282 F. 720 | D. Or. | 1922
(after stating the facts as above). The only ground upon which the jurisdiction of the court can be sustained is that a federal question is involved.' There are allegations in the bill that affirm that what was and is being done is contrary and inimical to certain clauses of the Constitution. This raises a federal question, unless it be that such allegations are merely conclusions, and not supported by averments of fact to sustain them.
It is now too well settled for controversy that, with respect to special assessments, a reassessment under proper authority and appropriate regulations, in the absence of fraud or criminality on the part of the city officials, may be had to cover the cost of local improvements which have been made, where, through some irregularity of proceedings, the original assessment to cover such costs has failed, or has been declared null and inoperative. City of Seattle v. Kelleher, 195 U. S. 351, 359, 25 Sup. Ct. 44, 46 (49 L. Ed. 232); Phipps v. Medford, 81 Or. 119, 156 Pac. 787, 158 Pac. 666; Wagoner v. City of La Grande, 89 Or. 192, 173 Pac. 305; Brown v. Silverton, 97 Or. 441, 190 Pac. 971. The principle is tersely stated in Seattle v. Kelleher:
“Whatever the Legislature could authorize, if it were ordering an assessment for the first time, it equally could authorize, notwithstanding a previous invalid attempt to assess. The previous attempt left the city free ‘to taire*722 such steps as were within its power to take, either under existing statutes, or under any authority that might thereafter be conferred .upon it, to make a new assessment.’ ”
Nor are special assessments based upon the principles of contract, and they afford no contractual relations between the city and the abutting property holder affected by such assessments. Brown v. Silverton, supra, 97 Or. 454, 190 Pac. 975.
The bare averment that said assessment ordinance is void, and that the certificates of delinquency constitute a cloud upon complainants’ title, and would deprive them of their property without due process of law, and deny them equal protection of the law, etc., is a conclusion, without the averment of pertinent facts to support it.
In the same relation, reference is made to section 1 of the charter amendment, showing the provisions thereof in part; but such provisions relate only to the additional powers granted for making a new assessment. The averment that said method of assessment furnishes no basis for any assessment, and that no definite standard has been fixed for any assessment of benefits that might accrue to the property by reason of the improvement, leaves the court without information of definite or issuable facts upon which to predicate the conclusion affirmed. A reference to the charter amendment alluded to informs us that it is simply a grant of power to the common council to make reassessment for an improvement that has benefited adjacent property. Having such power, the common council is authorized to adopt the procedure for making the assessment. This procedure we may assume that body devised and adopted by the ordinance the title of which is given in the bill; but we are not informed by the allegations of the bill what it was, nor are we informed wherein it was faulty, nor in what respect it was not followed in making the reassessment complained of. So it is there is no adequate statement of fact whereby the court can say that complainants’ constitutional rights have been intrenched upon or violated.
The fact that there were no other improvements to' which the regulation for reassessment would apply, except upon the two streets mentioned, would not render it unequal and discriminatory, providing it was general in its scope. Of this we are not advised, as the regulation has not been produced or otherwise alluded to. Nor do we conceive it to be class legislation that the common council was not given the power by the amendment to reassess for cost of improvement thereafter made, wherein a remonstrance sufficient in law to defeat the original improvement had been filed. Furthermore, it does not appear from the bill that such a remonstrance had originally been filed to the improvement made. And, again, the alleged fact that the court found that the levy of any assessment on account of said improvement would be a fraud upon complainants is not the equivalent of an averment of fraud and criminality on the part of the city officials in making the improvement and assessment.
From a careful examination of the bill, it is apparent that it contains no adequate statement of a federal question by which this court can entertain jurisdiction, and the motion is therefore sustained.