Phipps v. Medford

Mr. Justice Burnett delivered the opinion of the court. 1. It is admitted that by the charter of the City of Medford, enacted by the legislative assembly of the state February 7, 1905, the city is empowered to construct all necessary sewers of sufficient capacity to produce a complete system of drainage; to cause the expense thereof to be visited upon the property directly benefited by and adjacent to the same; to declare by ordinance the manner of carrying said assessment into full effect; and that the charter on that subject has this provision: “The council shall provide by ordinance that the owners of said adjacent property shall be served by notice by the city recorder at least ten days before the beginning of the construction of said sewer, drain or ditch, calling upon such property owners as are adjacent thereto and benefited thereby to appear before said council and show cause if any, why said property should not be assessed for the construction of said sewer, drain or ditch, and in the event that the said or any property owner or owners shall see fit to protest against the construction of said sewer, drain or ditch, the said council shall at such time as it may appoint, consider said protest,” etc. Without giving the notice prescribéd in the excerpt just quoted, the city actually made the improvement in — 123 — question in 1910 and 1911. The defendant avows that the sewer had been constructed and was in actual use and operation for nearly three years before the ordinance now under consideration was adopted to enforce a tax for the payment of the expense thereof. The charter, however, contains this provision, enacted by the legal voters of the city under the initiative process: “Sec. 132a. Whenever heretofore or hereafter the council has caused, or may cause, any street or alley to be improved, or has caused any sewer or water-main to be laid and has, or may hereafter assess or attempt to assess upon the property adjacent thereto or benefited thereby the cost of such improvement, and said assessment by reason of any failure to give any requisite notice or by reason of any other defect in the proceedings leading up to the making of such improvement or the levying of such assessment shall be declared to be void by any court, or if the council shall be of the opinion that said assessment is illegal or doubtful by reason of any such omission or defect, said council may cause the cost of said improvement to be reassessed against the property adjacent to said improvement or benefited thereby, in the following manner: The council shall declare by resolution its intention to make such reassessment, which resolution shall briefly describe the improvement, and shall declare the intention of the council to assess the cost thereof upon the property adjacent to said improvement, or benefited thereby, describing in said resolution each parcel of property which it intends so to reassess and the amount it proposes to assess against each parcel. Said resolution shall fix the time and place for holding a meeting of the council at which all protests against reassessing the cost of said improvement against adjacent property, or property benefited thereby, shall be heard. Said resolution shall be published three times in a newspaper published and of general circulation in said city, and shall be posted in five public places in said city, at least ten days before the date of said meeting.” — 124 — The city recites in detail in its answer all its proceedings under Section 132a, and the record shows a sufficient compliance with the same. The decree pleaded as an estoppel by the plaintiffs does not refer to the last assessment, but prevents the enforcement of one made indeed after the sewer had been completed but before the one now involved; it being the fact as shown by the record that two assessments had been attempted, both after the accomplishment of the work. The crucial question of the case is whether, in face of the provision for previous notice found in the legislative charter, the city, by virtue of the initiative amendment called Section 132a, could lawfully levy upon realty to pay for a sewer constructed as this one was without having given previous notice to the property holders. It is a conceded fact that the sewer actually has been constructed by the city. It would have been permissible in the first place to provide by charter that the city could do this without notice to anybody, and that, it having been completed, the municipal authorities could call upon the adjacent property holders ratably to meet the expense, always provided that at some stage in the proceedings the taxpayer should have the right and opportunity to be heard before the exaction was visited upon him whereby he might be deprived of his estate. It is within the legislative power by subsequent enactment to dispense with or obviate any previous provision which might have been omitted originally in such proceedings, and snch is the rule laid down in Thomas v. Portland, 40 Or. 50 (66 Pac. 439); Duniway v. Portland, 47 Or. 103 (81 Pac. 945); Hughes v. Portland, 53 Or. 370 (100 Pac. 942); Mills v. Charleton, 29 Wis. 400 (9 Am. Rep. 578); Schintgen v. La Crosse, 117 Wis. 158 (94 N. W. 84); Smith v. Detroit, — 125 — 120 Mich. 572 (79 N. W. 808). This the city has done by the initiative charter amendment. Such legislation is designed to compel payment for improvements by real estate which is actually and equitably benefited thereby. It is referable to the taxing power of government, which is an attribute of sovereignty. The municipality, endowed with that function, is entitled to' pursue its object with the pertinacity of a nemesis until it attains its purpose regardless of objections which do not measure up to the standard of equity and good conscience. This power is attended by and is subject to the constant condition that at some point in their effort to lay a tax upon property the owner thereof must have an opportunity to be heard, so that his holding shall not be taken from him nor burdened without due process of law. All these terms are fulfilled by the initiative amendment to the charter. 2. Some fault is found with the construction of the sewer whereby it is not fully efficient. In the absence of any allegation of fraud or criminality on the part of the officials representing the city, this is not a subject open to our inquiry. It is an exercise of municipal power referable to the legislative discretion of the city council with which we cannot interfere. The plaintiffs cite authorities like Van Sant v. Portland, 6 Or. 399, Wilson v. Salem, 24 Or. 504 (34 Pac. 9, 691), Smith v. Portland, 25 Or. 302 (35 Pac. 665), Strout v. Portland, 26 Or. 299 (38 Pac. 126), and similar precedents, to establish the contention that in making public improvements which lead to an enforcement of a tax on adjacent property the charter provisions must be strictly construed. These would be applicable if an attack had been made directly upon an assessment based immediately upon the original proceeding or upon the first assessment occurring thereafter. It must be remem — 126 — bered, however, that this is an independent proceeding begun anew under the initiative Section 132a, and has no further dependence upon the former transactions than what is found in the actual fact that the improvement really has been accomplished. The case is not like Murray v. La Grande, 76 Or. 598 (149 Pac. 1019). There the charter provided that the council should give notice to the property holder of its intention to levy the assessment and of a description of the improvement proposed, together with the boundaries of the district to be affected and the estimated cost of the project designating the time when the freeholder might be heard on all these matters. The charter treated entirely of prospective improvements, giving the land owner an opportunity to contest not only the kind, but also the cost and the feasibility of the proposed betterment. The Medford Charter under consideration is not limited to prospective undertakings, but gives the council power to act on past improvements actually accomplished. Here, according to the city’s fundamental law, the council has perpetual power to pursue the adjacent property until it succeeds in framing a regular proceeding complying with the initiative charter to compel payment of the actual expense incurred by the city for the undertaking already completed. 3, 4. The decree of the court pleaded as an estoppel affects only the assessment there involved. It cannot prevent any future levy regularly devised under the charter as amended. On the basis that the initiative charter amendment was a lawful exercise of the power conferred npon the voters of .every city and town to amend their charters under Article XI, Section 2, of the Constitution, the proceedings of the council under the last assessment, being the one here in question, appear to be regular. To the extent that the legislative — 127 — charter is inconsistent with the change wrought by the legal voters in that instrument, the latter expression of the legislative power vested in them must prevail. On petition of respondents for rehearing. Denied. Mr. W. E. Phipps, for the petition. Mr. B. B. McCabe, contra. Department 1. The decree of the Circuit Court is reversed and the bill dismissed. Reversed. Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Benson concur.