Strowbridge v. City of Portland

By the Court, Boise, J.: This is a proceeding by injunction to restrain the defendants in the collection of certain assessments for the construction of a sewer in Yamhill street, in the city of Portland, and to declare such assessments illegal and void. The petition alleges in substance that on the twenty-seventh day of June, 1878, the common council of the city of Portland passed a resolution to the effect that notice be given that the council propose to construct a sewer in Yamhill street within specified points and of specified dimensions; “the expense thereof to be assessed upon the property benefited.” That on the sixth day of July following, a notice of the proposed sewer improvement was published in the Daily Standard newspaper, daily, from ten days from said date. This notice concluded as follows: “The expense thereof (of the sewer construction) to be assessed upon the property benefited thereby. It is hereby understood that the — 80 — property benefited will include all lots or parts of lots lying within one hundred feet of Yamhill street on either side thereof, and between Front street and the termination thereof.” That within ten days from the publication of this notice a written remonstrance against the proposed improvement was made and filed by the owners of two thirds in value, but not quite two thirds in area, of all the property adjacent to that part of Yamhill street described in the notice. That on the twenty-second day of August, 1878, an ordinance, numbered 2246, was passed, “providing for the time and manner of improving Yamhill street from the Willamette river to a point one hundred feet west of the west line of Tenth street by putting in a sewer at the expense of the property benefited.” This ordinance specified particularly the character of the improvement to be made; that it should be done to the satisfaction of the committee on streets and public property and the superintendent of streets. The ordinance authorized such committee to advertise for and receive proposals for the work, and to enter into a contract with the lowest responsible bidder or bidders therefor. It farther provided that the expense of the sewer should be assessed to the property directly benefited thereby. The petition further alleged in effect that on the fourteenth day of September, 1878, a notice to contractors for sealed proposals for the construction of this sewer was published in the Daily Bee, as provided in the ordinance, and thereafter the committee entered into a contract for such construction, and that such sewer was constructed prior to December 1, 1878. That on the fourth day of December the council by a resolution appointed Burrage, Holmes, and Norris to assess the cost of the construction of the sewer, as provided by ordinance 2246, to the several lots and parts of lots benefited thereby. That these commissioners found the probable cost of the sewer to be five thousand nine hundred and ninety-nine — 81 — dollars and fifty-four cents; that the property benefited consisted of all lots and parts of lots lying within one hundred feet of Yamhill street and between the Willamette river and a point one hundred feet west of the west line of Tenth street; and that the commissioners made report that they had “ apportioned the estimated cost of said sewer to the several lots and parts of lots and assessed the benefits to be derived therefrom as follows(Here follows a table showing the number of each block, the number of each lot or part of lot, the name of the owner and the benefits assessed.) It is further alleged that an ordinance was passed, declaring the probable cost of the sewer, and assessing the same to the property benefited, according to the report of the commissioners, and directing an entry of the assessment on-the docket of city liens, and that notice of this assessment was duly given. The petitioners allege as grounds of complaint that the probable cost of the sewer was not ascertained and determined, or apportionment or an assessment thereof made to the different lots by ordinance prior to the construction of the sewer; that the council did not defend the taxing district of the sewer; that the commissioners did not apportion the cost of the sewer to the property directly benefited in the rates of benefits accruing; that they adopted the mode of apportioning according to the proportion which the cash value of the lots bore to each other, making allowance for the distance of the lots from the sewer; that the lots are of unequal value in proportion to their area; that Yamhill street is the property of the city of Portland, and that a proportionate cost of the sewer should have been assessed to such street against the city; that certain lots have not been assessed as the names of the owners. It was argued by counsel that the powers exercised by the commissioners in apportioning the benefits and cost of the improvement could only be exercised by the council. The petitioners admit that their lots are within one hundred feet of Yamhill street; that they lie along the line of the sewer, and are directly benefited thereby. — 82 — The defendants demur to the petition upon the grounds that the court has not jurisdiction, and that the petition does not state facts entitling the petitioners