King v. Portland

Mr. Justice Wolverton,

after stating the facts, delivered the opinion of the court.

1. Several objections are interposed, directed against the • legality of the assessment. The first is that the charter provisions under which it was made-do- not provide for an apportionment of the burden under a uniform rule, such as is required by the constitution. There is much discussion in the books as to whether an assessment for local improvements is a tax or not, but, whatever may be the true doctrine, it must be conceded that the authority to make such an assessment is necessarily lodged in the taxing power. This has been held so often that the controversy must be regarded as closed: Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 112, 176 (17 Sup. Ct. 56). Apportionment of the burden is, however, essential, though it need not be made upon property in proportion to' its value. Mr. Cooley says: “But, whatever may be the basis of the taxation, the requirement that it shall be uniform is universal. It applies as much to these local assessments as to any other species of taxes. The difference is only in the character of the uniformity, and in the basis on which it is established”: Cooley, Const. Lim. (6 ed.), 615. Mr. Justice Earl, in Stuart v. Palmer, 74 N. Y. 183 (30 Am. Rep. 289), states the proposition as follows: “It is not disputed that the legislature has unlimited power, except as restrained by the federal constitution, to impose taxes and assessments for public purposes. It may impose taxes upon all property within the state, and in such cases the owners are supposed to receive a compensation for the burdens thus imposed, in, the protection and benefits of the government under which they live. It may impose taxes upon the local divisions of the state for the purposes of local government, and all the citizens residing in the locality must bear the burdens, as they all receive the benefits of the local government. It may cause or authorize local improvements to be made, and authorize the expense thereof to be assessed upon the land benefited thereby. But in all cases there must be apportionment of the burdens, either among all the property owners of the state, or of the local division of the state, or the property owners specially benefited by the imp-rovements. In either case, if one is required to pay more than his share, he receives no corresponding benefit for the excess, and that may properly be styled extortion or confiscation. A tax or assessment upon property, arbitrarily imposed, without reference to- some system of just apportionment, could not be upheld.”

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 v. Merchant, 100 N. Y. 585 (3 N. E. 682),—a case involving the validity of an act whereby certain real property, situated in a prescribed district, which had not theretofore paid an assessment for a local improvement under an act declared to be void, was required to pay a sum of money then ascertained, — says : “The act of 1881 (the one in question) determines absolutely and conclusively the amount of tax to be raised, and the property to be assessed, and upon which it is to be apportioned. Each of these things was within the power of the legislature, whose action cannot be reviewed in the courts upon the ground that it acted unjustly or without appropriate and .adequate reason. * * * The legislature may commit the ascertainment of the sum to be raised and of the benefited district to1 commissioners, but is not bound to do so, and may settle both questions for itself; and when it does so its action is necessarily conclusive and beyond review.” This case went to the Supreme Court of the United States (Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921), and the doctrine thus promulgated was there directly approved and affirmed, in the following language (Mr. Justice Gray, speaking for the court) : “In the absence of any more specific constitutional restriction than the general prohibition against taking property without due process of law, the legislature of the state, having the power to fix the sum necessary to be levied for the expense of a public improvement, and to order it to be assessed, either, like other taxes, upon property generally, or only upon the lands benefited by the improvement, is authorized to determine both the amount of the whole tax, and the class of lands which will receive the benefit,, and should therefore bear the burden, although it may, if it sees fit, comtaiit the ascertainment of either or both of these facts to the judgment of the! commissioners.”

So, in Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 112, 176 (17 Sup. Ct. 56), the court say: “The legislature, when it fixes the district itself, is supposed to have made proper, inquiry, and to have finally and conclusively determined the fact of benefits to- the land included in the district, and the citizen has no constitutional right to any other or further hearing upon that question.” In further support of the doctrine, see Cooley, Tax’n (2 ed.), 640; King v. City of Portland, 2 Or. 146; Lent v. Tillson, 140 U. S. 316 (11 Sup. Ct. 825); Williams v. Eggleston, 170 U. S. 304 (18 Sup. Ct. 617); People v. Mayor, etc., of Brooklyn, 4 N. Y. 419 (55 Am. Dec. 266); Litchfield v. Vernon, 41 N. Y. 123. As has been indicated by some of the foreging references to the authorities, the legislature may, instead of fixing and prescribing the taxing district itself, refer the matter to commissioners or local boards or bodies for their ascertainment and determination; and in such case the substituted bodies possess and exercise legislative functions, and their action must be deemed as conclhsive upon the subject as if the legislature had exercised the authority directly: Cooley, Tax’n (2 ed.), 640. The doctrine is laid down in Williams v. Eggleston, 170 U. S. 304 (18 Sup. Ct. 617), as follows: “Neither can it be doubted that, if the state constitution does not prohibit, the legislature, speaking generally, may create a new taxing district, determine what territory shall belong to such district, and what property shall be considered as ben'efited by a proposed improvement. And in so doing it is not compelled to give notice to the parties resident within the territory, or permit a hearing before itself, one of its committees, or any other tribunal, as to the question whether the property so included within the taxing district is in fact benefited.” See, also, Spencer v. Merchant, 100 N. Y. 585 (3 N. E. 682); Dickson v. City of Racine, 61 Wis. 545 (21 N. W. 620).

