MacVeagh v. Multnomah County , 126 Or. 417 ( 1928 )

In Banc. This is a suit in equity, whereby the constitutionality of Chapter 89, General Laws of Oregon, 1913, codified as Sections 4652-4679, Oregon Laws, is challenged. Among other things, the plaintiffs' complaint avers:

"That the county commissioners of Multnomah County, Oregon, by an order duly made and entered on the 24th day of April, 1922, laid out, designated, and created within Multnomah County, Oregon, that certain road assessment district known and designated as ``Road Assessment District No. 2, Multnomah County, Oregon, for the Improvement of County Road No. 1006,' and that all of the proceedings with respect to the creation of said district, as well as a description of the boundaries of said district, are on file in the office of the county clerk of Multnomah County, Oregon."

Then follows an averment that the real property involved in this suit is situate within the boundaries of that road assessment district. The complaint then alleges:

"That said Road Assessment District No. 2 was created under and pursuant to the provisions of Chapter 16, Title XXX, of Oregon Laws (Olson's) for 1920, and that on or about the 15th day of February, 1926, and after the creation of said Road Assessment District No. 2, and pursuant to the provisions of said Chapter 16, Title XXX, Oregon Laws, defendant Multnomah County, acting by and through defendants Smith, Taft, and Phegley, constituting the board of county commissioners of Multnomah County, Oregon, declared its purpose to repair and improve said County Road No. 1006 within said Road Assessment District No. 2;

"That thereafter and pursuant to the provisions of the said Chapter 16, Title XXX, Or. L., said defendant Multnomah County, acting by and through said board of county commissioners, appointed appraisers to view said County Road No. 1006 and to determine and assess the proportionate share of the costs of said contemplated improvement thereof that should be borne by each lot or tract of land within said Road Assessment District No. 2, and that said appraisers thereupon proceeded to and did assess the said real property so owned by plaintiffs in the following respective amounts:"

The lots involved are here designated by number, with the amount assessed to each, and an allegation that each of the respective assessments constitutes a lien on plaintiffs' real property and clouds the title thereto.

Plaintiffs allege that, by reason of such assessments, they have been deprived of their property without due process of law, and in contravention of the Fourteenth Amendment to the Constitution of the United States, and of Article I, Section 18, and Article II (Article XI), Section 4, of the Constitution of the State of Oregon, in that none of the plaintiffs had notice of such assessments. They further allege that the notice of the proposed improvement was required by statute to be published for five consecutive weeks, in a newspaper of general circulation within Multnomah County, and to be posted at each end of the line of the contemplated improvement; but that the publications of the notice which were required to be made before the time for remonstrance expired were not sufficient to impart to plaintiffs notice of the proposed improvements, and that such notices were void as to plaintiffs for the following reasons:

"That said notices did not describe with convenient certainty at all the kind of improvement which was contemplated, the extent of the boundaries and limits thereof, the manner in which said improvement was to be made, or the kinds of materials which were to be used therein * *; that a copy of said notices, published and posted as aforesaid, is attached hereto, marked Exhibit A, and by this reference made a part hereof. * *

"That none of plaintiffs had any actual notice whatever of said proposed improvement, except such as was imparted by the publication and posting of notices as aforesaid, which plaintiffs allege to have been ineffectual and void."

Exhibit "A," the notice in question, reads:

"ORDER "Road No. 1006. "Before the Board of County Commissioners, Multnomah County, Oregon. "In the Matter of the Improvements of Greenleaf and Warrens Avenues within Green Hills, being Assessment Road District No.

"At this time the board take up for examination the plans, specifications and estimates filed heretofore by the county surveyor with the county clerk for the improvement of Greenleaf and Warrens Avenues within Green Hills, Road Assessment District No. 2, Multnomah County, Oregon, from 987 to road station 2800, and the board having determined that said plans, specifications and estimates are satisfactory:

"It is hereby ordered that said plans, specifications and estimates (be) and are hereby approved.

"Ordered further that it is hereby declared to be the purpose of this board to make the improvement to Greenleaf and Warrens Avenues in Assessment Road District No. 2, Multnomah County, Oregon, as contemplated and described in said plans, specifications and estimate.

"Ordered further that the within order declaring it to be the purpose of this board to make such improvement of Greenleaf and Warrens Avenues shall be published for five consecutive publications, once each week, in a newspaper of general circulation published within Multnomah County, Oregon, and that the county surveyor, within five days from the publications of said order, shall cause to be conspicuously posted at each end of the line of the contemplated improvement of Greenleaf and Warrens Avenues a notice headed, ``Notice of Road Improvement,' in letters not less than one inch in length; said notice to contain in legible characters a copy of the order of this board, and the date of its adoption, and the county surveyor shall file with the county clerk an affidavit of the posting of said notices, stating therein the date and the place where the same have been posted.

