Brown v. Portland

BEAN, J. The first question for consideration is that raised by the plea of the statute of limitations. — 604 — The charter of the City of Portland, as presented by the briefs, provides the power and procedure of the city in making a reassessment. It provides that, whenever an assessment for any local improvement is set aside, annulled-, declared, or rendered void, or its enforcement refused by any court of this state or any federal court having jurisdiction therein, either directly or by virtue of any decision of this court, or when the council shall be in doubt as to the validity of such assessment, the council may by ordinance make a new assessment or reassessment upon the property benefited by such improvement to the extent of their respective and proportionate shares of the full value thereof. The procedure of the council is specified by Section 400, thus: ‘ ‘ The Council shall by resolution declare the district that will be benefited by the improvement for which the reassessment is made and shall direct the Auditor or City Engineer to prepare a preliminary assessment upon the property included therein within a time to be fixed by said resolution. Upon the passage of such resolution the Auditor shall, as soon thereafter as such reassessment is prepared, give notice by ten successive publications in the city official newspaper that such assessment is on file in his office, giving the date of the passage of the resolution directing the making of the same and the time at which the Council will hear and consider objections to said assessment by parties aggrieved thereby, and warning such persons not to depart until such reassessment has been completed.” This section of the charter further requires the auditor to forthwith mail a notice to the owner of each lot. ;It permits the owners of property to file objections in writing to such assessment. The council is required to hear and determine all objections filed. The council may correct or set aside and — 605 — order the remaking of snch assessment, “and shall pass an ordinance approving and confirming such reassessment, as corrected and remade.” Section 400 further provides: “But no proceedings shall be instituted for such reassessment unless within ten years of the passage of the resolution of intention for the making of the original work, improvement or repair.” The position- of the city is that the charter provision, that no proceeding for a reassessment shall be instituted unless within ten years after the passage of the resolution of intention for making the original improvement, is not applicable, because, as claimed on behalf of the city, the reassessment in question “was initiated September 8, 1909, when the council directed the-auditor to prepare a proposed reassessment.” This is upon the theory that the prior reassessment involved in the case of Brown v. Portland, which we will refer to hereafter as the former case, was not held absolutely void or annulled. The judgment in the former case was by mandate directed to be entered in the lower court. This court found in that case, which was also a proceeding for a writ of review, that there was error as alleged, and reversed the judgment of the court below in dismissing the writ. The order entering the mandate provided among other things as follows: “And it is further ordered and adjudged in accordance with said mandate -that defendants give the notice required by charter to appellants-plaintiffs for a hearing of objections appearing in the record and to proceed to the determination of them in accordance with the law and the opinion of the Supreme Court.” Thereupon the council adopted Resolution No. 8383, notice was given, objections made by plaintiffs, and — 606 — hearing had, detailed findings were made by the council, and that tribunal by Ordinance No. 30,287, now in question, ordained that a reassessment of plaintiffs’ property according to the benefits for the cost of the improvement be made and approved, and confirmed the preliminary assessment prepared by the auditor and filed October 18, 1909. Section 3 of the ordinance directs that interest on the several amounts be added and collected at the rate of 6 per cent per annum from the date of the delinquency of the original assessment. Section 4 directs the auditor “to enter the assessment hereinbefore made in the Docket of City Liens and give notice thereof.” The claim of the city is in effect that no new assessment or reassessment was made by the ordinance, but that only an amendment or correction of the reassessment involved in the former action was made. 1,2. It must be conceded that the proceedings which are the subject of inquiry have the general appearance of a reassessment. Were they such in legal effect? A reassessment for an improvement of this nature can be made by virtue of authority conferred by the city charter. The right of levying a reassessment is not inherent in the city. If the power of levying a reassessment is granted, it can be exercised only in the manner prescribed by statute: 2 Page and Jones on Taxation by Assessment, § 958; Judson on Taxation (2 ed.), § 416. Section 400 of the charter provides that “the council may by ordinance make a new assessment or reassessment,” under certain conditions. The authority of the city council to ordain thus does not always depend upon the fact that a court has declared or rendered void a former assessment. Such action may be taken when — 607 — the council is in doubt as to the validity of such assessment. 