Paulsen v. Portland/Opinion of the Court

The question is that of notice to the taxpayer. It is insisted that the supreme court held that section 121 did not provide for notice; that such construction of the state statute is binding upon this court; and that we must consider the case as though no notice was provided for. It is not entirely clear what construction has been placed upon section 121 by the supreme court of Oregon. In the case of Strowbridge v. City of Portland, 8 Or. 67, 83, (decided in 1879,) the provisions of the city charter in these respects being then substantially like those in the act of 1882, it was said by Judge Boise, delivering the opinion of the court:

'The elaborate manner pointed out in the charter for acquiring the authority to construct street improvements does not apply to the construction of sewers.

'The latter may be laid when, in the judgment of the city council, the same shall be necessary.

'They may be made without previous notice, the council alone being the judge of their necessity.'

This language is quoted with approval by Chief Justice Thayer, in delivering the opinion of the court in this case. But on the petition for a rehearing, which was denied by two judges to one, each of the judges in favor of denying gave a brief opinion, and Judge Strahan in his says:

'But it is objected that neither the charter nor ordinance expressly provides for notice, and that, therefore, though notice may have been in fact given, the constitutional objection of want of notice is not met.

'Sections 95, 96, 97, 98, and 99 of the charter all provide for and regulate notice in case of improvement of streets, and section 121, which authorizes sewers, provides, among other things: 'And, when the council shall direct the same [costs] 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 assessments.'

'The charter expressly provides for notice in case of street assessments, and section 121 makes the provisions applicable in case of sewers where the expense is ordered by the council to be made a charge on the property directly benefited.'

In the subsequent case in the same court of Association v. City of Portland, decided in 1892, and reported in 31 Pac. Rep. 482, it was held that 'the provision that such expense shall be assessed in the same manner as is provided in the case of street improvements necessarily makes such sections in regard to street improvements, with the exceptions noted, a part of section 121, for that purpose.' It would seem from this that the final construction placed by the supreme court was to the effect that the charter requires notice as much in the matter of sewers as of street improvements.

But were it otherwise, while not questioning that notice to the taxpayer in some form must be given before an assessment for the construction of a sewer can be sustained, as in any other demand upon the individual for a portion of his property, we do not think it essential to the validity of a section in the charter of a city granting power to construct sewers that there should in terms be expressed either the necessity for, or the time or manner of, notice. The city is a miniature state; the council is its legislature; the charter is its constitution; and it is enough if, in that, the power is granted in general terms, for, when granted, it must necessarily be exercised subject to all limitations imposed by constitutional provisions, and the power to prescribe the mode of its exercise is, except as restricted, subject to the legislative discretion of the council. Thus, in the case of Gilmore v. Hentig, 33 Kan. 156, 5 Pac. Rep. 781, it was held that 'where a statute authorizes a city to provide for the construction of sewers and drains, and to tax the costs thereof upon the adjacent property owners, but does not require that any notice shall be given to the property owners, held, that such failure to require notice does not render the statute unconstitutional or void, but notice must nevertheless be given, and the city would have a broad discretion with reference to the kind of notice and the manner of giving the same.' See, also, Cleveland v. Tripp, 13 R. I. 50; Davis v. City of Lynchburg, 84 Va. 861, 6 S. E. Rep. 230; Williams v. Mayor, etc., 2 Mich. 560; Gatch v. City of Des Moines, 63 Iowa, 718, 18 N. W. Rep. 310; Baltimore & O. R. Co. v. Pittsburg, W. & K. R. Co., 17 W. Va. 812, 835.

But it is further insisted that, even if the general grant of power in a charter to do a work of this kind is sufficient without an express provision in it as to notice to the taxpayers, the city in the execution of that power must by ordinance provide for notice and prescribe its terms, and that these ordinances contained no such provision. Here, again, we are met with an apparent difference in opinion of the two judges of the supreme court of Oregon, concurring in the judgment in favor of the city. The chief justice seems to consider the matter of notice immaterial, relying upon the doctrine of stare decisis, that the right of the city to carry through such a work without any notice had been settled years before in the Strowbridge Case; while Judge Strahan makes these observations:

'In addition to this, section 12 of Ordinance No. 5068 provides that the viewers shall hold stated meetings at 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 estimates.

'I think it would be a reasonable construction of this ordinance to hold that the right to be heard implies that notice shall be given, and, if this be so, the ordinance does provide for notice by necessary implication.

'That which is implied in a statute is as much a part of it as what is expressed.' Minard v. Douglas Co., 9 Or. 206.

