Thomas v. City of Portland

• Decision Date: 28 October 1901
• Citation: 66 P. 439,40 Or. 50
• Parties: THOMAS et al. v. CITY OF PORTLAND et al.
• Court: Oregon Supreme Court

66 P. 439

40 Or. 50

THOMAS et al. v. CITY OF PORTLAND et al.

Supreme Court of Oregon

October 28, 1901

Appeal from circuit court, Multnomah county; John B. Cleland, Judge.

Suit by E.A. Thomas and others against the city of Portland and others. From a decree in favor of plaintiffs, defendants appeal. Affirmed.

R.R Duniway, for appellants.

W.M Gregory, for respondents.

WOLVERTON J.

In March, 1898, the common council of the city of Portland by ordinance declared it expedient and necessary to repair Corbett street from the westerly line of Hood street to the north line of Bancroft avenue, and directed that the cost of such repair be assessed upon the adjacent property. The nature of the work undertaken, however, was not, as a matter of fact, a repair, but an original improvement. This is conceded by the appellants, and the case is presented upon that hypothesis. Subsequently the common council proceeded to make the improvement without the petition of property owners prescribed by section 98 of the city charter of 1893 (Sess.Laws 1893, p. 842), assessed the abutting property with the cost of the improvement, and had a statement thereof entered in the docket of city liens. Warrants having been thereafter issued, directing the collection by levy and sale of the property involved, this suit was instituted to restrain proceedings thereunder, and to declare the assessments void. A general demurrer to the complaint having been overruled, the defendants answered, alleging a ratification of the acts of the common council in making such assessments, by virtue of the provisions of section 156 of the charter of the city of Portland, as adopted by the legislative assembly October, 1898 (Sess.Laws 1898, p. 163) thereby barring the further prosecution of the suit. A decree having been rendered in accordance with the prayer of the complaint, the defendants appeal. It is urged in their behalf that this section of the charter of 1898, ex proprio vigore cures, ratifies, and confirms the assessments complained of, and therefore renders the absence of the petition of no avail to the plaintiffs. If they are right, the question could as well be determined on the demurrer as upon the answer, as the proceedings must have been held validated on demurrer with respect to the attending infirmity, which it is admitted would otherwise render the assessment void, and consequently no suit would lie to nullify them. Tersely stated, so far as the section has a bearing here, it provides that if, upon the completion of any street improvement, etc., when the cost thereof is declared by the common council to be a charge upon the adjacent property, any assessment or assessments levied to defray the cost thereof are found or adjudged to be invalid because of defects, jurisdictional or otherwise, occurring in any stage of the proceedings, the city is empowered to bring actions against the owner or owners of abutting property upon which the cost of such improvement, etc., might or could be charged and imposed under the provisions of the act, and recover the cost of such improvement, etc., properly chargeable thereunder to the several parcels of land involved. This has relation to assessments made under the charter of 1898. A similar provision is made in relation to assessments levied under prior charters, except that the amount recoverable is the proportion of the cost theretofore charged to the several parcels of land involved. There is here no validation of the assessments as made by the common council, so that the same may be enforced in the manner pointed out by the charter, notwithstanding any irregularity attending their consummation; but in the section under consideration the purpose is patent to treat as effective the finding or adjudication of invalidity, and to provide an entirely new remedy, in which the defects attending the assessment may be disregarded. It would not be competent for the legislature to validate such an assessment, notwithstanding an adjudication of a court declaring it a nullity, and thus permit it to be enforced in the manner pointed out by the charter, through the issuance of a warrant and levy and sale of the property thereunder. A statute which operates to annul or set aside the final judgment of a court of competent jurisdiction, and to disturb or defeat rights thus vested, is inoperative and void. By reason of the distribution of powers under the constitution, assigning to the legislature and the judiciary each its separate and distinct functions, one department is not permitted to trench upon the functions and powers of the other. As Chief Justice Bigelow observed in Denny v. Mattoon, 2 Allen, 361, 378, 79 Am.Dec. 784: "It is the exclusive province of courts of justice to apply established principles by rendering judgments and executing them by suitable process. The legislature have no power to interfere with this jurisdiction in such manner as to change the decision of cases pending before courts, or to impair or set aside their judgments, or to take cases out of the settled course of judicial proceeding. It is on this principle that it has been held that the legislature have no power to grant a new trial or direct a rehearing of a cause which has been judicially settled. *** A fortiori, an act of the legislature cannot set aside or annul final judgments or decrees. This is the highest exercise of judicial authority." But we need not pursue this special subject further, as the law was so declared by this court in Nottage v. City of Portland, 35 Or. 539, 556, 58 P. 883, 76 Am.St.Rep. 513, and the section under discussion held not to be obnoxious to the rule. Statutes relating to the validation and curing of assessments and tax proceedings have become quite common, and the modes adopted for effectuating the purpose are as diverse, almost, as the statutes themselves, ...