Gardner v. Portland

BURNETT, J. 1. Section 400 of the Charter of Portland, approved January 23, 1903, retained as an ordinance under Section 284 of the Initiative Charter of the city revised August 19, 1914, reads in part as follows: “Whenever an assessment for the opening, altering, or grading of any street, or construction, reconstruction, or repair of any sewer, or for any local improvement which has been or may hereafter be made by the city, has been or shall hereafter be set aside, annulled, declared or rendered void, or its enforcement refused by any court of this state, or any federal court having jurisdiction therein, whether directly or by virtue of any decision of such court, or when the council shall be in doubt as to the validity of such assessment, or any part thereof, the council may, by ordinance, make a new assessment or reassessment upon the lots, blocks, or parcels of land which have been benefited by such improvement to the respective and proportionate shares [383] of the full value thereof. Such reassessment shall be based upon the special and peculiar benefit of such improvement to the respective parcels of land assessed, at the time of its original making, but shall not exceed the amount of such original assessment. * * Such reassessment shall be made in an equitable manner, as nearly as may be in accordance with the law in force at the time it is made; but the council may adopt a different plan of apportionment of benefits when, in its judgment, essential to secure an equitable assessment. The proceedings required by this charter to be had prior to the making of the original assessment shall not be required to be taken or had within the intent of this section. Such reassessment shall be made and shall become a charge upon the property upon which the same is laid, notwithstanding the omission, failure, or neglect of any officer, body, or person to-comply with the provisions of this charter connected with or relating to such improvement and assessment,' and notwithstanding the proceedings of the council, executive board, board of public works, or any officer, contractor, or other person connected with such work, may have been irregular or defective, whether such irregularity be jurisdictional or otherwise # * .” Section 265 of the present Charter of the City of Portland reads: “The council shall have the right, power and authority to determine whether any railroad crossing of any street or highway within the corporate limits of the City of Portland is dangerous, and to provide for the elimination of any grade crossing of any railroad on such street or highway, whenever, in the opinion of the council, it is necessary to eliminate the same.” The contention of the plaintiff that the former decision of the Circuit Court enjoining the collection of the assessment there involved bars the present suit cannot be sustained. All that decree pretended to determine was the validity of that particular assessment. It is [384] manifest that no further steps can be taken by the city to collect the assessment there involved. But that impost is not here in question. What we are called upon to determine is whether the new assessment is valid. An improvement has been actually made. It exists. It has been determined by the council in regular proceedings that it is beneficial to the property assessed. As said by Mr. Justice Wolverton in Duniway v. Portland, 47 Or. 103, 110 (81 Pac. 945): “The remedy is not for a collection of the old assessment, as was that afforded by Section 156 of the old charter, but for a reassessment of benefits derived from the failed improvement, not failed because not made, but failed because of an irregularity in the procedure for impressing the lien for the costs of the benefits, and a collection of such reassessment.” (Citing authorities.) The reassessment system devised by Section 400. would be empty and meaningless if the former decree described in the complaint should be construed absolutely to bar for all time any effort of the city to collect by assessment the expense of a really completed and useful betterment. 2, 3. It is said in substance in the complaint that the improvement was abandoned and that it “would not have been consented to by the property owners adjacent to said street and whose property was to be assessed to pay for said improvement, but sufficient remonstrance would have been made against said improvement as attempted to be made by said city, to defeat the same, under the provisions of the city charter.” What would or would not have been done does not constitute issuable fact and is immaterial to the present inquiry: Churchill v. Meade, 92 Or. 626 (182 Pac. 368). Moreover, the present Charter in Section [385] 284 thereof reserves the right only to “the owners of 60 per centum in extent of the property affected by any assessment for a local improvement except for street opening or sewers to defeat the same by remonstrance.” The allegation noted is also ineffectual for the reason that the plaintiff does not pretend to represent 60 per centum in extent of the property involved. 4, 5. The whole subject of reassessment under charters such as we have before us, is exhaustively treated in the opinion of Mr. Justice McCamant in Wagoner v. La Grande, 89 Or. 192 (172 Pac. 305). The record does not show that the whole amount of the assessment exceeds the amount of the original assessment. On the contrary, by the erection of the viaduct at their own expense by the railroad companies a material saving on the whole assessment was effected. The substance of the situation is that at a less total cost a better and safer improvement has been installed and is in use. Although warned of the matter, the plaintiff made no objection to the acceptance of the improvement as finally established. He does not come into court with clean hands, in that by his failure to object he lured the city on to make the improvement and to accept it m its present form. The equitable principle established by the decisions based on charters and city legislation like that in question is that when the city in good faith, without fraud, installs a really beneficial improvement, it is permissible to collect a fair and valid remuneration from the property benefited thereby. No additional servitude was imposed upon any of the property by the alteration of the grade: Brand v. Multnomah County, 38 Or. 79 (60 Pac. 390, 62 Pac. 209, 84 Am. St. Rep. 772, 50 L. R. A. 389); and in the absence of any showing that the total assessment is greater than [386] the former already set aside, the plaintiff has not disclosed any injustice from which a court of equity will relieve him. The decree of the Circuit Court is reversed and one here entered dismissing the suit. Reversed and Dismissed. Rehearing Denied. McBride, C. J., and Benson and Harris, JJ., concur.