100 P. 942 | Or. | 1909
delivered the opinion of the court.
“Sec. 400. 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 extent of their respective and proportionate shares 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. Interest thereon from the date of delinquency of the original assessment may be added at the discretion of .the council. 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. Such reassessment shall not be made in case of a street improvement wherein a remonstrance sufficient in law to defeat the*382 same shall have been filed. 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. The auditor shall forthwith mail to the owner of each lot or part thereof, or tract of land affected by such assessment, or to his agent, if the postoffice address of either be known to the auditor, a notice of such assessment; and if such postoffice address be unknown, then such notice shall be directed to such owners or agent at Portland, Oregon. The owner or owners of any property which is assessed on such assessment, or any person having an interest therein, may, within ten days from the last publication herein provided, file with the auditor their objections in writing to such assessment. At the time appointed in such notice the council shall hear and determine all objections which have been filed by any party interested. The council shall have power to adjourn such hearing from time to time and shall have the power, in its discretion, to revise and correct, or to set aside and order the re-making of such assessment, and shall pass an ordinance approving and confirming such reassessment, as corrected and re-made by it, and such decisions shall be a final determination of the regularity, validity, and correctness- of the reassessment, except as herein otherwise provided. When said reassessment is completed and confirmed it shall be entered in the docket of city liens, and shall be enforced and collected in the same manner that other assessments for local improvements are enforced and collected under this charter and the laws governing the city. All sums paid upon the former assessment shall be credited to the property on account of which the same were paid, as of the*383 date of such payment; and when it has been attempted to sell property for any assessment, and such sale is found or declared void, upon the making of the reassessment, the property shall be resold and the proceeds of such sale shall be paid to the purchaser at the former void sale or his assigns; 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.”
This section has been before this court for consideration, and it will aid materially, in arriving at a correct solution of the questions to be determined on this appeal, to briefly summarize the points already determined. They are:
(1) That it does not authorize the taking of property without due process of law, and, therefore, it is not in. contravention of the fourteenth amendment to the federal constitution, or inimical to the provisions of Sections 10 and 18 of Article I of the State Constitution.
(2) That it does not authorize a reassessment without regard to the benefits, contracts, or rights, and is retrospective in its operation, applying to improvements made under previous charters. Kadderly v. Portland, 44 Or. 128 (74 Pac. 710: 75 Pac. 222).
(3) There must have been: (a) An actual attempt by the municipal authorities in good faith, under the regular procedure provided by the charter, to make an improvement and assess the cost thereof against the property benefited. (b) The proceeding must have failed because of the non-observance of some of the charter provisions, (c) The proceeding must have been set aside and annulled by a court of competent jurisdiction on account of such irregularities, or the council must be in doubt as to its validity, (d) The original contract for the improvement must have been substantially complied with, and the improvement made in substantial accord with the contract and the proceeding authorizing it. (e) That no notice to abutting property owners of
(4) In a proceeding by writ of review, however, such presumption will not attach, and the record must affirmatively show that the "objections, if properly made, were considered and passed upon by the council, and merely ordering them placed on file is not sufficient. Applegate v. Portland, 53 Or. — (99 Pac. 890).
(5) Findings of the council that the work has been done substantially in accordance with the contract, the amount the property is specially and peculiarly benefited by the improvement, and the proportionate share of the cost thereof to be charged to each lot or parcel of land, is conclusive in the absence of fraud, unless made under an erroneous principle of law, except so far as the right of appeal from the assessment and apportionment is given by section 401. Duniway v. Portland, 47 Or. 103 (81 Pac. 945); Michell v. Portland, 53 Or. — (99 Pac. 881).
(6) That part of section 400 providing that, when property has been sold for the payment of a delinquent assessment and the sale has been declared void, the property shall be reassessed and the proceeds paid to the purchaser at the prior sale, is unconstitutional and void, because it is, in effect, the taking of one man’s property and giving it to another. Gaston v. Portland, 48 Or. 82 (84 Pac. 1040).
Keeping these principles in mind, we proceed to a consideration of the questions in the present case. It is contended that the charter confers upon the council the power to make but one reassessment, and that this power is exhausted by an' attempted assessment, although invalid. It is only necessary to recall the purpose of the charter to dispose of this position, and, as that is so clearly stated by Mr. Justice WOLVERTON in the Duniway case, we need only quote. He says: “The purpose of the act is manifest from its reading. It proceeds upon
This being the object of the statute, it is manifest that the power of the council is not exhausted by an abortive attempt to make a reassessment, but that it may continue to exercise the granted powers until it succeeds in charging the property benefited with its just and proportionate share of the cost of making the improvement. The general rule, that all tax proceedings shall be construed in favor of the taxpayer, often results in permitting him to profit by the mere non-observance of technical and unimportant matters, and thus obtain the benefit of an improvement to his property while contributing nothing to its payment; to the loss of either the contractor or municipality, or both. It was to cover these defects and compel property owners to pay their due proportion of the cost of improving their property that the reassessment provision was inserted in the charter, and it should be so construed as to effectuate the purpose intended. It plainly authorizes an assessment or reassessment of property, benefited by a public improvement, as often' as may be necessary to compel it to bear its just proportion of the cost of such improvement. The intention of the charter is that no technical defects in the proceedings for the improvement of a street which has, in fact, •been improved, to the benefit of adjoining property, shall prevent or stand in the way of the benefited property
. 5. It is next claimed that the council did not “hear and determine” the objections made by plaintiffs to the preliminary reassessment. The charter gives to the owner or owners of property affected by a proposed reassessment the right, within ten days from the last publication of the required notice thereof, to file with the auditor their objections in writing to such assessment. The objections may raise either questions of law affecting the validity of the proceedings, or of jurisdiction or power of the council; or they may involve questions of fact, such as the improvement had not been made in substantial compliance with the contract and ordinance providing for it; or that the proceedings had been defeated by a proper remonstrance (if these questions are not already concluded by the findings of the council) ; or' that 'the property of the objectors had not been specially or peculiarly benefited by the improvement; or that the amount charged against such property in the preliminary assessment of the auditor is in excess of the benefits, or the amount that was originally assessed against the property or of the proportionate share of the cost of the improvement justly and equitably chargeable against such property; and the like. The council .is required to hear and determine such objections as are open to the property owners, and it should appear somewhere in the record of their proceedings or the reassessment ordinance that they have done so. The preliminary assessment as made by the auditor and the objections of
It is argued that the record, therefore, shows on its face that the auditor and council adopted an arbitrary and unjust method in making the reassessment, regardless of benefits, because it simply approved and confirmed the original assessment made under the provisions of the charter .of 1898. There is no requirement that the auditor in making his preliminary reassessment shall indicate thereon the method pursued by him, nor that it shall contain a statement that it is made in accordance with the benefits. Such assessment is, as its name implies, but preliminary to the actual reassessment, and is intended to advise the property owners of the amounts proposed to be charged against their property, and thus form the basis for the action of the council in making the actual reassessment.. The reassessment, when made, is the act of the council and not of the auditor, and therefore we deem it unnecessary that the preliminary reassessment, as made by the auditor, should disclose on its face that it was made according to the provisions of the charter. That will be presumed.
Decree is reversed. Reversed.