James v. City of Newberg

• Decision Date: 19 October 1921
• Citation: 201 P. 212,101 Or. 616
• Parties: JAMES ET AL. v. CITY OF NEWBERG ET AL.
• Court: Oregon Supreme Court

201 P. 212

101 Or. 616

JAMES ET AL. v. CITY OF NEWBERG ET AL.

Supreme Court of Oregon, En Banc.

October 19, 1921

Appeal from Circuit Court, Yamhill County; H. H. Belt, Judge.

Suit by George W. James and others against the City of Newberg and others. Decree for plaintiffs, and defendants appeal. Affirmed.

This is a suit to restrain the defendants from assessing plaintiffs' property for street improvement purposes. The plaintiffs own lot 2, block 8, Deskin's addition to Newberg, no part of which abuts upon Garfield street, but which is separated from that street by lot 1 of the same block. The defendant city of Newberg, a municipal corporation, contracted to pave Garfield street.

From the record before us, it appears that the council of the city of Newberg passed a resolution adopting plans and specifications for the improvement of Garfield street from the north line of First street to the south line of Sheridan street. In pursuance of that resolution, the recorder gave notices as therein directed and in the form required by law. It further appears that the city of Newberg took all necessary steps and measures to authorize it to make such improvements.

For relief, plaintiffs prayed that defendants be restrained from assessing any part of the cost of paving Garfield street against their lot. The city, through its attorney, demurred to the complaint on the ground that it "failed to state facts sufficient to constitute a cause of suit." The demurrer was overruled, and, the defendants having refused to plead further, the court entered a decree for plaintiffs.

Defendants appeal, assigning as error the overruling of their demurrer and the entering of decree for plaintiffs.

C. R Chapin, of Newberg, for appellants.

Wood Montague & Matthiessen, of Portland, and Clarence Butt, of Newberg, for respondents.

BROWN J. (after stating the facts as above).

The one question presented for decision is whether or not the terms "sidewalk" and "pavement," as used in the proviso found in section 110 of the charter of the city of Newberg, are exact synonyms. The proviso reads:

"Provided, that all assessment for the cost of building or repairing any sidewalk or pavement shall be upon the property immediately adjacent to or abutting thereon, and for the full price of constructing or repairing such sidewalk or pavement."

The defendants contend that the words "sidewalk" and "pavement," as used in the above proviso, mean the same thing, and that that thing is "sidewalk." It is urged with force that any other construction would work injustice to certain property owners. This argument may be very properly addressed to the legislative power. Our duty compels us to apply the law as it has been written by the legislative assembly into the charter of Newberg. The powers of the legislative department shall not be exercised by the judicial. Article 3, § 1, Constitution of Oregon. The writer has long been convinced of this truth:

"If you depart from the law, you will go astray, and all things will be uncertain to everybody." Co. Litt. 227b.

The Legislature may properly define the meaning of the terms used by it in a statute, and, where this has been done, the definitions prescribed are binding for the purpose of that statute. But in the instant case the Legislature prescribed no definition for either of the terms under consideration.

A general rule of statutory construction is that if the same word occurs in different parts of the statute it must be taken to have been everywhere used in the same sense when applied to the same subject -matter. U.S. v. Hill, 123 U.S. 686, 8 S.Ct. 308, 31 L.Ed. 277. That rule does not conflict with the formula that words and phrases may be used with different significations and with different shades of meaning in different connections. In the construction of statutes a familiar rule is that effect should be given, if possible, to every section, paragraph, sentence, clause, and word.

In arriving at the meaning to be given to the words "sidewalk" and "pavement," we will not confine ourselves to the language in the proviso quoted above, but, for the purpose of noting their use by the framers of the charter, will consider the charter in its entirety. At section 60 thereof we read:

"The council is authorized and empowered to improve the sidewalks, pavements, streets, and parts of streets."

The word "pavement," here used, has a distinct meaning and effect. It does not signify sidewalk.

Paragraph 17, § 16, is as follows:

"To provide for the removal * * * of all obstructions from side and cross walks."

Note the provision contained in paragraph 19 of said section:

"To regulate the use of streets and sidewalks and cross walks."

Again note paragraph 41 of said section:

"To regulate the use of streets and sidewalks. * * * Provided that the council shall have no power to authorize any encroachment upon * * * any sidewalk."

And note, again, paragraph 46 of said section:

"Providing for the * * * repairing of * * * sidewalks."

Once more, take note of paragraph 47 of said section:

"To regulate the use of * * * sidewalks."

In each of these paragraphs, when sidewalk is referred to the term "sidewalk" is exclusively employed, and no superfluous synonym is found.

An examination of the charter convinces us that the words "sidewalk" and "pavement" are used in their ordinary sense, and that both words are effective. Many charters were adopted by the legislative assembly which enacted the charter of the city of Newberg, and nowhere in those charters do we find the terms "sidewalk" and "pavement" used synonymously.

Some of the many...