63 P. 2 | Or. | 1900
after stating the facts, delivered the opinion of the court.
This brings us to the rule of apportionment, and in this connection may be considered the second objection, which is that the mode and manner of assessment for street improvements adopted and prescribed by the legislature through the city charter do not take into consideration the benefits,. or limit or apportion the assessment by and in accordance with the benefits received, and therefore that the charter is in vic^ lation of the fifth and fourteenth amendments to the national constitution, which inhibit the taking of private property for public use, and without due process of law. Our state constitution has similar provisions (article I, §§ io, 18), so5 that, if the rule is in violation of one, it is also' in conflict with the other. The case has been presented, however, by the allegations of the complaint and at the argument, with special reference to1 the federal question; and we will treat it more particularly in that light, for, if the legislative act prescribing the manner and mode of assessment is void under the national constitution, within the doctrine of the supreme judicial court of the United States, then we are precluded, as it is the final arbiter in the premises. It is asserted with substantial unanimity and great clearness by the courts, in this country, as well as by text writers of erudition and learning, that, unless the nature of the case precludes it, the power to determine the confines of a taxing district for any particular burden is purely one of legislative discretion, and that the question of benefits accruing by reason of improvements contemplated is regarded as one of fact, which the legislature is always presumed to have considered and settled by the enactment. Mr. Justice Finch, in Spencer
So, in Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 112, 176 (17 Sup. Ct. 56), the court say: “The legislature, when
Judicial authority, were it necessary, is not lacking elsewhere in support of the doctrine. “The whole theory of local taxation or assessment,” say the Supreme Court of Missouri, in McCormack v. Patchin, 53 Mo. 33 (14 Am. Rep. 440), “is that the improvements for which they are levied afford a remuneration in the way of benefits. A law which would attempt to- make one person or given number of persons, under 'the guise of local assessments, pay a general revenue for the public at large, would not be- an exercise of the taxing power, but an act of confiscation.” So, in State v. Mayor, etc., of Hoboken, 36 N. J. Law, 291, it was held that, to the extent of the excess of an assessment above benefits accruing by reason thereof, it was a taking of private property for public use without compensation, because that received by the owner was not equal to that taken from him. And again, in Dexter v. Boston, 176 Mass. 247 (79 Am. St. Rep. 306, 57 N. E. 379), decided in 1900, the court say: “It is now settled law in this court, as it is in the Supreme Court of the United States and in many other courts, that after the construction of a public improvement a local assessment for the cost of it cannot be laid upon real estate in substantial excess of the benefit received by the property. Such assessments must be founded on the benefits, and be proportional to the benefits,” —citing the Norwood Case, and, among others, Sears v. Street Commissioners, 173 Mass. 350, 355 (53 N. E. 876), wherein the court say that “it is well established that taxation of this kind is permissible under the constitution of this commonwealth and under the Constitution of the United States only when founded upon special and peculiar benefits to the property from the expenditure on account of which the tax is laid, and then only to an amount not exceeding
The only basis upon which any devised method can be sustained is that it is reasonably calculated to the promotion of a substantial proportional distribution of the burden according to benefits. Mr. Dillon says: “The legislature has, within legislative limits, a discretion in providing the mode of ascertaining- the benefits; but, even in the absence of express constitutional restriction, its power is not unlimited. This ascertainment may be made, and usually is, by a separate and actual estimate of special benefits. But where the lots in a town or city are small, of the same depth, and similarly situated, an ascertainment, under the conditions mentioned in a previous section, may be authorized on the basis of frontage, which is a convenient substitute for an actual estimate; but this mode cannot be authorized where it must inevitably operate with manifest inequality, as will
The same idea pervades the judicial utterances of the Supreme Court of the United States. Parsons v. District of Columbia, 170 U. S. 45 (18 Sup. Ct. 521), is a case wherein congress by legislative enactment provided for a comprehensive system of water supply in the District of Columbia, through street mains, and that the assessment for such purpose should be levied upon abutting lots or property at the rate of $1.25 per foot front. It was objected that the system adopted did not afford the owner an opportunity to be heard upon the question of costs, benefits, or apportionment, and that the assessment was not made upon the basis of benefits to the property assessed; but the court held (Mr. Justice Shiras announcing the opinion) that none of the objections were well taken. “Our conclusion,” it was said, “is that it
Walston v. Nevin, 128 U. S. 578 (9 Sup. Ct. 192), is
The samé principle is maintained in the case of In re Washington Avenue, 69 Pa. St. 352, where it was held (Mr. Justice Agnew rendering the opinion) that it was incompetent for the legislature to create a district mainly in rural domain for the construction of an artificial road seven miles long, the expense toi be paid by assessments upon lands within the district. It was apparent from the very nature of things that the road was a general public benefit, for which a local assessment could not be maintained, and in this respect was like the case of Sears v. Street Commissioners, 173 Mass. 350 (53 N. E. 876). In the course of the opinion it was said: “Taxation, according to the benefits received, is neither unequal nor unjust, and cannot, therefore, come into conflict with those clauses in the bill of rights which regard as sacred the right of private property. So* long, therefore, as a law faithfully and reasonably provides for a just assessment acr cording to the benefits conferred, and does not impose unfair and unequal burdens, it cannot be said to exceed the legislative power of taxation, when exercised for proper objects. It is on this ground only that assessment according to the frontage of property on a public street to pay for its opening, grading, and paving is to be justified. As a practical result, in cities and large towns, the per foot front mode of assessment reaches a just and equal apportionment in most cases. Hence this mode has been deemed a reasonable exercise of the taxing power in such places, with a view to taxation according to1 the benefits received. Whatever doubt might have been originally entertained of it as a substitute (which it really is) for actual assessment by jurors or assessors under oath, it has been so often sanctioned by de
Since the decision of the Norwood Case, assessments by the front-foot rule have been sustained in several of the states of the Union. In the case of Cass Farm Co. v. City of Detroit,
We have arrived at this conclusion not without some misgivings. But, in view of the fact that the manner of the assessment, as here found to exist, has been followed substantially in its present form since 1864 (see published charter of the City of Portland of 1872) ; that many miles of street improvements, in various forms, have been made and constructed in pursuance of it; that hundreds of thousands of dollars have been expended under the rule; that numerous titles are depending upon it, and to that extent it has become ’a rule of property; that tax bills issued in pursuance of it are bought and sold in the market upon the faith of it; that many bonds are outstanding, depending for their validity upon its legality; and that it has time and time again been before the courts of the state and sustained, although not upon the exact point here involved (which was never mooted until after the,decision in the Norwood Case), — we deem it unwise at this late date to disturb it and set the whole matter at large, as if there had never been a law upon the subject, thus unsettling the financial autonomy of the city government, and perhaps many titles within its domain. It would be far better that the legislature should change the procedure, than that we should nullify it ab initio, with a long train of evils certain to follow in its wake; and to that source of power resort should be had, if an evil exists, for its reparation. Where a law is clearly without the pale of the constitution, state or national, the courts will not hesitate to declare it void; but, unless it so appears, or where a reasonable doubt exists, it should be resolved in favor of upholding the will of the legislature, which department of the government is as much bound by the letter of the constitution as the judiciary, and is always presumed to have acted within its authority. Affirmed.