"Ordered further that within twenty days from the date of the first publication of this notice the owners of 51 per cent. or more in area of the property within said Road Assessment District No. 2 may make and file with the county clerk a written objection to or remonstrance against said Greenleaf and Warrens Avenues and said objection or remonstrance shall be a bar to any further proceedings in the making of said improvement for a period of one year unless the owners of 51 per cent. or more of the property affected as aforesaid shall subsequently petition therefor; but if no such remonstrance shall be filed within the time designated, the county court shall be deemed to have acquired jurisdiction to proceed with said improvement in the manner provided by law.

"Dated February 15, 1926.

"First Publication, February 20, 1926.

"BOARD OF COUNTY COMMISSIONERS.

"By AMEDEE M. SMITH, Chairman. "By ERWIN C. TAFT, Commissioner. "By GRANT PHEGLEY, Commissioner."

Defendants appeared and demurred. The demurrer was sustained by the court and a temporary restraining order theretofore issued was annulled; and on June 30, 1926, a final order was entered allowing defendants' motion for a decree upon the pleadings and dismissing plaintiffs' complaint.

Plaintiffs appeal and assign error of the trial court, in effect, as follows:

First. That the demurrer to plaintiffs' complaint should not have been sustained, for the reason that the Road Assessment District Law, i.e., General Laws of Oregon, 1913, Chapter 89, is void as being in contravention of the Fourteenth Amendment to the Constitution of the United States, and of Article I, Section 18, and Article II (Article XI), Section 4, of the Constitution of the State of Oregon.

Second. That the road improvement proceedings described in plaintiffs' complaint, and the assessments levied in such proceedings, are void, and deprive plaintiffs of their property without due process of law, and without compensation, in contravention of the provisions of the Constitution above noted.

At page 4 of their brief on appeal, the plaintiffs say:

"There is no contention on the part of the appellants that the statute was not complied with in all respects; but appellants do contend that compliance with the statute and the improvement of roads thereunder have deprived them of their property without due process of law. * * The sole point for consideration by this court, therefore, is whether or not the assessment road district statute is unconstitutional."

The averments of plaintiffs' complaint and their assignments of error, together with the foregoing statement quoted from their brief on file herein, clearly indicate that this suit was brought solely to have the above-described statute declared invalid on the ground that it offends against both the federal and the state Constitutions. As plaintiffs state in their brief, they do not contend that the defendants have not fully met and complied with all the requirements of the enactment in question. But they do forcefully and ably assert that the statute itself is invalid, in that it contravenes the law of the land.

The defendants met the contest upon the theory made by the plaintiffs. It is well settled in our jurisdiction that, when a cause has been heard upon a certain theory in the trial court, with the acquiescence of the parties litigant, it must be so continued on appeal: Durning v. Walz, 42 Or. 109 (71 P. 662); Cobb v. Peters, 68 Or. 14 (136 P. 656); Winn v.Taylor, 98 Or. 556 (190 P. 342, 194 P. 857); Jones v.Waring, 101 Or. 403 (200 P. 908); Wallace v. American LifeIns. Co., 111 Or. 510 (225 P. 192); Hagman v. Webber,117 Or. 350 (243 P. 91, 244 P. 83); Phipps v. Stancliff,118 Or. 32 (245 P. 508). The doctrine that the parties to an appeal are restricted to the theory upon which the cause was prosecuted or defended in the court below is not peculiar to our jurisdiction, but is a well-established general rule of procedure: 2 R.C.L., § 55, Appeal and Error; 21 Ency. Plead. Prac., p. 667; 3 C.J., § 618, Appeal and Error.

The plaintiffs invoke the protection of that provision of the Fourteenth Amendment that forbids any state to enact legislation depriving any person of life, liberty or property without due process of law.

As far back as 1910, a distinguished author of a treatise on the Constitution of the United States wrote:

"Volumes have been written on the Amendment (Fourteenth Amendment), and more than fifteen hundred decisions by federal and state courts have been rendered and reported on various questions growing out of it, ranging from the power of the municipal council to regulate the height of a board fence, the beating of drums on the streets, * * to the gravest questions of constitutional law." 2 Watson on the Constitution, p. 1607.

A tax or assessment upon property arbitrarily imposed, without reference to some system of just apportionment, cannot be upheld. A taxing district can no more arbitrarily levy an assessment for which property may be encumbered and sold than a court can render a judgment against a person without a hearing.

Does the statute offend against the law of the land, as alleged?

The phrases "due course of law," "due process of law," and "law of the land" are synonymous. Bouvier's Law Dictionary thus defines "due process of law":

"Any legal proceeding enforced by public authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice. Hurtado v. California, 110 U.S. 516, 28 L.Ed. 232,4 Sup. Ct. Rep. 111, 292. * *

"Amendment XIV prohibits a state from depriving a person of life, liberty or property without due process of law. A similar provision exists in all the state constitutions. The phrases ``due course of law' and ``the law of the land' are sometimes used; but all three of these phrases have the same meaning" (pp. 946, 947).

