Fisher v. City of Astoria

• Decision Date: 31 July 1928
• Citation: 269 P. 853,126 Or. 268
• Parties: FISHER ET AL. v. CITY OF ASTORIA.
• Court: Oregon Supreme Court

269 P. 853

126 Or. 268

FISHER ET AL. v. CITY OF ASTORIA.

Supreme Court of Oregon, En Banc.

July 31, 1928

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Suit by F. A. Fisher and others against City of Astoria. From the decree, the City appeals. Reversed and remanded, with instructions.

This is a suit to remove a cloud from the titles of the plaintiffs. The complaint alleges that the defendant is a municipal corporation, and that the plaintiffs, respectively, own the several parcels of real property described in their complaint; that all of this property is located in the district which the defendant has assessed to pay for an improvement, consisting of ornamental lighting posts and the necessary wires and equipment composing an up-to-date lighting system in the business section of the city of Astoria. The complaint alleges that the only provisions of the defendant's charter with reference to its authority to provide for street improvements and assessing property to pay therefor, are the following:

"The council shall have the power and authority to grade, pave plank, gravel, curb and otherwise improve and repair the highways, streets, avenues, lanes and alleys of the city, and for the purpose of defraying the expenses thereof may divide the city into street improvement districts. The term 'paving' shall be deemed to include the construction of crosswalks, gutters and curb. The power and authority to improve a street includes the power and authority to improve the sidewalks and pavements and to determine and provide for everything convenient and necessary concerning such improvement. * * * No part of the expenses of improving any street, lane or alley, by grading, paving, planking or graveling, or otherwise, or repairing the same, except as hereinafter provided, shall be paid from the general fund but the whole of the expense of such improvements, including the street crossings, shall be defrayed by special assessment upon the lots, lands and premises, inclusive of water frontage out to the harbor line, included in a special assessment district, to be constituted of the lands fronting upon the part of the street or alley so improved or proposed so to be, and of such other lands as in the opinion of the council may be benefited by the improvement. * * *"

Various other sections of the defendant's charter are reprinted in the complaint; we deem it unnecessary to reproduce these in this decision. Section 73 confers authority in regard to sidewalks. Sections 74, 75, 77, 78, 79 (subd. 3), 81, 83, and 85, prescribe the manner in which the city shall invite bids and let contracts for local and public improvements and assess property in payment for the costs thereof. The complaint also quotes chapter 1, § 2, of the charter, which confers authority upon the city in regard to the ownership of real and personal property, and provides that the city "may build, purchase, lease and operate street car lines, telephone, telegraph or lighting plants, and may control, let, sell, or dispose of the same." Chapter 5 § 38, subsec. 10, confers power "to provide for lighting the streets and furnishing the city with gas, electricity or other lights and for the erection and construction of such work as may be necessary or convenient therefor." Chapter 5, § 38, subd. 47, confers authority upon the council "to provide for erecting, purchasing, appropriating or otherwise acquiring waterworks, gasworks, or electric light plants." Chapter 12, § 140, confers authority upon the city to purchase and maintain "one or more electric light plants * * * for the purpose of supplying the city * * * with an abundance of electric lights for all uses whatsoever * * * and for such purpose may also issue bonds * * * and dispose of the same."

The complaint alleges that the foregoing are all of the charter provisions which empower the city to buy, build, lease, or operate electric light plants and issue bonds therefor, and that the charter contains no express or implied provisions whatsoever empowering the city "to erect electric light poles or a system of ornamental electric light poles for the purpose of distributing therefrom electric current for lighting purposes bought from a private company and charge the expense of erecting such poles" to the abutting property owner. Continuing, the complaint alleges that January 7, 1924, the common council passed, and the mayor approved, Ordinance No. 6496, which designates certain streets in the defendant city, and then provides for improving these streets with a lighting system consisting of the necessary wires and ornamental iron posts. The ordinance provides for payment of the expenses of installation out of a fund to be provided by the sale of the bonds; the property within the district to be assessed for the eventual retirement of the bonds. The complaint continues that pursuant to the ordinance, bids were received and later contracts were let. Still later the contracts were completed and the contractors were paid. Subsequently the council authorized the board of assessors to assess the property within the district. This was done, and the assessment eventually received the approval of the council and the mayor. Thus the properties of these plaintiffs were assessed in amounts averred in the complaint. The complaint alleges that the ordinances which resulted in the assessment were invalid for the following reasons:

"That said pretended ordinances No. 6496 and 6496A were and are wholly and entirely illegal, and beyond the power of the common council of defendant city to pass, inasmuch as said ornamental electric street-lighting system provided for therein is not a street improvement or work in the nature of betterment as contemplated by the aforementioned provisions of defendant's charter relative to the making of street improvements, and that by reason of said aforementioned charter provisions of defendant's municipal charter relative to the making of street improvements, and by reasons of the total lack of power in defendant city to provide for ornamental light poles and by reason of defendant's lack of charter powers to assess the cost of construction thereof upon the abutting property owners, none of the costs or expense of said ornamental electric street-lighting system could legally be levied against the property of these plaintiffs, and all respective assessments levied against the property of these plaintiffs ever since such attempted levy have been and now are an illegal burden upon the property of these plaintiffs, clouding the title of these respective plaintiffs thereto."

The complaint concludes that the plaintiffs are without a plain and adequate remedy at law. It prays for a decree declaring the assessments invalid and ordering their cancellation.

The defendant demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of suit. The circuit court overruled the demurrer, and subsequently the defendant answered. The answer admitted substantially the allegations of the complaint. It denied the ownership by two of the plaintiffs of the properties which the complaint alleged they owned, and denied that the charter provisions, alleged in the complaint, were the only ones that were material to the validity of the ordinances. The answer then alleged four affirmative defenses; one to the effect that the plaintiff Christians was estopped to contest the validity of the ordinances in question because he filed with the city auditor an application, executed by himself, to pay the assessments levied against his property in installments, as provided by the charter of the defendant city, and alleged that in the application he waived all irregularities in the proceedings preceding the improvement. The answer alleges that Christians is a resident of Astoria, and was fully cognizant of all facts appertaining to the alleged improvement and the city's intention to assess the adjoining property. Further it avers that the city relied upon Christians' apparent acquiescence and executed its bonds; that these bonds were purchased by bona fide purchasers. The second affirmative defense alleges substantially the same facts in regard to the plaintiff, Madison. A third affirmative defense alleged a similar estoppel in regard to the plaintiff Withers, and a fourth affirmative defense alleged an estoppel as to all of the plaintiffs, based upon their alleged acquiescence in the proposed improvement. The plaintiffs demurred to the answers on the ground that they failed to state facts sufficient to constitute a valid defense. The lower court overruled the demurrer as to the first, second, and third affirmative defenses, but sustained it as to the fourth. When the city refused to plead further and declared its intention to stand upon its answer, the court entered its decree dismissing the suit as to the plaintiffs mentioned in the first, second, and third affirmative defenses, but granted to the other plaintiffs the relief which they sought. From this decree, the city has appealed.

H. K. Zimmerman and G. C. & A. C. Fulton, all of Astoria, for appellant.

Norblad & Hesse, of Astoria, for respondents.

ROSSMAN, J. (after stating the facts as above).

There are six assignments of error. The first of these contends that the circuit court erred when it failed to sustain defendant's demurrer to the complaint. We shall now examine this contention.

While the plaintiffs' brief lays stress upon the fact that the resolution of the city council provides for ornamental light posts, yet we feel that this feature of the posts does not present a proper field for our investigation. There is no allegation in the complaint that the ornamental feature of the posts has increased the cost of installing...