Masters v. City of Portland

• Decision Date: 27 June 1893
• Citation: 24 Or. 161,33 P. 540
• Parties: MASTERS et al. v. CITY OF PORTLAND et al.
• Court: Oregon Supreme Court

33 P. 540

24 Or. 161

MASTERS et al. v. CITY OF PORTLAND et al.

Supreme Court of Oregon

June 27, 1893

Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.

Suit by William Masters and others against the city of Portland and others to enjoin the collection of an assessment. From a decree for plaintiffs, defendants appeal. Affirmed.

Wm. T. Muir, for appellants.

J.C. Moreland and W.Y. Masters, for respondents.

MOORE J.

This is a suit brought by the plaintiffs to enjoin the collection of an assessment levied upon real property owned by them to defray the cost of a sewer. The material facts are that on November 19, 1890, the common council of the city of Portland passed Ordinance No. 6593, entitled "An ordinance declaring the proportionate share of the cost of constructing the sewer in Thirteenth street from the south line of Montgomery street to the proposed main sewer in Market street, to be assessed to the property benefited by the construction thereof, and directing an entry of such assessment in the docket of city liens, as provided by section 121 of the city charter;" and in pursuance thereof made an assessment against plaintiffs' property and entered it upon said docket. It is alleged that said assessment is unequal, unjust, and arbitrary, because a large amount of property benefited by said sewer is not assessed and that plaintiffs' property is thereby obliged to bear an unequal proportion of the cost. A list of property alleged to have been benefited by said sewer, but not assessed, is then given, and it is further alleged that the omission to assess the property upon said list was willful, arbitrary, and intentional on the part of said city, and is unjust to the plaintiffs; that the entry of said assessment in the docket of city liens casts a cloud upon the title to plaintiffs' land. Then follows a prayer for a perpetual injunction against the enforcement of said assessment. The defendants demurred to the complaint, and alleged as ground thereof that it did not state facts sufficient to constitute a cause of suit. The court overruled the demurrer, and, the defendants refusing to further plead, a decree was rendered as prayed for, from which the defendants appeal.

The appeal presents but one question: What is the effect of a willful, arbitrary, and intentional omission to assess a portion of the property benefited by a local improvement, and placing the whole burden upon the remaining property? The city charter invests the council with a discretion in apportioning the benefits of a local assessment, and such discretion, when honestly exercised cannot be reviewed by the courts, and an assessment so made is not void unless it be shown that, in consequence of the location of the property, it was impossible for it to receive any benefit therefrom. Paulson v. City of Portland, 16 Or. 460, 19 P. 450. The converse of this rule must necessarily be true, that, if there be property within the assessment district which has been benefited by the local improvement, and willfully, arbitrarily, and intentionally omitted therefrom, such assessment would be void. But accidental omissions from taxation of persons or property that should be taxed, occurring through the negligence or default of officers to whom the execution of the taxing laws is intrusted, would not have the effect to vitiate the whole tax. When the omission has occurred through no purpose to evade or disregard official duty, the occasion which produced it seems wholly immaterial. Cooley, Tax'n, (2d Ed.) 216. The apportionment of the tax is always presumptively just...