King v. City of Portland

• Decision Date: 10 December 1900
• Parties: KING et al. v. CITY OF PORTLAND et al.
• Court: Oregon Supreme Court

63 P. 2

38 Or. 402

KING et al. v. CITY OF PORTLAND et al.

Supreme Court of Oregon

December 10, 1900

Appeal from circuit court, Multnomah county; John B. Cleland, Judge.

Application for an injunction by A.N. King and others against the city of Portland and others. From a decree in favor of defendants plaintiffs appeal. Affirmed.

This is a suit to enjoin the enforcement of a local assessment for a street improvement, consisting of an elevated roadway extending along East Yamhill street, between East Water street and Union avenue, in the city of Portland. The charter provisions bearing upon the present controversy (Sess.Laws 1898, p. 150) are, in substance, as follows: Sections 126 and 127 authorize the improvement. Section 128 requires that before any improvement is made, the common council shall pass a resolution declaring its intention to make it, and describing the same, which resolution shall be posted in the office of the auditor and published for 10 consecutive days in a daily newspaper of the city, and that the city engineer shall cause to be posted a notice at each end of the line of the contemplated improvement, which shall state the fact of the adoption of the resolution, its date, the character of the improvement proposed, and the time within which written objection or remonstrance may be made thereto. Section 129 provides that within 10 days after the official publication of notice the owners of more than one-half of the abutting property may file with the auditor written objection or remonstrance, which shall be a bar to further proceedings unless the owners of one-half or more of such property shall subsequently petition therefor. Section 130: That, if no such objection or remonstrance be filed, the council shall be deemed to have acquired jurisdiction to order the improvement to be made, and shall, within four months from the date of the final publication of the resolution of intention, declare by ordinance the time and manner of said improvement. Section 131: That the auditor shall immediately transmit a copy thereof to the board of public works and the city engineer and said board shall include, as a part of the costs of such improvement, the cost of advertisement, etc. Section 132 That said board shall without delay cause the engineer to prepare and file estimates and specifications of the amount of such work or improvement, and thereupon give five days' notice, and invite proposals for doing the work. Section 133: That said board shall, at the time set, examine the proposals and let the work. Section 136: That the auditor shall make the assessment and apportionment of the expenses of said improvement, in the mode and manner provided by section 138. Section 137: That whenever any improvement, the expense of which is to be assessed against the property benefited thereby, has been completed in whole or in such proportion as shall enable the said board to determine the cost of the whole thereof, the city engineer shall file a written acceptance of the work so completed. Thereupon the board shall publish a notice of such completion and acceptance for six consecutive insertions in the official newspaper, stating the time and place where written objections to the acceptance of the improvement may be heard. At the time fixed, any owner or agent may appear and file objections to such improvement, which shall be heard and determined by the board; and, if it appear that the said improvement has not been completed in accordance with the specifications and contract, it shall not be approved until so completed. When approved, the board shall indorse the same upon the acceptance of the engineer, and file a copy with the auditor, together with the contract and the estimated expenses of advertising, etc. Section 138: That the auditor shall thereupon prepare an assessment to cover the entire cost of such work or improvement, and apportion the same to the property affected thereby within the limits of such work or improvement, as declared by the ordinance authorizing the same, in the manner following: "Each lot or part thereof within the limits of a proposed street improvement abutting upon the street shall be liable for the full cost of making the same upon half of the street in front of and abutting upon it, and also for a proportionate share of the cost of improving the intersections of two of the streets bounding the block in which such lot or part thereof is situated. *** The cost of improving the intersection of streets, unless otherwise ordered by the council, shall be assessed upon the lots or parts thereof situated in the quarters of the four regular blocks adjoining such intersections, but only upon the lots or parts thereof within the quarter blocks nearest thereto and in the following proportion: Five ninths of the cost to the corner or first fifty feet; and four ninths of the cost to the lot next inside or the next fifty feet as laid out on the recorded plats." Section 139: That when the probable cost of the improvement has been ascertained, and the proportionate share assessed to each lot, the common council must declare the same by ordinance, and direct the auditor to enter a statement in the docket of city liens. Sections 140, 141, and 142 provide for a docket of city liens and the entry of the assessment therein, but that the same shall not be collected until by order of the common council; that 10 days' notice shall be given of the entry; and that if, within 30 days from the first publication of such notice the sum assessed is not wholly paid, the council shall thereafter order the issuance of a warrant to enforce the collection of the same. Section 158: That "the proceedings authorized by this chapter for the establishment or alteration of a grade or the improvement of a street or any part thereof may be taken or had without giving notice prescribed in section 128, whenever the owner or owners of two thirds of the adjacent property shall, in writing, petition the council therefor. And whenever any street or part thereof shall be in such condition as to become impassable, unsafe or dangerous to persons or teams passing on, along or over the same the council may declare the same by resolution, and may thereupon cause the improvement of such street to be made, upon giving ten days' notice by publication in any paper of said city, and no remonstrance shall be heard thereto." The decree of the court below being in favor of the defendants, the plaintiffs appeal.

M.L. Pipes, for appellants.

J.M. Long, for respondents.

WOLVERTON, J. (after stating the facts).

Several objections are interposed, directed against the legality of the assessment. The first is that the charter provisions under which it was made do not provide for an apportionment of the burden under a uniform rule, such as is required by the constitution. There is much discussion in the books as to whether an assessment for local improvements is a tax or not, but, whatever may be the true doctrine, it must be conceded that the authority to make such an assessment is necessarily lodged in the taxing power. This has been held so often that the controversy must be regarded as closed. Irrigation Dist. v. Bradley, 164 U.S. 112, 176, 17 Sup.Ct. 56, 41 L.Ed. 369. Apportionment of the burden is however, essential, though it need not be made upon property in proportion to its value. Mr. Cooley says: "But, whatever may be the basis of the taxation, the requirement that it shall be uniform is universal. It applies as much to these local assessments as to any other species of taxes. The difference is only in the character of the uniformity, and in the basis on which it is established." Cooley, Const. Lim. (6th Ed.) 615. Mr. Justice Earl, in Stuart v. Palmer, 74 N.Y. 183, states the proposition as follows: "It is not disputed that the legislature has unlimited power, except as restrained by the federal constitution to impose taxes and assessments for public purposes. It may impose taxes upon all property within the state, and in such cases the owners are supposed to receive a compensation for the burdens thus imposed, in the protection and benefits of the government under which they live. It may impose taxes upon the local divisions of the state for the purposes of local government, and all the citizens residing in the locality must bear the burdens, as they all receive the benefits of the local government. It may cause or authorize local improvements to be made, and authorize the expense thereof to be assessed upon the land benefited thereby. But in all cases there must be apportionment of the burdens, either among all the property owners of the state, or of the local division of the state, or the property owners specially benefited by the improvements. In either case, if one is required to pay more than his share, he receives no corresponding benefit for the excess, and that may properly be styled extortion or confiscation. A tax or assessment upon property, arbitrarily imposed, without reference to some system of just apportionment, could not be upheld."

This brings us to the rule of apportionment, and in this connection may be considered the second objection, which is that the mode and manner of assessment for street improvements adopted and prescribed by the legislature through the city charter do not take into consideration the benefits, or limit or apportion the assessment by and in accordance with the benefits received, and therefore that the charter is in violation of the fifth and fourteenth amendments to the national constitution, which inhibit the taking of private property for public use, and without due process of law. Our state constitution has similar provisions (article 1, §§ 10, 18), so that, if the rule is in violation of one, it is also in...