Oregon & C.R. Co. v. City of Portland

• Decision Date: 15 January 1894
• Parties: OREGON & C.R. CO. et al. v. CITY OF PORTLAND et al.
• Court: Oregon Supreme Court

35 P. 452

25 Or. 229

OREGON & C.R. CO. et al. v. CITY OF PORTLAND et al.

Supreme Court of Oregon

January 15, 1894

Appeal from circuit court, Multnomah county; M.G. Munly, Judge.

Action by the Oregon & California Railroad Company and the Southern Pacific Company against the city of East Portland and others its officers and employes, to enjoin the construction of elevated roadways on certain streets of such city, and the collection of assessments on plaintiffs' property therefor. A temporary injunction was granted, but defendants gave bond, and proceeded with the work. Afterwards, East Portland and Portland were consolidated, and by order of court the latter city was substituted as defendant. From a judgment entered on the report of a referee, perpetually enjoining the collection of such assessments, defendants appeal. Affirmed.

J.V. Beach, City Atty., and McGinn, Sears & Simon, for appellants.

A.H. Tanner, for respondents.

MOORE, J.

This is a suit originally brought against the city of East Portland, its officers and employes, to restrain it and them from building elevated roadways on G and H streets adjoining plaintiffs' property, and to enjoin the collection of the assessment therefor. A temporary injunction was granted, restraining the construction of the roadways and the collection of the assessment, which was subsequently modified by permitting the defendants to build the roadways upon giving a sufficient bond conditioned that said structures would be removed if it should be decreed that they were improperly built, or that the proceedings of the city council were insufficient to authorize their construction. After the consolidation of East Portland and Portland, the latter city was, by order of the court substituted for the other defendants. The plaintiffs protested against the improvements when they were contemplated by the council, and, as soon as they were commenced, began this suit; but the defendants gave the required bond, and proceeded with the work. The complaint sets out the alleged errors of the city council which it is claimed rendered its proceedings void, and, the defendants having denied all its material allegations, the cause was referred to H.H. Northup, Esq., to take the testimony, and report his findings of fact and conclusions of law thereon. The referee, after taking the testimony, made, among others the following finding of fact: "(2) The said improvements of G and H streets are of no benefit to the property of the plaintiffs, described in finding of fact No 6, in its present condition, nor are said improvements of any benefit to said property when used for the purposes for which it was purchased and intended, to wit, yard and depot purposes." The court, at the trial, approved said finding, and rendered a decree perpetually enjoining the collection of the assessment, from which the defendants appeal, and now contend that the assessment of benefits was a matter within the discretion of the city council, which the courts cannot review.

The streets of a city having been dedicated by the proprietor to the public, the state, by its legislative assembly, may determine the necessity for, and character of any improvement thereto, and what property will be benefited thereby; and whatever power the legislature possesses over the streets of a city it may delegate to its corporate authorities, to be exercised in the mode, and to the extent, prescribed in the act conferring such power. This delegation of power invests the municipal corporation with all the discretion the legislature possessed, and hence it follows that the common council, as agent of the corporation, is clothed with exclusive discretion in determining the necessity for and character of all street improvements, what property will be benefited thereby, and the amount of benefits conferred. These are questions of policy with which the legislature and its creature, the municipal corporation, deal, and the courts have no right to interfere except in case of fraud or oppression, or some wrong constituting a plain abuse of such discretion. Elliott, Roads & S. 375; Cooley, Tax'n, 661. It is impossible for a council to fix with mathematic accuracy the amount of benefits that will inure to property in consequence of a local improvement, but if it appear that it has exercised an honest discretion in determining this question of policy, however much it may have erred in judgment, the remedy is at the polls in choosing a new council, and not by reviewing its proceedings in the courts. If the courts were invested with authority to review these questions of policy, but few assessments could ever be collected without an action, and the adjudication of purely legislative questions would be substituted for the discretion of a city council. The only recognized exceptions to this rule are to be found in those cases in which, under pretense of apportionment, a work of general benefit has been treated as one of merely local consequence, and the cost imposed on some local community in disregard of the general rules which control legislation in matters of taxation. Cooley, Tax'n, 450. The presumption is that the council has done its duty; but this presumption may be overcome by facts showing that the rule prescribed for the apportionment or the assessment made under it is so...