2 Or. 146 | Or. | 1865
The objection made to tbe jurisdiction of tbe Circuit Court over the subject of this suit involves an examination of some of tbe provisions found in tbe charter of tbe city of Portland. Por it is admitted by respondent’s counsel, tbat if tbe charter made a tax deed prima facie evidence,, excusing its bolder from proof of tbe proceedings upon which tbe deed was made, then there could be no contest as to tbe rightful jurisdiction. True it is, that-courts of equity will not interfere and set aside every paper purporting to complete a title or impose a hen; and tbe appearance of a valid defect in tbe proceedings leading to its execution, does not, as a rule, give tbe right to invoke tbe aid of equity.
Section 376, of tbe Code, in creating tbe equity side of our-courts, defines tbe grounds upon which a resort may be bad to tbat tribunal. It declares: “ Tbe enforcement or protection of a private right, or tbe prevention of or redress for an injury thereto, shall be obtained by a suit in equity, in all-cases where there is not apla/i/n, adequate a/nd complete remedy at law.” It makes tbe absence of a proper remedy at law tbe main requisite.
In this suit it is admitted tbat tbe authority for makingtbe assessments, or hens upon tbe lots of plaintiffs, come from these certain sections in tbe city charter. Section 85: “ When tbz probable cost of tbe improvement (of tbe streets) has been ascertained and determined, and tbe proportionate share-thereof of each lot, or parcel thereof, has been assessed as provided in section 84, tbe council must declare the same by ordinance, and direct its clerk to enter a statement thereof in tbe docket of tbe city hens.” Section 87: “ The sum so entered is to be deemed a tax levied, and a hen thereon, which hen shall have priority over ah other liens- or incumbrances whatever.” Section 139: “ In any action, suit or proceeding in any court, concerning any assessment of
When the city council decide upon the improvement of a street, that body may proceed without any possible hindrance or objection to ascertain and determine the probable cost of making the same, and assess upon each lot, or part thereof, its proportional share pf such cost. The whole of the matter, as regards expense and apportionment, belongs to the discretion or judgment of the council, and the same charter declares "that discretion or judgment as final, and in no wise reviewable. Their proceedings are to be taken as regular, and the sale and "transfer by deed stand substantially, and we might say expressly, as prima facie evidence thereof, throwing the burden of proving the irregularities in the proceedings, and the invalidity of sale, &c., upon the party assailing such deed. Under the provisions of the charter, there can be no way to correct the amount of assessment or interfere with its
Our considerations are directed mainly to the second point in the case, over which counsel have strenuously contested. Appellants claim that the apportionment by the city council to each lot, or part thereof, abutting on the improved street, of its share of the expense of such improvement is unconstitutional, and, therefore, that all proceedings subsequent to
The appellants claim that the assessment or apportionment made by the city council upon appellants’ lots, if authorized at all, must 'be' so by reason of the exercise of some of the powers of taxation residing in the law making authority; and if so, then that it contravenes the express provision in section 32, article 1, of the Constitution of Oregon, which reads thus “ and all taxation shall be equal and uniform.” Respondent admits that it' comes from that source, and 'has no connection with the other kindred power of a State over property, the right of eminent domain. This claim and admission narrows the inquiry to this: Does that section cover taxation or burdens for all purposes; general and local; State and municipal; revenue and benefit ? The construction of State Constitution is widely different from that to be given to the Constitution of the United States.' The latter is sole source of power and authority for the national government, granted and delegated by those, in whom the original powers were acknowledged to have existed; and who were not divested of any of that authority, save as was plainly set forth in the instrument itself. In the former, it is fairly the reverse; the people, acknowledged to be sovereign, framed
Upon the subject of taxation certainly, unless the Constitution contains plain restrictions, the control of the legislature is absolute. It represents the people, and if these latter have not ceded away that right, they may, in State, or municipal character, or by their representatives determine upon assessment or taxation for any and all purposes deemed for the proper interest of those concerned. The improvements to be made upon streets, being for public rise is a public benefit j yet, it is equally true that these improvements inure to the benefit of those in the immediate vicinity of the work, disproportionally with that of those living in a remote part of the community, whose property is not increased thereby in value, and who may seldom, if ever, use that portion of the public highways, assuming it to be a public work, to be used by the public, and claiming also that the act of the city council was the exercise of a power called the right of taxation. Appellants insists that if the council had the legal right to declare the mode of payment for such work, it should have been done under section 32, above cited ; and that a tax equal and uniform in its burden upon all property within the corporation of Portland should have been levied. "We certainly agree with counsel, that the act of the city council was an attempt to exercise the sovereign right of taxation. What may be the extent of that right is ably expressed and defined by Chief Justice Marshall, in J Peters, U. S., 514, 61, 63, whose words I use : “ The power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic. It is an original principle, which has its foundation in society itself. It resides in the government as part of itself, and need not be