2. The question of apportionment between the .owners when the authority is delegated is quite a different thing. In such case the commissioners or body to which the duty is intrusted act quasi judicially, and there must be notice and an. opportunity to be heard before the owner can be finally precluded and his property subjected to the payment of the assessment: Sears v. Street Commissioners, 173 Mass. 350, 355 (53 N. E. 876), and authorities there cited. See, also, 2 Dillon, Mun. Corp. (4 ed.), § 802a.

3. The manner of notice and the specific period of time in the proceedings when he may be heard are not very material, so that reasonable opportunity is afforded before he has been deprived of his property, or the lien thereon is irrevocably fixed. So' it has been held that it is sufficient if the party is accorded the right of appeal or to be heard upon an application for abatement (see Towns v. Klamath County, 33 Or. 225, 53 Pac. 604; Weed v. City of Boston, 172 Mass. 28, 51 N. E. 204, 42 L. R. A. 642), or the assessment is to be enforced by a suit to- which he is to be made a party (Hagar v. Reclamation Dist., 111 U. S. 701, 4 Sup. Ct. 663; Walston v. Nevin, 128 U. S. 578, 9 Sup. Ct. 192), or the right of injunction against collection is accorded, by which the validity of the assessment may be judicially determined (McMillen v. Anderson, 95 U. S. 37). In such case he cannot be heard to complain that his property is being taken without due process of law. The case of Paulsen v. Portland, 149 U. S. 30 (13 Sup. Ct. 750), covers the question of the right to notice and a hearing quite fully; and it is significant that special reference is made to' the ten days’ notice required to be given under section 104 of the charter as it then stood, after the assessment had gone upon the docket of city liens, and before collection can be proceeded .with, which is almost the exact provision now contained in section 141. While the court at the time declined to decide that such a notice was sufficient, yet, if the cause had been dependent upon it alone, it is not altogether clear that it would have held it insufficient. So it was held by this court, in conformity with the prevailing rule, that, if provision is made for notice to and hearing of each proprietor at' some stage of the proceeding upon the question of what proportion of the tax shall be assessed upon his land, there is not a talcing without due process of law: Wilson v. City of Salem, 24 Or. 504 (34 Pac. 9, 691).

4. The principle upon which is based the authority to take money as a tax for public use is that the taxpayer receives, or is supposed to receive, a jlist remuneration, in the protection which the government affords to life, liberty, and property, and in the increase in the value of possessions which comes from the use to which the money raised by the tax is applied: Cooley, Const. Lim. (6 ed.), 613. Local or special assessments for local improvements stand upon a different basis. They are made and sustained upon the assumption that a prescribed portion of the community is to be especially benefited, in the enhancement of the value of the property peculiarly situated as regards the proposed expenditure of the funds to be raised by the assessment. It is but a demand of simple justice that special contributions in consideration of special benefits should be made by those receiving the benefits, but such contributions ought not, by the same demand of justice, to be enforced in any case beyond the benefits received: Cooley, Tax’n (2 ed.), 606. Such an assessment is not in conflict with the provision of our state constitution requiring that “all taxation shall be equal and uniform” : Article I, § 32; King v. City of Portland, 2 Or. 146. It must be conceded, therefore, as was said by Mr. Justice Harlan, in Norwood v. Baker, 172 U. S. 269, 279 (19 Sup. Ct. 187), that “the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private" property for public use, without compensation.” The eminent jurist used the words “substantial excess” advisedly, because, as he explains, “exact equality in taxation is not always attainable, and for that reason, the excess of cost over special benefits, unless it be of a material character, ought not to be regarded by a court of equity when its aid is invoked to- restrain the enforcement of a special assessment.”

