Portland v. Blue

149 P. 548 | Or. | 1915

Mr. Justice Harris

delivered the opinion of the court.

Immediately after counsel made their opening statements to the jury at the second trial the defendants objected to the introduction of any evidence and moved that the cause be dismissed, for the reason that Sections 400 and 401 of the charter of the City of Portland, under which the appeal had been taken, and by virtue of which the trial was being held, were repealed by the adoption of the commission charter on May 3, 1913, and there was no longer any statute under which to proceed in the trial of that case. It will be borne in mind that the reassessment was made by the council, and the appeal taken by the defendants, while the 1903 charter was in effect and before the adoption of the 1913 charter, and that the final trial in the Circuit Court occurred in 1914.

The contention of defendants proceeds upon the theory that an ordinance to be valid must be referable to a power expressed in the charter; that Sections 400 and 401 in their character as ordinances are not supported by any power contained in the 1913 charter permitting a reassessment, and that therefore the ordinances are void because without charter authority; that the appeal from the reassessment ordinance while Section 401 existed as a part of the city charter had the effect of suspending, staying and vacating the reassessment ordinance, thus leaving the assessment proceeding incomplete and ineffective; that the 1913 charter having repealed the 1903 charter and the former instrument containing no power to reassess, such repeal before a consummation of the assessment proceeding by a trial in the Circuit Court, deprived-the court of jurisdiction to proceed, destroyed the right to recover as well as the obligation to pay, and left the assessment proceedings exactly as they would be if the power to reassess had never existed at any time.

1, 2. Applying the rule announced in the kindred case of Robertson v. Portland, ante, p. 121 (149 Pac. 545), Sections 400 and 401 have the sanction of charter authority because they are directly referable to the charter of 1913, which instrument by the force of its own terms re-enacts Sections 400 and 401 as ordinances, thus giving to the ordinances not only the requisite authority, but also the express indorsement of a charter. Although Sections 400 and 401 were changed from charter provisions to ordinances, nevertheless, the change was wrought by a charter; and while there was a change in the nature of the sections still the continuity of their existence was not interrupted, and consequently no break occurred in the reassessment proceedings: Renshaw v. Lane County, 49 Or. 526 (89 Pac. 147); State v. McGinnis, 56 Or. 163 (108 Pac. 132); Bayless v. Douglas County, 57 Or. 301 (111 Pac. 384); State v. Schluer, 59 Or. 18 (115 Pac. 1057); Woodburn v. Aplin, 64 Or. 610 (131 Pac. 516); Rosa v. Bandon, 71 Or. 510 (142 Pac. 339). There has not been any amendment or repeal of Sections 400 and 401 since May 3, 1913, but tbey are in the exact form in which they appeared when their adoption as ordinances was brought about by the 1913 charter; and having the sanction and support of a charter the reassessment sections, even though they are now ordinances, are effective to the same extent and in the same degree as though the charter had contained in express power couched in appropriate language permitting the enactment of like ordinances, and the council or legal voters had thereafter and in a separate proceeding passed such ordinances. The council had authority to pass a reassessment ordinance before the adoption of the 1913 charter, and that body still has the same right. The power to make local improvements and levy assessments was not destroyed or relinquished when the 1913 charter became effective. The judgment of the Circuit Court was an exact confirmation of the reassessment as made by the council, and the defendants cannot avoid the reassessment.

The judgment is affirmed.

Affirmed. Rehearing Denied.

Mr. Justice Burnett did not sit.