St. Benedict's Abbey v. Marion County

Mr. Justice Eaicin

delivered the opinion of the court.

1. The road act in question authorizes county courts to improve any county road by grading, graveling, macadamizing, etc., the same; and to appoint viewers to estimate the cost and expense of the proposed improvement and the benefits to the land within the taxing district; and that the costs and expenses thereof be paid by assessment on the real estate adjacent thereto and benefited thereby, within two miles on either side and one mile beyond the terminus of such improvement, in proportion to the benefits to be derived therefrom; and to apportion the estimated costs and exjienses of the improvement upon said lands according to the benefits derived,therefrom, including the lots in any incorporated city or town.

It is also provided by Section 6 that the owner of any lands affected by the work proposed may remonstrate against the report of the viewers for the following causes:

“(1) That the report of the viewers is not according to law; (2) that the lands,of the party filing the remonstrance are not benefited, or are assessed too much as compared with other lands assessed as benefited, specifying such lands; (3) that the lands of the party filing the remonstrance are damaged, or that the damages assessed are inadequate; (4 that it is not practical to accomplish 'the proposed work without an expense exceeding the aggregate benefits; (5) that the proposed work will not be of public utility or convenience.-”

*414 Also Section 6 further provides that the issues raised by such remonstrance shall be tried by the county court, and, if it finds for the remonstrants upon the fourth or fifth cause thereof, the proceeding shall be dismissed at the cost of petitioners, and if resident owners of lands affected by such proposed improvements, upon which more than two^thirds of the aggregate assessment for benefits has been made, shall remonstrate against said petition for the fifth cause of remonstrance, the said petition shall be dismissed, and if the court finds for the remonstrants for the first, second or third cause, it shall modify the report accordingly. By Section 14 appeal to the circuit court may be taken by remonstrants from the decision of the county court upon any of the first three causes of remonstrance, and the issues therein tried by a jury. That the legislature may authorize a municipality to assess the expense of the improvement of streets upon the property benefited thereby, and that such assessment is not a taking of property without due process of law, if the property owner has had an opportunity to be heard before the assessment is made, has been frequently held by this court.

2. Nor is such an act a violation of the constitutional provision that taxation shall be equal and uniform: King v. City of Portland, 2 Or. 146; Masters v. City of Portland, 24 Or. 161 ( 33 Pac. 540 ); Wilson v. City of Salem, 24 Or. 504 ( 34 Pac. 9, 691 ); Elliott, Eoads & Streets (2 ed.), § 543; Cooley, Taxation (2 ed.), pp. 634-636.

3. This principle is recognized in many other Oregon cases, but as applied to rural highways, it is contended that the act violates the provision of subdivision 10 of Section 23 of1 Article IY of the constitution, which provides that the legislature shall not pass special or local laws “for the assessment and collection of taxes for state, county, township or road purposes.” It cannot be seriously contended that this law is local. It is, by its terms, general and applicable throughout the state, and may be invoked for any road, for the improvement of which a majority of the resident landowners of the county, whose lands are within the taxing district, may petition. A local statute is one *415 which applies only to a particular locality or limited part oí the state, and the inhabitants of that part. An act relating to a particular road in Tillamook County was held to be void in Maxwell v. Tillamook County, 20 Or. 495 ( 26 Pac. 803 ), because it was applicable only to the one road and was clearly local. In Ellis v. Frazier, 38 Or. 462 ( 63 Pac. 642 : 53 L. R. A. 454), the bicycle tax law was held to be local and special, for the reason that it applied only to a few counties. But a law is not local or special that is applicable throughout the state, even though its operation in any locality is made to depend upon a local contingency, or a particular expediency to be ascertained or determined by a public vote in the locality or by petition, or adjudication of a court or other authority authorized by the act. It is, nevertheless, open to every locality when brought within its terms. This is the holding in Fouts v. Hood River, 46 Or. 492 ( 81 Pac. 370 : 1 L. R. A., N. S., 483); Baxter v. State, 49 Or. 353 ( 88 Pac. 677 ); Goodrich v. Winchester & Deerfield Turnpike Co. 26 Ind. 119 ; Palmer v. Stumph, 29 Ind. 329 ; and Paul v. Gloucester County, 50 N. J. Law, 585 ( 15 Atl. 272 : 1 L. R. A. 86). The Indiana “act concerning gravel and macadamized roads” (Laws of 1903, p. 255, c. 145) is almost identical with the one under consideration, and the constitution of that state prohibits local laws for the assessment and collection of taxes for road purposes. There it was held that an earlier law of like import is general in its provisions and open to all the citizens of the state to avail themselves of its benefits: Goodrich v. Winchester & Deerfield Turnpike Co. 26 Ind. 119 ; Bowlin v. Cochran et al. 161 Ind. 486 ( 69 N. E. 153 ). Statutes in other states authorizing special assessments upon the property benefited for the expense of the improvement of rural highways or drainage districts are upheld: 25 Am. & Eng. Ency. Law (2 ed.), 1183; Lewis et al. v. Jjaylin et al. 46 0'hio St. 663 ( 23 N. E. 288 ); Williams v. Cammack, 27 Miss. 209 ( 61 Am. Dec. 508 ); Graham, etc., v. Conger, etc. 85 Ky. 582 ( 4 S. W. 327 ) ; Malchus v. District of Highlands, 4 Bush (Ky.), 547 . The operation of this statute is contingent, depending upon the wish of a majority of *416 the landowners in the vicinity of any proposed improvement and upon the existence of certain conditions, but it is applicable in every portion of the state alike when the contingencies are met.