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 such special and peculiar benefits.” This marks the boundary, beyond which it is not within the power of the legislature to go-, even in the determination of benefits as applied to a prescribed district. When, ho-wever, it is plainly and palpably manifest from the surroundings (that is, from the physical condition o-f the property involved, its locality, the character of the work or improvement, the assessment, and from the very nature of things) that such' an assessment is not adapted to- the purpose, and is requiring o-f the owner a contribution to- which he should not be subjected in that capacity, the court will interfere to- prevent a consummation of the injustice.

5. But we are more concerned with the manner of apportionment as between owners within the assessment district. In this, as in prescribing the district, the legislature- has a discretion commensurate with the broad domain of legislative power: 2 Dillon, Mun. Corp. (4 ed.), § 761, subd. 4. The mode which the legislature has prescribed is, in substance, that the cost of the half street in front shall be assessed upon the abutting lot or part of lot, and that the cost o-f street intersections shall be assessed five-ninths upon the corner lot, and the remainder upon the adjacent lot in the quarter block. The rule is invariable, and, when the cost of the improvement in front or at an intersection is ascertained, it must be assessed upon the property; and no discretion, legislative or judicial, abides with the municipal authorities to modify or abate it in the slightest measure. The method is perhaps the least justifiable, as a general rule, of any that has been devised, but that does not signify that it is not proper in any case. The Norwood Case would seem, at first thought, to forbid the application under all conditions of the front-foot rule, but it was probably not intended that it should be so far-reaching in its significance. As applied to- that case, and all similar cases, it must be accepted as controlling. The rule has been many times upheld, and it is believed it yet may be, where the conditions are such that it may reasonably be supposed that the method adopted will secure a proportional distribution of the burden according to the benefits. Thus, in Sears v. Board of Aldermen, 173 Mass. 71 (53 N. E. 138, 43 L. R. A. 834), an assessment for sprinkling a street was sustained by the rule, because it did not appear that, as applied to the property assessed, it was not an approximately accurate method of determining benefits. In the opinion the proposition is stated that, “while these assessments must be founded upon benefits, the courts have generally recognized the difficulty, and in many cases the impracticability, of attempting to estimate benefits to estates one by one without some rule or principle of general application which will make the assessments reasonable and proportional, according to the benefits. Accordingly the determination of such a rule or principle by the legislature itself, or by the tribunal appointed by the legislature to' make the assessments, has commonly been upheld by the courts. If, however, its effect plainly is to make an assessment upon any estate substantially in excess of the benefit received, it is set aside.” This case was decided March 3, 1899, since the announcement of the Norwood Case. In the September prior, the same court decided the case of Weed v. City of Boston, 172 Mass. 28 (51 N. E. 204, 42 L. R. A. 642), wherein it was held that assessments according to frontage of lots on a strip of private land taken for a sewer may be so grossly disproportionate to the benefits received by the land from the sewer that a statute authorizing them is unconstitutional. The court say: “The weight of authority is that an assessment according to the frontage of lots abutting upon a street or a public way in a city sometimes may be a reasonable mode of making an assessment for the cost of constructing a sewer in such street or way, because of the similarity of the lots, but that such an assessment when the sewer is not constructed in a street or way, or is constructed in the country, where the lots abutting are not laid out as building lots, often would be unreasonable.” In the May following the announcement of the case of Sears v. Board of Aldermen, 173 Mass. 71 (53 N. E. 138, 43 L. R. A. 834), another case was decided, entitled Sears v. Street Commissioners, 173 Mass. 350 (53 N. E. 876), whereby it was held that an act purporting to give the street commissioners power to levy a local assessment for a burden that was clearly general in its character, and that ought to be borne by the state at large, was invalid. And a year later the decision of Dexter v. City of Boston, 176 Mass. 247 (79 Am. St. Rep. 306, 57 N. E. 380), was handed down which holds that the rule is vicious as applied to the construction of a sewer which, by reason of its turning at right angles upon plaintiff’s lot, imposed a double burden (being- assessed upon the two sides) as compared with other lots. The rule was applied by the common council and upheld in Wilson v. City of Salem, 24 Or. 504 (34 Pac. 9, 691), upon the ground that the legislative judgment of the council had settled the matter as being an appropriate measure of benefits in that case.

