Cook v. City of Portland , 35 Or. 383 ( 1899 )

Mr. Justice Bean,

after stating the facts, delivered the opinion of the court.

1. It is argued that the assessment in question is void because the provisions of the charter directing the manner in which property shall be assessed for local improvements are in contravention of the Fourteenth Amendment to the Constitution of the United States, within the doctrine of the recent case of Village of Norwood v. Baker, 172 U. S. 269 (19 Sup. Ct. 187). But we do not think the question thus sought to be raised is properly before the court: May, Prac. 88, 91, 99. The complaint contains no allegation attacking the validity of the assessment upon that ground, and no such question was raised or decided in the court below, nor is it discussed or alluded to in the printed briefs of either party. The plaintiffs, having brought a suit to restrain the collection of the assessment upon certain specified grounds, must stand or fall by the allegations of their complaint, and cannot now ask and obtain relief upon a ground not presented or decided in the court below, nor justified by the allegations of their pleadings.

2. We come, then, to a consideration of the only question in the case, viz., whether, under the charter in force at the time the assessment was made, the owners of property had a -right to remonstrate against a proposed repair of a street in front of their property, the cost of which is to be assessed thereon. By the provisions of the charter (Laws, 1893, p. 810, et seq.), the council is, under section 124, authorized to repair any street or part thereof whenever it deems it expedient, and to declare by ordinance before doing the same whether the cost shall be assessed upon the adjacent property or be paid out of the general fund of the city; and, section 125, if it declares that the proposed repair shall be made at the cost of the adjacent property, thereafter it “is to be deemed an improvement, and shall be made accordingly;” but, if it declares that the cost shall be paid out of the general fund, it may be made as the ordinance may provide,, and be paid accordingly. "Under these two sections, — the only provision of the charter in reference to repairs, — the council has power and authority to repair a street whenever it deems it expedient, and to cause the cost to be either assessed against the abutting property or paid out of the general fund of the city. If it is to be paid out of the general fund, the repair can be made in any manner the council may by ordinance provide ; but, if at the cost of the adjacent property, such repair, after the declaration of the council to that effect, becomes, tq all intents and purposes, an improvement, and must be treated as such in all subsequent proceedings. As said by Mr. Justice Thayer in Hawthorne v. City of East Portland, 13 Or. 281 (10 Pac. 348), in construing similar provisions in the charter of East Portland: “The result is, the improvement of streets and repair of streets have become confounded. If the expense of the repair is to be charged upon the adjacent property, it is an improvement. The distinction, therefore, in such cases, is only.in name. The proceeding out of which this controversy has arisen may be termed either an ‘improvement’ or ‘repair.’ The test seems to be whether the expense is to be charged upon the adjacent lots. If the council should term an ‘improvement’ a ‘repair, ’ it would be immaterial; and I do not see why the work. undertaken in regard to the improvement of L street, as shown in this case, could not have'been termed a ‘repair’ as well as an ‘improvement.’ When the council declared that it should be made at the cost of adjacent property, it was then deemed an ‘improvement,’ and had to be made accordingly.”

Now, under sections 98 and 99 of the charter, no improvement of a street could be undertaken or made without ten days’ notice thereof first having been given by the auditor, by order of the council, in some daily newspaper, specifying with convenient certainty the street or part thereof proposed to be improved, and the kind of improvement to be made. And section 100 provides that, “within ten days from the final publication of such notice, the owners of more than one-half of the property adjacent to such street, or part thereof, as the case may be, may make and file with the auditor a written remonstrance against the proposed improvement, grade, or alteration thereof, and thereupon the same shall not be further proceeded in or made ; and any improvement so defeated by remonstrance shall not be again proposed for six months, except on petition of two-thirds of the property to be affected thereby. ’ ’ These sections provide the procedure in case of an improvement, and as, under section 125, a “repair” is to be deemed an “improvement” whenever the council declares that it shall be at the cost of the adjacent property, it necessarily follows that in. such case the same notice is required, and the same right of remonstrance given, as in case of an improvement. We cannot understand why a portion of the provisions of the charter, in reference to the procedure in case of the improvement of a street, after the council has acquired the right to act in the matter at all, should be held to apply to a repair, and not all such provisions. The purpose to be served in each instance is the same. The object of the proceeding is to compel the adjacent property to pay the cost, and there is just as much reason — if, indeed, not more — for giving the owners the right of remonstrance against a repair as there is in giving them such right in case of an improvement. After an examination of the several provisions of the charter, we have been unable to reach any other conclusion than the one indicated ; and for the reasons given the decree of the court below must be reversed, the demurrer overruled, and a decree entered here in accordance with the prayer of the bill. Reversed.