Masters v. City of Portland

24 Or. 161 | Or. | 1893

Mr. Justice Moore

delivered the opinion of the court:

The appeal presents but one question: What is the effect of a wilful, arbitrary, and intentional omission to assess a portion of the property benefitted by a local improvement, and placing the whole burden upon the remaining property ? The city charter invests the council with, a discretion in apportioning the benefits of a local assessment, and such discretion, when honestly exercised, cannot be reviewed by the courts, and an assessment so made is not void, unless it be shown that in consequence of the location of the property it was impossible for it to receive any benefit therefrom: Paulson v. City of Portland, 16 Or. 460 (19 Pac. Rep. 450).

The converse of this rule must necessarily be true, that if there be property within the assessment district which has been benefitted by the local improvement, and wilfully, arbitrarily, and intentionally omitted therefrom, such assessment would be void; hut accidental omissions from taxation of persons or property that should be taxed, occurring through the negligence or default of officers to whom the execution of the taxing laws is intrusted, would not have the effect of vitiating the whole tax. When the omission has occurred through no purpose to evade or disregard official duty, the occasion which produced it seems wholly immaterial: Cooley, Taxation (2d Ed.), 216. The apportionment of the tax is always presumptively just and equal, and cannot be frustrated on any grounds of policy, nor can it be set aside on any showing that in particular cases its operation is unjust; but the requirement of apportionment is absolutely indispensable in any exercise of the power to tax. There can be no such thing as a valid taxation when the burden is laid without rule, either in respect to the subject of it, or to the extent to which each must contribute. In this respect the legislature is as powerless as any subordinate authority, it being impossible there should be taxation that is at once arbitrary and valid: Idem, 243. Appellants contend that the plaintiffs do not allege that any of the assessments levied against the separate parcels of land are in excess of the direct benefits conferred, and therefore they have no cause of suit. Judge Elliott in his valuable work on Eoads and Streets, in treating this question, says at page 186: “ Benefits peculiar to the owner may, in a just sense, be said to constitute a compensation, because they add to the value of the property, and thus increase the owner’s estate. It is, however, plainly inequitable to make one whose property is seized pay for a benefit which all the public secures, but for which no member of it except himself is required to pay. Although there are cases holding that such general benefits may be considered, they are not grounded in sound principles nor well sustained by authority.”

In City of Chicago v. Baer et al. 41 Ill. 306, Lawrence, J., says: “Suppose, for example, a street improvement costing ten thousand dollars was of such character as to increase to that amount the value of A’s property, and B and C each have property whose value is increased to the same amount, but nevertheless the entire cost of the improvement is assessed upon the property of A. Can his complaints be justly answered by telling him that he is not injured, because, although he pays ten thousand dollars, his property is increased in value to that amount? May he not truthfully reply that he has nevertheless been obliged to pay for benefits to the property of B and C, and to that extent his money has been taken for their use? We hold it to be clear, that while the power to make these special assessments may be sustained under the right of eminent domain, yet, in making them, the constitutional principle applies as fully as to the ordinary modes of taxation, — that one person’s property cannot be improved at the expense of another, and that no special assessment can be sustained which imposes all the cost upon a portion of the property benefited, and leaves other property, squally benefited, wholly exempt. That the exact ratio of benefits can be determined with mathematical nicety is of conrse impossible, but that is the principle upon which the assessment must be made, as correctly as possible to fallible human judgments.” Section 1 of article 9 of the constitution provides that “ The legislative assembly shall provide by law for uniform and equal rate of assessment and taxation.” This provision, however, does not apply to an assessment upon the lots and blocks abutting on a street for the improvement thereof, and an assessment upon such property in proportion to the benefit received is not unequal or un-uniform: King v. Portland, 2 Or. 146. The principle of equity and justice in all special assessments requires the property benefited by a local improvement to bear its share of the burden in proportion to the benefits received. The doctrine of such assessments rests upon the theory of benefits, and when the estate is required to respond in ño greater sum than its share fairly apportioned the assessment is uniform and equal. The complaint, and a map that is made a part of it, presents a list of property which appears to have been benefited by the improvement, but omitted from the assessment. The presumption exists that the city council exercised in the assessment of this property an honest discretion, and apportioned the expense equally as compared with the benefits received, but this presumption is only a matter of evidence, and can be overcome by proof, and, in the absence of any answer denying the allegations of the complaint, must yield to such undenied allegation that the omission to assess it was arbitrary, and that the plaintiffs’ property in consequence thereof was obliged to have an unequal share of the burden imposed. For this reason the decree of the court below is affirmed.