Hawthorne v. City of East Portland

• Decision Date: 17 March 1886
• Citation: 13 Or. 271,10 P. 342
• Parties: HAWTHORNE and others v. CITY OF EAST PORTLAND and others.
• Court: Oregon Supreme Court

10 P. 342

13 Or. 271

HAWTHORNE and others v. CITY OF EAST PORTLAND and others.

Supreme Court of Oregon

March 17, 1886

Killen & Moreland, for respondents.

S.R Harrington, for appellants.

THAYER J.

This appeal is from a decree of the circuit court for the county of Multnomah, rendered in a suit brought by the respondents against the appellants to enjoin the appellants from selling certain city lots owned by them in the said city of East Portland, by virtue of a street assessment which had been levied thereon for the improvement of L street, in said city the respondents claiming that the assessment was illegal upon the grounds that the requirements of the city charter had not been complied with in the improvement of said street, and that it had before been improved, and by the provisions of the charter was not subject to be again improved.

The charter of said city points out the various steps required to be taken in such cases. When any such improvement is to be made the common council must cause the recorder to give notice of the same by publishing a notice for 14 days previous to the undertaking in some daily or weekly newspaper published in said city or in the city of Portland, specifying with convenient certainty the street, or part of street proposed to be improved, and the kind of improvement to be made. Within 10 days after the final publication of such notice the owners of a majority of the property adjacent to such street proposed to be improved may file a remonstrance with the recorder against the improvement, in which case it cannot be further proceeded with. But if no such remonstrance be filed, the council within six months from the final publication of the first notice, may commence to make the improvement. The first step is to ascertain and determine the probable cost of making the improvement, and assess upon each lot or part thereof liable therefor its proportionate share of such cost. When the probable cost of the improvement has been ascertained and determined, and the proportionate share thereof of each lot, or part thereof, has been assessed, the counsel must declare the same by ordinance, and direct its clerk to enter a statement thereof in the docket of the city liens, which is a book provided for that purpose, and in which must be entered the number or letter of the lot assessed, and of the block in which it is situated; and where a separate assessment is made upon a part of a lot, such part must be particularly designated. The name of the owner of the lot or such part must also be entered therein, or an entry made that the owner is unknown; and also the sum assessed upon such lot, or part thereof, and the date of the entry. From the date of such entry of an assessment upon a lot, or part thereof, the sum there entered is to be deemed a tax levied and a lien thereon, but it cannot be collected until, by order of the council, 14 days' notice thereof is given by the recorder, by publication in one of the newspapers before mentioned, and such improvement of the street fronting or abutting upon such lot, or part thereof, has been completed.

Then the council may order a warrant for the collection of same to be issued by the auditor, directed to the city marshal, requiring him to levy upon such lot, or part of lot, upon which the assessment is unpaid, to sell the same, which warrant shall have the force and effect of an execution, and be executed in like manner, subject to certain regulations prescribed in the said charter. The council must provide by ordinance for the time and manner of the work on any proposed improvement; must let the work to the lowest bidder; and when a street, or part thereof, has once been improved, under and by virtue of said provisions before mentioned, it is not subject to be again improved, but may be repaired, except that when the improvement of such street has only been a partial inprovement the council is authorized to make a full improvement as in the case of an original improvement of a street, and subject to the same restrictions and qualifications.

This, substantially, is the power conferred upon the officers of said city in regard to the improvement of streets, and the mode of exercising it. The authority and manner of executing it are similar in principle to that possessed by a great majority of the municipal corporations in the United States. The law applicable to the subject in general is definitively settled. That it is a special and limited power, and that it can only be exercised in the mode pointed out in the act which grants it, admit of no question. No officer of any municipal government should be ignorant upon that point, or fail to understand that a street improvement cannot be made, and the expense thereof legally assessed upon the adjoining lots, without a strict observance of every requirement of the city charter upon the subject. It is in that respect like every restricted and qualified power. It is allowed to be exercised only upon the terms upon which it is granted. Hence, in order to improve a street in the city of East Portland, and legitimately charge the expense thereof upon the lots fronting and abutting upon it, the several duties before referred to must be strictly performed, and the conditions authorizing it exist.

It is claimed upon the part of the respondents in this case that the council of said city, in attempting to improve said L street, did not cause the recorder to give the proper notice of the intended improvement,--at least, he gave a notice that was insufficient; and the council acted upon it. The alleged defect in the notice is that it did not specify with convenient certainty the street, or part of street, proposed to be improved, and the kind of improvement to be made. The notice stated, in substance, that the council proposed to improve said street from a certain point to a certain point by building an elevated roadway and sidewalks of full width from Water street eastward to the bank of earth elevation between Third and Fourth streets, and from the latter point eastward to Fifth street, by laying "where the same may be required" a plank roadway of full width, with sidewalks. The respondents' lots fronted and abutted upon that part of said street between "the bank of earth elevation" referred to and said Fifth street; and they allege in their complaint that said L street had been once improved between points including said part of it, at the expense of the adjoining lots, by authority of the said council; and that it was in good condition when the latter improvement was proposed, and that they were assured by the city authorities after said notice was published, and while they had the right to remonstrate against the proposed improvement, that the improvement of the part of the street affecting their lots would only consist in placing an occasional plank thereon, where the same was necessary; that the cost thereof would be trifling, and that that was the object of including in the written notice published the qualifying words referred to. I am of the opinion that the defect was fatal. It is very evident that a lot-owner, under the circumstances mentioned, might very easily be misled by such a notice. Knowing that the street upon which the lot fronted was in a reasonable condition of improvement, a lot-owner would have a right to believe, where the intention to improve was expressly declared to be by laying, where the same may be required, a plank roadway, etc., that it would only cost a trifling sum. The notice herein failed to express the kind of improvement to be made. Lot-owners who are compelled to pay the expenses of such a proceeding, or have their property sold to satisfy it, should be apprised of the character and extent of the improvement intended. That, evidently, is the object of requiring...