Again, in McCulloch v. Maryland, 4 Wheaton, 428, “ It is admitted, that the power of taxing the people and-their property is essential to the very existence of government, and may be legitimately exercised on the subject to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax the government acts upon its constituents.” Again: “ Assuming this to be sound doctrine, it must be conceded that the power of taxation, or of assigning to each individual, his share of the burden, is vested exclusively in the legislature, unless this power is limited or restrained by some constitutional provision. The power of taxing, and the power of apportioning taxation are identical and inseparable.”
A full discussion of this question is found in the leading .ease of the People v. Mayor of Brooklyn, 4 Comstock, 420, and has become, we deem it, settled law, that the legislature, apart from constitutional restriction, may levy taxes and devise ways of apportionment thereof in such manner, and to any extent they may deem advisable. -
Section 32, article 1, is in full in these words: “ No tax or difty shall be imposed without the consent of the people, or their representatives in the legislative assembly, and all taxation shall be equal and uniform.” .If, when our Constitution was made, certain words or sentences had obtained a certain signification or force, either by common usage or legal decision, it must be presumed, if found in that instrument that they bear that established meaning, unless plainly from the context or other provision, a different meaning is certainly
Doubtless the reason was that, in taxation for the general expenses of the government, the benefits to each person could not be determined even approximately; but for local improvements these could be very nearly ascertained, and those who received the benefit could be made to bear the burden. This distinction could not have been unknown to our constitutional convention.
Again, numerous decisions, previous to 1848, had been made elsewhere, all, save in the State of Louisiana, tending towards the limitation of the word “ taxation ” as used in the different constitutions, and its restriction to the general burdens for general expenses for carrying on the government, and the enforcement of those matters designed for equal benefit to one and all. About the time of the adoption of our Constitution, these many decisions were gathered into leading cases in most of the States, and the courts announced unmistakably what had been, and more definitely what
In some others, the word assessments does not expressly appear, and in those States, reasoning upon general principles, and applying the rule in benefit and burden, and recognizing the common interpretation of tmation elsewhere, the. courts have invariably adhered to the restriction of that word to general purposes only; and in these States the conclusion is maintained, that the legislature was not restricted from using any other mode or measure for discharging these-local burdens. That body had the absolute control of such matters, and it rested in their sound discretion, and was unassailable in the courts; the only remedy was with the people. In 4 Wheaton, 428, the Supreme Court declares: “ It is unfit for the judicial department to inquire what degree of taxation is the legitimate use, and what its abuse.” In 18 N. Y., 38 : “A general rule is that a discretion committed to one-authority is not to be reviewed by another.”
Our Constitution differs in words, perhaps from the two-classes of State constitutions named above, but we deem it equally clear in language and meaning as any. While the word assessment, upon which decisions elsewhere rest, is not found in section thirty-two, yet there is present there a word which creates the reason for the most technical decision as to the scope of the word taxation. It declares, “No tax or duty” making clear distinction between the two sribjects;. yet the word duty, in its enlarged sense* has the legal interpretation of being “ nearly equivalent to taxes* embracing
If our legislature was not then restricted by express constitutional provision, it might exercise fully any and all powers necessary to provide for the necessities of the people in small communities, as for the people at large, and exercise these powers without restraint or revision. A brief examination of the decisions will sustain, beyond cavil, the position here assumed. In 11 Johnson, 77, a church had been assessed for its share of improvements made to Nassau street, in the city of New York. The statute was, that “No real estate belonging to any church shall be taxed by any law of this State.” Yet the court held that that provision referred to general or public taxes, for the benefit of the State, county or town, and that assessments for street improvements were not a tax contemplated by the act.
