Van Sant v. City of Portland

By the Court, Watson, J.: Section 79 of the charter of the city of Portland, provides that “ no grade or improvement mentioned in section 78, can be undertaken or made without ten days’ notice thereof being first given by publication in some daily newspaper published in the city of Portland.” Section 89 provides that ‘ ‘ a sum of money assessed for the improvement of a street cannot be collected until by order of the council, ten days’ notice thereof is given by the auditor by publication in a daily newspaper] published in the city of Portland; such notice must substantially contain the matters required to be entered in the docket of city liens, concerning such assessment.” The errors assigned in the petition for the writ of review in this case, are that the record attacked in this proceeding does not show that the notice required by the section just quoted was ever given. That such notice was given is essential to the validity of the ordinance, and the assessment cannot be questioned. The city council of Portland in passing the ordinance and levying the assessment under review, was in the exercise of “ a statute authority in derogation of the common law,” which it could only exercise in strict pursuance of the mode prescribed by the statute. Without the notice prescribed by sections 79 and 89 of the charter, the proceeding was -without jurisdiction and was void. Appellants admit the correctness of these principles, and admit that it is a general rule of law that “the jurisdiction of limited and inferior tribunals must be shown affirmatively [400] to confer validity on their acts and will not be presumed,” and they seek to sustain the ordinance and assessment under review, entirely upon the theory that section 139 of the charter of the city of Portland reverses the general rule of law, and imposes upon the party denying the validity of the ordinance and assessment the burden of showing affirmatively that the city council acted without jurisdiction. It is conceded that but for this section of the charter it would be essential to the validity of the ordinance and assessment, that the records should contain legal proof that the requisite notices were published. It thus becomes necessary for us to consider the effect of section 139 of 'the city charter on this proceeding. That section provides that “In any action, suit or proceeding in any court, concerning any assessment of property or levy of taxes, authorized by this act, or the collection of any such tax, or proceeding consequent thereon, such assessment, levy, consequent proceeding and all proceedings connected therewith, shall be presumed to be regular, and duly done or taken, until the contrary is shown, and when any proceeding, matter or thing is by this act committed or left to the judgment of the council, such discretion or judgment, when exercised or declared, is final and cannot be reviewed or called in question elsewhere.” It may well be, doubted whether this question can be so construed as to require the courts to presume the jurisdiction of the city council to pass an ordinance providing for a street improvement, or the levy of an assessment for such improvement upon the property adjoining, even in a collateral proceeding. Without jurisdiction there could be no assessment of property or levy of taxes, authorized by the act. The attempted assessment or levy would not be authorized by the act and would be absolutely void. No question as to its regularity could be raised. We think that the correct construction of the section is that after jurisdiction of the subject-matter and property is acquired, without which there could be no assessment or levy, the subsequent proceedings will be presumed regular and duly done or [401] taken until the contrary is shown. This construction is not inconsistent with the language used, and is in accordance with the established rules of law in regard to such sales. We are further of the opinion that the decision of the court below would have been correct, even if the presumption had been in favor of the jurisdiction of the city council. This proceeding directly attacks the ordinance and assessment. The petition alleges that no notice was given of the proposed improvement or of the assessment. To prove this, respondent caused to be presented to’ the court the record. He could only show the error by the record. The record, when produced, failed to show that notice was given. If the law required him to prove a negative, the want of notice, we think he did so when he caused the record to be produced, and that failed to show that it was given. It follows, from the views herein expressed, that the judgment of the court below ought to be affirmed.