If the statute involved gives notice to the injured one, and gives to him a right to be heard to the end that he "shall have remedy," that is, proper and adequate remedy to be ascertained by a tribunal, the inhibition of the constitutional provision has not been offended.

Among other things, the statute provides for the organization of assessment road districts in counties of the state having a population in excess of 150,000 inhabitants, for the purpose of improving the county roads within such district. Section 2 provides for the preparation of maps showing the length and width of any assessment road district formed, together with the several tracts of land embraced therein, and the area of each tract, with the names of the respective owners thereof. Section 3 authorizes the county commissioners, whenever they may deem it expedient, to order the improvement of any part of the county road within such assessment district, to determine the character, kind and extent of such improvement, to determine what lands within such district are specially benefited by such repairs or improvements and the amount to which each parcel or tract of land is benefited, and to levy and collect an assessment upon all lots and parcels of land within the district so benefited by such improvement. This section also provides for the appointment of appraisers to view the road proposed to be improved, who shall determine and report to the County Court at a specified time the amount of benefits accruing to each lot or tract of land within the assessment district. Section 4 provides:

"Whenever the county court shall deem it expedient or necessary to repair or improve any county road located in an assessment road district, or any part thereof, it shall require from the county surveyor plans and specifications for an appropriate improvement, and estimate of the work to be done, and the probable cost thereof, and the county surveyor shall file such plans, specifications and estimates with the county clerk of said county. If the county court shall find such plans, specifications and estimates to be satisfactory, it shall approve the same, and shall thereupon, by order entered upon the journals of the county court, declare its purpose in making said repair or improvement."

Section 5 requires the appraisers to meet with the county surveyor or roadmaster, to view the road proposed to be improved, and to assess and determine the benefits to each lot or tract of land, and the proportionate share of the cost thereof. Section 6 requires the publication of the improvement order for five consecutive weeks, in a newspaper of general circulation within the county. Section 7 provides that, within five days from the publication of such order, the county surveyor shall cause the order to be conspicuously posted at each end of the line of the contemplated improvement, and make proof of posting by filing his affidavit with the county clerk. Section 8 provides for the filing of a remonstrance to the proposed improvement within twenty days from the date of the first publication of the notice above described. Section 9 provides that if no remonstrance is filed by the owners of 51 per cent of the property affected, or if any remonstrance filed is not legally signed by the owners of 51 per cent thereof, the County Court shall be deemed to have acquired jurisdiction and order the improvement to be made. Section 10 relates to the payment of the cost of improvement. Section 11 declares that the assessment, when confirmed by the County Court, or by a higher court, shall constitute a first lien on the real estate respectively assessed. Section 12 relates to the letting of a contract for the proposed improvement. Section 17 provides for the assessment of all the lands benefited within such road assessment district. Section 23 provides:

"Any person or corporation who appeared and filed a remonstrance before the county court against any improvement authorized by this act shall be allowed an appeal to the circuit court, in like manner as appeals are now allowed to be taken from the county court to the circuit court, and on such appeal the only questions that shall be tried in the circuit court shall be the questions, first, that the lands of the party filing the remonstrance are not benefited by said improvement or are assessed too high as compared with other lands assessed as benefited, specifying such lands; second, that it is not practicable to accomplish the proposed improvement or repair without an expense exceeding the aggregate benefits; third, that the proposed work will not be a public utility or convenience. If more than one person appeal, the appeals shall be considered and tried together, and the report of the appraisers or viewers shall be prima facie evidence of the facts therein stated and the rights of each appellant shall be separately determined. If the court finds that the lands of any of the parties filing remonstrance and appeal are not benefited, or that it is not practicable to accomplish the proposed improvement without an expense exceeding the aggregate benefits, or that the proposed work will not be a public utility or convenience, judgment shall be rendered for the appellants. If the court finds for any appellant that such appellant has not been ratably assessed for such improvement in proportion to the other owners of property within said district, it shall modify the assessments and equalize the same, and assess the damages as justice may require, and thus modified and equalized, it shall stand and be adjudged valid; and provided further, that if any appeal is taken from the county court to the circuit court, said county treasurer shall not issue the certificates hereinbefore provided for, until after the final judgment of the circuit court upon such appeal."

The burdens here imposed upon the plaintiffs' real property are special assessments for local improvements. Under the authority vested in the County Court, the road assessment district was created, the nature of the improvements determined, and the amount of the tax fixed.