But what was in fact done by the city? By Ordinance 5068 it ordered the construction of a sewer, and directed what area should be drained into that sewer, and created a taxing district out of that area. For these no notice or assent by the taxpayer was necessary. A sewer is constructied in the exercise of the police power for the health and cleanliness of the city, and the police power is exercised solely at the legislative will. So, also, the determination of a territorial district to be taxed for a local improvement is within the province of legislative discretion. Willard v. Presbury, 14 Wall. 676; Spencer v. Merchant, 125 U.S. 345, 355, 8 Sup. Ct. Rep. 921. By the same ordinance the city also provided that the cost of the sewer should be distributed upon the property within the sewer district, and appointed viewers to estimate the proportionate share which each piece of property should bear. Here, for the first time in proceedings of this nature, where a attempt is made to cast upon his particular property a certain proportion of the burden of the cost, the taxpayer has a right to be heard. The ordinance named a place at which the viewers should meet, directed that they should hold stated meetings at that place, and that all persons interested might appear and be heard by them in the matter of making the estimate. The viewers, upon their appointment, gave notice by publication in the official paper of the city of the time of their first meeting. Notice by publication is a sufficient notice in proceedings of this nature. Lent v. Tillson, 140 U.S. 316, 328, 11 Sup. Ct. Rep. 825. As the form of the notice and the time of its publication are not affirmatively disclosed in the complaint, it must be assumed that there was no defect in respect to these matters. The precise objection is that, although proper and sufficient notice may have been given, it was not in terms prescribed by the ordinance appointing the viewers. But, as held by the supreme court of Oregon in the case referred to, (Minard v. Douglas Co., 9 Or. 206,) that which is implied in a statute is as much a part of it as that which is expressed; and where a statute or an ordinance provides for stated meetings of a board, designates the place at which the meetings are to be held, and directs that all persons interested in the matter may be heard before it, it is, as said by Judge Strahan, not a strained interpretation that it is implied thereby that some suitable notice shall be given to the parties interested.

But, further, the viewers made formal report to the council of what they had done, stating that they had, in accordance with the requirements of Ordinance 5068, given notice by publication, and the council, in subsequent Ordinance 5162, recites that their report is satisfactory and adopted. In other words, the council by this latter ordinance approved the construction placed by the viewers upon the first, to the effect that it required notice. It would seem that, when notice was in fact given,-notice whose sufficiency is not challenged,-a construction put by the council upon the scope and effect of its own ordinance should be entitled to respect in any challenge of the regularity of the proceedings had under that ordinance. It is settled that, if provision is made 'for notice to and hearing of each proprietor, at some stage of the proceedings, upon the question what proportion of the tax shall be assessed upon his land, there is no taking of his property without due process of law.' McMillen v. Anderson, 95 U.S. 37; Davidson v. New Orleans, 96 U.S. 97; Hagar v. Reclamation Dist., 111 U.S. 701, 4 Sup. Ct. Rep. 663; Spencer v. Merchant, 125 U.S. 345, 8 Sup. Ct. Rep. 921. If, before the viewers had in fact met, yet after they had published notice, the council had passed an ordinance reciting an approval of that act of notice, it could hardly be doubted that the full requirements of law as to notice were satisfied. Because this approval was not made until after the hearing before the viewers, is it thereby worthless,-of no validity? And can this court say, when those proceedings have been sustained by the supreme court of the state, that rights guarantied by the federal constitution have been stricken down, and that these individuals have been deprived of their property without due process of law?

Another matter may be mentioned: The second section of Ordinance 5162 directed the ordinary publication of notice of the assessment. The charter (section 102) required a 'docket of city liens,' in which was entered,-First, the description of each piece of property assessed; second, the name of the owner, or that the owner is unknown; and, third, the sum assessed upon such piece of property, and the date of the entry. And by section 104 it was provided that 'a sum of money assessed for the improvement of a street cannot be collected until, by order of the council, ten days' notice thereof is given by the auditor, by publication in a daily newspaper published in the city of Portland. Such notice must substantially contain the matters required to be entered in the docket of city liens concerning such assessment.'

Now, without deciding that this notice is sufficient notice to bring the proceedings within 'due process of law,' it is worthy of remark that during the 10 days of publication, made as required by said section 104 and section 2 of Ordinance 5162, the plaintiffs did not challenge the regularity of the proceedings, or apply to the council for an inquiry into the justness of the apportionment, nor did they commence any suit until a month after the time when warrants for the collection of delinquent assessments had been ordered by the council. In other words, only after payment had been made by a portion of the taxpayers did these plaintiffs ask any relief.

Without continuing this inquiry any further, we are of the opinion that, notwithstanding the doubt arising from the lack of express provision for notice in Ordinance 5068, it cannot be held, in view of the notice which was given, of the construction placed upon this ordinance by the council thereafter, and of the approval by the supreme court of the proceedings as in conformity to the laws of the state, that the provisions of the federal constitution requiring due process of law have been violated.

The judgment is therefore affirmed.

Mr. Justice FIELD did not hear the argument or take part in the decision of this case.