Allen v. City of Portland

• Decision Date: 02 October 1899
• Parties: ALLEN et al. v. CITY OF PORTLAND et al.
• Court: Oregon Supreme Court

58 P. 509

35 Or. 420

ALLEN et al. v. CITY OF PORTLAND et al.

Supreme Court of Oregon

October 2, 1899

Appeal from circuit court, Multnomah county; A.F. Sears, Judge.

Suit by Andrew Allen and others against the city of Portland and others to restrain the collection of an assessment levied to defray the expenses of certain public improvements. From a decree in favor of the defendants, the complainants appeal. Affirmed.

E.B. Watson, F.L. Keenan, and J.C. Moreland, for appellants.

J.M. Long and F.V. Holman, for respondents.

WOLVERTON, C.J.

This is a suit to restrain the city of Portland from collecting an assessment levied upon abutting property to defray the expenses of an improvement of Sixth street, in said city. The city charter provides that the common council of the city of Portland has power and is authorized, whenever it is deemed expedient, to improve any street or part thereof, but that no such improvement shall be undertaken without 10 days' notice thereof being first given by publication in some daily newspaper published in the city, and that no such notice shall be given until the owners of one-half of the property affected by such improvement shall petition for the same. Charter of the City of Portland, §§ 94, 95 (Sess.Laws 1891 p. 823). The legislature has thus prescribed the prerequisites to the jurisdiction of the common council to make the improvement, one of which is that the owners of one-half of the property affected by the proposed improvement shall petition for the same, and this must precede the notice. Without such petition, the common council is not authorized to proceed. The petition is constituted the basis of its power and authority to do any act looking to the improvement and consequent assessment of abutting property. The charter regulations in this respect, as in all others where the property of individuals is to be taken or incumbered without their consent, are to be strictly construed, and every substantial requirement must be complied with before the power of the council thus delegated can be exercised. Without such compliance, its jurisdiction to act is absolutely and entirely wanting, and proceedings had and taken would necessarily be void and without effect for any purpose. Oshkosh City Ry. Co. v. Winnebago Co., 89 Wis. 435, 61 N.W. 1107; Cooley, Tax'n, 464.

