156 P. 787 | Or. | 1916
Lead Opinion
delivered the opinion of the court.
“The council shall provide by ordinance that the owners of said adjacent property shall be served by notice by the city recorder at least ten days before the beginning of the construction of said sewer, drain or ditch, calling upon such property owners as are adjacent thereto and benefited thereby to appear before said council and show cause if any, why said property should not be assessed for the construction of said sewer, drain or ditch, and in the event that the said or any property owner or owners shall see fit to protest against the construction of said sewer, drain or ditch, the said council shall at such time as it may appoint, consider said protest,” etc.
Without giving the notice prescribéd in the excerpt just quoted, the city actually made the improvement in
“Sec. 132a. Whenever heretofore or hereafter the council has caused, or may cause, any street or alley to be improved, or has caused any sewer or water-main to be laid and has, or may hereafter assess or attempt to assess upon the property adjacent thereto or benefited thereby the cost of such improvement, and said assessment by reason of any failure to give any requisite notice or by reason of any other defect in the proceedings leading up to the making of such improvement or the levying of such assessment shall be declared to be void by any court, or if the council shall be of the opinion that said assessment is illegal or doubtful by reason of any such omission or defect, said council may cause the cost of said improvement to be reassessed against the property adjacent to said improvement or benefited thereby, in the following manner: The council shall declare by resolution its intention to make such reassessment, which resolution shall briefly describe the improvement, and shall declare the intention of the council to assess the cost thereof upon the property adjacent to said improvement, or benefited thereby, describing in said resolution each parcel of property which it intends so to reassess and the amount it proposes to assess against each parcel. Said resolution shall fix the time and place for holding a meeting of the council at which all protests against reassessing the cost of said improvement against adjacent property, or property benefited thereby, shall be heard. Said resolution shall be published three times in a newspaper published and of general circulation in said city, and shall be posted in five public places in said city, at least ten days before the date of said meeting.”
It is a conceded fact that the sewer actually has been constructed by the city. It would have been permissible in the first place to provide by charter that the city could do this without notice to anybody, and that, it having been completed, the municipal authorities could call upon the adjacent property holders ratably to meet the expense, always provided that at some stage in the proceedings the taxpayer should have the right and opportunity to be heard before the exaction was visited upon him whereby he might be deprived of his estate. It is within the legislative power by subsequent enactment to dispense with or obviate any previous provision which might have been omitted originally in such proceedings, and snch is the rule laid down in Thomas v. Portland, 40 Or. 50 (66 Pac. 439); Duniway v. Portland, 47 Or. 103 (81 Pac. 945); Hughes v. Portland, 53 Or. 370 (100 Pac. 942); Mills v. Charleton, 29 Wis. 400 (9 Am. Rep. 578); Schintgen v. La Crosse, 117 Wis. 158 (94 N. W. 84); Smith v. Detroit,
The decree of the Circuit Court is reversed and the bill dismissed. Reversed.
Rehearing
Denied July 11, 1916.
On Petition for Rehearing.
(158 Pac. 666.)
delivered the opinion of the court.
“The applicant for a rehearing occupies a somewhat embarrassing position. If his supplication is subservient, sycophantic, and flattering, his sincerity and honesty of purpose may be questioned; while if he utters his actual sentiment and opinion of the decision, he is apt to alienate the affection of the court.”
The duty of an attorney to his client requires utter fearlessness of purpose and a high order of talent. The function of the court which counsel is called upon
“It is first contended that the complainant is deprived of its property without due process of law, because the special assessment levied upon its property is for the special benefits long since accrued, and that the statute under consideration is retrospective in its*129 operation, thereby disturbing rights which had accrued to and become fixed in the property holders long before the passage of the statute; that the state had no authority, because of benefits thus long since conferred, to make the assessment in question. But we deem this contention foreclosed by the decision of this court in Seattle v. Kelleher, 195 U. S. 351 (49 L. Ed. 232, 25 Sup. St. Rep. 44). In that case it was contended that there could be no valid assessment for a certain improvement, because it was levied after the work was completed; but this court met that contention by saying: ‘ The principles of taxation are not those of contract. A special assessment may be levied upon an executed consideration; that is to say, for a public work already done (citing authorities). If this were not so, it might be hard to justify reassessments (citing additional precedents). Of course, it does not matter that this is called a reassessment. A reassessment may be a new assessment. 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 take 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 upon the plaintiff’s abutting property’ in any constitutional way: Norwood v. Baker, 172 U. S. 269, 293 (43 L. Ed. 443, 19 Sup. Ct. Rep. 187); McNamee v. Tacoma, 24 Wash. 591 (64 Pac. 791); Annie Wright Seminary v. Tacoma, 23 Wash. 109 (62 Pac. 444).”
