Wilson v. City of Portland

169 P. 90 | Or. | 1917

Lead Opinion

Mr. Justice Burnett

delivered the opinion of the court.

1, 2. Considered solely as a matter of procedure, the motion for a decree on the pleadings in favor of the plaintiff should not have been allowed because there was traversed matter in the city’s answer strongly appealing to a court of equity against granting plaintiff any relief in the premises. The essence of this suit, however, is an attach upon an assessment upon abutting property for the purpose of paying for the improvement of a street. The canon by which said matters must be determined is laid down by Mr. Justice Robert S. Bean in Yamhill County v. Foster, 53 Or. 124 (99 Pac. 286), in this language:

“It is a general rule that a court of equity will not interfere to restrain the collection of public revenue for mere illegality or irregularity in the proceedings, but its jurisdiction is confined to cases where the tax itself is not authorized by law, or is assessed on property not subject to taxation, or the persons exacting it are without authority in the premises, or have proceeded fraudulently, or some other ground of equitable interference is shown.”

The rule has been applied to assessments similar to those of the case here involved, in Lapp v. Marshfield, 72 Or. 573 (144 Pac. 83).

3. Section 397 of the Charter of the City of Portland, in speaking of assessments for street improvements, declares:

“No such assessment shall be held invalid by reason of failure to enter the name of the owner of any lot or part of a lot or parcel of land so assessed or by a mistake in the name of the owner, or the entry of a name other than the name of the owner, in said assessment, or in any acts or proceedings connected therewith, and no delays, mistakes, errors, or irregularities in any act or proceeding in the improvement of a street or the construction of a sewer or drain shall prejudice or invalidate any final assessment, but the same may be remedied by subsequent and amended acts or proceedings.” •

Section 400 of the same Charter reads in part as follows :

“Whenever an assessment for the opening, altering or grading of any street, * * or for any local improvement which has been or may hereafter be made by the city, has been or shall, hereafter be set aside, annulled, declared or rendered void, * * or when the Council shall be in doubt as to the validity of such assessment or any part thereof, the Council may, by ordinance, make a new assessment or re-assessment upon the lots, blocks or parcels of land which have been benefited by such improvement to the extent of their respective and proportionment shares of the full value thereof. * * Such re-assessment shall be made and shall become a charge upon the property upon which the same is laid, notwithstanding the omission, failure or neglect of any officer, body or person to comply with the provisions of this Charter connected with or relating to such improvement and assessment and notwithstanding the proceedings of the Council, Executive Board, Board of Public Works, or any officer, contractor or other person connected with such work may have been irregular or defective, whether such irregularity be jurisdictional or otherwise. * * ”

Reverting to the single objection made by the plaintiff to the effect that the improvement already had been made, we note that within the terms of Section 400 this does not present an obstacle to the making of a new assessment, for that part of the charter refers to properties “which have been benefited by such improvement. ’ ’ This language clearly refers to a betterment already accomplished in fact. The case was decided in the Circuit Court upon plaintiff’s motion for a decree upon the pleadings. In such a case the moving party must be impregnably entrenched in the statement of his case or he cannot prevail. The issue presented by such a motion is one of law to the effect that granting the truth of all that is alleged by both parties yet the decision should be in favor of the one making the motion. The complaint in this instance discloses a proceeding for the imposition of an assessment upon abutting property ostensibly carried on with complete formality. The plaintiff does not offer to pay any proper rating of the cost or declare that the expense of the betterment has been paid by anyone. He virtually adopts the improvement but his pleading does not state enough to take the proceeding out of what might be accomplished under Section 400 of the Charter contemplating renewed assessments for work already completed under ¿defective procedure. Beverting to the rule of Yamhill County v. Foster, 53 Or. 124 (99 Pac. 286), we find that a tax for the purpose of street improvement is authorized by the Charter of the city. That instrument empowers the municipality to levy such a charge upon abutting property, and this authority is vested in the city council. There is no charge that there has been any fraud in any of the proceedings. In short, the complaint does not differentiate the case from one where the city has undertaken to make a new assessment, as of right it may do, on the ground that the proceedings prior to the actual making of the improvement were informal or without jurisdiction. Until this is shown equity cannot relieve the plaintiff, for he does not bring himself within the principle established in the Foster case. The power of a city to make repeated assessments under a charter like that of the City of Portland to pay for actual improvements already made has had the consideration of this court in Phipps v. Medford, 81 Or. 119 (156 Pac. 787, 158 Pac. 666), where a more complete discussion of the principle may be found.

