King v. City of Portland

• Decision Date: 27 January 1902
• Docket Number: No. 307,307
• Citation: 46 L.Ed. 431,184 U.S. 61,22 S.Ct. 290
• Parties: A. N. KING, P. J. Mann, A. S. Nichols, Multnomah Investment Company, and Fred N. Pendleton, Plffs. in Err. , v. CITY OF PORTLAND, Board of Public Works, Common Council of said City, et al
• Court: U.S. Supreme Court

184 U.S. 61

22 S.Ct. 290

46 L.Ed. 431

A. N. KING, P. J. Mann, A. S. Nichols, Multnomah Investment Company, and Fred N. Pendleton, Plffs. in Err.,

v CITY OF PORTLAND, Board of Public Works, Common Council of said City, et al.

No. 307.

Argued November 18, 19, 1901.

Decided January 27, 1902.

Messrs. Martin L. Pipes and Arthur P. Tifft for plaintiffs in error.

Messrs. Joel M. Long, Fred A. Mulkey, and R. S. Duniway for defendants in error.

Mr. Justice McKenna delivered the opinion of the court:

The object of this suit was to restrain the enforcement of certain street assessments levied upon the property of the plaintiffs in error under the charter of the city of Portland, Oregon.

The question presented is whether the ordinances under which the assessments were made deprived plaintiffs in error of their property without due process of law, and thereby violated the 14th Amendment of the Constitution of the United States.

The assessments were sustained by the trial court, and its judgment was affirmed by the supreme court of the state (38 Or. 402, 63 Pac. 2), and the case was then brought here by writ of error.

The charter of the city was passed by the legislature in 1898 (Special Session 1898, p. 101), and the provisions for improving streets are found in §§ 126 to 161 inclusive. They were summarized by the supreme court of the state as follows:

'By § 127 the common council are authorized to improve streets. By § 128 the common council are not authorized to improve any streets until they pass a resolution of intention so to do, and describe the improvement, which resolution shall be posted for ten days, and published for ten days, and also posted on the street. All these notices shall state the fact of the passage of the resolution aforesaid, the character of the work proposed, and the time within which written objections or remonstrances may be made. Section 130 provides that if no remonstrance is filed by a majority of the property owners the common council shall be deemed to have acquired jurisdiction.

'Section 131 provides that the auditor shall immediately transmit this ordinance to the board of public works.

'Section 132 requires the city engineer to file with the board estimates and specifications. When these are filed they shall give notice that they will let the contract to bidders.

'Section 133 provides that proposals for doing the work shall conform as near as possible to estimates prepared by city engineer.

'Section 136 provides that the city auditor shall prepare an apportionment of the expenses of the street work.

'Section 137 provides that when the work is so far completed as to enable the board to determine the cost of the whole thereof, the city engineer shall file written acceptance of the work completed. Thereupon the board shall advertise in an official paper for six days, stating when and where any objection may be heard to the said improvement, and any person may at this time appear and object to the acceptance thereof. If no objections are filed, or if the objections are overruled and the street is accepted, the board shall report the same to the common council.

'By § 138 the auditor is required to prepare an assessment and report the same to the common council. Section 138 also provides how the cost shall be apportioned, viz.: Each lot or part thereof within the limits of the proposed street improvement abutting upon the street shall be liable for the full cost of making the improvement upon one half of the street in front and abutting upon it, and also for the proportionate share of improving the intersections of two streets.

'Section 139 provides that when the probable cost of any improvement has been ascertained or determined, and the proportionate share thereof chargeable to each lot, the common council must declare the same by ordinance and direct the auditor to enter a statement in the docket of liens.

'Section 138 provides that regular lots are 50 feet by 100 feet; regular blocks are 200 feet square. It also particularly provides for irregular blocks and apportionment of the assessment upon unplatted tracts.'

The main issues of fact were found against plaintiff in error by the trial court as follows:

'That the city engineer did make a report and estimate of the probable cost of the improvement mentioned in the complaint.

'That the common council did, before making said improvement, estimate the probable cost thereof, and give notice of the said probable cost.

'That in making the assessments upon the property of the plaintiff, set forth in the complaint, the common council did take into consideration whether the property of plaintiffs was benefited by said proposed improvements, and the amount of said benefits.

'That said common council did apportion the cost of making the said improvement according to the benefits to the said property from said improvement.

'That the property set forth in the complaint can be used in connection with the said elevated roadway, and it is accessible from said elevated roadway, and it is so situated that it is and can be benefited by said roadway.

'That the costs assessed against said property do not exceed or equal the benefits that have accrued to said property by reason of said improvement.

'That plaintiffs, and each of them, did have notice of the amount of said assessment before the said assessments were made and before the same were entered in the docket of city liens, and before said work was fully completed by said contractors, and said plaintiffs and each of them did have an opportunity to be heard to contest the fairness of said apportionment. And plaintiffs, and each of them, did have an opportunity to contest the question whether their said property was benefited and the amounts of the benefits, and also as to the amounts of the assessments.

'That said assessments were not made or entered on said city lien docket without any notice.

'That in making said assessments the common council did not act arbitrarily or unjustly, and that the common council did use and exercise discretion and judgment concerning said assessments and the amounts thereof.

'That in accepting said improvement the board of public works did not act arbitrarily or unjustly, and said board of public works, in accepting said improvement, did use and exercise their discretion and judgment concerning the same.

'That upon the giving of the notice of intention to make said improvement, and prior to the passage of the time and manner ordinance set out in plaintiffs' complaint, the common council considered the question of cost of said improvement in front of each of the lots within the limits of the proposed street improvement and abutting upon said street, and also the proportionate share of the cost of improving intersections of two of the streets bounding the blocks in which such lot is situated, and found that each of said lots abutting on said street, and each of said lots assessed for intersection of blocks, would be benefited by said improvement in an amount greater than the cost of said improvement as assessed against each of said lots.'

Afterwards the court made an additional finding of fact in accordance with a stipulation 'that the plaintiffs and each of them did not have any notice or knowledge of the amount of the assessments before the assessments were made, or before the same were entered into the docket of city liens, or before said work was fully completed by said contractors, other than as stated in the complaint and the proceedings therein set forth.'

That is, as we understand, except such notice as was given by the proceedings preceding the making of the assessment.

The findings of the court has narrowed our inquiry. That the improvement was a benefit to the abutting property must be accepted as true, and that the benefits were equal to the cost of the improvement; and, further, that the common council of the city apportioned the cost according to the benefits. Our inquiry therefore is confined to the validity of the rule of assessments prescribed by § 138, and to whether the plaintiffs in error were afforded an opportunity to contest the assessment.

Nor need we follow the details of counsel's arguments. The contentions of plaintiffs in error are made to depend upon the validity of the rule of assessment prescribed by the city charter, and upon what notice the charter requires to be given to property owners, and what opportunity such property owners are given to be heard upon the benefits to them of the contemplated improvement, the relation of benefits to cost, and the apportionment of the assessment; and these several propositions in turn depend upon the opinion of the supreme court of the state.

The duty of defining the district to be improved is devolved by the charter of Portland upon the council of the city, to be exercised by passing a resolution of...