his assistant, and not the result of the judgment and determination of the city council; and fifth, that plaintiffs' property is so situated that it is physically impossible for the proposed change of grade to benefit it.

AFFIRMED. It is well settled in this state that the record of assessment of benefits against property for street improvements must affirmatively show that the procedure prescribed by the legislature must be strictly followed: Jones v. City ofSalem, 63 Or. 126 (123 P. 1096); Keane v. City of Portland,115 Or. 1, 7 (235 P. 677); In re Board of Directors v. Peck,91 Or. 33, 45 (178 P. 186). Substantial compliance with the provisions of the law after the city has acquired jurisdiction of the persons and cause is all that is required: Latourette v.County Court of Clackamas County, 121 Or. 323, 331 (255 P. 330); Kershaw v. The City of Willamina, 119 Or. 543 (250 P. 235); Duniway v. Portland, 47 Or. 103 (81 P. 945).

Plaintiffs do not claim that the proper notice was not given, nor that any other step in the procedure for acquiring jurisdiction to order the improvement made was omitted. The sole contention is that the city council failed to incorporate in its findings, first, the statement that the report of its engineer was "reasonable and just"; and second, that the city council deemed the same to be a "fair, just and proper assessment of benefits," and for that reason the assessments did not comply with the charter. The record clearly shows that the report of the engineer was before the city council for consideration at 10 o'clock in the forenoon of September 30, 1925, also at 2 o'clock of the same day, and again on the thirteenth day of October, 1925, again October 27, 1925, and November 4, 1925, at 10 o'clock in the forenoon and 2 o'clock in the afternoon. Ordinance No. 48082 entitled: "An Ordinance overruling objections adopting the engineer's report for the proposed change of grade on a portion of Interstate Avenue and certain other streets, making an assessment of damages and benefits." was introduced by order of the council, read twice November 4, 1925, was read the third time, and unanimously passed November 18, 1925. At the several meetings when said report of the engineer was under consideration different parties objecting to the assessments of benefits and damages appeared, some of them in person and others by attorneys, and the matter was discussed. The Chief Bureau of Construction reported to the city engineer under date of October 25, 1925, that the assessment of damages was equitable and just, that the remonstrators and other objectors equaled 24.3 per cent of the parties affected by the assessments; that more than 50 per cent of the parties so affected had petitioned for the improvement, recommended that all remonstrances be overruled, and the city engineer's report adopted. The engineer's report was adopted after said hearing. We think the council fully complied with the city charter, which requires the council to be satisfied that the report is reasonable and just and assessment of benefits made fair, just and proper. It must be remembered that the council had acquired complete jurisdiction of the subject matter, and that a substantial compliance with the provisions of the charter thereafter is all that is required. It is not necessary that the council should state in the exact words of the charter that it had found the damages and assessments "reasonable and just," and the assessment of benefits to be "fair, just and proper." The only implication from the action of the council taken after the repeated hearings on the engineer's report is that it must have so found, because it adopted the report. The city charter expressly prescribes that "no findings or conclusions need be entered relative to objections." Section 324.

This conclusion disposes of the third assignment of error also. We having determined that the city council had complied with the charter in making the order adopting the report of the city engineer, it follows necessarily that its conduct could not be arbitrary or the assessment invalid, unless fraud was found or a demonstrable mistake made. Plaintiffs do not claim that fraud was committed, unless a demonstrable mistake proves constructive fraud. This claim will be disposed of later.

From what has been said it also necessarily follows that the assessment of benefits and damages was the act of the city council, and not the act of the city engineer. The charter requires the matter of such improvements to be referred to the city engineer by the council. This was done. The charter further requires the city engineer to make his report of the feasibility of the project and the amount of benefits and damages to be sustained by the property affected by the proposed improvement. This the city engineer did. The council could not delegate its authority: Allen v. City of Portland, 35 Or. 420 (58 P. 509); In re Board of Directors v. Peck, above; Keane v.City of Portland, above; McQuiddy v. Vineyard,60 Mo. App. 610. But the council did not attempt to delegate its power to its engineer. It required the report from the engineer as the charter prescribes. The council itself held meetings, heard the objectors and remonstrators, and then passed judgment upon the matter. The charter was strictly followed in the proceeding as shown by the record before us.

Plaintiffs further claim and strenuously insist that the physical relation of their property to the proposed improvement is such that it is impossible for that improvement to benefit their property. From this contention it is argued that levying an assessment against their several lots and tracts of property amounts to constructive fraud and vitiates the proceeding. The record and evidence adduced and brought here convinces us that this contention is not supported. This court cannot substitute its judgment for that of the city council. Improvement of highways is primarily a legislative matter. The assessment of benefits and damages is quasi judicial. Unless the city council, in the exercise of its functions in determining the necessity of the improvement and assessing the benefits and damages, exceeds the power granted to it by its charter or transgresses the Constitution, we cannot interfere with its conclusions and orders: Austin v. Tillamook City, 121 Or. 385 (254 P. 819). We find the necessary steps prescribed by the charter for making the improvements involved in this suit were taken by the council, and that no error was committed in the proceeding or in the court below.

The record does not disclose any demonstrable mistake in the council's actions. It does not show that it is physically impossible for plaintiffs' property to be benefited by the proposed improvement. As the avenue existed at the commencement of these proceedings it was of little service as a thoroughfare. The district in which plaintiffs' tracts are located got but little benefit from it. The traffic may be seriously congested in the southern portion of the district. That congestion may be entirely eliminated by the proposed improvement. We can see where the proposed improvement could effect that result. The entire district would be materially benefited by that result. It being physically possible for all the tracts to receive benefit from the proposed improvement, the need for the improvement is a legislative function committed to the city council. The distribution of the benefits and damages is a quasi judicial function also entrusted to the council. With the exercise of those functions within the charter and Constitution the courts have no power to interfere. The decree is affirmed. AFFIRMED.

RAND, C.J., and McBRIDE and ROSSMAN, JJ., concur.