City of Portland v. Nottingham

Mr. Justice Burnett delivered the opinion of the court. 1. The appeal from the action of the council to the circuit court of Multnomah County was had by virtue of [3] section 401 of an act of the legislative assembly entitled “An act to incorporate the city of Portland, Multnomah County, State of Oregon, and to provide a charter therefor, and to repeal acts and parts of acts in conflict therewith,” approved January 23, 1903, which, so far as applicable to this proceeding, reads as follows: “Any person who has filed objections to such new assessment or reassessment which have not been satisfied by the amendments made by the council may appeal to the circuit court of the State of Oregon for the county of Multnomah from the assessment against any property owned by him, or in which he has an interest. * * Any number of persons may join in such appeal, and the only question to be determined therein shall be the amount of special benefits, equitably to be assessed against the property of each person joining in said appeal. The jury shall view the property assessed, and its verdict shall be a final and conclusive determination of the question. * * The city shall be considered the plaintiff, and such appeal shall be conducted and be heard and determined as far as practicable in the same manner as an action at law.” When considered alone, section 401 of the charter of the municipality affords no appeal from the decision of the circuit court, for that section says “the jury shall view the property assessed, and its verdict shall be a final and conclusive determination of the question”; but it also says that the “appeal shall be conducted and be heard and determined as far as practicable in the same manner as an action at law.” By the provisions of this section the circuit court of Multnomah County with its procedure is utilized as a part of the municipal government of the city of Portland. The jury trial of the issues on such an appeal means a jury trial in its generally accepted signification. It means more than the offhand decision of any twelve men, however accomplished. The judge of that court in such proceeding is more than a mere moderator. The jury trial has, in such cases, all [4] the incidents of the jury trial of any other issue. It must be under the superintendence of the court. The rules of law applicable to the case must be declared by the court, and the action of the jury must be in obedience to those rules. It is in this sense and meaning that the right of trial by jury must be preserved and the requirement that the “appeal shall be conducted and be heard and determined as far as practicable in the same manner as an action at law” must be observed. This includes the power of the court to enforce its authority in declaring the rules of law and requiring the jury to observe them, and it is only when a verdict has been rendered according to such rules that it can be said to be a final and conclusive determination of the question. Hence the circuit court of Multnomah County had authority to set aside the verdict of the jury for any of the reasons prescribed for the procedure of that court. 2. An appeal is not a matter of primary right. It is a privilege, and he who would enjoy that privilege must show some statute conferring it upon him: Portland v. Gaston, 38 Or. 533 (63 Pac. 1051); Sears v. Dunbar, 50 Or. 36 (91 Pac. 145); Union Nat. Bank v. Barth, 179 Ill. 83 (53 N. E. 615.) Prior to the enactment of Chapter 162 of the Laws of 1907, p. 311, there was no appeal from an order granting a new trial of an action at law: Kearney v. Snodgrass, 12 Or. 311 (7 Pac. 309); Beekman v. Hamlin, 23 Or. 313 (31 Pac. 707.) The portion of that chapter relied upon by the appellant here is embodied in Section 547, L. O. L., reading thus: “A judgment or decree may be reviewed as prescribed in this chapter, and not otherwise. An order affecting a substantial right, and which in effect determines the action or^ suit so as to prevent a judgment or decree therein, or a final order affecting a substantial right and made in a proceeding after judgment or decree, or an order setting aside a judgment and granting a new trial, [5] for the purpose of being reviewed, shall be deemed a judgment or decree.” 3. Does this enactment of the legislative assembly of 1907 apply to the proceedings under the charter of the city of Portland under consideration here, so as to allow an appeal from an order of the circuit court granting a new trial in that court? Section 2 of Article XI of our State constitution provides that “corporations may be formed under general laws, but shall not be created by the legislative assembly by special laws. The legislative assembly shall not enact, amend, or repeal any charter or act of incorporation for any municipality, city, or town. The legal voters from every city and town are hereby granted power to enact and amend their municipal charter, subject to the constitutional and criminal laws of the State of Oregon.” This provision of the constitution was adopted by the people at the June election of 1906, and went into effect upon the proclamation of the Governor June 25th of that year. Its effect is to take from the legislative assembly the right to amend the charter of the city of Portland, although enacted by the legislative assembly itself in January, 1903. Further, Section 1 (a.) of Article IV of the constitution provides that “the initiative and referendum powers reserved to the people by this constitution are hereby further reserved to the legal voters of every municipality and district, as to all local, special and municipal legislation, of every character, in or for their respective municipalities and districts.” These constitutional provisions confer ample and exclusive power upon the people of every municipal corporation to regulate their own affairs respecting municipal legislation and procedure. The legislative assembly cannot pass laws to repeal or amend municipal charters, even by implication, respecting such matters. On those subjects the charter of the city of Portland is complete within itself, and is [6] subject only to the constitution and the criminal laws of the State. That charter does not provide for the appeal of any cause like the one under consideration beyond the circuit court of Multnomah County, and hence the appeal should be dismissed. In reaching this conclusion we are not unmindful of the doctrine in Straw v. Harris, 54 Or. 424 (103 Pac. 777), which holds, in effect, that the State may not surrender its sovereignty to municipalities to the extent that it must be deemed to have perpetually lost control of them; but no question of State supremacy over its subordinate municipalities is here involved. The matters in dispute relate purely to the city’s internal affairs over which it has supreme control by virtue of the constitutional amendments above quoted. The appeal is dismissed. Dismissed.