Or. & Cal. R. R. v. City of Portland

Opinion by Mr. Justice Moore. The streets of the city having been dedicated by the proprietor to the public, the state, by its legislative assembly, may determine the necessity for, and character of, any improvement thereto, and what property will be benefited thereby; and whatever power the legislature possesses over the streets of a city it may delegate to corporate authorities to be exercised in the mode and to the extent prescribed in the act conferring such power. This delegation of power invests the municipal corporation with all the discretion the legislature possessed, and hence it follows that the common council, as agent of the corporation, is clothed with exclusive discretion in determining the necessity for, and character of, all street improvements, and what property will be benefited thereby, and the amount of benefits conferred. These are questions of policy with which the legislature and its — 236 — creature, the municipal corporation, deals, and the courts have no right to interfere except in case of fraud or oppression, or some wrong constituting a plain abuse of such discretion: Elliott on Roads and Streets, 375; Cooley on Taxation, 661. It is impossible for a council to fix with mathematical accuracy the amount of benefits that will inure to property in consequence of a local improvement, but if it appear that it has exercised an honest discretion in determining this question of policy, however much it may have erred in judgment, the remedy is at the polls in choosing a new council, and not by reviewing its proceedings in the courts. If the courts were invested with authority to review these questions of policy, but few assessments could ever be collected without an action, and the adjudication of purely legislative questions would be substituted for the discretion of a city council. The only recognized exceptions to this rule are to be found in those cases in which, under pretense of apportionment, a work of general benefit has been treated as one of merely local consequence, and the cost imposed on some local community in disregard of the general rules which control legislation in matters of taxation: Cooley on Taxation, 450. The presumption is that the council has done its duty, but this presumption may be overcome by facts showing that the rule prescribed for the apportionment, or the assessment made under it, is so grossly and palpably unjust and oppressive as to give demonstration that the proper authority had never determined the case on the principle of taxation: Cooley on Taxation, 662; Elliott on Roads and Streets, 410. 1. Section 5, article VI., of the charter of East Portland (Session Laws, 1885, page 316,) under which the assessment was made, provides that “The council may proceed to ascertain and determine the probable cost of making such improvement, and assess upon each lot or — 237 — part thereof liable therefor, its proportionate share of such cost, and if the council shall adjudge that any such lot or part of lot would not be benefited by the improvement in the full sum of the cost of making the same upon the half of the street abutting upon such lot or part of lot, the council shall assess upon such lot or part of lot, as its proportionate share thereof, such sum only as it shall find the lot to be benefited by such improvement.” And section 18 of the same article provides that “ Each lot or part thereof, within the limits of a proposed street improvement, shall be liable for the full cost of making the same upon the half of the street in front of and abutting upon it, and also a proportionate share of the cost of improving the intersection of two of the streets hounding the block in which said lot ©r part thereof is situated, unless the council shall have determined that such lot or part thereof will not be benefited by such “improvement in the full sum of such cost, in which case such lot or part thereof shall be liable for so much of said cost only as the council shall have found the same to be benefited thereby; and the further cost of making said improvement in excess of the benefits so found shall be paid from the general fund of the city.” These sections of the charter clearly provide that the measure of the assessment is limited to the amount of benefits derived, and invest the council with a discretion in determining that amount; and so long as this discretion is not abused, the courts are powerless to review its action in a collateral proceeding. Thayer, J., in speaking of the discretion of a common council in assessing benefits, said: “It exercises such authority as agent of the state, and for the public good; and so long as it keeps within the scope of its power the courts have no control over it, nor jurisdiction in a collateral proceeding to question its acts. If it were to assess property for the — 238 — cost of constructing a sewer, so laid as to render it physically impossible to benefit the property, as in the case of Hanscom v. City of Omaha, 11 Neb. 37, 7 N. W. 739, it would exceed its authority, and it would be the duty of the courts to interfere, and prevent the wrong from working injury; but where the property is directly benefited by the prosecution of such an enterprise,'and the common council has assessed what it deems a proportionate share of the cost upon the owner thereof, the courts are not authorized to institute an inquiry in order to ascertain whether or not the assessment exceeds the benefits”: Paulson v. Portland, 16 Or. 450, 1 L. R. A. 673, 19 Pac. 450. This is practically holding that if property had received any benefit from a local improvement, courts would not measure the amount, but if it were so situated' that it could not possibly receive any benefit therefrom, they would interfere to prevent the wrong. 