City of Portland v. Nottingham & Co.
| Citation | 58 Or. 1,113 P. 28 |
| Parties | CITY OF PORTLAND v. NOTTINGHAM & CO. et al. |
| Decision Date | 31 January 1911 |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; E.C. Bronaugh, Judge.
Proceeding by the City of Portland to reassess the property of Nottingham & Co. and another. On appeal by the defendants to the circuit court, the jury returned a verdict for plaintiff. From an order setting aside the verdict and granting a new trial, the city appeals. Appeal dismissed.
The council of the city of Portland caused a portion of East Washington street in that city to be improved, and thereafter passed an ordinance making a reassessment upon the property benefited thereby, including property of the defendants. The reassessment was made under section 400 of the charter of the city of Portland. Under section 401 of the charter the defendants appealed to the circuit court of the state of Oregon for Multnomah county from the reassessment made by the council. After a trial in the circuit court, the jury returned a verdict finding that the property of the defendants was benefited in the full amount of the reassessment, thus sustaining the action of the council and the contention of the city. Upon this verdict a judgment was rendered in accordance therewith, but the court afterwards made an order setting aside the verdict and judgment on the ground that it was against the law, and that the jury had disregarded the instructions of the court. From that order of the circuit court granting a new trial, the city has prosecuted this appeal, which the defendants have moved to dismiss.
Frank S. Grant and H.M. Tomlinson, for appellant.
Ralph R. Duniway, for respondents.
BURNETT J. (after stating the facts as above).
The appeal from the action of the council to the circuit court of Multnomah county was had by virtue of section 401 of an act of the Legislative Assembly entitled "An act to incorporate the city of Portland, Multnomah county, state of Oregon, and to provide a charter therefor, and to repeal acts and parts of acts in conflict therewith," approved January 23, 1903, which, so far as applicable to this proceeding, reads as follows:
When considered alone, section 401 of the charter of the municipality affords no appeal from the decision of the circuit court, for that section says "the jury shall view the property assessed, and its verdict shall be a final and conclusive determination of the question"; but it also says that the "appeal shall be conducted and be heard and determined as far as practicable in the same manner as an action at law." By the provisions of this section the circuit court of Multnomah county with its procedure is utilized as a part of the municipal government of the city of Portland. The jury trial of the issues on such an appeal means a jury trial in its generally accepted signification. It means more than the offhand decision of any 12 men however accomplished. The judge of that court in such proceeding is more than a mere moderator. The jury trial has in such cases, all the incidents of the jury trial of any other issue. It must be under the superintendence of the court. The rules of law applicable to the case must be declared by the court, and the action of the jury must be in obedience to those rules. It is in this sense and meaning that the right of trial by jury must be preserved and the requirement that the "appeal shall be conducted and be heard and determined as far as ...
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... ... for appellant. W. W. Cotton, Arthur C. Spencer, and Carey & ... Kerr, all of Portland (Omar C. Spencer, of Portland, on the ... brief), amici curiæ. G. C. Fulton and A. C ... repeal any charter or act of incorporation for any ... municipality, city or town. The legal voters of every city ... and town are hereby granted power to enact and ... Branch v. Albee, 71 Or. 188, 142 P. 598; City of ... Portland v. Nottingham, 58 Or. 1, 112 P. 28; Kalich ... v. Knapp, 73 Or. 558, 142 P. 594, 145 P. 22; McKeon ... ...
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