Ladd v. Gambell

• Decision Date: 04 December 1899
• Citation: 59 P. 113,35 Or. 393
• Parties: LADD v. GAMBELL, City Auditor.
• Court: Oregon Supreme Court

59 P. 113

35 Or. 393

LADD v. GAMBELL, City Auditor.

Supreme Court of Oregon

December 4, 1899

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

Suit by Charles E. Ladd against A.N. Gambell, auditor of the city of Portland. From a judgment in favor of plaintiff, defendant appeals. Reversed.

J.M. Long, for appellant.

W.A. Cleland and S.C. Spencer, for respondent.

BEAN, J.

This is a suit to test the validity of what is known as the "Bancroft Bonding Act" (Laws 1893, p. 171), which provides, in effect, that whenever any city within this state having a population of 2,500 or more shall improve a street at the expense of the abutting property, any owner of such property whose assessment shall exceed $25 may by filing with the proper officer a written application, be permitted to pay such assessment in 10 equal annual installments, the city to issue its 6 per cent, 10-year bonds for the amount of such deferred assessments, for the purpose of raising money with which to pay for the improvement in the first instance. The contention is that, since the interest on the bonds so issued is payable out of the general fund of the city, and not by the persons who elect and are entitled to pay their street assessments in installments ( Mall v City of Portland [Or.] 56 P. 654), the act is unconstitutional and void for want of uniformity, because it not only denies to the property owner whose assessment is $25 or less the right to pay his assessment in installments, but also requires him to contribute, under the power of taxation for general municipal purposes, to the fund out of which the interest on the bonds is to be paid. It was early held in this state that the provisions of the constitution that "all taxation shall be equal and uniform" (section 32, art. 1), and that "the legislative assembly shall provide by law for uniform and equal rate of assessment and taxation" (section 1, art. 9), have no application to special assessments for street improvements ( King v. City of Portland, 2 Or. 146); and this seems to be the generally accepted rule (2 Desty, Tax'n, 1251). There being therefore, no constitutional restriction upon the legislature in this regard, it consequently has a broad discretion in making provision for ascertaining what property is specially benefited by a local improvement, and how the benefit shall be apportioned. 2 Dill.Mun.Corp. § 761. And, while the adjudged cases do not agree upon the extent of the legislative power, we are of the opinion that the bonding act does not render an assessment for street improvements so unequal and unjust as to authorize a court to declare it invalid on that account. Perfect equality in such an assessment is hardly attainable, and approximation is all that can be reasonably expected. It will be observed that the bonding act does not affect the method or manner of making the assessment or the apportionment of the cost of the improvement, but applies only to the payment of assessments after they have been made in conformity with the provisions of the municipal charter; and the fact that the legislature in the exercise of its wisdom, has seen proper to divide the property owners into classes according to the amount of their respective assessments, and provide a method of payment equal and uniform among each of the several classes, does not, in our opinion, render the act void. Force and effect must be given to the legislative will in this respect. Hammond v. Board, 109 Mich. 676, 67 N.W. 973; Youngblood v. Sexton, 32 Mich. 406; City of Aurora v. McGannon, 138 Mo. 38, 39 S.W. 469.

Nor is the contention sound that the law is void for want of uniformity, because the property owner whose assessment does not exceed $25 is required, through the power of taxation for general municipal purposes, to contribute to the fund out of which the interest on the bonds is paid. The constitution requires equality and uniformity in imposing the burden of taxation upon property for public purposes, but it does not apply to the distribution of revenue raised by the tax imposed. Thus it is held in Holton v. Commissioners, 93 N.C. 430, that an act of the legislature authorizing a tax on account of the public roads to be imposed upon the property of the taxpaying citizens of a municipality, and providing that no part of the revenue raised from the tax shall be expended within the corporate limits of the town, is not void because unequal and unjust; the court saying "The constitution does not prohibit such inequality. While it is very true that there must be equality and uniformity in imposing the burden of taxation upon the property subject to it, so that each taxpayer shall pay the same proportionate tax on the same species of property taxed that every other taxpayer pays, and the tax must be levied ad valorem, this rule of equality does not apply to the distribution of the revenue arising from such taxation. It is to be observed that...