Paulsen v. Portland

Statement by Mr. Justice BREWER:

On March 5, 1887, the common council of the city of Portland passed an ordinance, No. 5068, providing for the construction of a sewer in the north part of the city, and known as 'Tanner Creek Sewer.' In pursuance of that and subsequent ordinances the sewer was constructed, and the cost thereof cast by a special assessment upon the lots and blocks within a prescribed district. The validity of this assessment was challenged by this suit, the plaintiffs being lot owners in the sewer district. The suit was commenced in the circuit court of the state of Oregon, for the county of Multnomah. That court sustained a demurrer to an amended complaint, and dismissed it, and this decree of dismissal was affirmed by the supreme court of the state. 16 Or. 450, 19 Pac. Rep. 450.

The burden of the complaint rested upon these allegations:

'Said ordinance numbered 5068, approved March 5, 1887, is unconstitutional and void, in this:

'§ 121 of chapter 10 of the charter of the said city of Portland, providing for the construction of sewers, under and by virtue of which said ordinance numbered 5068 was passed, is in violation of the fourteenth amendment to the constitution of the United States, as it provides for taking private property for public use without due process of law; and said ordinance numbered 5068 is also unconstitutional and void, as it determines arbitrarily and absolutely that the property therein described is benefited by said Tanner Creek sewer without giving to the owners of said property any notice or opportunity to be heard upon that question. Said ordinance numbered 5162, approved August 19, 1887, is unconstitutional and void upon the same grounds as those upon which said ordinance numbered 5068 is unconstitutional and void as aforesaid, and also because said ordinance numbered 5162 provides for an assessment of the property therein named for the construction of said Tanner Creek sewer without providing for any notice to the owners whose property is therein and thereby assessed.

'Said ordinances, and each of them, and said assessment, were and are unconstitutional, illegal, and void, because-and these plaintiffs aver the fact to be as now stated-plaintiffs had not, nor had any of them, any notice of the said proceedings of the said common council, or any opportunity to be heard as to whether or not their property, or the property of any of them, was or could be benefited by said sewer, or as to the amount that was or should be assessed upon the several parcels of property named in said ordinance numbered 5162.

'Said ordinances, and each of them, and said assessment, were and are illegal and void, for the reason-and these plaintiffs aver the fact to be-that said common council and the said viewers, and each of them, knew that a large proportion of the property described in said ordinances, including the property of these plaintiffs, was and is a long distance away from said Tanner Creek sewer, and never would or could be benefited by said sewer, and that a considerable portion of said property was lower in elevation than the bottom of said sewer, and that it was physicality impossible for said property to be drained into said sewer or to be benefited by it in any way.

'And said ordinances and assessment, and each of them, were and are a gross abuse of power by said common council, and in fraud of the rights of these plaintiffs.

'Said assessment is illegal and void, and in violation of section 121 of chapter 10 of the charter of the said city of Portland, because-and these plaintiffs aver the fact to be-that said assessment was not made upon the property directly benefited by said sewer, but was made indiscriminately upon a large section of the city of Portland, and without reference to the benefits to the property therein contained.'

Section 121 of the city charter is as follows:

'The council shall have the power to lay down all necessary sewers and drains, and cause the same to be assessed on the property directly benefited by such drain or sewer, but the mode of apportioning estimated costs of improvement of streets, prescribed in sections 112 and 113 of chapter 10 of this act, shall not apply to the construction of such sewers and drains; and, when the council shall direct the same to be assessed on the property directly benefited, such expense shall in every other respect be assessed and collected in the same manner as is provided in the case of street improvements: provided, that the council may, at its discretion, appoint three disinterested persons to estimate the proportionate share of the cost of such sewer or drain to be assessed to the several owners of the property benefited thereby, and in the construction of any sewer or drain in the city shall have the right to use and divert from their natural course any and all creeks or streams running through the city into such sewer or drain.' Sess. Laws Or. 1882, p. 171.

