Wilson v. City of Portland

Mr. Justice Burnett

delivered the opinion of the court.

1, 2. Considered solely as a matter of procedure, the motion for a decree on the pleadings in favor of the plaintiff should not have been allowed because there was traversed matter in the city’s answer strongly appealing to a court of equity against granting plaintiff any relief in the premises. The essence of this suit, however, is an attach upon an assessment upon abutting property for the purpose of paying for the improvement of a street. The canon by which said matters must be determined is laid down by Mr. Justice Robert S. Bean in Yamhill County v. Foster, 53 Or. 124 (99 Pac. 286), in this language:

“It is a general rule that a court of equity will not interfere to restrain the collection of public revenue for mere illegality or irregularity in the proceedings, but its jurisdiction is confined to cases where the tax itself is not authorized by law, or is assessed on property not subject to taxation, or the persons exacting it are without authority in the premises, or have proceeded fraudulently, or some other ground of equitable interference is shown.”

The rule has been applied to assessments similar to those of the case here involved, in Lapp v. Marshfield, 72 Or. 573 (144 Pac. 83).

3. Section 397 of the Charter of the City of Portland, in speaking of assessments for street improvements, declares:

“No such assessment shall be held invalid by reason of failure to enter the name of the owner of any lot or part of a lot or parcel of land so assessed or by a mistake in the name of the owner, or the entry of a name other than the name of the owner, in said assessment, or in any acts or proceedings connected therewith, and no delays, mistakes, errors, or irregularities in any act or proceeding in the improvement of a street or the construction of a sewer or drain shall prejudice or invalidate any final assessment, but the same may be remedied by subsequent and amended acts or proceedings.” •

Section 400 of the same Charter reads in part as follows :

“Whenever an assessment for the opening, altering or grading of any street, * * 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 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 re-assessment upon the lots, blocks or parcels of land which have been benefited by such improvement to the extent of their respective and proportionment shares of the full value thereof. * * Such re-assessment 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. * * ”

Reverting to the single objection made by the plaintiff to the effect that the improvement already had been made, we note that within the terms of Section 400 this does not present an obstacle to the making of a new assessment, for that part of the charter refers to properties “which have been benefited by such improvement. ’ ’ This language clearly refers to a betterment already accomplished in fact. The case was decided in the Circuit Court upon plaintiff’s motion for a decree upon the pleadings. In such a case the moving party must be impregnably entrenched in the statement of his case or he cannot prevail. The issue presented by such a motion is one of law to the effect that granting the truth of all that is alleged by both parties yet the decision should be in favor of the one making the motion. The complaint in this instance discloses a proceeding for the imposition of an assessment upon abutting property ostensibly carried on with complete formality. The plaintiff does not offer to pay any proper rating of the cost or declare that the expense of the betterment has been paid by anyone. He virtually adopts the improvement but his pleading does not state enough to take the proceeding out of what might be accomplished under Section 400 of the Charter contemplating renewed assessments for work already completed under ¿defective procedure. Beverting to the rule of Yamhill County v. Foster, 53 Or. 124 (99 Pac. 286), we find that a tax for the purpose of street improvement is authorized by the Charter of the city. That instrument empowers the municipality to levy such a charge upon abutting property, and this authority is vested in the city council. There is no charge that there has been any fraud in any of the proceedings. In short, the complaint does not differentiate the case from one where the city has undertaken to make a new assessment, as of right it may do, on the ground that the proceedings prior to the actual making of the improvement were informal or without jurisdiction. Until this is shown equity cannot relieve the plaintiff, for he does not bring himself within the principle established in the Foster case. The power of a city to make repeated assessments under a charter like that of the City of Portland to pay for actual improvements already made has had the consideration of this court in Phipps v. Medford, 81 Or. 119 (156 Pac. 787, 158 Pac. 666), where a more complete discussion of the principle may be found.

(171 Pac. 201.) Mr. W. M. Gregory, for the petition. Mr. Walter P. La Boche, City Attorney, and Mr. Lyman E. Latourette, Deputy City Attorney, contra.

The complaint itself discloses that the improvement has been made. It indicates that the plaintiff would enjoy the same without paying for it even what is fair. This savors strongly of an attempt to get something for nothing, which is inequitable even as against a municipality. Judged by Ms own pleading, the plaintiff was not in a position to urge his motion for a decree in his favor. His complaint does not state a cause of suit commending itself to a court of conscience, in that he does not offer to do equity. Upon the whole record, the case is properly disposed-of by a decree dismissing the suit.' It is so ordered.

Reversed. Suit Dismissed.

Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Harris concur.