Brown v. City of Salem

• Decision Date: 05 September 1968
• Citation: 444 P.2d 936,251 Or. 150
• Parties: Geraldine BROWN, Respondent, v. CITY OF SALEM, Appellant.
• Court: Oregon Supreme Court

Page 936

444 P.2d 936

251 Or. 150

Geraldine BROWN, Respondent, v. CITY OF SALEM, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 8, 1968.

Decided Sept. 5, 1968.

William J. Juza, Salem, argued the cause and filed the briefs for appellant.

William B. Wyllie, Salem, argued the cause for respondent. With him on the brief were Rhoten, Rhoten & Speerstra, Salem.

Before PERRY, C.J., and SLOAN, O'CONNELL, GOODWIN, LUSK and RODMAN, JJ.

RODMAN, Justice (Pro Tempore).

This is an appeal from a decree which declared void assessments for street improvements made by the defendant City of Salem against the real property of the plaintiff and which enjoined collection of the assessments. The improvement consisted of the paving and curbing of a portion of Pigeon Hollow Road and the installation of a sidewalk along the west side of the road. The plaintiff is the owner of all of the property on the east side of the improved portion of Pigeon Hollow Road and owns one lot fronting on the west side of the improved road.

The plaintiff contends that the assessments against her property are void because the city failed to give her notice of its intention to undertake the improvement and failed to provide a hearing on the amount of the assessments. She concedes that the city followed all the procedural requirements of its charter for undertaking a street improvement and the assessment of the benefited property. She argues (1) that under the circumstances of this case the character of the notice given her of the intention to undertake the improvement violated due process of law under the Fourteenth Amendment to the United States Constitution and (2) that the assessment procedure employed by the city violated ORS 223.389.

The plaintiff's property constitutes 52 per cent of the property fronting upon the portion of the road to be improved. Section 26 of the charter of the city of Salem provides that notice of intention to make a street improvement shall be given by publication once a week for two successive weeks in a daily newspaper published in the city. Section 28 of the charter provides that if the owners of a majority of the superficial area of the property liable to assessment shall file a written remonstrance against the project within 10 days after the final publication of the notice of the intention to make the improvement, the improvement shall be defeated. Salem's Ordinance 28.34 requires that if sidewalks are to be installed notice must be posted on the affected property at least five days before the hearing on the improvement.

On May 9, 1966, the common council of the city of Salem declared its intention to make the Pigeon Hollow Road improvement and directed that notice be published in a Salem daily newspaper. Notice was published and no remonstrance was filed. Notice of the intention to improve was also posted on each of the five lots which were subject to assessment for the improvement.

We will assume that the plaintiff did not see the posted or published notices of the declaration of intention to improve by the city council and that she had no actual knowledge of that action until after the deadline for filing remonstrances had passed.

The plaintiff does not challenge the constitutionality of the charter provisions of the defendant city which provide for notice of intention to improve by newspaper publication. This court has approved of such notice by publication. Haner v. City of Eugene, 95 Or. 596, 187 P. 841, 188 P. 711 (1920).

Rather, she contends that when the city has the name and address of a property owner affected by a street improvement, due process requires that notice be given by mail. The plaintiff is a Salem resident. The city at all times had her name and address and knew she owned property liable to assessment for the improvement.

The plaintiff relies upon a line of cases which hold that due process of law requires notice by mail of proceeds which will affect one's rights when that person's name and address are known or are easily ascertainable.

In Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), notice of the judicial settlement of an accounting had been made by publication by the trustee of a common trust fund. The Court adopted a standard of notice which is reasonably calculated to inform as the test to determine if due process has been satisfied. The Court held that due process required mailed notice to beneficiaries of the trust fund whose names and addresses were known.

The Mullane rule was applied to notice of the hearing to fix damages in condemnation proceedings in Walker v. Hutchinson City, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956). As permitted by statute the defendant city gave notice of the hearing to determine damages for the taking of plaintiff's land by one publication in the city's official newspaper. The plaintiff did not see the published notice and was unaware of the condemnation action against his property until the appeal period had passed. Walker's name was known to the city and appeared in official records. The court held that since there was no compelling reason why more direct notice could not have been given, published notice of the hearing to fix compensation violated the Due Process Clause.