In the case at bar, there was a petition presented to the common council, praying that the improvement be made in accordance with certain specifications attached, whereby it was shown, among other things, "that it is expedient and necessary to make said improvement, and that they, the undersigned petitioners as aforesaid, are the owners in fee of more than one-half the property affected by said proposed improvement, and abutting upon said portions of said street so proposed to be improved as aforesaid." This petition was signed by numerous persons, but not verified. The complaint attacks it, and alleges that it was not subscribed by the owners, of one-half the property to be affected by the improvement, specifying certain particulars, as follows: That the name of the Oregonian Publishing Company appears subscribed to said petition by H.L. Pittock, and is represented to be the owner of lots 3 and 4, block 177, city of Portland; that at the date of signing and presentation thereof said company was not the owner of such lots, and that H.L. Pittock had no authority to subscribe the name of said company thereto; that L.A. Godard and William Frazier subscribed said petition as the owners of the east 60 feet of lots 1 and 4, block 45, Couch's addition, and that said Godard and Frazier own but an undivided two-thirds of said property; that Louise P. Vial subscribed said petition as the owner of lots 5 and 6, block 175, and that she owned but an undivided half of said lots; that Loyal B. Stearns subscribed as the owner of lot 5, and the south 20 feet of lot 6, in block 173, and that he is not the owner of any part of said property, except the south 20 feet of the west half of lot 6 and of the west half of lot 5, in said block; that Martha M Crowell, administratrix of C.F. Crowell, deceased, subscribed as the owner of lot 4, block 84, but that she had no authority to sign for said lot, and none is shown in the petition, and that she is not the owner of said lot as administratrix; that the name of Mrs. Fannie E. Kelly appears subscribed as the owner of lot 4, in block 176, and purports to have been signed by Dan J. Malarkey, attorney in fact; that no authority is shown on said petition, and no power of attorney was or is of record, and the said Malarkey had no authority to sign said petition; that the Snell, Heitshu & Woodard Company appears subscribed to said petition by F.K. Arnold, secretary, as the owner of the east half of the fractional block 43, Couch's addition; that said Arnold had no authority to subscribe the name of the company thereto, and no such authority is shown upon the face of the petition; that the name of the Portland Gas Company appears subscribed to the petition by C.F. Adams, president, as the owner of lots 5 and 6, block 47, Couch's addition; that the said Adams had no authority to sign the same, nor is there any shown upon the face thereof; that the name "Wardens and Vestry of Trinity Parish, by James Laidlaw, Clerk," is subscribed as the owner of lots 5 and 6, block 69, city of Portland; that the rector, wardens, and vestrymen of Trinity parish were at the date of such signing, and ever since have been, the owners of said lots, and that the said Laidlaw had no authority to sign the petition for said church, nor is any such authority shown by the petition; that the name of Mrs. Eliza Young, by D.W. Wakefield, attorney in fact, appears upon said petition as the owner of one-third of lots 6 and 7, block 41, Couch's addition; that no power of attorney to the said Wakefield appears of record, and no authority to sign said petition is shown; and that the said Eliza Young owns the west half of the easterly two-thirds of said lots 6 and 7. At the trial the petition was offered in evidence, but no other evidence was introduced tending to show that Dan J. Malarkey was the attorney in fact of Mrs. Fannie E. Kelly, or what authority he had to subscribe her name to the petition. The same is true touching the representative character and authority of D.W. Wakefield to subscribe the name of Eliza Young, of F.K. Arnold for signing the name of the Snell, Heitshu & Woodard Company, and C.F. Adams that of the Portland Gas Company. in view of this state of the record, plaintiffs advance three propositions, which we will now examine: First, that the petition was insufficient to confer jurisdiction on the common council to make the improvement. It is maintained that it should show the requisite facts affirmatively, so that it would be perfectly patent and apparent, without evidence or further inquiry aliunde, that it was subscribed by the owners of one-half the property affected; that is to say, it should show the area to be affected, then the exact area owned by each petitioner, with definite location and description, so that there would remain but a simple mathematical deduction to ascertain whether that subscribed for equals one-half of the property affected. Second, that the burden of proof in the establishment of the jurisdictional facts was with the city, and this required it to show primarily not only the representative character of the supposed agents signing the names of their principals, but their authority to so act. And, third, that the petition was not in fact subscribed by the owners of the requisite proportion of the property affected.

It is urged that the common council, in its determination touching the sufficiency of the petition, and therefore of its authority to proceed, does not act in the exercise of any judicial function, but as an administrative agent of the city to carry into effect the purposes of its citizens. It is true, the common council is not classed as a judicial body but there is no doubt that it has quasi judicial functions to perform in the course of its proceedings for street improvements, and the assessment of the necessary expenses therefor upon abutting property. The proceedings of such bodies may be reviewed upon a certiorari or writ of error, but not of those acting in a purely ministerial or administrative capacity. We believe the better view to be that the common council is clothed with, and acts in the exercise of, quasi judicial functions while in the employment of its power and authority under the charter in making such improvements. But the question as to its jurisdiction to act in any given case, like courts of limited, special, and inferior jurisdiction, is always open to inquiry; and, in any event, its decision or determination may be attacked collaterally for want of such jurisdiction. It cannot legally assume to act until the facts exist upon which its jurisdiction depends, and no decision or determination that it has it can avail in the absence of such facts. By the express charter provisions, it is not to give notice, or act in the exercise of the power delegated, until the requisite petition is filed; and its judgment that it conforms to the requirements of the charter could not make it so, if it was otherwise, or give it validity in invitum. Cagwin v. Town of Hancock, 84 N.Y. 532. Notwithstanding, the council is bound to exercise its judgment in determining whether a valid petition has been presented, and this it does for the purpose of ascertaining whether it is warranted in taking further action under it, yet its judgment is not conclusive unless made so by express legislation, and such is not the case under the charter. Inquiry may be made, therefore, with respect to the...