In compliance with the law of the land, it is essential that the owners of land sought to be burdened with a special assessment local improvement tax be given notice and a right to be heard in the matter of the determination as to whether the proposed improvement will be of benefit to such lands; and any local improvement statute failing to provide for notice and hearing upon the question is repugnant to the Constitution. However, the statute involved in the cause at issue is not subject to the objection that it neither gives notice to the land owner nor gives him a hearing upon the questions relating to the matter of the improvement and the levying of a tax therefor. In the matter of the assessment and levy of a tax for local highway improvements, the statute provides that the owner of the land upon which the tax is levied may file a "remonstrance" or "petition," or may file "objections" with the county clerk, which officer is the clerk of the County Court. True, the statute does not prescribe a code of procedure to be followed in that court's trial and determination of the issues. Nor is that necessary. The authority to give notice, and the power to hear and determine the issues, was conferred upon the court by the legislative assembly of the state, and, as we held in PioneerReal Estate Co. v. City of Portland, 119 Or. 1 (247 P. 319):

"It is a well-known rule of statutory construction that, where a power is conferred by an act, everything necessary to carry out that power and make it effectual and complete will be implied. Further, that which is implied in a law is as much a part of it as that which is expressed. These long-established principles of statutory construction are universally recognized: Endlich, Interpretation of Statutes, § 418; 2 Sutherland, Statutory Construction, § 508; Wilson County v. National Bank,103 U.S. 770 (26 L.Ed. 488, see, also, Rose's U.S. Notes); 25 R.C.L. 980."

Moreover, as will be seen by referring to Section 23 of the statute, which section is hereinabove set out in full, the statute in question provides for an appeal to the Circuit Court, where plaintiffs' alleged grievances could have been determined. Every person affected by the assessment and levy of the tax for special improvements in this assessment road district had a right to remonstrate and appeal from an unfavorable decision on the ground that his property was not benefited by the improvement, or was assessed too high, or that the improvement was not practicable, or would not be a public utility or convenience.

A trial in the appellate court de novo presupposes a previous trial in a tribunal having jurisdiction of the subject matter of the cause, from which the appeal has been taken. And it follows that if the inferior court, in which the case was tried, was without jurisdiction, "an appeal from its decision confers no jurisdiction upon the appellate court." 3 C.J., § 123, Appeal and Error.

Now, recurring to the adequacy of the notice. We have carefully analyzed the contents of this paper, and we are convinced that it is sufficient within the purview of the statute. As measured by statutory requirements, the notice is valid. For a description of the proposed improvement, the court, by order published in the newspapers and posted at each terminus of the proposed improvement, specifically referred to the plans, specifications and estimates theretofore filed by the county surveyor with the county clerk; and the portions of the complaint hereinbefore set out, together with the notice, show that, by these records on file with the county clerk, the boundaries of the district are clearly described. In truth, not only was the notice complete, but it likewise contained surplus matter. The last paragraph thereof, referring to the right of remonstrators, is purely surplusage. In establishing public highways, or in providing for improvements by special taxation in road assessment districts, it is unnecessary to set out in the notice the legal right of the owner of the property to remonstrate or file claim for damages. This right is determined by operation of law. That the notice in this case was sufficient with reference to the description of the proposed improvement, see Ladd v. Spencer,23 Or. 193 (31 P. 474); Clinton v. City of Portland, 26 Or. 410 (38 P. 407); Rubin v. City of Salem, 58 Or. 91 (112 P. 713); Rogers v. City of Salem, 61 Or. 321 (122 P. 308).

The plaintiffs refer to the state constitutional provisions relating to the power of eminent domain. Eminent domain is the power inherent in a sovereign state of taking or of authorizing the taking of any property within its jurisdiction for a public use or benefit: Bridal Veil Lumbering Co. v. Johnson, 30 Or. 205 (46 P. 790, 60 Am. St. Rep. 818, 34 L.R.A. 368); 1 Nichols on Eminent Domain, 1.

But the complaint states no facts which would indicate that such additional burden has been imposed upon their property as would entitle them to the protection of the constitutional provisions limiting the right of eminent domain.

Again, we direct special attention to the excerpts from the plaintiffs' complaint set out in our statement herein, together with a quotation from plaintiffs' brief appearing at the commencement of our opinion. We cannot close our eyes to plaintiffs' averments and statements. In view of the allegations of the complaint, there is no question but what plaintiffs received full statutory notice. Was that notice a compliance with the fundamental law of the land? That the statute involved is constitutional, see the original decision of this case, reported in 123 Or. 345 (262 P. 248), where Mr. Justice ROSSMAN, in a well-reasoned opinion on that subject, upheld the statute in question. However, we are of opinion that the holding in that case that the notice to plaintiffs was insufficient is erroneous. Hence the former opinion should be reversed and set aside as to that holding, and the decree of the lower court affirmed. It is so ordered. AFFIRMED.

BEAN and COSHOW, JJ., not sitting.