“While industrious citizens are busy at their ordinary vocations, special elections may be called for the purpose of voting charter amendments such as 132a.*131 In a city containing more than 10,000 people, only 310 persons may vote upon sneh an amendment, 175 for and 135 against the measure, adopting it by 40 votes.”
Such consequences may be appalling to the taxpayer, but they present no judicial question. The initiative and referendum system has let loose upon the state such agencies and such results. "We are subject to a system of government by.popular election. If industrious citizens would protect themselves, they must make attendance at the ballot-box part of their ordinary vocations, and so continue until the people in their wisdom shall devise a more conservative system of government.. Until that period shall arrive, the courts can only declare the law as it is, leaving the-change to be wrought by the people themselves, the original source of all constitutions and laws.
We are urged to take up the question of the actual benefits to be derived or not by the property of the plaintiffs from the construction of the sewer in question. As an authority for so doing, we are cited to the case of Myles Salt Co. v. Board of Commrs., 239 U. S. 478 (60 L. Ed. 392, 36 Sup. Ct. Rep. 204). That was a suit to restrain the sale of plaintiff’s land for a tax levied by the defendant drainage district. It seems that the property of the plaintiff consisted of an island surrounded on two sides by bayous, on the rear by a salt-water marsh, and on the front by a bay. The island rose abruptly 175 feet or more above the surrounding marshy lands which were to be drained. The problem upon the island was to prevent washing and erosion, and the allegations were to the effect that the district had been made arbitrarily to include this elevation so as to levy taxes upon it for a scheme that would not, in any way, benefit the property, but would impose
“The charge is that plaintiff’s property was included in the district, not in the exercise of ‘legal legislative discretion,’ not that the scheme of drainage would inure to the benefit of the property, even indirectly, but with the predetermined ‘purpose of deriving revenues to the end of granting a special benefit to the other lands subject to be improved by drainage, without any benefit’ to plaintiff ‘or its property whatever,’ present or prospective.”
“It was not the intention of the Fourteenth Amendment to subvert the systems of the states pertaining to general and special taxation. That amendment legitimately operates to extend to the citizens and residents of the states the same protection against arbitrary state legislation, affecting life, liberty, and property as is afforded by the Fifth Amendment against similar legislation by Congress, and the federal courts ought not to interfere when what is complained of is the enforcement of the settled laws of the state, applicable to all persons in like circumstances and conditions, but only when there is some abuse of law, amounting to confiscation of property, or deprivation of personal rights.”
Hughes v. Portland, 53 Or. 370 (100 Pac. 942), cited by the plaintiffs, was a case of a writ of review directly attacking the proceeding itself. It was not a suit to enjoin the collection of a tax involving a collateral attack upon the assessment. The question at issue in Terwilliger Land Co. v. Portland, 62 Or. 101 (123 Pac. 57), was the matter of competition in obtaining bids from contractors. In that case the council had specified a particular kind of patented pavement of which a certain company had the monopoly, and it appeared that by the terms of the advertisement no other person could bid for the work. It was held that this was an incurable violation of the charter providing for competition in such work. No such question arises here. In Dyer v. Bandon, 68 Or. 406 (136 Pac. 652), the objection to the method of acquiring jurisdiction was that the notice did not specify the kind of improvement proposed, although this feature was required by the charter. No question is here raised about the terms of the
The petition for rehearing is denied.
Reversed. Rehearing Denied.