Schmidt v. City of Cornelius

• Decision Date: 16 October 1957
• Citation: 316 P.2d 511,211 Or. 505
• Parties: Nick SCHMIDT and Lucy Schmidt, husband and wife; Dale McDaniel and Cecil McDaniel, husband and wife; Lloyd L. Wiedewitsch and Viola Wiedewitsch, husband and wife; Gilbert E. Mooberry and Byron Mooberry; Joe F. Senko and Jean H. Senko, husband and wife; Paul Senko and Katie Senko, husband and wife; A. R. Squires and Pearl T. Squires, husband and wife; Daniel Richter and Pauline Richter, husband and wife; Donald L. Eagen and Leota June Eagen, husband and wife, and Irma Vuylsteke, a widow, Appellants, v. CITY OF CORNELIUS, a municipal corporation, Respondent.
• Court: Oregon Supreme Court

Page 511

316 P.2d 511

211 Or. 505

Nick SCHMIDT and Lucy Schmidt, husband and wife; Dale McDaniel and Cecil McDaniel, husband and wife; Lloyd L Wiedewitsch and Viola Wiedewitsch, husband and wife; Gilbert E. Mooberry and Byron Mooberry; Joe F. Senko and Jean H Senko, husband and wife; Paul Senko and Katie Senko, husband and wife; A. R. Squires and Pearl T. Squires, husband and wife; Daniel Richter and Pauline Richter, husband and wife Donald L. Eagen and Leota June Eagen, husband and wife, and Irma Vuylsteke, a widow, Appellants, v. CITY OF CORNELIUS, a municipal corporation, Respondent.

Supreme Court of Oregon.

Argued and Submitted Sept. 11, 1957.

Decided Oct. 16, 1957.

Mervin W. Brink, Hillsboro, argued the cause for appellants. With him on the brief were Schwenn & Brink, Hillsboro.

James R. Shick, Forest Grove, argued the cause and filed a brief for respondent.

Before PERRY, C. J., and ROSSMAN, LUSK, BRAND, WARNER and KESTER, JJ.

BRAND, Justice.

Plaintiffs above named are the owners of contiguous tracts of land lying within the city of Cornelius. Acting in reliance upon the provisions of ORS 222.810 they brought this proceeding seeking to have the lands owned by them and described in the complaint excluded from the boundaries of the city. The defendant city demurred to the complaint. We find no order thereon on the judgment roll, but the printed abstract states that it was overruled. The case was put at issue by answers and reply, and after trial of the issues by the court, the 'suit' was dismissed with prejudice. Plaintiffs appeal. The complaint alleges:

'That the plaintiffs herein are the owners of contiguous tracts of land, lying within the corporate limits of the said City of Cornelius, which said tract of land contain more than twenty (20) acres, are not sub-divided into city lots and blocks, and are used principally for agricultural purposes, or are unimproved waste land; that the said land has not been improved with, and is not served by sidewalks, sewers, improved streets, or other municipal improvements, and does not receive any substantial benefit by being within the corporate limits of the City of Cornelius.

'That the said land is located on the border of the City of Cornelius, and if disconnected therefrom, will not result in the isolation of any part of the city from the remainder of the city.

'That the plaintiffs desire that the following described real property be disconnected from the City of Cornelius, Washington County, Oregon, for the reasons above set forth.'

Then follows a legal description giving only the perimeter boundary of the land which plaintiffs seek to have taken out of the boundaries of the city. The prayer is 'for a judgment, disconnecting the hereinabove described real property from the City of Cornelius * * *.' By answer the corporate existence of the city is admitted. Then follows a general denial. The answer contains four separate defenses.

By the first affirmative defense it is alleged that the statute upon which plaintiffs rely is unconstitutional in that it contravenes the provisions of Oregon Constitution, Article XI, Section 2. This contention was amplified by the demurrer to the complaint wherein it was contended:

'* * * The act attempts the delegation of a nonexistent legislative authority in that it seeks to amend the Charter of the City of Cornelius of 1953 while the right and power to amend is vested solely in the legal voters of the City. The changing of the boundaries of a municipality is an amendment to its Charter and lies beyond the power of the legislature to accomplish either directly or indirectly. The Court has no inherent power to amend a City charter.'

