Hancock Land Co. v. Portland

Opinion by Mr. Chief Justice Moore. 1. At the trial the plaintiff’s counsel offered in evidence an affidavit of posting the notices of the pro [88] posed improvement, whereupon the court, referring to such written sworn, statement, remarked: “As I understand, counsel for the defense admits this proof of posting originally filed does not meet the requirements of the law?” The defendant’s counsel replied: “Yes; we will admit that. “The Court: And that if the proceedings were based only on this original proof, that there is disclosed a lack of jurisdiction? “Defendant’s Counsel: Yes; if they were based on that alone, it would disclose a lack of jurisdiction.” Neither the original affidavit of the posting of the notices nor a copy thereof has been brought to this court. It will be assumed, from the admission of the defendant’s counsel, that the proof submitted was inadequate. It is admitted by defendant’s counsel that the posting of notices of the street improvement was a jurisdictional prerequisite, but contended that proof thereof by filing the city engineer’s affidavit was not essential to an exercise of the power of the common council to hear and determine that matter. They maintain that, notwithstanding the defective affidavit of such posting which was made, filed and received in evidence, the trial court should have disregarded such proof and invoked the presumption that official duty had been regularly performed, but in failing to do so and in granting the relief prayed for in the complaint errors were committed. 2. Section 404 of the municipal law reads: “In any action, suit or proceeding in any court concerning any assessment of property or levy of taxes authorized by this charter, or the collection of such tax or proceeding consequent thereon, such assessment, levy, consequent proceeding, and all proceedings con [89] nected therewith, shall be presumed to be regular and to have been duly done or taken until the contrary is shown.” Rule 119 of Lawson’s Law of Presumptive Evidence is as follows: “A presumption cannot contradict facts or overcome facts proved.” A text-writer in discussing this subject observes: “There is some confusion in the cases upon the question whether a presumption is evidence and has probative force. Since the function of a presumption logically considered is merely to impose the burden of going forward with the evidence upon the party against whom it operates, when contrary evidence is adduced the presumption disappears, although the facts upon which it rested still remain as evidence in the case”: 9 Ency. Ev. 885. In the absence of any other proof, a presumption is usually indulged as substantive evidence to substantiate or refute a material fact. The jury, however, are not bound to find in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number, or against a presumption or other evidence satisfying their minds: Section 868, subd. 2, L. O. L. In the case at bar the trial court, for want of any other evidence on the subject, would undoubtedly have been authorized to indulge the presumption now invoked, and, having done so, to deduce therefrom the conclusion that the notices of the street improvement had been regularly posted, and that the engineer had filed with the auditor an affidavit as required by Section 376 of the charter, stating in the written sworn declaration the date when and the places where the same had been posted, but that the affidavit had been mislaid or lost. In the present [90] instance the affidavit was produced and received in evidence, thereby overcoming the presumption that official duty had been regularly performed and imposing upon the defendant the duty of introducing in evidence another affidavit, regular in form, showing the posting of the notices as required, or to substantiate the loss of such proof in the manner prescribed by law. The presumption can be relied upon “until the contrary is shown”: Section 404, City Charter. The contrary having been established as thus stated, no foundation remained upon which to predicate the presumption. Thus in Hughes v. City of Portland, 53 Or. 370, 384 (100 Pac. 942, 948), Mr. Justice Bean, discussing this subject, says: “In a suit to enjoin the enforcement of a reassessment, it will, when the record of the council is silent, be presumed that the objections of the property owners were considered by the council and found without merit, when it subsequently passes the reassessment ordinance, as though such objections were not in the way.” To the same effect see, also, Trummer v. Konrad, 32 Or. 54, 56 (51 Pac. 447); Duniway v. Portland, 47 Or. 103, 117 (81 Pac. 945); Goodnough Merc. Co. v. Galloway, 48 Or. 239, 243 (84 Pac. 1049). The decree is therefore affirmed. Affirmed. Opinion Corrected and Rehearing Denied. Mr. Justice Benson, Mr. Justice McBride and Mb. Justice Bean concur.