Michell v. City of Portland

Me. Justice Eakin

delivered the opinion of the court.

1. In the original consideration of this case we concluded that the statement in the record of the council’s proceedings that a motion was seconded and carried “that the objections of Ralph R. Duniway, attorney, against said reassessment, be taken from the table and overruled,” sufficiently disclosed that they had been “heard and determined,” but upon further consideration upon this rehearing, in connection with the cases of Applegate v. Portland, 53 Or. 552 ( 99 Pac. 890 ), and Hughes v. Portland, 53 Or. 370 ( 100 Pac. 942 ), we conclude that such a record is sufficient only when relating to questions of law raised by the objections. But when the objections relate to issues of fact, the record should affirmatively show, by findings or recitals, that the council heard and determined those issues, together with the result of such determination.

2. In the petition for the writ of review plaintiffs assign as error that the council did not in any way ascertain or determine whether the objections to the preliminary reassessment were true, but ignored and overruled them. Two of these objections related to questions of fact, namely, that the improvement was not made or completed according to the terms of the ordinance providing for the improvement, in that the car track in the center of the street was not improved, and that the estimated expense thereof was included in the preliminary reassessment against the property in the district. If the owners made objections to the acceptance of the improvement before it was accepted by the executive board, and it was considered, and the merits thereof *551 determined under the provisions of section 380 of the charter, or the right to object thereto was waived, and the improvement accepted, they were not entitled to raise it again by objection to the reassessment proceeding.

3. Although it is not necessary that the resolution authorizing the reassessment shall state that the improvement has been completed, or that it was not defeated by a remonstrance, yet if the reassessment proceeding alone is sought to be reviewed, these matters, which are necessary to give the council authority to make the reassessment, must appear in the return, either by making the record a part of the return, or by recitals in the resolution authorizing the reassessment.

4. There can be no presumption by the reviewing court that these requirements have been complied with, and if not heard and determined in the original proceedings, then it may be raised by objections to the preliminary reassessment; and, so far as the record here discloses, plaintiff was entitled to object to the preliminary reassessment, on the ground that the improvement had not been made or completed in substantial compliance with the specifications, and to have such objections heard and determined in the manner contemplated by the charter. The objections made by plaintiffs to the preliminary reassessment, that the improvement had not been completed, and the estimated cost thereof assessed to plaintiffs, were not heard and determined by the council, and therefore the subsequent procedings in making the reassessment were void.

5. Plaintiffs further assign as error that the council did not attempt to determine whether the amount assessed by the auditor against each lot, or part thereof, was in just proportion to the said special and peculiar benefits. Section 400 of the charter provides that the new assessment of the cost of the improvement must be made upon the lots benefited, “to the extent of their respective and proportionate shares of the full value thereof.” This is *552 one of the matters that must be determined by the council. Section 2 of the reassessment ordinance does not show this, in that it fails to determine that the reassessment was proportionate among all the lots according to their special benefits.

In the application for rehearing it is strongly urged that the motion for an additional return to the writ of review should have been allowed. The writ, only required the auditor to return the proceedings for the reassessment. The assignments of error in the writ only relátete matters affecting the reassessment proceedings; and, as the return fully complies with the command of the writ, a further return is unnecessary. But for the errors above referred to the former opinion will be set aside, the decree of the circuit court reversed, and the cause remanded, with directions to sustain the writ, and set aside the reassessment ordinance as void, for failure to hear and determine the objections of plaintiffs to the preliminary reassessment, to the effect that the improvement was not made in substantial compliance with the improvement ordinance, and the estimated cost thereof was erroneously assessed to the property owners, and such further proceedings as may be proper, not inconsistent with this opinion. Reversed.