Clinton v. City of Portland

• Decision Date: 19 November 1894
• Parties: CLINTON et al. v. CITY OF PORTLAND et al.
• Court: Oregon Supreme Court

38 P. 407

26 Or. 410

CLINTON et al. v. CITY OF PORTLAND et al.

Supreme Court of Oregon

November 19, 1894

Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.

Action by Richard Clinton and others against the city of Portland and others to enjoin defendants from selling certain lots and to cancel an assessment. From a judgment dismissing the action, plaintiffs appeal. Affirmed.

Newton McCoy, for appellants.

J.V Beach, for respondents.

MOORE J.

This is a suit to enjoin the chief of police of the city of Portland from selling certain lots of the plaintiff in said city, and to cancel an assessment made thereon for the improvement of Ffth street in the former city of East Portland which is now consolidated with the city of Portland, and forms a part thereof. The plaintiffs allege that the proceedings of the common council of the city of East Portland were insufficient to support the jurisdiction assumed by it on making the improvement, and that the assessment made for the expense thereof is void. The defendant denied these allegations, and the cause, being at issue, was referred to J.R. Stoddard, Esq., who reported that said proceedings were in conformity with the provisions of the city charter. This report was confirmed by the court, and a decree rendered dismissing the suit, from which the plaintiffs appeal.

1. It is contended that the common council failed to pass an ordinance declaring its intention to make the improvement and that a resolution directing the city recorder to publish a notice thereof was not a sufficient compliance with the requirements of the charter. Section 2 of article 6 of the charter of East Portland (Session Laws 1885, p. 303) provides that when any improvement of the streets is to be made the council shall cause the recorder to give notice of the same, etc. The charter does not require an ordinance in such cases, and where it commits the decision of a matter to the council, and is silent as to the mode, the decision may be evidenced by a resolution, and need not necessarily be by an ordinance. 1 Dill.Mun.Corp. (4th Ed.) 307, and cases cited in note 1.

2. It is contended that the common council had no authority to adopt said resolution while proceedings were pending before it upon a remonstrance against the improvement, nor until the time had expired when it could have been commenced if no remonstrance had been filed. Sections 3 and 4 of said article 6, in substance, provide that, within 10 days from the final publication of a notice of the common council's intention to improve a street, the owners of a majority of the property adjacent thereto may remonstrate against the proposed improvement, and thereupon the same shall not be made; but, if no such remonstrance be filed, the council, at its earliest convenience within six months from the final publication of said notice, may commence to make the proposed improvement. From these sections of the charter, plaintiffs maintain that no improvement of the street could have been made until six months after the filing of the remonstrance. The record shows that the plaintiffs and others on August 19, 1890, remonstrated against the improvement of said street, and that they on the 1st of the next month filed two petitions for its improvement from K to Ellsworth street, excepting 520 feet thereof lying between Adams and Jackson streets, upon which excepted part plaintiffs' lots abut; that several of the remonstrators on September 15th petitioned the common council to have their names stricken from plaintiffs' remonstrance, which was done, and the common council adopted a resolution declaring all proceedings theretofore had for said improvement rescinded and set aside, and also directed the recorder to publish a notice of its intention to improve Fifth street from K to Ellsworth streets. Section 27 of said article 6 authorizes the common council to improve a street, without giving notice of its intention to do so, when the owners of two-thirds of the adjacent property petition therefor, and section 3, supra, authorizes an improvement if no remonstrance by the owners of a majority of the property adjacent thereto be filed within 10 days after the final publication of the council's notice of intention to make the improvement. The charter thus provides two methods of acquiring jurisdiction to improve a street, but it is impossible, from an inspection of the record, to determine whether plaintiffs remonstrated against the common council's attempt to obtain jurisdiction by petition or by the publication of a notice. In either case, however, there is nothing in the charter prohibiting it from setting aside all prior proceedings for the improvement of a street and ordering the publication of a notice of its intention to make the proposed improvement. Barkley v. Oregon City, 24 Or. 515, 33 P. 978.

3. It is contended: That the published notice of the council's intention is defective, because it fails to describe the kind of improvement proposed to be made. No notice having been published by the city recorder under the resolution of September 15th, the common council on February 2, 1891 adopted another resolution directing said officer to give notice by publication in the Oregon Vindicator, a weekly newspaper printed and published in the city of East Portland, Multnomah county, Or., that the common council of said city proposed to improve Fifth street, in the city of East Portland, from K to Ellsworth streets, in the manner described in said resolution; and, in pursuance of this direction, the recorder published a notice which, after describing a part of said street, and the kind of improvement to be made, contained the following: "And by building an elevated roadway to the established grade thirty-six (36) feet wide, with elevated sidewalks on both sides of said street twelve (12) feet wide, between the following points on said streets: Commencing at a point ten (10) feet north of the center line of Adams street, running thence to a point ten (10) feet north of the center line of Jackson street. Said elevated roadway to be built according to plans and specifications now on file in the office of the city recorder and marked 'Plans and specifications for elevated roadway on Fifth street.' Said improvement to be made to the established grade, and at the expense of the abutting property." This notice was published in the said Oregon Vindicator in its issues of February 6th and 13th; and on the 20th of that month, the name of said paper having been changed to the East Portland Chronicle, the said notice was published therein of that date, and also in its issue of the 27th of said month. That the...