3. The reason for the proceeding as declared by the resolution was that the Supreme Court in the former case “held void” the prior assessment ordinance, No. 20,478. The fact that the council did not require the auditor again to perform the clerical work of copying or preparing the preliminary assessment would not change the purport of the proceeding. The matter of this street assessment was before this court in the case of Evans v. Meridian Investment Co., 84 Or. 246 (163 Pac. 1165), in which Mr. Chief Justice McBride stated that “it has attained the character of a genuine antique.’’ Referring to the former case at page 249, of 84 Or. (at page 1166 of 163 Pac.), the Chief Justice said: “Thereupon the city endeavored to make another reassessment, but this was resisted and adjudged invalid in Brown v. City of Portland, 73 Or. 302 (144 Pac. 121), and the case sent back with permission to the city again to reassess the property.” This plainly shows how this court understood the result of the former case, and an examination of the ..petition for a rehearing in that case does not disclose that the learned counsel, who were the same as in the present case, took any different view of the judicial determination therein as to that part. Several questions raised in this case were adjudicated in the former case. The inhibition of the statute limiting the time for the institution of proceedings for a reassessment as affecting reassessment ordinance, No. 30,287, could not have been adjudicated in the former case. It was not an issue in that case. The ordinance had not then been passed nor the proceedings for the reassessment initiated. Neither the — 608 — language of the opinions in the three former cases referred to nor the mandates therein indicate that it was the intention of the court to pass upon the question of the bar of the statute. We are not required to determine the validity or invalidity of the. former reassessment. ' That question was adjudicated in the former case. Suffice it to say that the former levy had been considered defective in the two opinions of this court. It has been held that a reassessment may be levied where the original assessment was invalid because the ordinance was defective (Gorton v. City of Chicago, 201 Ill. 534 (66 N. E. 541), or because the improvement was authorized by resolution, instead of by ordinance (Newman v. City of Emporia, 41 Kan. 583 (21 Pac. 593). It has also been held that a reassessment may be made if the original assessment is insufficient, but is not a nullity (Foster v. City of Alton, 173 Ill. 587 (51 N. E. 76); and in cases of other irregularities-(2 Page and Jones on Taxation by Assessment, § 962). Whether the former assessment was defective or a nullity, the fact remains that the city council commenced anew and by Ordinance No. 30,287 made a reassessment of plaintiffs’ property for the cost of, improvement: Phipps v. Medford, 81 Or. 119, 125 (156 Pac. 787, 158 Pac. 666). The period of time within which the council was authorized to make the reassessment had then expired. When the proceedings for the reassessment were instituted by the introduction and passage of Resolution No. 8383, the council was inhibited by the charter from taking such action. Whether the council initiated the proceedings strictly in conformity with the charter or. the decision of this court in the former case is unimportant. The proceedings for a reassessment that — 609 — were instituted by resolution on September 8, 1909, culminated in tbe passage of Ordinance No. 20,748, which proceedings were adjudged illegal and canceled, and the city was directed to make a reassessment by this court, in the former case. The reassessment which was instituted on December 23, 1914, was barred by the statute of limitations in section 400 of the Charter. The city council had no authority to pass Ordinance No. 30,287: Fry v. Mt. Vernon, 42 Wash. 268 (84 Pac. 864); Olympia v. Knox, 49 Wash. 537 (95 Pac. 1090). “Institute” is defined to mean “to set up; to originate; introduce”: See Webster’s New International Dictionary; 22 Cyc. 1373. The word “instituted,” therefore, as used in the charter, means commenced or initiated. The lawmakers in their wisdom saw fit to limit the time for making such a reassessment. There had been litigation respecting the street improvement referred to, which had continued for a long time. In the meantime the statute of limitations had run. Much the same condition exists as considered in Bessler v. Powder River Gold Dredging Co., 90 Or. 663 (176 Pac. 791, 178 Pac. 237). More than seventeen years have now elapsed since the passage of the original resolution of intention for the making of the original work. Evidently the lawmakers considered that, in fixing a limit of ten years for reassessment, the city authorities would have sufficient opportunity to make necessary reassessments and correct any errors. We have only to apply the charter as it reads: 2 Page and Jones on Taxation by Assessment, § 972; Westall v, Altschul, 126 Cal. 164 (58 Pac. 458); Doremus v. City of Chicago, 212 Ill. 513 (72 N. E. 403). — 610 — It follows that the judgment of the lower court must be reversed, the writ sustained, Ordinance No. 30,287 annulled and the reassessment made thereby-canceled. It is so ordered. Reversed. Rehearing Denied.