Northern P. Terminal Co. v. City of Portland

• Decision Date: 20 October 1886
• Parties: NORTHERN PACIFIC TERMINAL CO. OF OREGON v. CITY OF PORTLAND and others. [*]
• Court: Oregon Supreme Court

13 P. 705

14 Or. 24

NORTHERN PACIFIC TERMINAL CO. OF OREGON v. CITY OF PORTLAND and others. ^[*]

Supreme Court of Oregon

October 20, 1886

Appeal from Multnomah county.

Jos Simon, for appellant.

Albert H. Tanner, for respondents.

STRAHAN J.

This proceeding comes here on a writ of review issued out of the circuit court of Multnomah county, and directed to B.L Norden, auditor and clerk of the city of Portland. The object of the writ is to review certain proceedings of the common council of said city in attempting to appropriate some real property owned by the plaintiff in the city for the purpose of extending North Third street through the same. The general power of the city to appropriate private property in said city for the purpose of a street extension is not disputed; but it is insisted by the appellant that this can only be done by a strict and precise compliance with the statute authorizing it.

The charter of the city of Portland, under which these proceedings were taken, so far as necessary to consider the same, contains the following provisions:

"Sec. 80. The common council of the city of Portland has power and authority within the city, whenever it deems it expedient, to open, lay out, establish, and widen streets and alleys, and to appropriate private property for that purpose.

"Sec. 81. Whenever the council shall deem it expedient to lay out and establish or widen a street or alley, it shall direct the city surveyor to survey such proposed new street or alley, *** and to mark the boundaries thereof, and to make his report containing a plat of the survey," etc.

"Sec. 82. Thereafter, and within thirty days from the adoption of such report, the council shall appoint three disinterested freeholders of the city of Portland, no kin to any owner or person interested in any property to be appropriated, possessing the qualifications of jurors of the circuit court of the county of Multnomah, to view such proposed street, and make an assessment of damages and benefits as provided in the next following section of this act. ***

"Sec. 84. If it shall appear to the council that the damages assessed are unreasonable, or that the benefits assessed are insufficient in any respect, the council may set aside such view, and order another view under the same regulations as provided in case of the first view."

The only recital in the record made by the council on the subjects enumerated in section 82 is as follows: "Whereas, R.L. Durham, C.C. Redman, and Edward Campion are freeholders within the state of Oregon, and are disinterested in the property and lands proposed to be appropriated in the opening, laying out, and establishing of the extension of North Third street from the north line of H street to the west line of North Front street, in the city of Portland, county of Multnomah, and state of Oregon, said extension to be seventy feet in width; and whereas, said persons possess the qualifications of jurors of the circuit court of Multnomah county, and are not of kin to any person owning or interested in the property to be appropriated for such purposes," etc.

The common council of the city of Portland, in exercising the powers conferred by the charter relative to the appropriation of private property for the purpose of opening, laying out, or establishing streets or alleys within said city, is an inferior tribunal, and it must comply strictly with every prerequisite of the statute, and unless it does so its acts are void. This does not seem to be seriously questioned; but it is contended by the city attorney that compliance is shown, and this is the question to be determined. The finding by the council shows that "R.L. Durham, C.C. Redman, and Edward Campion are freeholders within the state of Oregon." The charter requires that they should be "disinterested freeholders of the city of Portland." It is true that it is recited that they "are disinterested in the property proposed to be appropriated." But this does not show they are qualified, for the reason they may have other interests to be affected outside of the property sought to be appropriated, and so not disinterested freeholders within the meaning of the charter. Again, they must possess the qualification of jurors of the circuit court of Multnomah county. The finding, in the very words of the law, that they do possess those qualifications, is not enough. Such a finding only states a legal conclusion, and is not a recital of the facts, the existence of which alone authorizes the common council to act.

In the case of State v. Officer, 4 Or. 180, the language of the record was as follows: "Proof of posting notices having been made to the satisfaction of the court," etc. "Does this language disclose the necessary jurisdictional facts to warrant the court in proceeding? is the question. The county court in its proceedings, by the location of public highways, to condemn the lands of private persons to public use, is only required to cause constructive notice to be given by the petitioners of their application for that purpose. This notice is to be given by posting the same at the time, at the places, and in the manner prescribed by law; and the language of the record should show affirmatively that this law had been strictly complied with." Kansas City & C.B.R. Co. v Campbell, 62 Mo. 585. The court continues: "We do not think that...