4. It is also contended that the act authorizes the assessment of a portion of the expense of the improvement against plaintiff’s property without reference to benefits. It is certain that the expense of such improvements can be assessed only -against lands benefited, and it must be apportioned according to such benefits: O. & C. R. Co. v. Portland, 25 Or. 229 ( 35 Pac. 452 : 22 L. R. A. 713); King v. Portland, 38 Or. 402 ( 63 Pac. 2 : 55 L. R. A. 812); Elliott, Roads & Streets (2 ed.), 542. But this statute is not subject to the criticism that it authorizes such assessment in excess of benefits. The act relates to improvements, the expenses for which are to be assessed “upon real estate adjacent thereto and benefited thereby.” This is expressed in Section12 of the act, as well as in the title. In Section 2 the viewers are directed to “make an estimate of the value of the benefits to all lands within two miles of such improvements, and if the said viewers and appraisers find that such improvement will be of public utility and convenience, and that the costs or expenses thereof, including damages caused landowners thereby, will be less than the benefit to the lands within two miles on either side and one mile beyond the terminus of such improvement, they shall apportion the estimated costs, expenses and damages upon all the said lands within two miles on either side, and one mile beyond the terminus, that are benefited, according to the benefits to be derived therefrom.” Thus the act clearly contemplates limiting the assessment to lands benefited and in proportion to such .benefits.

5. It is also objected that the limits of the taxing district are fixed arbitrarily by the legislature, and do not include all lands benefited. It is within the power of the legislature to fix the sum to be raised, and also to prescribe the benefited district, or they may delegate one or both of these questions to-a local board or bodyr: King v. Portland, 38 Or. 402 ; Spencer *417 v. Merchant, 125 U. S. 345 (8 Sup. Ct. 921: 31 L. Ed. 763 ); Spencer v. Merchant, 100 N. Y. 585 ( 3 N. E. 682 ); Bauman v. Ross, 167 U. S. 548 (17 Sup. Ct. 966: 42 L. Ed. 270 ); Williams v. Eggleston, 170 U. S. 304 (18 Sup. Ct. 617: 42 L. Ed. 1047 ). The legislature has prescribed the taxing district and delegated to a local board of viewers power to determine the extent of the benefits ánd the manner of apportioning the expense, and it has a wide discretion in describing the taxing district, and its action will not be disturbed, except where it dearly appears that it lias exceeded its constitutional authority. Its taxing power is unlimited, except as restricted by the federal constitution, and it may authorize local improvements to be made at the expense of the lands benefited. As said in Spencer v. Merchant, 100 N. Y. 585 ( 3 N. E. 682 ):

“The legislature may commit the ascertainment of the sum to be raised and of the benefited district to commissioners, but is not bound to do so, and may settle both questions for itself; and when it does so its action is necessarily conclusive and beyond review.”

This question is exhaustively treated by Mr. Justice Wolverton, in King v. Portland, 38 Or. 402 ( 63 Pac. 2 : 55 L. R. A. 812), and he concludes:

“The authority of the legislature in these respects is almost without limit. Yet that there is a limit beyond which it cannot go all will concede. When, however, it has exercised its legislative discretion, and prescribed a district and adopted a method, it ought to be plain and indisputable that it has exceeded its constitutional authority before the court shoirld undertake to set at naught its declared will.”

There is nothing suggested in the case before us that indicates that the legislature has exceeded its authority in fixing the taxing district.

6. It is also urged that lands assessed for one improvement are unequally burdened in case of a further improvement overlapping the first taxing district. By Section 7 of the act (Laws 1905, p. 414) it is provided:

*418 “And in all eases where any road has been constructed under this act, and another road shall be thereafter, under the -provisions of this act, constructed within four miles thereof, the amount to be assessed- against all lands included within the overlapping two-mile lines of each road shall be equitably determined by the county court, upon the report of said viewers and appraisers, to the end that such lands shall pay only a just and equitable proportion of the cost of constructing each road compared with other lands not within such overlap.”

The term “road,” as used here, undoubtedly means the portion improved, and the improvement of any other portion of the same road would be another road within the meaning of this act, and therefore lands within such overlap are protected from unequal burdens. If the portion of the viewers’ report that is in the transcript correctly states the method of computing the assessment against the lands benefited, it would seem to be erroneous in so computing a certain proportion of the total expense against each class regardless of the acreage in such class; but it does not appear how plaintiff’s lands are classified, or that they are injuriously affected, and such errors arc not for correction in this court.

7. Ample opportunity is afforded a landowner within the taxing district to question the action of the viewers as to whether his land is benefited at all, or as to how 'much it may be benefited, and as to whether the assessment on his land is proportionate to its benefits, and he has a right to appeal to the circuit court from the action of the county court as to these questions, and that remedy is exclusive, unless it is obvious from the circumstances of the case that the plan or method adopted in estimating the benefits and assessing the expenses amounts to a fraud upon him. Equity will not review the action of the legislature in fixing the taxing district, or of the viewers in estimating the value of benefits to lands within the taxing district, or in apportioning the expense of the improvement, except where it is plain that the constitutional authority of the legislature has been exceeded. The one is the act of the legislature itself, and the other the exercise of a delegated power, and hence the power and discretion of the viewers are coextensive with that of the legisla *419 ture while acting within the terms of the act, and, as said by Mr. Justice Míoore, in O. & C. R. Co. v. Portland, 25 Or. 229 ( 35 Pac. 452 : 22 L. R. A. 713), “these are questions of policy with which the legislature and its creature, the municipal corporation, deals, and the courts have no right to interfere, except in case of fraud or oppression, or some wrong constituting a plain abuse of such discretion.”

Therefore the court erred in overruling the demurrer to the complaint, and the decree will be reversed, and decree rendered here dismissing the suit. • Reversed.