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 often be the case with rural or suburban property, or where, from the circumstances, it is clear that it is legally impossible that an apportionment of the cost on this basis can be just or equal, or approximately so, and where injustice must certainly result from its adoption. The same general principle applies to an assessment upon the basis of superficial area; and therefore where an assessment in this mode was authorized to be made, and was made equally upon lands remote from the sewer and only slightly benefited, with no provision securing the right to' connect with it, and upon lots fronting on the sewer and greatly benefited, the court considered the mode so arbitrary, so certain to- work injustice, so flagrantly opposed to the principle of contribution in proportion to benefits, as to be unconstitutional” : 2 Dillon, Mun. Corp. (4 ed.), § 989. So, it was held upon like principle by this court that an assessment for a local improvement upon property not at all benefited, although within the taxing district, would be annulled, as it would amount to a taking without due process of law: Oregon & Cal. R. R. Co. v. City of Portland, 25 Or. 229 (35 Pac. 452, 22 L. R. A. 713, 46 Am. & Eng. Corp. Cas. 295).

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 was competent for congress to create a general system to store water and furnish it to' the inhabitants of the District, and to prescribe the amount of the assessment and the method of its collection, and that the plaintiff in error cannot be heard to1 complain that he was not notified of the creation of such a system, or consulted as to the probable cost thereof. He is presumed to have notice of these general laws regulating such matters. The power conferred upon the commissioners was not to make assessments, upon abutting properties, nor to give notice to the property owners of such assessments, but to determine the question of the propriety and necessity of laying water mains and water pipes, and of erecting fire plugs and hydrants, and their bona ñde exercise of such a power cannot be reviewed by the courts.” The opinion quotes from 2 Dillon, Mun. Corp (4 ed.), § 752, as follows : “Whether the expense of making such improvements shall be paid out of the general treasury, or be assessed upon the abutting property, or other property specially benefited, and, if in the latter mode, whether the assessment shall be upon all property found to1 be benefited, or alone upon the abutters, according to frontage or according to the area of their lots, is, according to the present weight of authority, considered to be.a question of legislative expediency.” The Norwood Case distinguishes this by the significant observation that “there is'no such disproportion between the amount assessed and the actual cost as to show any abuse of legislative power.” In Bauman v. Ross, 167 U. S. 548 (17 Sup. Ct. 966), decided in 1896, it was said: “The rule of apportionment among the pareéis of land benefited also rests within the discretion of the legislature, and may be directed to be in proportion to the position, the frontage, the area, or the market value of the lands, or in proportion to the benefits as estimated by commissioners.” See, also, Mattingly v. District of Columbia, 97 U. S. 687.

Walston v. Nevin, 128 U. S. 578 (9 Sup. Ct. 192), is very similar, as respects the matters in controversy, to the case at bar. The statute prescribing the manner of making assessments is as follows: “When the improvement is the original construction of any street,” etc., “such improvement shall be made at the exclusive cost of the owners of lots in each fourth of a square, to be equally apportioned by the general council according to the number of the square feet owned by them respectively, except that corner lots * * * shall pay twenty-five per cent, more than others for such improvements. Each subdivision of territory bounded on all sides by principal streets shall be deemed a square.” An assessment made in pursuance of the statute was attacked^ as in conflict with the fourteenth amendment of the national constitution, but it was upheld, the court saying: “The statute has been repeatedly before the Kentucky court of appeals, which has sustained it as constitutional and proper legislation; the powers vested thereby in the local government being subjected to the supervision of the courts, where the particular facts in each case can be examined, and the controversy determined by those rules and principles which have always governed courts in dealing with questions of assessment and taxation,”—citing Preston v. Roberts, 12 Bush, 570; Beck v. Obst, 12 Bush, 268; Baptist Church v. McAtee, 8 Bush, 508 (8 Am. Rep. 480). Further on in the opinion the court cites Davidson v. City of New Orleans, 96 U. S. 97. After quoting from the opinion of Mr. Justice Miller, it draws the conclusion therefrom “that neither the corporate agency by which the work is done, the excessive price which the statute allows therefor, nor the relative importance of the work to the value of the land assessed, nor the fact that the assessment is made before the work is done, nor that the assessment is unequal as regards the benefits conferred, nor that personal judgments are rendered for the amount assessed, are matters in which the state authorities are controlled by the federal constitution. So, the determination of the taxing district and the manner of the apportionment are all within the legislative power. * * * And, whenever the law operates alike on all persons and property similarly situated, equal protection cannot be said to be denied.”