Posted and published notice of the appointment of commissioners to determine damages in a condemnation action by the city of New York was held to be violative of due process when the landowners' name and address were readily ascertainable from deed records and tax rolls. Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255, 89 A.L.R.2d 1398 (1962).

The Mullane rule has been applied to cases involving notice of hearings to determine assessments for municipal improvements. Wisconsin Electric Power Co. v. City of Milwaukee, 272 Wis. 575, 76 N.W.2d 341 (1956), cert. granted, 352 U.S. 948, 77 S.Ct. 324, 1 L.Ed.2d 241 (1956), 275 Wis. 121, 81 N.W.2d 298 (1957); City of Houston v. Fore, Tex., 412 S.W.2d 35 (1967).

None of the above cases is authority for the plaintiff's contention that due process of law entitles her to notice by mail of the defendant city's intention to undertake the improvement of Pigeon Hollow Road. The Mullane case dealt with the notice that must be given of judicial proceedings between private parties. Walker and Schroeder dealt with the notice that must be given by a city before damages can be assessed in condemnation proceedings. The Wisconsin Electric Power Company case and the City of Houston v. Fore case likewise dealt with the notice that must be given by a city before assessment may be made for public improvements.

In her brief the plaintiff does not distinguish between the notice requirements for initiating a public improvement project and for fixing the subsequent assessments against benefited property owners. Due process does not require that a city give affected property owners notice of its intention to launch a public improvement. Utley v. City of St. Petersburg, 292 U.S. 106, 54 S.Ct. 593, 78 L.Ed. 1155 (1934); Chicago, etc., R.R. Co. v. Risty, 276 U.S. 567, 48 S.Ct. 396, 72 L.Ed. 703 (1928).

'* * * There is no constitutional privilege to be heard in opposition at the launching of a project which may end in an assessment. It is enough that a hearing is permitted before the imposition of the assessment as a charge upon the land (citing cases), or in proceedings for collection afterwards * * *.' Utley v. City of St. Petersburg, 292 U.S. at 109, 54 S.Ct. at 595.

In Wilson v. City of Salem, 24 Or. 504, 34 P. 9, 691 (1893), the charter of the city of Salem did not at that time provide for notice at the inception of the public improvement. The city undertook the improvement of Chemeketa Street. Notice was given to property owners of the hearing at which the assessments were determined, but no notice was given at the inception of the project. In holding that notice at that stage was not required Mr. Justice Bean, speaking for the court, said:

'* * * The wisdom and expediency of the improvement, the character and cost of the work, the manner of letting the contract or doing the work, are all matters of legislative control, and vested by the charter in the discretion of the council, and upon which the property owners have no constitutional or charter right to be heard: Paulsen v. City of Portland, (149 U.S. 30, 13 S.Ct. 750, 37 L.Ed. 637; Spencer v. Merchant, 100 N.Y. 585, 3 N.E. 682; S.C. 125 U.S. 345, 8 S.Ct. 921, 31 L.Ed. 763). * * * Under a general grant of power to do work of this kind, the city may be ordinance, as was done in this case, provide for notice to the property owner, and the rule is that if provision is made 'for notice to and hearing of each proprietor at some stage of the proceedings upon the question of what proportion of the tax shall be assessed upon his land, there is no taking of his property without due process of law.' McMillen v. Anderson, 95 U.S. 37 (23 L.Ed. 335;) Davidson v. New Orleans, 96 U.S. 97 (24 L.Ed. 616;) Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 4 S.Ct. 663 (28 L.Ed. 569); Spencer v. Merchant, 125 U.S. 345, 8 S.Ct. 921 (31 L.Ed. 763) * * *.' 24 Or. at 508--509, 34 P. at 11.

In the case at bar the city charter provided for notice by publication to the affected property owners. This notice was given. The notice was required, not because of the demands of due process of law, but rather as a jurisdictional prerequisite to the city's exercise of power under its charter. Johns v. City of Pendleton, 66 Or. 182, 133 P. 817, 134 P. 312, 46 L.R.A.,N.S., 990 (1913); Clinton v. City of Portland, 26 Or. 410, 38 P. 407 (1894); Fry v. City of Salem, 84 Or. 184, 164 P. 715 (1917); Rhyne, Municipal Law 723--724, § 29--6 (1957).

The plaintiff's contention that due process of law entitled her to notice by mail of the city's intention to improve Pigeon Hollow Road is without merit.

The plaintiff also contends that the...