Paulson v. City of Portland

• Citation: 16 Or. 450,19 P. 450
• Parties: PAULSON et al. v. CITY OF PORTLAND et al.
• Decision Date: 02 July 1888
• Court: Supreme Court of Oregon

19 P. 450

16 Or. 450

PAULSON et al. v. CITY OF PORTLAND et al.

Supreme Court of Oregon

July 2, 1888

Appeal from circuit court, Multnomah county.

(Syllabus by the Court.)

Where the common council of the city of Portland, by ordinances duly adopted, caused a certain sewer, in the north part of the city, known as "Tanner Creek Sewer," to be constructed at a cost of over $45,000, which it directed to be assessed on property it declared to be directly benefited thereby, under the authority contained in section 121 of the city charter, providing "that the common council of the city shall have power to lay down all necessary sewers and drains, and cause the same to be assessed on the property directly benefited by such sewer or drain, and to estimate the proportionate share of cost thereof to be assessed to the several owners so benefited, "held, in a suit brought by a number of the owners of the property, to enjoin the collection of the assessments, upon the grounds of the charter not requiring notice of the proposed construction of such works to be given, and of the assessment having been arbitrarily levied, without regard to the value of the benefits conferred by the improvement, that such owners were properly united as plaintiffs in the suit, if such ordinances were void; that, although the interests of such owners were distinct, that they differed in extent, and were not similarly affected; yet, the cause being common to them all and each having the same character of remedy, they had a sufficient community of interest to entitle them to join as such plaintiffs.

Held however, following the decision of this court in Strowbridge v. City of Portland, 8 Or. 67, which the court under the particular circumstances of this case regards itself as bound to do, that the failure of the charter to require such notice to be given does not render section 121 void, nor do the proceedings had under it have the effect to deprive such owners of their property "without due process of law."

Held that where a question has been decided by this court, and parties, relying upon the decision as a settled rule of law, have transacted important affairs which would be seriously affected by a chang of the rule, the court will adhere to it in subsequent cases, however it might be inclined to hold if the question were res integra.

Held, that the assessment of a proportionate share of the cost of a local improvement, by the officers of a municipal corporation, upon parties specially benefited thereby, cannot be made in excess of the value of the benefit conferred; but, where the improvement directly benefits the property of such parties, the question of the extent of the value thereof must be determined by the proper officers of the corporation. The courts will not interfere in such a case, unless the property assessed is so situated as to render it physically impossible for the improvement to benefit it, or where the mode of levying the assessment excluded the consideration of the question of value of the improvements.

Held, that as said section 121 of the city charter of the city of Portland only empowers the common council of the city to lay own necessary sewers and drains, it is a limitation upon the power of the council to establish the same, unless the benefits to the property accommodated thereby will be equal to or in excess of the cost of their construction.

Held, that where an assessment is levied upon property for a share of the cost of a local improvement, which is so situated that it cannot possibly be benefited thereby, the owner of the property may maintain a suit to prevent the enforcement of the assessment; but that different owners of distinct parcels of property so assessed have no right to join as plaintiffs in such suit.

W.H. Adams, Mr. Mitchell, A.H. Tanner, and McDougall & Bower, for appellants.

Williams & Wood and J.B. Linthcum, for respondents.

THAYER J.

The respondents, consisting of about 200 persons, brought a suit in said circuit court to enjoin the collection of an assessment for the construction of a sewer, in the north part of the city of Portland, known as "Tanner Creek Sewer." The common council of said city, on the 5th day of March, 1887, passed an ordinance, known as "Ordinance No. 5068," providing for the construction of the said sewer. The termini and course the sewer was to be laid were specified in the ordinance; the territorial district to be drained and sewered was defined therein; and the lots and blocks within such district, which were declared to be benefited, and subject to assessment on account of such sewer, were named. The said ordinance also contained the following provisions: "That R.L. Durham, Charles G. Schramn, and H.W. Mounastes, disinterested persons, be, and they are hereby, appointed viewers to estimate the proportionate share of the cost of said sewer, to be assessed to the several owners of property benefited thereby, in accordance with the provisions of section 121 of the charter of said city, and report the same to the common council within sixty days from the date of the approval of this ordinance by the mayor. Said viewers shall hold stated meetings in the office of the auditor and clerk of said city, and all persons interested may appear before said viewers, and be heard in the matter of making said estimate." The said viewers, in pursuance of the said provision contained in said ordinance, made and filed their report on the 3d day of July, 1887; and the said common council thereupon passed an ordinance known as "Ordinance No. 5162," approved August 19, 1887, by which they adopted the said report of the viewers, and directed the auditor and clerk to enter a statement of said assessments in the docket of city liens; and that on the 22d day of November, 1887, warrants were issued for the collection thereof, in pursuance of which the chief of police of said city was, at the time of the commencement of the suit, attempting to collect said assessments. The respondents, who are owners in severalty of certain lots and parcels of land within said district, which are respectively charged with a portion of said assessment, seek to have the statement entered in the docket of city liens set aside and canceled, and the proceedings to enforce the assessments perpetually enjoined. The grounds upon which they claim such relief, as shown by their complaint filed in the suit, are that said section 121 of the charter of said city of Portland, under which the said viewers were required to estimate the proportionate share of the cost of said sewer, to be assessed to the several owners of the property benefited thereby, is unconstitutional and void; that said ordinance No. 5068 is unconstitutional and void; and that the property assessed was not directly benefited by said sewer. Said section 121 of the city charter provides "that the council shall have the power to lay down all necessary sewers and drains," and cause the same to be assessed on the property directly benefited by such drain or sewer; but that the mode of apportioning estimated costs of improvement of streets, prescribed in sections 112 and 113 of the charter, shall not apply to the construction of such sewers and drains; and that when the council shall direct the same to be assessed on the property directly benefited such expense shall, in every other respect, be assessed in the same manner as is provided in the case of street improvements: provided, that the council may, at its discretion, appoint three disinterested persons to estimate the proportionate share of the cost of such sewer or drain, to be assessed to the several owners of the property benefited thereby; and in the construction of any sewer or drain the city shall have the right to use and divert from their natural course any and all creeks or streams running through the city into such sewer or drain." Neither said section 121, nor any other section or clause of the city charter, requires any notice to be given to the owner of lots or blocks assessed with a share of the costs of such sewer or drain of the proposed construction thereof. The common council is empowered to lay down such sewers and drains, and assess the cost thereof on the property directly benefited thereby, upon its own motion. It is upon this ground that the respondents claim the said ordinances to be unconstitutional, which is the main question in the case. The appellants interposed a demurrer to the respondents' complaint, upon the grounds (1) that there was a misjoinder of parties plaintiff, in that, to-wit, that there were numerous persons owning separate and distinct parcels of land, not similarly situated, nor similarly affected by the matter alleged in the complaint, and not having any unity of interest in the subject of the suit or the relief demanded, joined as plaintiffs; (2) that there was a defect of parties, in that, to-wit, there was no such unity of interest among the said plaintiffs in the subject of the suit, or the relief demanded therein, as entitled them to be so joined; (3) that said complaint did not state facts sufficient to constitute a cause of suit. The circuit court overruled the demurrer, and, the appellants failing to answer over, granted a decree for the relief prayed in the complaint.

The demurrer to the complaint, for misjoinder of plaintiffs and defect of parties, did not specify the proper grounds of objection. Misjoinder of parties is no ground of objection by demurrer, and it did not appear from the face of the complaint that there was a defect of parties. The objection which the appellants' counsel aimed to raise was that several causes of suit had been improperly united. But I do not think a demurrer would lie upon that ground, if the ordinance levying the...