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 decisioii, it would ill become us now to1 unsettle its foundation by disputing its principle. But it is an admitted substitute, only because practically it arrives, as nearly as human judgment can ordinarily reach, at a reasonable and just apportionment of the benefits on the abutting properties. Hence the fairness of the rule of charging benefits by frontage was a conceded point in Hammett v. City of Philadelphia, 65 Pa. St. 155 (3 Am. Rep. 615). But this rule, as a practical adjustment of proportional benefits, can apply only to' cities and large towns, when the density of population along the street, and the small size of lots, make it a reasonably certain mode of arriving at a true result.” See, also, Cleveland v. Tripp, 13 R. I. 50; Raleigh v. Peace, 110 N. C. 32 (14 S. E. 521, 17 L. R. A. 330); Allen v. City of Davenport, 107 Iowa, 90 (77 N. W. 532).

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,^* 124 Mich. — (83 N. W. 108), which involved a street pavement, in the course of the opinion the court quotes from Mr. Justice Cooley in Sheley v. City of Detroit, 45 Mich. 431 (8 N. W. 52), as follows: “We might fill pages with the, names of cases decided in other states which have sustained assessments for improving streets, though the apportionment of cost was made on the same basis as the one ■Defore us. If anything can be regarded as settled in municipal law in this country, the power of the legislature to permit such assessments, and to direct an apportionment of the cost by frontage, should by this time be considered as no longer open to controversy. Writers on constitutional law, municipal law, and on the law of taxation have collected the cases, and have recognized the principle as settled; and, if the question were new in this state, we might think it important to refer to what they say. But the question is not new. It was settled for us thirty years ago.” But the court distinguished the case from that of Norwood v. Baker on the ground that it was for paving a street, while that was for street-opening purposes, and refused to disturb the rule that had been so- long followed in the state. In Indiana it was sustained in Adams v. City of Shelbyville, 154 Ind. 467 (77 Am. St. Rep. 484, 57 N. E. 114). The case involved a stone curbing, where what is known as the “Barrett Law” was upheld. The rule was also sustained in North Dakota in Webster v. City of Fargo, 9 N. Dak. 208^† (82 N. W. 732), an assessment for street paving; in Minnesota, in State v. District Court, 80 Minn. 293 (83 N. W. 183), also for street paving; in Missouri, in Heman v. Allen, 156 Mo. 534^‡ (57 S. W. 559), and Barber Asphalt Paving Co. v. French, 158 Mo. 534^§ (58 S. W. 934), the former of which involved a sewer assessment, and the latter the pavement of a street; in New York, by the court of appeals, in Conde v. City of Schnectady, 164 N. Y. 258 (58 N. E. 130), a street-paving case; and in California, in Hadley v. Dague, 130 Cal. 207 (62 Pac. 500), for street improvement. Texas has condemned the .rule unqualifiedly in Hutcheson v. Storrie, 92 Tex. 685 (51 S. W. 848, 45 L. R. A. 289, 71 Am. St. Rep. 884), and the federal circuit courts are uniform in their holding to' the same purpose: Fay v. City of Springfield, 94 Fed. 409; Loeb v. Trustees, 91 Fed. 37; Charles v. City of Marion, 98 Fed. 166; Cowley v. City of Spokane, 99 Fed. 840; Charles v. City of Marion, 100 Fed. 538.