In The Mayor and City Council of Baltimore v. Proprietors of Green Mount Cemetery, 7 Maryland, 517, the charter of that company provided that their lands should not be liable to any tax or public imposition whatever.” On resistance made to an assessment for street improvements, the Supreme Court held that nothing more was intended than to exempt them property from all taxes and burdens '“ levied or imposed for the purpose of revenue, and not to relieve it from such charges as are inseparably incident to its location with regard to other property.” In 12 Ill., 405, lands were assured to a canal corporation on these terms: “ The lands and lots shall be exempt from taxation of every description by and under the laws of this State, &c.;” and the court there held: “In our opinion, the exemption must
In Williams v. City of Detroit, 2 Mich., 564, a law authorizing assessments upon lots fronting on a street, for its improvement, was held constitutional. The same ruling was made in 8 Mich., 276; and in the latter case a distinct approval was made of the leading case in Ohio, above cited. In 21 Missouri, 495, an act had been passed giving a corporation the right to reclaim lands in a certain district subject to inundation; and in order to pay for the construction of ditches, levees, &c., the smn of one dollar might be assessed on each acre of the lands lying within that district. On a case arising, I quote from the decision :: “ That provision of our State Constitution which requires taxation to be proportioned to the value of the property on which it is laid, is only applicable to taxation in its usual, ordinary and received sense; and is, therefore, limited to taxation for general purposes alone, where the money raised by the tax goes into the State treasury, county treasury, or the general fund of some city or town, and is applicable to any pmpose to which the legislative body of such State, county or town may choose to apply it; and is not intended to apply to local assessment, where the money raised is to be expended on the property taxed. These local assessments- ame not necessarily, under-
To the same conclusion are the cases found in 25 Mo., 510; 30 Mo., 541, and 1 Ohio, 135.
In all these latter cases, tbe decisions were made under constitutional provisions, wbicb, naming taxation alone, were silent as to assessments. Those States bad tbe same provision as has our CoRstitution, empowering tbe legislature to charter municipal corporations, viz.: Section 4, article 11, “Acts of tbe legislative assembly, incorporating towns and cities, shall restrict their powers of taxation, borrowing money, contracting debts and loaning their credit.” This does not contain tbe word assessment or duty • but our provision, section 23 above cited, contains, in addition to theirs, tbe word duty / and if that word embraces tbe payment for street improvements, then our legislature are, by tbe omission of that word in section 4, article 11, clearly unrestrained in their power over all subjects embraced in that term. Tbe class of decisions first mentioned above were based upon constitutional provisions, of wbicb tbe New York one is a sample: “It shall be tbe duty of tbe legislature to provide for tbe organization of cities, and incorporated villages, and to restrict their powers of taxation, assessments, borrowing money, contracting debts, &c.”
Tbe line of decisions, under both forms of constitutional provisions, with and without other words than taxation, seems to be unbroken in establishing tbe conclusion, that the word taxation, as used, is limited to tbe means of raising money to meet tbe general purposes of tbe government, whether of State or city. At best tbe provision, that all taxation shall be equal and uniform, is very imperfect in its enforcement. All property is assessed to pay a certain rate to tbe state; yet, tbe assessor, chosen for Wasco county, places a value upon property, perhaps fifty per centum, higher than does
We think these conclusions follow: The term taxation, in section thirty-two, article one, must be limited alone to the meeting of such expenses as are necessary for the maintenance of the general government of State, county, city, éso., and that the full power resides in the legislative assembly to provide for other expenses, belonging to any other branch of taxation, in their discretion, and that such discretion is final;
The judgment is affirmed.