(171 Pac. 201.) Mr. W. M. Gregory, for the petition. Mr. Walter P. La Boche, City Attorney, and Mr. Lyman E. Latourette, Deputy City Attorney, contra.

The complaint itself discloses that the improvement has been made. It indicates that the plaintiff would enjoy the same without paying for it even what is fair. This savors strongly of an attempt to get something for nothing, which is inequitable even as against a municipality. Judged by Ms own pleading, the plaintiff was not in a position to urge his motion for a decree in his favor. His complaint does not state a cause of suit commending itself to a court of conscience, in that he does not offer to do equity. Upon the whole record, the case is properly disposed-of by a decree dismissing the suit.' It is so ordered.

Reversed. Suit Dismissed.

Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Harris concur.

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Rehearing

Rehearing denied February 26, 1918.

On Petition for Rehearing. Denied. ■

Department 1.

Mr. Justice Burnett

delivered the opinion of the court.

In his petition for rehearing the plaintiff lays much stress upon the case of Murray v. La Grande, 76 Or. 598 (149 Pac. 1019), as being in direct conflict with the former opinion in the instant case. In prescribing the formula for street improvements the La Grande charter under which the Murray proceedings were had states in substance that when an improvement is proposed a committee of the council shall examine the property and make a report as to its valuation and extent and of the benefits to be derived thereby on account of the proposed improvement.

After receiving the report and before making any levy of taxes on plaintiff for the improvement the council must cause notice to be given in terms prescribed by the charter, giving sundry details not necessary here to mention, after which follows this language:

“After a compliance with this subdivision the council shall be deemed to have acquired jurisdiction to order the making of such improvements.”

This is the only manner and time prescribed by the La Grande charter in which jurisdiction may be acquired. It is also said in the same section:

“If any assessment is set aside by order of any court the council may cause a new one to be made in like manner for the samé purpose for the collection of the amount so assessed.”

It will be noted that in the La Grande charter there is but one time and place in the process where the city may obtain jurisdiction; and the power of correction vested in the council does not include an amendment to cure the defect in the proceedings by which the acquisition of jurisdiction was attempted. It seems, therefore, that one effort to acquire jurisdiction would exhaust the prerogative of the council in that particular proceeding. It was conceded in that case that the City of La Grande had not done the things prescribed by its charter as the necessary foundation of jurisdiction.

4, 5.' The authority of the City of Portland under its charter is much more extensive and far-reaching. As pointed out in the former opinion, Section 400 of the Portland Charter empowers the municipality to correct all manner of errors and irregularities whether they be “jurisdictional or otherwise. ’ ’ The distinction between the two charters is found in the fact that in that of La Grande there is provided but one point in the procedure where the city can acquire jurisdiction for any purpose and beyond which it cannot retrace its steps in its effort to amend its errors; while that of Portland enables the municipality to go back and begin again even to rectify any lack of authority not excepting the absence of jurisdiction itself. In brief the Portland Charter permits correction of jurisdictional defects while that of La Grande under consideration in the Murray case did not.

So it is a possible event that acting either directly or through the agency of contractors the city may have laid down a pavement as stated in the complaint herein before discovering its mistake in supposing it had acquired authority to do so. Yet it is not powerless to escape the consequences of such a blunder although the effort to extricate itself may involve the exercise of the taxing power. The complaint does not differentiate the plaintiff’s grievance from such circumstances. He argues that a mere volunteer might pave a street and the city could pay for it, but his complaint does not state such a case. That question is not presented on the record before us and we make no intimation what the decision should be if the city, as an act of its sovereignty, should adopt some completed but unauthorized work of the kind which it deemed of real public benefit and as an exercise of its taxing prerogative should essay to lay a special impost with which to raise funds to pay for it. Under the present Portland charter it behooves the freeholder to be vigilant in respect to street improvements in his vicinity and resist them in their incipiency if he has cause for doing so. He cannot safely wait until á pavement is installed and then for the first time begin to object; for that is one of the things the city can put in the street and make him pay for. It may err in its effort to acquire authority over the adjacent property in the beginning but it seems to be a case of “never too late to mend,” and the municipality may return again and again to the task until it reaches the desired result, always provided that somewhere in the process the freeholder has an opportunity to be heard before his property is taken for payment of the tax. The petition for rehearing is overruled.

Reversed. Rehearing Overruled.

Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Harris concur.