Curtis v. Tillamook City

BURNETT, J. 1, 2. The first contention urged by the plaintiffs is that the city exhausted its power over the property by the proceedings under the first assessment. It is agreed that the claim of the city for the expense in making the improvement has never been paid by anyone. It is stated that when the property was offered for sale the mayor of the city, although not authorized to do so by any municipal law then in existence, attended and bid for the property as such officer the amount of the assessment and it was struck off to him. In support of the doctrine that a sale of the property exhausts the city’s power, there are cited: Dowell v. Portland, 13 Or. 248 (10 Pac. 308), Gaston v. Portland, 48 Or. 82 (84 Pac. 1040), Evans v. Meridian Inv. & Trust Co., 84 Or. 246 (163 Pac. 1165), and West v. Scott-McClure Land Co., 84 Or. 296 (164 Pac. 554). In all those instances the city realized its de — 446 — maud in full by the questioned sale. The amount of its assessment was paid in money which actually went into its treasury and it was properly held that this ended the city’s power. Thenceforward it had no demand upon the property whatever, and to reassess and sell again with a view of making good for the purchaser the title it had attempted to sequester would be tantamount to taking the property of one individual and giving it to another. The reason of the rule thus announced fails in the present juncture for the charge for laying the sidewalk remains unpaid. The treasury of the city has- never been, enriched to the value of a farthing by any of its attempts thus far to collect the actual expense of putting in the walk. Even in Gaston v. Portland, Mr. Justice Hailey, discussing the question and speaking of a similar provision in the charter of Portland, says, “The city would have the right to reassess and sell under Section 400 as long as its claim was unpaid by sale of the property or otherwise.” We also find this expression of the rule in Hughes v. Portland, 53 Or. 370, 386 (100 Pac. 942): “It is manifest that the power of the council is not exhausted by an abortive attempt to make a reassessment, but that it may continue to exercise the granted powers until it succeeds in charging the property benefited with its just and proportionate share of the cost of making the improvement.” See, also, Phipps v. Medford, 81 Or. 119 (156 Pac. 787, 158 Pac. 666). In such cases equity disregards matters of form and technicalities and bases its action upon the substance of the controversy, so that if in the present litigation it had appeared that the city had actually received the desired money by its former effort to collect its assessment, an additional or subse — 447 — quent attempt to collect for the same thing would he held void, because its power had been spent entirely. But the contrary is made to appear by the statement of the case and the stipulation of facts which furnish a reason for distinguishing the cases mentioned and leave the city free to pursue the property until in very truth its claim is paid. This also constitutes good cause for laying out of the case the action of the mayor, unauthorized as it was, in bidding for the city at the sale the amount of the assessment. Those who would now take advantage of it knew that he had no authority for his action and they cannot claim anything under it now. The plaintiffs argue also that the municipal legislation under which the improvement was inaugurated was void. They reason thus: When the ordinance proposing the amendment to the charter was approved by the mayor the ordinance taking the place of the • general state statute and prescribing a new formula for the exercise by the voters of Tillamook City of the powers mentioned had not yet received the sanction of that officer. On this basis the plaintiffs contend that its subsequent approval could not make it relate back to and affect the ordinance proposing to change the charter, and that the latter measure must have been filed and its final enactment by the people be secured by an observance of the general legislation promulgated from the legislative assembly of the state, in default of which any proceeding undertaken under a charter otherwise adopted would be of no force or effect. The ordinance respecting the exercise of these powers and the amendment to the charter each shortened the times within which certain steps in the respective processes should be taken. We find in Section la of Article IY of the state Constitution this mandatory precept: — 448 — “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. The manner of exercising said powers shall be prescribed by general laws, except that cities and towns may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation.” Section 3480, L. O. L., also lays down the procedure on such subjects: “In all cities and towns which have not or may not provide by ordinance or charter for the manner of exercising the initiative and referendum powers reserved by the Constitution to the people thereof, as to their municipal legislation,” the duties required of certain state officers in state elections shall be performed by designated city officers. “The provisions of this act shall apply in every city and town in all matters concerning the operation of the initiative and referendum in its municipal legislation, on which such city or town has not made or does not make conflicting provisions.” 3, 4. The clear deduction from these excerpts is that it is competent for a city or town council to provide by ordinance the scheme for the exercise of the initiative and referendum in its municipal affairs: State ex rel. v. Kelsey, 66 Or. 70 (133 Pac. 806); Duncan v. Dryer, 71 Or. 548 (143 Pac. 644); State v. Bozorth, 84 Or. 371 (164 Pac. 958); Colby v. Medford, 85 Or. 485 (167 Pac. 487). In the last of these precedents the ordinance on the subject went into effect only the day before the election at which the charter amendment was adopted, yet it was held in substance that — 449 — the change in the organic law of the city was regularly accomplished under the procedure established by the ordinance so lately preceding it. The principle is that the people of the state have conferred npon cities and towns the power to provide for the manner in which the municipal voters will enact or reject local legislation. The power thus provided is not limited to such voters themselves, but is given to the cities and towns which act ordinarily through their councils with the approval of the mayor. Hence we hold that this power of making rules governing this function is properly accomplished by an ordinance controlling in the present instance the adoption of the charter amendment which in turn vitalized the proceedings subsequently attempted under it. On March 25, 1912, the city council of Tillamook adopted Ordinance No. 233, providing a method of exercising the initiative and referendum powers, differing somewhat from that established by the state law already quoted. Four days afterward, on March 29th, the council adopted Ordinance No. 235, changing