City of Portland By and Through Portland Development Commission v. Holmes

• Decision Date: 21 November 1962
• Citation: 376 P.2d 120,232 Or. 505,75 Adv.Sh. 503
• Parties: CITY OF PORTLAND, a municipal corporation, acting by and through the PORTLAND DEVELOPMENT COMMISSION as the duly designated Urban Renewal Agency of the City of Portland, Respondent, v. Helen C. HOLMES and John Doe Holmes, her husband, if married, Defendants, Helen C. Holmes, Appellant.
• Court: Oregon Supreme Court

Page 120

376 P.2d 120

232 Or. 505

CITY OF PORTLAND, a municipal corporation, acting by and through the PORTLAND DEVELOPMENT COMMISSION as the duly designated Urban Renewal Agency of the City of Portland, Respondent, v. Helen C. HOLMES and John Doe Holmes, her husband, if married, Defendants, Helen C. Holmes, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted June 4, 1962.

Decided Nov. 21, 1962.

Glenn R. Jack, Oregon City, argued the cause for appellant. With him on the briefs were Jack, Goodwin & Anicker, Oregon City.

A. Allan Franzke, Portland, argued the cause for respondent. With him on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson and Douglas J. White, Jr., Portland.

Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and LUSK, JJ.

WARNER, Justice.

This is a condemnation action brought by the plaintiff, City of Portland, acting by and through the Portland Development Commission, as the duly designated Urban Renewal Agency of the City, against the defendant, Helen C. Holmes, for the acquisition of certain real property owned by her, located in a planned renewal area. From a judgment in favor of the City placing the value at $9,600 instead of the $27,000 demanded by defendant, she appeals.

The defendant predicates her appeal upon three alleged errors: (1) the trial court's denial of her motion to disqualify all jurors who were taxpayers in the City of Portland; (2) the court's refusal to admit evidence of other sales of property made to the condemning authority; and (3) the denial of defendant's motion for a mistrial in view of a certain statement of plaintiff's counsel during the course of the trial.

The defendant's first assignment presents the question: are residents and taxpayers of the City condemning authority who are called as prospective jurors subject to challenge for implied bias under ORS 17.140(4), which reads:

'A challenge for implied bias may be taken for any or all of the following causes, and not otherwise:

* * *

* * *

'(4) Interest on the part of the juror in the event of the action, or the principal question involved therein.'

Defendant places her reliance on four decisions of this court, all rendered prior to 1931 and all holding that the prospective jurors in suits or action which might result in a money judgment against a governmental area wherein they were taxpayers were subject to challenge for implied bias under the foregoing statute. ¹

The rule reflected by the cases cited by the defendant continued to prevail as to all governmental agencies until 1931 when it was relaxed by the legislature as to cities in proceedings for the condemnation of property for the establishment, laying out, extending or widening of streets and other public highways or rights of way for drains, sewers or aqueducts and other subjects of public improvement. (Oregon Laws 1931, ch. 345, p. 601). The 1931 Act was comprehensive and laid out the procedures to be employed in all condemnation proceedings undertaken by cities. Section 3 thereof (now ORS 223.125) provided as follows:

'* * * The fact that a juror may be a taxpayer upon property within the city shall not be ground for challenge unless he is the owner of property to be appropriated * * *.'

Subsequently, the powers accorded the cities under the Act of 1931 were extended in whole or in part to various newly-created entities of cities by the acts hereinafter referred to.

In 1937 the legislature promulgated what is known as the Housing Authorities Law with application limited to cities having a population of 5,000 or more (Oregon Laws 1937, ch. 442, p. 704). This is codified as ORS 456.005 to 456.230. Section 12 of the act confers the power of eminent domain upon a Housing Authority when created and vests it with three alternative proceedings in the exercise of its powers of condemnation. Section 12, although subsequently amended, remains substantially the same and now appears in our code as ORS 456.145, which reads so far as pertinent here:

'* * * An authority may exercise the power of eminent domain in the manner provided for in the laws of this state for the condemnation of lands or rights of way by public or quasi public corporations for public use or for corporate purposes; or in the manner provided by law for the appropriation of real property, or rights therein or thereto, by private corporations; or in the manner provided by any other applicable statutory provisions for the exercise of the power of eminent domain.'

We construe ORS 456.145 as extending to jurors in condemnation cases instituted by Housing Authorities the same immunity from challenge for bias as is granted under ORS 223.125 to a taxpayer-juror in like suits when brought by cities.

The instant action is, however, brought under the power conferred by Oregon Laws 1951, ch. 373, p. 574. This act is supplemental to the Housing Authorities Law, supra, and is designed to amplify the powers created by the initial act of 1937 by authorizing the Housing Authority of any municipality to clear blighted areas and make the property therein available for redevelopment. Defendant's property is situated in such an area. Section 3 of the Act of 1951, codified as ORS 457.040, provides, in part:

'(1) In undertaking redevelopment projects pursuant to ORS 457.030 a housing authority shall have all the rights, powers, privileges and immunities of an authority under the Housing Authorities Law and any other law relating to slum clearance and housing projects for persons of low income in the same manner as though all laws applicable to slum clearance and housing projects were applicable to redevelopment projects and undertaken under this chapter, except that ORS 456.155 and 456.160 do not limit the power of an authority in event of a default by a purchaser or lessee of land in a redevelopment plan to acquire property and operate it free from the restrictions in those sections.'

Thus, we find that the provisions of ORS 223.125, granting taxpayers immunity to challenge for bias because of their taxpayer status are likewise conferred by reference upon taxpayers who are called as jurors in condemnation proceedings instituted by city Housing Authorities. ORS 456.145 and 457.040, supra. This conclusion demonstrates that defendant's first assignment is without merit.

For her second assignment the defendant contends that the court erred in refusing to admit evidence of another sale of property to plaintiff located in the same renewal area.

There can be no question that evidence of voluntary sales of similar property in the vicinity of property sought to be condemned is admissible as independent evidence of the value of the property in question. City of Portland v. Therrow, Or., 369 P.2d 762, 765 (1962); Coos Bay Logging Co. v. Barclay, 159 Or. 272, 291, 79 P.2d 672 (1938); and State Highway Commission v. Parker, 225 Or. 143, 357 P.2d 548 (1960), and cases there cited. But the foregoing rule does not extend to involuntary sales. Here, the evidence tendered by defendant related to the value of a parcel immediately north of Mrs. Holmes' parcel and which was situated within the same urban renewal area as was defendant's property and previously sold to the plaintiff-condemnor.

The exception to the rule respecting involuntary sales is as set forth in Coos Bay Logging Co., supra, where the court says at 291, 79 P.2d at 680:

'Evidence of sales of neighboring lands, even where permitted, is not admitted unless voluntary on both sides. A sale which is not voluntary has no tendency to prove market value. It is not competent for either party to put in evidence the amount paid by a condemning party to the owners of the neighboring lands taken at the same time and as part of the same proceedings, however similar they may be to that in controversy, whether the payment was made as the result of a voluntary settlement, an award or verdict of a jury. * * *'

This exception has long been the rule in Oregon. ²

In her brief defendant concedes that the authorities which she cites from other jurisdictions are not in accord with Coos Bay Logging Co., supra. Nor does it accord with statements found in State Highway Commission v. Parker, supra.

Defendant would have this court extend the...