Oregon Real Estate Co. v. Gambell

Mr. Justice Wolverton delivered the opinion. This is a suit to enjoin the collection of a street assessment by levy and sale under a warrant issued by authority of the City of Portland, and to declare the assessment void, which plaintiff avers is a cloud upon its title. On July 21, 1897, the Common Council of the City of Portland passed an ordinance declaring it expedient and necessary to repair the elevated roadway on Grand Avenue from the north line of East Everett Street to a line 137 feet north of East Flanders Street, and directing that the cost of such repair be assessed upon the adjacent or abutting property. When notice was given of the city’s intention to make the repair, the plaintiff filed a remonstrance in opposition thereto, and against the assessment of the cost thereof upon the property involved. Plaintiff was the owner of fractional lot 5, all of lot 6, and the south 37 feet of lot 7, in block 111; lots 5, 6, and 7, and fractional lot 8 in block 110; the south 37 feet of lot 2, and fractional lot 3, block 112; and lots 1, 2, 3, and 4, block 113, — in East Portland, now the City of Portland, which constitutes more than one half of the property adjacent to that portion of the street sought to be repaired; but, notwithstanding, the common council disregarded the remonstrance, proceeded with the repair, and assessed the cost thereof against the plaintiff’s said property. These facts appear by the complaint, and, a demurrer thereto having been sustained, the plaintiff refused to plead further, whereupon a decree was entered dismissing its complaint, with costs, from which this appeal was taken. [63] It is conceded by counsel for tlie defendants that the city was without power to make the repair and assess the cost thereof against the plaintiff’s property in the face of such remonstrance, it being the owner of more than one half of the property affected thereby. The case of Cook v. Portland, 35 Or. 383 (58 Pac. 353), is deemed decisive of the question; but it is urged that section 156 of the city charter, now in force (Laws, 1898, pp. 101,163, § 156), is curative of the defect, and operates to take away or deprive plaintiff of its right to prosecute a suit to nullify the assessment, and that this question may be raised under a general demurrer. We have determined, however (Thomas v. Portland, 40 Or. 56, 66 Pac. 439), that the purpose and operation of such section was not to validate, ex proprio vigore, all assessments for improvements attempted, where the proceeding proved in some form or particular to be irregular or insufficient, measured by the prescribed requisites under the charter, but that it was intended as a new and more efficacious remedy, to be invoked only when the assessment had been found or adjudged to be invalid for some reasons suggested thereby. This being a suit to test the validity of the primary assessment, the provisions of section 156 do not stand in the way of its prosecution to final determination; and hence the demurrer was erroneously sustained, and the complaint should not, therefore, have been dismissed. In justice to the court below, it may be added that this point was made here for the first time, and the demurrer was sustained before the case of Cook v. Portland, 35 Or. 383 (58 Pac. 353), was decided. The decree of the court below will be reversed, the demurrer overruled, and the cause remanded for such further proceedings as may seem appropriate. Reversed.