66 P. 439 | Or. | 1901
delivered the opinion.
. In March, 1898, the common council of the City of Portland by ordinance declared it expedient and necessary to
It would not be competent for the legislature to validate such an assessment, notwithstanding an adjudication of a court declaring it a nullity, and thus permit it to be enforced in the manner pointed out by the charter, through the issuance of a warrant and levy and sale of the property thereunder. A statute which operates to annul or set aside the final judgment of a court of competent jurisdiction, and to disturb or defeat rights thus vested, is inoperative and void. By reason of the distribution of powers under the constitution, assigning to the legislature and the judiciary each its separate and distinct functions, one department is not permitted to trench upon the functions and powers of the other. As Chief Justice Bigelow observed in Denny v. Mattoon, 2 Allen, 361, 378 (79 Am. Dec. 784): “It is the exclusive province of courts of justice to apply established principles by rendering judgments and executing them by suitable process. The legislature have no power to interfere with this jurisdiction in such manner as
Nor is it a valid objection to invoking the remedy that the property has changed hands in the meantime: Tallman v. City of Janesville, 17 Wis. 73.
Thus it seems to us that a proper construction of section 156 precludes the idea that it operates to cure all irregular assessments at once, and as against the authority of the courts to decree them void, but that it is without application until they have been found or adjudged to be invalid, at which time it becomes operative, as affording a new and more effective remedy for the enforcement of an equitable obligation. In this view, the section does not constitute a bar. to the jurisdiction of a court of equity to annul the original assessment: Nottage v. City of Portland, 35 Or. 539 (76 Am. St. Rep. 513, 58 Pac. 883), does not impinge upon this construction, nor is it authority for defendants’ contention. There an action had been instituted to recover from the city a sum of money paid to it
The decree of the court below will therefore be affirmed and it is so ordered. Affirmed.
See briefs of counsel in full.
See note, Construction of Curative Acts.
Note.- — Constitution of the United States, Fifth Amendment.