Defendant also alleges that all of the plaintiffs have separate ownerships of the property within the perimeter description and that each of said ownership is less than 20 acres in size within the corporate limits of the city, with the exception of a tract owned by Gilbert E. Mooberry and Byron Mooberry. It appears to be admitted that the Mooberry tract exceeds 20 acres and that all of the other ownerships are less than 20 acres in size.

The statutes provide:

'The owner of any land consisting of one or more contiguous tracts lying in the corporate limits of any city having a population of 2,000 inhabitants or less, as determined by the latest official federal census or by an enumeration of the population of such city by the Secretary of State pursuant to ORS 221.730 and 221.740, whichever is the later, may have the same disconnected from the city under the provisions of ORS 222.810 to 222.830 if such area of land:

'(1) Contains 20 or more acres.

'(2) Is not subdivided into city lots and blocks and is used principally for agricultural purposes or is unimproved waste land.

'(3) Has not been improved with and is not served by sidewalks, sewers, improved streets or other municipal improvements, and does not receive any substantial benefit by reason of being within the corporate limits of the cities.

'(4) Is located on the border or boundary of the city; provided, however, that such disconnection shall not result in the isolation of any part of the city from the remainder of the city.' ORS 222.810.

'The owner of any area of land described in ORS 222.810, if desirous of such disconnection, shall file a complaint in the circuit court of the county where the land or the greater part thereof is situated, in which complaint he shall allege facts in support of the disconnection. The particular city shall be made a defendant, and it, or any taxpayer resident in the municipality, may appear and defend the complaint. If the court finds that the allegations of the complaint are true and that the area of land is entitled to disconnection under ORS 222.810, it shall order the land disconnected from the city. This order shall become effective when filed.' ORS 222.820.

'Disconnection of any area of land by virtue of ORS 222.810 shall not exempt it from taxation for the purpose of paying any bonded indebtedness contracted prior to filing of the complaint, but the land shall be assessed and taxed for such purpose until such indebtedness is completely paid, as though not disconnected.' ORS 222.830.

Assuming the constitutionality of the statutes, the question immediately arises whether any owner of less than 20 acres has a right to join with other like contiguous owners, adding their respective holdings, in order to comply with the 20-acre requirement. Under the clear wording of the statute we hold that no owner can invoke the statute unless the tract which he owns contains 20 or more acres. The Mooberry brothers did own a tract in excess of 20 acres and were entitled to seek relief under the statute if valid. No other plaintiff was so entitled. Whether two contiguous ownerships, each of which equals or exceeds 20 acres in size, have such a common interest as to permit the owners to join in one proceeding, is not before us and need not be decided. Nor is it necessary for us to decide whether the statute contemplates the bringing of an action at law or a suit in equity for the desired relief. The statute fails to specify whether this special proceeding is to be deemed one in law or inequity. The plaintiffs asked for a judgment, but the trial court treated the case as one in equity and entered a decree. There is no bill of exceptions. We have before us only the two issues above mentioned, i.e., the constitutionality of the statute and the question as to the qualifications of the parties plaintiff to seek relief. Even if the proceeding be considered one at law, these questions would be before us without a bill of exceptions.

Treating the Mooberrys as sole plaintiffs, we turn to the constitutional question. Until now, no case involving the right of an owner to 'disconnect' from a city has reached this court, or, so far as we know, any circuit court of this state. The constitutional provisions with which we are concerned are the following:

'No ex-post facto law, or law impairing the obligation of contracts shall ever be passed, nor shall any law be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution; provided, that laws locating the Capitol of the State, locating County Seats, and submitting town, and corporate acts, and other local, and Special laws may take effect, or not, upon a vote of the electors interested.' Constitution of Oregon, Article I, § 21.

'* * * The initiative and referendum powers reserved to the people by this Constitution, are hereby further reserved to the legal voters of every municipality and district, as to all local, special and municipal legislation, of every character, in or for their respective municipalities and districts. The manner of exercising said powers shall be prescribed by general laws, except that cities and towns may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation. * * *' Constitution of Oregon, Article IV, § la.

'Corporations may be formed under general laws, but shall not be created by the Legislative Assembly by special laws. The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon, and the exclusive power to license, regulate, control, or to suppress or prohibit, the sale of intoxicating liquors therein is vested in such municipality; but such municipality shall within its limits be subject to the provisions of the local option law of the State of Oregon. * * *' Constitution of Oregon, Article XI, § 2.

For the purposes of this case it is of particular importance that the constitutional provisions and especially Article IV, § la, and Article XI, § 2 be read and construed together. Spence v....