to the relief prayed for. It is urged that the proceedings establishing this sewer, so far as the same seek to impose a tax on the property of the petitioners, are void, and that the collection of the tax can not be enforced, and that the tax is illegal and not a just lien on the property of the petitioners. Petitioners claim that in order to legally establish the right by the city to construct a sewer, the city council should first declare by ordinance that the sewer is necessary, and describe its location and define the district that is to be benefited and charged with the cost of its construction. The decision of these questions involves the construction of section 106 of the charter of the city of Portland, which is as follows: “The council shall have power to lay.down all necessary sewers and drains, and cause the same to be assessed on the property directly benefited by such drain or sewer, but the mode of apportioning estimated costs of improvements of streets prescribed in sections 97 and 98 of chapter 7 of this act shall not apply to the construction of sewers or drains; and when the council shall direct the same to be assessed on the property directly benefited, such expense shall in every other aspect be assessed and collected in the same manner as is provided in case of street improvements; provided, that-the council may, at its discretion, appoint three disinterested persons to estimate and determine the proportionate share of the cost of such sewer or drain to be assessed to the several owners of the property benefited thereby.” This is the only section of the charter providing for or regulating the construction of sewers. It provides that sections 97 and 98 of the charter, providing what lots shall be taxed with street improvements, and in what proportion the assessment shall be made on each, shall not apply to the construction of drains and sewers. These sections provide that the assessment for street improvements shall be proportioned to superficial area of the adjoining lots, so — 83 — that the provision in section 106, that these sections shall not apply to the construction of sewers, plainly indicated that a different rule was intended to be established in apportioning the cost of sewers to those directly benefited. The proviso at the end of section 106 directs the manner in which the cost of construction of sewers shall be ascertained and apportioned. The provision in section 106, that when the council shall direct the “expense of construction to be assessed on the property directly benefited, such expense shall in every other respect be assessed and collected in the same manner as is provided in case of street improvements,” simply adopts the means of enforcing against those directly benefited the collection of the tax apportioned to them by the estimate made by the disinterested persons appointed to make the apportionment in pursuance of the provisions of section 106. The mode of inferring these charges on the property benefited is provided for in sections 85, 86, and 87. The elaborate manner pointed out in the charter for acquiring the authority to construct street improvements, does not apply to the construction of sewers. The latter may be laid when in the judgment of the city council the same shall be necessary. They may be made without previous notice, the council alone being the judge of their necessity. Sewers are required as a part of the sanitary regulations of the city, to prevent the development of local disorders, and generally to preserve the public health. It may, and often does, happen in populous towns, that active measures have to be taken by city authorities in sanitary measures, and it would not be wise to leave so important a power, often requiring the most prompt exercise, to the tardy mode provided for inaugurating street improvements. Section 106 alone provides for the manner of making drains and sewers. The only question is, Has the city council properly exercised its powers under such section ? It is claimed by the counsel for appellant that the council should have first declared by ordinance that a sewer was necessary. Such an ordinance was not essential to give them power to construct the sewer. The charter does not — 84 — require such an ordinance as preliminary to their proceeding to construct the sewer. No public good would be accomplished by such declaration. When they passed the resolution to construct the sewer, and located its termini, that action showed that in the opinion of the council it was necessary. It is also urged by the appellant that the resolution did not fix the lateral bounds of the district to be charged with the cost of construction. From what has been said, it follows that-the council had power to proceed and lay down the sewer, and then ascertain, by the method provided in the proviso of section 106, what property was directly benefited. So there is nothing in this objection. The proceedings of the council, as set out in the complaint, show that the same are a substantial compliance with the provisions of the charter providing for the construction of sewers. The view we take of section 106 of the charter renders it unnecessary to notice any other points which were discussed in the argument. The decree of the circuit court will be affirmed.