But we are inclined to1 believe that the better doctrine deducible from adjudged cases, including those of the Supreme Court of the United States, is that the assessment will be upheld wherever it is not patent and obvious from the nature and location of the property involved, the district prescribed, the condition and character of the improvement, the cost and relative value of the property to- the assessment, that the plan or method adopted has resulted in imposing a burden in substantial excess of the benefits, or disproportionate within the district as between owners. This must be so, logically and necessarily, in view of the broad latitude accorded the legislature, in its discretion, to prescribe the taxing district, and the manner and method of making the assessment within the district, as it concerns individual owners and proprietors. As the writers say, the authority of the legislature in these respects is almost without limit; yet that there is a limit beyond which it cannot go, all will concede. When, however, it has exercised its legislative discretion, and prescribed a district and adopted a method, it ought to be plain and indisputable that it has exceeded its constitutional authority, before the court should undertake to set at naught its declared will. Neither ought the system to be condemned because there may be exceptions wherein it would work a legal injury to> enforce it. If such an exception arises, as was the case in Oregon & Cal. R. R. Co. v. City of Portland, 25 Or. 229 (35 Pac. 452, 22 L. R. A. 713, 46 Am. & Eng. Corp. Cas. 295), the court will not enforce it, but it will hesitate long to condemn the rule because of the exception. The rule upon which the assessment is made in the present case has been upheld in several jurisdictions: Warren v. Henly, 31 Iowa, 31; Gatch v. City of Des Moines, 63 Iowa, 718 (18 N. W. 310); Sands v. City of Richmond, 31 Grat. 571 (31 Am. Rep. 742); White v. People, 94 Ill. 604. Upon this subject Mr. Dillon observes: “It may be true that in some instances more hardship will be occasioned by requiring each owner toi make or pay for the improvement in front of his own property than if the cost were assessed on the basis of frontage or of supposed benefits received. Still it seems to the author difficult to find satisfactory and solid ground on which to discriminate the cases so as to hold that one is within the constitutional power of the legislature, and the other is not” : 2 Dillon, Mun. Corp. (4 ed.), § 753.

6. Now, let us look at the law, and ascertain, if we can, whether it is legally sustainable upon principle. The common council is empowered by the legislature to fix and determine the taxing district. This it did by adopting the resolution of intention to make the improvement. Its action in this regard is legislative in character, and it was not requisite that the legislature should have provided for notice before the council was authorized to act. In prescribing the district, it must be presumed, as would have been the case if the legislature had itself acted directly, that it took into consideration the exceptional benefits that would accrue to the property which it was intended should be charged with the burden, because it could inaugurate or make such an assessment upon no other basis. A notice in the present instance was required by the charter, and given, however, and. while it was for the purpose of acquiring jurisdiction, it gave the property holders an opportunity to appear and file obj ections to the improvement; and. it was perfectly competent for them to raise both the objection that as a district the costs would be in excess of the exceptional benefits to the property involved, and that as it respects individual holders, and between themselves, the assessment would not be proportional to the relative benefits to be derived from the improvement. This is what, in fact, was done by the plaintiffs, as shown by the record, and upon this issue they were accorded a hearing. It was also possible for the common council to determine the matter with reasonable accuracy, as the probable cost and distributive share thereof among the holders was known to them, as was also the locality and situation of the property to be assessed. The manner adopted for the assessment of the costs and expenses against the respective lots is wholly legislative in its nature. The common council is accorded no discretion, but is to make the assessment as directed by the charter. Its function in that respect is clerical, merely, as no choice is lodged with it to vary the rule adopted. Such being the nature of the assessment, no notice or hearing would seem to. be requisite under Parsons v. District of Columbia, 170 U. S. 45 (18 Sup. Ct. 521). But the charter afforded an opportunity to be heard sufficient under other authorities to1 support the assessment. There are four several notices required along the way: First, of the proposed improvement; second, inviting proposals for doing the work; third, touching the acceptance of the work; fourth, ten days’ notice of the entry of the assessment in the docket of city liens. Ample opportunity was thus afforded the owners to appear and interpose the constitutional objections, which is all that is sought to be done in this proceeding.

7. The improvement consists of an elevated' roadway, ranging from ten to fifteen feet in height throughout, except at one intersection, which was a fill; and it is apparent that the cost of the work was practically uniform throughout, and the assessment against the lots was therefore as nearly proportional according to benefits as could be devised. At least, it is not apparent that there is any substantial excess of costs above benefits, nor is there such a disproportionate distribution of the burden as to justify the court in declaring the assessment an arbitrary exaction by the legislature. It is beyond the power of human ingenuity to adopt any plan or mode of assessment that-will operate to produce exact uniformity, and all that may be expected is a reasonable approximation to such a standard, and the rule adopted under the charter fulfills that condition as applied to the present controversy. There is no doubt that the property was benefited in excess of the costs and expenses. These considerations affirm the decree of the court below, and sustain as valid the assessment involved by the proceeding.

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.

Case Details

Case Name: King v. Portland

Court Name: Oregon Supreme Court

Date Published: Dec 10, 1900

Citation: 63 P. 2

Court Abbreviation: Or.