Schmid v. City of Portland

• Citation: 163 P. 1159,83 Or. 583
• Parties: SCHMID v. CITY OF PORTLAND ET AL.
• Decision Date: 27 March 1917
• Court: Supreme Court of Oregon

163 P. 1159

83 Or. 583

SCHMID v. CITY OF PORTLAND ET AL.

Supreme Court of Oregon

March 27, 1917

In Banc.

Original proceedings in mandamus by Charles D. Schmid against the City of Portland and others. Peremptory writ granted.

Claiming that his right is clear and invoking the authority conferred upon the court by section 617, L. O. L., the plaintiff Charles D. Schmid, asks for a peremptory writ of mandamus commanding the mayor and auditor of the city of Portland to sign and deliver to him a city warrant for the unpaid balance due on a judgment which he obtained against the municipality on account of the appropriation of some of his land for the widening of Washington street. Having been notified to show cause why the writ should not issue, the city appeared and vigorously resisted the application.

A better understanding of the questions involved in the application for the writ may be had if a brief explanation is given of the location of two city lots owned by Schmid, the widening of Washington street, the assessments levied on the two lots for their proportionate share of the expense of widening the street, and the condemnation of a part of one of the lots for the improvement. Washington street extends easterly and westerly, and is intersected by Lownsdale street, which runs in a northerly and southerly direction. Block 315 is bounded by Washington street on the north and by Lownsdale street on the east. Charles D. Schmid owns lots 1 and 2 of block 315. Each lot is 50x-100 feet in size. Lot 1 is in the northeast corner of the block, with a frontage of 100 feet on Washington street and 50 feet on Lownsdale street, while lot 2 adjoins lot 1 on the south, and has a frontage of 50 feet on Lownsdale street. The city widened Washington street along the entire length of block 315 by using the northeast corner of lot 1 as a pivot and moving the street line southerly, with the result that a triangular piece with a base of 9.9 feet was taken from lot 1. In making the improvement and in causing the appropriation of a portion of lot 1 the city acted on the authority of what was adopted as section 107, when the legal voters on May 3, 1913, in the exercise of the rights conferred by the home rule amendments to the Constitution, approved the charter for a commission form of government. Section 107 reads thus:

"When the public necessity shall require it, the council may, by ordinance, direct the city attorney to institute an action for condemnation of any property needed for a street or for any other public use. By the same ordinance the council shall direct the city engineer within ten days from the beginning of such action to view such property and make a report to the council of the value of the property and of the rights and interest of the several persons having interests therein as reported by the city attorney on examination of the title.

"The council shall thereupon provide a fund and draw a warrant thereon in favor of such persons for the sum or sums found by the city engineer, or such greater sum as they may deem proper security for the owners.

"Such fund may be provided by appropriation from the general fund by levy of assessments for benefits, as in other cases or in any other lawful manner. Within five days from the deposit of the warrant in the registry of the court where the action is pending, the city may take possession of the property unless application shall sooner be made to the court for a ruling increasing the amount of the security. If such application shall be made within the time limited the court shall hear same forthwith in a summary way, and fix such security as it shall deem necessary as security for the taking.

"If the amount is not increased, the city may take possession immediately. If the amount be increased, the city shall take possession as soon as the council shall provide a fund and draw a warrant thereon for the amount so fixed, and deposit the same in the registry of the court. The action shall then proceed to trial and judgment as other like actions.

"No person shall be disqualified to act as a juror therein by reason of his being a resident and property owner within the city. If the verdict be given for a greater amount than the appropriation, judgment shall be against the city for the excess to be payable immediately, and if the court shall so direct, as a condition of the further use of the property of the city; if for a less sum, a new warrant shall be given for the amount of the judgment, and that deposited shall be returned.

"This section shall not be construed as precluding the owner from any remedies otherwise given by law to determine whether the property is subject to appropriation."

Between March, 1915, and October, 1915, the municipality directed the city engineer to prepare a plan for widening Washington street and an estimate of the cost of the improvement approved the plan and estimate of cost made by the city engineer, established the boundaries of the assessment district to be charged with the cost, declared the probable cost, enacted an ordinance for widening the street apportioned the total estimated cost of $12,337.50 for the improvement among the several parcels of land within the assessment district, and finally, over the objection of Schmid, levied assessments according to the previous apportionment, lot 1 being charged with $890 and lot 2 with $110. These assessments were entered in the docket of city liens.

The municipality was unable to agree with Schmid upon the compensation to be paid for taking part of lot 1, and consequently on March 22, 1916, the council adopted a resolution, although the charter uses the word "ordinance," directing the city attorney to commence condemnation proceedings to acquire the needed land owned by Schmid. The action was begun the next day in the circuit court for Multnomah county, and the trial resulted in a verdict, awarding Schmid "damages in excess of all benefits to lots 1 and 2, block 315, of the city of Portland in the sum of $8,000," and on May 15, 1916, the court entered a judgment, declaring that Schmid is "hereby awarded damages in excess of all benefits to lots 1 and 2, block 315, city of Portland, county of Multnomah, state of Oregon, in the sum of $8,000," together with a specified sum as reasonable attorney's fee and costs and disbursements. The city appealed, but the court found that it had forfeited its right to appeal by taking possession of the condemned property, and the judgment was therefore affirmed. City of Portland v. Schmid, 161 P. 560.

A judgment was entered in the circuit court on January 17, 1917, on the mandate of this court, and on the same day Schmid presented to the auditor a certified copy of the docket of the judgment, together with an acknowledgment of satisfaction in obedience to section 361, L. O. L., and demanded a warrant on the city treasurer for the amount of the judgment. The city officers drew a warrant for $7,762.38, claiming that the $890 assessment levied on lot 1 and the $110 assessment imposed upon lot 2 were subsisting and unpaid taxes and indebtedness, and that it was the right and duty of the city officers to deduct the principal and interest of those assessments from the amount of the judgment against the city, as required by a section of the charter which reads thus:

"No demand shall be allowed by the auditor in favor of any person or corporation indebted to the city in any manner, except for assessments or taxes not delinquent, without first deducting the amount of any indebtedness then due of which he has notice." Section 72 of the 1913 charter as revised by the council August 19, 1914 (see, also, section 277 of the 1903 charter found in Special Laws 1903, p. 109).

Harrison Allen and John R. Latourette, both of Portland (Griffith, Leiter & Allen, of Portland, on the brief), for plaintiff. L. E. Latourette, Deputy City Atty., of Portland (W. P. La Roche, City Atty., of Portland, on the brief), for defendants.

HARRIS, J. (after stating the facts as above).

Recapitulating the foregoing statement, this controversy presents a situation where the city passed appropriate...