the manner of procedure in making street improvements, leaving out, for instance, the condition allowing any abutting owner to make the directed improvement at his private expense and without a public assessment. This was approved by the mayor on April 1,1912. The next in order was the adoption by the council on April 2, 1912, of Ordinance No. 240, providing for a special election, submitting to the legal voters said Ordinance No. 235 which proposed to amend the charter as already stated. This submission ordinance and Ordinance 233, prescribing the method of exercising the initiative and referendum powers, were both approved on April 4th. It will be noted that the ordinance proposing an amendment — 450 — to the charter was passed and approved between the passage and approval of Ordinance No. 233. It is claimed by the plaintiffs that the new procedure respecting the initiative and referendum powers could not affect a measure which had passed the council prior to the mayor’s ratification of the new process, and hence that any proceeding for improving a street-based upon the charter amendment so adopted- would be void. It is conceded that if Ordinance No. 233 applied to the transactions, they are regular, because the election for adopting the charter amendment complied with it in all respects. It will be observed that the charter amendment proposed by the council was of no effect whatever until adopted by the people at an election to be held thereafter. Ordinance 240 was designed to gather up all measures awaiting the action of the people and submit them to the electorate at an election to be held under the new procedure, which, as before stated, came into effect simultaneously with that enactment. It was not necessary that the manner of exercising the initiative and referendum should be made the subject of a charter amendment, because the general law shows that an ordinance would be sufficient for that purpose. At least, that is the plain intendment of the statute on that subject. When the question of amending the charter, therefore, was presented to the people, the manner of adopting it was governed by the city law then in force, the terms of which, it is conceded, were regularly observed. It follows that the new charter amendment was regularly adopted and in force when the plaintiffs themselves petitioned for the installation of the improvement. 5. They also assail the procedure of the council in passing upon objections to the reassessment, claiming — 451 — that the record of that body does not show that it heard testimony or passed in detail upon each of the exceptions involving matters of fact. In support of their contention they refer to Hughes v. Portland, 53 Or. 370 (100 Pac. 942), Applegate v. Portland, 53 Or. 552 (99 Pac. 890), and Hochfeld v. Portland, 72 Or. 190 (142 Pac. 824). These were all direct attacks upon the proceedings of the municipal council by means of writs of review. In Hughes v. Portland, Mr. Justice Robert S. Bean, in summarizing the principles governing cases relating to municipal assessments, says, among other things: “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.” That precept was held not to be applicable in that case because the proceeding was a writ of review constituting a direct attack on the doings of the municipality. It does govern, however, in the present case, it being a collateral attack upon the proceedings in question. 6. Considerable stress is laid upon the fact, averred,, by the plaintiffs, that they had improved the street in front of their holdings only the year before, by graveling the same at a grade then in force by order of the council. It is admitted that afterwards and before they petitioned to have the walk laid down, the city changed the grade. It thus appears that their petition to have a walk laid upon the established grade must be held to refer to the new grade. They complain that this is lower than the former grade upon — 452 — which the gravel in the middle of the street was laid, varying from nothing to two feet, with the result that where it is lower than the level of the street the winter rains bring mud upon the walk, so as to render it disagreeable to travel there. Hence they challenge the benefit alleged to have accrued to their property on account of the installation of the improvement. "Whether there is actual utility in the sidewalk in greater or less degree is not a judicial question in the absence of fraud in its establishment. It is referable to the legislative function of the council, with which we have nothing to do. "We cannot give heed to that' objection. The place to urge it was before the council itself. The amended charter of the city is almost identical on this subject with the charters of Portland, Medford and other cities giving the power to reassess until the property is finally charged with its just proportion of the expense. The language of the opinion in Hughes v. Portland here set down gives a sound reason for the validity of such a charter: “The general rule, that all tax proceedings shall he construed in favor of the taxpayer, often results in permitting him to profit by the mere nonobservance of technical and unimportant matters, and thus obtain the benefit of an improvement to his property while contributing nothing to its payment, to the loss of either the contractor or municipality, or both. It was to cover these defects and compel property owners to pay their due proportion of the cost of improving their property that the reassessment provision was inserted in the charter, and it should be so construed as to effectuate the purpose intended. It plainly authorizes an assessment or reassessment of property, benefited by a public improvement, as often as may be necessary to compel it to bear its just proportion of the cost of such improvement. The intention of the — 453 — charter is that no technical defects in the proceedings for the improvement of a street which has, in fact, been improved, to the benefit of adjoining property, shall prevent or stand in the way of the benefited property paying its just portion of the costs thereof.” The substantial equity of the proceedings before us is that the plaintiffs themselves petitioned the council to lay down the walk in front of their premises, on what they knew was a new grade, because the council had established it before they filed their petition, and under what they knew was the actual will of the people respecting the amendment to the charter, expressed by a large majority of the voters; and now they complain because the result is not so desirable as they could wish. The objections they urge are not valid from a judicial point of view. They have the improvement they asked for, and the city is entitled to pursue them until there is paid into its treasury either the amount of money, necessary to pay their ratable proportion of the expense, or the cash proceeds of an actual sale of the property assessed. The decree of the Circuit Court is affirmed. Affirmed. McBride, C. J., Benson and Harris, JJ., concur. Denied April 23, 1918.