Section 5 of Ordinance 5068 commences: 'Sec. 5. The streets and property within the district bounded and described as follows shall be sewered and drained into the Willamette river through the sewer in this ordinance provided and ordered to be constructed along Tanner creek and North Eighth street, from B street, near the intersection of North Fourteenth street to the Willamette river, to wit: Beginning;' and then, after defining the boundary of the sewer district, declares: 'And as the lots and blocks, and parts of lots and blocks, included within said district as above defined, will be drained and sewered both by surface drainage and underground sewerage, by and through the sewer in this ordinance ordered to be located, constructed, and put down, the said lots and blocks, and parts of lots and blocks aforesaid, are hereby declared to be directly benefited by such sewer, and subject to assessment therefor, in proportion to the benefits received thereby as provided in section 121 of the city charter of the said city.'

Section 12 is as follows:

'Sec. 12. That R. L. Durham, Charles G. Schramm, and H. W. Monastes, disinterested persons, be, and they are hereby, appointed viewers to estimate the proportionate share of the cost of said sewer to be assessed to the several owners of property benefited thereby in accordance with the provisions of section 121 of the charter of said city, and report the same to the common council within sixty (60) days from the date of the approval of this ordinance by the mayor. Said viewers shall hold stated meetings in the office of the auditor and clerk of said city, and all persons interested may appear before said viewers, and be heard in the matter of making said estimate.'

Ordinance 5162 contains these provisions:

'The city of Portland does ordain as follows:

'Section 1. The common council of the city of Portland having, by Ordinance No. 5068, provided for the construction of a sewer, together with the necessary catch-basins, manholes, lampholes, and branches along Tanner creek from North Fourteenth and B streets to North Tenth and H streets, thence along North Tenth street to I street, thence along I street to North Eighth street, and thence along North Eighth street to North Front street, and thence northeasterly to low water in the Willamette river;

'And having therein and thereby appointed three disinterested freeholders, viz., R. L. Durham, H. W. Monastes, and Charles G. Schramm, to estimate the proportionate share of the cost of such sewer, to be assessed to the several owners of the property benefited thereby, and said assessors having made their report to the common council, which report, being satisfactory, is hereby adopted, said report being in words and figure as follows, to wit:

"To the Hon., the Common Council of the City of Portland—

"Gentlemen: The undersigned, appointed by your honorable body to assess the cost of constructing a brick sewer along Tanner creek from North Fourteenth and B streets to North Tenth and H streets, thence along North Tenth street to I street, thence along I street to North Eighth street, thence along North Eighth street to North Front street, thence northeasterly to low water in the Willamette river, as provided by Ordinance No. 5068, would respectfully beg leave to submit this our report.

"We met at the office of the auditor and clerk, and were furnished with the plans, specifications, and contract, from which we have ascertained the probable costs to be $35,652.20, thirty-five thousand six hundred and fifty-two & 20-100 dollars.

"In accordance with the requirements of said Ordinance No. 5068, we gave notice of our first stated meeting June 25, 1887, at 6:30 o'clock P. M., (by publication of such notice in the Daily News, the official paper of the city,) at which time we met and proceeded with our work, adjourning from day to day until the final completion of our labors. We have assessed the cost of constructing said sewer to the several lots, parts of lots, and tracts of land included within the boundaries defined by you in your Ordinance No. 5068, in the several amounts as shown by the following tabulated statement: [Omitted, per stipulation.]'

'Sec. 2. The auditor and clerk is hereby directed to enter a statement of the assessment hereby made in the docket of city liens, and cause notice thereof to be published in the manner provided by the city charter.

'Passed the common council, August 17, 1887.

'W. H. Wood, Auditor and Clerk.

'Approved August 19, 1887.' George H. Williams, for plaintiff in error.

[Argument of Counsel from pages 35-37 intentionally omitted]

Wm. T. Muir, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.