2. The referee who took the testimony found that the property was so situated that it had received no benefit from the improvement, and the court gave this finding its unqualified approval in the following expressive language: “The evidence shows that these elevated roadways led from Second Street to the river, where there is no wharf, warehouse, ferry, or landing, or other improvement; that it has not been traveled or used as a thoroughfare, or, in fact, for any purpose except for the storage of iron and materials; that there is no likelihood that it will ever be used as a traveled street; that it has not served any other cognate purpose; that it is an actual detriment to the property of the plaintiffs for the purpose for which it was purchased, to wit: yard and depot purposes. It appears also in the ninth and tenth findings of fact of the referee’s report that the city built these elevated roadways beyond the west end of the streets over private property, ninety-five feet from the west end — 239 — of G- Street, and one hundred and thirty-nine feet from the west end of H Street, and attempted to assess the costs upon the plaintiff’s property. The alleged improvements would appear to be a foolish and wholly uncalled for undertaking, which served neither the public nor the property holders in this instance; and the attempt to charge the property of the plaintiffs with the costs thereof is, to use the words of a famous jurist in a similar instance, ‘ so plainly, palpably, rankly, and ruinously unjust that it must be pronounced no proper or lawful mode of taxation, but an injustice so gross as to be void against the rights of property as protected by a bill of rights.’ ” The court and referee, from their knowledge of the premises, and of the character of the improvement, were well qualified to make these findings, which a careful examination of the record shows were fully warranted by the evidence. “The court,” says Judge Elliott, “will interfere with reluctance, and only in clear cases, but they will not abdicate all power of review and supervision. They will not substitute their judgment for that of the local officer^, but they will not permit those officers to so abuse their discretion as to do great, injustice to the citizen”: Elliott on Roads and Streets, 411. “We have no doubt,” said the court in Allen v. Drew, 44 Vt. 174, “that a local assessment may so far transcend the limits of equality and reason that its exaction would cease to be a tax, or contribution to a common burden, and become extortion and confiscation. In that case it would be the duty of the court to protect the citizen from robbery under color of a better name.” The court having found that there was no necessity for the improvement; that the elevated roadway as built had not been, and probably never would be, used; that the improvements were of no benefit but an actual damage to plaintiffs’ property, and these conclusions being amply supported by — 240 — the evidence, we feel bound thereby. The record shows that these roadways are from fifteen to thirty feet above the surface of plaintiffs’ property, extending from Second Street on G and H Streets into the Willamette River, a distance of about three blocks, and can only be approached from Second Street; that they do not connect with any wharf, bridge, ferry, or landing, and, as the court substantially finds, stand out in the river as monuments of folly; that, though they have been built about two years in a populous city, teeming with life and business energy, they have only been used in a few instances by teamsters hauling away some iron pipes which had been landed thereon from the river. There could not have been much, if any, public necessity for these structures, if their actual use is to be taken as an indication of their utility. They have not been used by the public nor by the plaintiffs, and, as the court finds, probably never will be, and yet it is sought to collect the cost oí their construction from the plaintiffs upon the theory oí benefits concerned. Courts rightfully hesitate to review the discretion of a city council, and consider it a delicate question, and yet there are cases in which the exercise of the power of assessment becomes such a flagrant abuse that they must interfere to prevent the confiscation of property. In this case it clearly appears that the property of the plaintiffs was in no way benefited by the alleged improvement, and hence there was no foundation for the exercise of discretion on the part of the council in the assessment of such property for its cost, or any part thereof. Under such circumstances the enforcement of the assessment would be “taking property without due process of law,” and the decree must therefore be flffirmp.il. Affirmed.