13 Or. 271 | Or. | 1886
This is a suit brought by the respondents against the appellants to enjoin the appellants from selling certain city lots owned by them in the said city of East Portland, by virtue of a street assessment which had been levied thereon for the improvement of L Street, in said city; the respondents claiming that the assessment was illegal, upon the grounds that the requirements of the city charter had not been complied with in the improvement of said street, and that it had before been improved, and by the provisions of the charter was not subject to be again improved.
The charter of said city points out the various steps required to be taken in such cases. When any such improvement is to be. made, the common council must cause the recorder to give notice of the same by publishing a notice for fourteen days previous to the undertaking, in some daily or weekly newspaper published in said city, or in the city of Portland, specifying with convenient certainty the street, or part of street, proposed to be
This, substantially, is the power conferred upon the officers of said city in regard to the improvement of streets, and the mode of exercising it. The authority and manner of executing it are similar in principle to that possessed by a great majority of the municipal corporations in the United States. The law applicable to the subject in general is definitely settled. That it is a special-and limited power, and that it can only be exercised in the mode pointed out in the act which grants it, admit of no question. No officer of any municipal .government should be ignorant upon that point, or fail to understand that a street improvement cannot be -made, and the expense thereof legally assessed upon the ■adjoining lots, without a strict observance of every re■quirement of the city charter upon the subject. It is in that respect like every restricted and qualified power. It is allowed to be exercised only upon the terms upon which it is granted. Hence, in order to improve a street in the city of East Portland, and legitimately- charge -the
It is claimed upon the part of the respondents in this case that the council of said city, in attempting to improve said L Street, did not cause the recorder to give the proper notice of the intended improvement — at least, he gave a notice that was insufficient; and the council acted upon it. The alleged defect .in the notice is that it did not specify with convenient certainty the street, or part of street, proposed to be improved, and that kind of improvement to be made. The notice stated, in substance, that the council proposed to improve said street from a certain point to a certain point, by building an elevated roadway and sidewalks of full width from Water Street eastward to the bank of earth elevation between Third and Fourth streets, and from the latter point eastward to Fifth Street, by laying, “where the same may be required,” a plank roadway of full width, with sidewalks. The respondents’ lots fronted and abutted upon that part of said street between “ the bank of earth elevation ” referred to and said Fifth Street; and they allege in their complaint that said L Street had been once improved between points including said part of it, at the expense of the adjoining lots, by authority of tHe said council; and that it was in a good condition when the latter improvement was proposed, and that they were assured by the city authorities after said notice was published, and while they had the right to remonstrate against the proposed improvement, that the improvement of the part of the street affecting their lots would only consist in placing an occasional plank thereon, where the same was neces.sary; that the cost thereof would be trifling, and that that was the object of including in the written notice
Another objection to the regularity of the proceeding is that the name of the owner of the lots in question was not entered in the docket of city liens, nor that the owner was unknown. It appears from the pleadings that no entry of the name of any owner was made in said docket, except under the head of “ owner ” in the statement was
“ This question, as well as every other in the cause, must find a solution in the provisions of the law which vests the power to sell. Where these are explicit and consistent, there is no ground for adjudication but their literal meaning. That they must be construed strictly,* follows from their affecting private rights, and particularly rights of freehold; and that they must be pursued strictly, is the consequence of their being the sole foundation of the powers executed under them.”
The reason could be expressed, perhaps, in fewer words still, by saying that the legislature that granted the power prescribed the condition upon which alone it could be; exercised. To illustrate this more fully, I quote further from the language of the court in Corporation of Washington v. Pratt, supra :
“It was undoubtedly in the power of Congress to have’ left what latitude they pleased to the assessor in designating the owner; but if they have confined him to the,, necessity of determining the true owner, it is not in our-power to enlarge his discretion. It may bo a hardship upon the corporation, but the legislature only can decide whether that hardship shall be perpetuated or not. It must be observed that the alternative is one which would*279 put it in the power of the assessor to designate a mere-nominal owner, a kind of casual ejector, in every, case. Had Congress intended to lighten the labors of the corporation or their assessor in this respect, there were very simple means of doing it. They might have sanctioned a designation with reference to the first or last vendee of record.”
It seems to me that this principle cannot be shaken, and that the only thing to be determined in such a case is to ascertain what the legislature has said. As to the effect of a certificate of the county clerk for the county of Multnomah regarding the ownership of the property, it is not necessary to consider. I do not understand that the auditor obtained any such certificate in this case, but if he did, and it was of the import suggested in the appellants’ argument, it could not have aided the defense in the suit. A certificate of that character would not-show who was the owner of the lots. It may have shown that J. C. Hawthorne had owned them in his life-time, and leave the inference that they then belonged to his-heirs, but it would not have been any certificate of the ownership at the, time, whatever effect a proper certificate of that character may have had. It is my opinion that an assessment for a street- improvement, if otherwise regular, would be valid if the auditor took such certificate, stating who was the owner of the lot, and entered the name so certified in the docket of city liens, although it was not in fact the name of the owner; but in such case it would have to be the name of a person who could be such owner. A deceased person, of course, could not be an owner of property, and the insertion of such a name would necessarily be a nullity, from whatever source the auditor obtained it. A tax for street, improvements is not against the person — it is againstihe-.property; and to render it valid, the act under which
Another objection urged against the legality of the improvement is that said L Street had been improved in 1872, by authority of said city, at the expense of the adjacent property. It is conceded upon the part of the appellants that the street was so improved, but is denied that it was a full improvement — is claimed that it was but a partial improvement, and that it was therefore subject to be again improved. It appears from tho pleadings and statements of counsel that on the eighth day of April, 1871, the city council passed an ordinance providing for the improvement of a part of said street, including that portion of it adjacent to and abutting upon the lots in question; that the improvement between Fourth and Fifth streets, as provided in said ordinance, consisted of grading the street to the éstablished grade, and the laying of a plank roadway sixteen feet wideband sidewalks and cross-walks and gutter; that the street is sixty
There are some other questions regarding the legality, of the improvement in question, but they are not of a very serious character, nor is it necessary to determine, them in this ease.
The strong point in the defense made by the appellants’attorney is the delay upon the part of the respondents to> commence the suit to enjoin the collection of the tax. That question addresses itself with great force to the-equity side of the court. It is a fundamental principle, of equity that a party who encourages -an improvement, of the character of the one in question to be made, and from which he derives a benefit, shall not be allowed thereafter to question its legality; that it will not afford-him any remedy, under such circumstances.- That doctrine is maintained by numerous authorities, but they, all proceed upon the ground of an equitable estoppel. None of them go far enough to defeat the remedy of a. party to have proceedings enjoined in such case upon the-mere ground tliat the improvement has been beneficial to his property. They apply to cases where the party-, has, by some act, consented to the improvement resulting in the assessment. We cannot say in this case that-the respondent gave her consent to the proceedings. She; opposed them when she ascertained that a full improvement of the street was intended; and her failure to adopt-some other remedy to avoid the enforcement of the, assessment is not sufficient of itself to deprive her of the - remedy invoked in the suit. I am conscious of the hard