Murray v. La Grande

Mr. Justice Burnett

delivered the opinion of the court.

1. The vital question in this case is whether, under the charter and in the circumstances to which it is at *602 tempted to apply its provisions mentioned, the city could make the reassessment in question. It is well settled that the imposition of a tax upon property by a municipality for a local improvement is a hostile proceeding, and, before realty can be charged with such an expense, the taxing body must have complied with the provisions of its fundamental law on the question of jurisdiction: Strout v. City of Portland, 26 Or. 294 -299 ( 38 Pac. 126 ); Smith v. Minto, 30 Or. 351 ( 48 Pac. 166 ); Bank of Columbia v. Portland, 41 Or. 1 -8 ( 67 Pac. 1112 ); Oregon Transfer Co. v. Portland, 47 Or. 1 ( 81 Pac. 575 , 82 Pac. 16 ); Applegate v. Portland, 53 Or. 552 -556 ( 99 Pac. 890 ); Jones v. City of Salem, 63 Or. 126 -132 ( 123 Pac. 1096 ). If the city moves in such matters without first acquiring jurisdiction, it does so at its peril if nothing else is shown.

The quasi process in the present instance, by which alone the city could acquire jurisdiction, is the notice described in the quoted provisions of the charter. It is required, among other things, that there shall be contained therein a description of the improvement proposed, the boundaries of the district to be affected or benefited thereby, and the estimated cost thereof. This language plainly contemplates a work to be done in the future. It has no reference to past improvements. It manifestly gives to the property holder who is to be assessed the right to be heard in advance, not only as to the amount of the levy, but also as to the kind of improvement. It is conceded by the answer that this was not done in the first instance. In respect to the final effort to tax the realty of the plaintiffs, the improvement had already been made, whatever its kind or nature; the question about the sort to be adopted-had been irrevocably decided; the pave *603 ment, whether good or bad, was in place — all without a previous opportunity for plaintiffs to be heard upon that subject. Confessedly, as disclosed by the answer, this charter right of the taxpayer was utterly ignored in the beginning for want of notice. That pleading expressly disavows any reliance upon the original proceedings, but claims under the ordinance of July 24,1913, passed long after the work was done.

2-4. It is admittedly competent for the legislative power to provide one or more methods, concurrent or successive in their operation, for the purpose of collecting assessments designed to cover the cost of improvement yet to be made, or already made, either of which methods a municipality may pursue in the transaction of such affairs. It is also without question that, although operations under existing laws may have come to naught for want of jurisdiction, yet the legislative power by subsequent enactments may provide a new and independent formula ignoring even the question of jurisdiction under former proceedings, and yet levy a tax or provide for the same to cover the cost of an actual improvement. This is abundantly taught in such cases as Thomas v. Portland, 40 Or. 50 ( 66 Pac. 439 ); Duniway v. Portland, 47 Or. 103 ( 81 Pac. 945 ); Hughes v. Portland, 53 Or. 370 ( 100 Pac. 942 ); Mills v. Charleton, 29 Wis. 400 ( 9 Am. Rep. 578 ); Schintgen v. La Crosse, 117 Wis. 158 ( 94 N. W. 84 ); Smith v. Detroit, 120 Mich. 572 ( 79 N. W. 808 ). That, however, is not the situation in this instance. The language of the charter under which the defendants claim is this:

“If any assessment is set aside by order of any court, the council may cause a new one to be made in like manner for the same purpose for the collection of the amount so assessed.”

*604 As previously pointed out, in proceedings of this character, the charter plainly contemplates street work yet to he done. It has no retroactive language. When the improvement is already made, it is impossible to make a reassessment “in like manner for the same purpose” as required by the charter. In other words, after the doing of the work, whether good, had or indifferent, a situation is presented to which the present provisions of the La Grande charter cannot be applied. The giving of notice in the terms described by the excerpts of the organic law under which that municipality operates is a condition precedent which must he observed before the city can acquire jurisdiction to make an improvement. The contention of the defendants would make the acquisition of jurisdiction a condition subsequent. The plain logic of their position is that, notwithstanding the provisions of the charter, they may first decide and afterward hear. No independent or different proceeding is established by the charter for collecting such a tax. It simply provides for a reiteration of the same process, and does not dispense with any of the charter rights reserved to the property holder. The situation is simply one where the water of jurisdiction has run past the mill of opportunity. The time to have asserted the power to reassess was before the right of the taxpayer to he heard on the kind of improvement had been ignored and rendered worthless. If jurisdiction had been acquired regularly at the outset, it would have been permissible as the charter now stands to return and correct errors in the apportionment of the expense by a reassessment. In any case, if the city would retrace its steps for corrective purposes, it must go clear hack to where it obtained jurisdiction, to *605 which alone can it tack renewed efforts to tax property. It would have been competent for the legislative power of the town to dispense with all previous notice of intention to install betterments and to empower the council to call upon the taxpayer for the first time after the work was completed, but it has not done so. By failing to give sufficient previous notice and yet persisting in the prosecution of the work, the city has reversed the chronological order of the process enjoined by its charter.

The case presented by the defendants is one in which they have decided beforehand against the taxpayer in one of the most important particulars of the assessment scheme. Jurisdictional power cannot, like the phoenix, rise from its own ashes, and where the case presented is one in which full compliance with the essentials of jurisdiction cannot be had, repetition of the same process will never confer jurisdiction. In short, it appears by the record that, on account of the improvement having been previously made and not still in contemplation, it is impossible for the council, in the language of the charter, to cause a new assessment “to be made in like manner for the same purpose.”

It is unnecessary for us to consider whether the pavement was good or bad, or whether the contractor complied with his engagement. Not having authority to proceed at all, the action of the city did not bind the taxpayers. These considerations lead to a reversal of the decree and the rendition of one here according to the prayer of the complaint.

Reversed and Degree Rendered.

Mr. Justice Eakin did not sit.