Strout v. City of Portland

• Decision Date: 13 November 1894
• Citation: 38 P. 126,26 Or. 294
• Parties: STROUT et al. v. CITY OF PORTLAND et al.
• Court: Oregon Supreme Court

38 P. 126

26 Or. 294

STROUT et al. v. CITY OF PORTLAND et al.

Supreme Court of Oregon

November 13, 1894

Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.

Suit in equity by G.H. Strout, Peter Johnson, Rosetta Kuhn, J.H.E Cramer, and Joseph Noonan against the city of Portland and C.H. Hunt, chief of police, for an injunction restraining defendant Hunt from selling the property of plaintiffs for an assessment for the improvement of Weidler street in said city, and, further, to declare the assessment null and void and to have it canceled.From a judgment below, dismissing their complaint, plaintiffs appeal.Reversed.

F.L. Keenan and W.M. Gregory, for appellants.

J.V Beach, for respondents.

MOORE, J.

This is a suit to enjoin the chief of police of the city of Portland from selling certain lots of the plaintiffs in said city, in pursuance of warrants issued to him for the collection of an assessment made thereon for the improvement of Weidler street, in said city, and to have such assessment canceled and declared void.The plaintiffs allege that the proceedings of the common council providing for the improvement and making the assessment for the expense thereof were void, for the reason that the petitioners for such improvement did not own one-half the property affected thereby, and that the published notice failed to describe with reasonable certainty the kind of improvement proposed to be made.The defendants, after denying these allegations alleged that the plaintiffs had knowledge of the improvement of said street as it was being made; that their property was benefited thereby; and that, not having protested against it during its progress, they were estopped from questioning the regularity of the proceedings preliminary thereto.The reply having put in issue the allegations of new matter contained in the answer, the cause was tried upon an agreed statement of facts, from which the court found the following conclusions of law: "That the petition presented and filed for the improvement of Weidler street, the notice published for said improvement, and the ordinance providing for the time and manner of improving said street, are each and all of them defective, and insufficient to confer jurisdiction on the common council to make the said improvement; that the plaintiffs, by reason of their knowledge of said improvement, and failing and neglecting to object to or protest against the same until after the completion thereof, waived each and all of the defects in the proceedings above mentioned, and are, and each of them is, estopped from alleging that the said proceedings for the said improvement of said street, and the assessment made therefor, are void and of no effect,"--and rendered a decree dismissing the complaint, from which the plaintiffs appeal.

An examination of the record discloses that the court was fully warranted in its conclusion that the common council had not acquired jurisdiction to make the improvement, and the only question presented by this appeal is whether the plaintiffs, one of whom signed the petition for the improvement, are estopped by their silence and apparent acquiescence from questioning the regularity of the proceedings.The assessment of property for a local improvement is always a proceeding in invitum, and rests upon the theory that the property of the citizen has been benefited to the extent of the amount assessed against it; but, before such property can be charged with any part of the cost of the improvement, the common council must, in the manner prescribed in the city charter, acquire jurisdiction of the person and subject-matter; for, without it, the right to assess such property for benefits conferred does not exist, nor should it, as a grant of such power would tend to make the common council not only the agent of the owner, but his guardian as well.

But it is contended that the plaintiffs, knowing that the improvement had been ordered, should have informed the council of the irregularity in the proceedings, and, not having done so or made any objection to the improvement until it was completed, should now be estopped from taking advantage of these jurisdictional defects.The property owner is not the legal adviser of the common council, which usually has an attorney for this purpose.He is not required to interfere with the mode adopted to acquire jurisdiction, nor...