Phipps v. Medford

Denied July 11, 1916.

On Petition for Rehearing.

( 158 Pac. 666 .)

Mr. Justice Burnett

delivered the opinion of the court.

5. A very earnest petition for a rehearing of this case has been presented on behalf of the plaintiffs and has had our careful attention. As a foreword, we notice this statement of the petitioner:

“The applicant for a rehearing occupies a somewhat embarrassing position. If his supplication is subservient, sycophantic, and flattering, his sincerity and honesty of purpose may be questioned; while if he utters his actual sentiment and opinion of the decision, he is apt to alienate the affection of the court.”

The duty of an attorney to his client requires utter fearlessness of purpose and a high order of talent. The function of the court which counsel is called upon *128 to advise is to declare the law without reference to flattery, invective or affection. The ascertainment of the legislative will as limited hy the Constitutions of the state and of the United States is the sole object of judicial quest. The true lawyer will present his view to the court without sycophancy on the one hand or scurrility on the other. He will courageously declare his views of the true rule to be observed, with his reasons therefor, irrespective of the„.adverse ruling of the court. His duty to both court and client will admit of nothing less. His character as a gentleman and the dignity of his profession will permit of nothing more. Any court worthy of the name will respect such conduct although it may not concur with the argument.

6. The essence of the contention advanced as ground for rehearing is that because the city council did not' observe the mandate of the legislative charter of Med-ford requiring 10 days previous notice before beginning the construction of a sewer, the laying down of such a drain cannot be made the basis of any future taxation of the property of the plaintiffs; and hence that, although the legal voters of Medford had amended their charter in the particulars noted in the former opinion, such legislation was ex post facto, and could not be made to apply to the improvement in question, which had been established for about three years before the present effort to tax for it had been inaugm rated. That this argument is fallacious is settled by Phillip Wagner v. Leser, 239 U. S. 207, 216 ( 60 L. Ed. 230 , 36 Sup. Ct. Rep. 66, 68), where the court says:

“It is first contended that the complainant is deprived of its property without due process of law, because the special assessment levied upon its property is for the special benefits long since accrued, and that the statute under consideration is retrospective in its *129 operation, thereby disturbing rights which had accrued to and become fixed in the property holders long before the passage of the statute; that the state had no authority, because of benefits thus long since conferred, to make the assessment in question. But we deem this contention foreclosed by the decision of this court in Seattle v. Kelleher, 195 U. S. 351 ( 49 L. Ed. 232 , 25 Sup. St. Rep. 44). In that case it was contended that there could be no valid assessment for a certain improvement, because it was levied after the work was completed; but this court met that contention by saying: ‘ The principles of taxation are not those of contract. A special assessment may be levied upon an executed consideration; that is to say, for a public work already done (citing authorities). If this were not so, it might be hard to justify reassessments (citing additional precedents). Of course, it does not matter that this is called a reassessment. A reassessment may be a new assessment. Whatever the legislature could authorize if it were ordering an assessment for the first time, it equally could authorize notwithstanding a previous invalid attempt to assess. The previous attempt left the city free ‘to take such steps as were within its power to take, either under existing statutes, or under any authority that might thereafter be conferred upon it, to make a new assessment upon the plaintiff’s abutting property’ in any constitutional way: Norwood v. Baker, 172 U. S. 269, 293 ( 43 L. Ed. 443 , 19 Sup. Ct. Rep. 187); McNamee v. Tacoma, 24 Wash. 591 ( 64 Pac. 791 ); Annie Wright Seminary v. Tacoma, 23 Wash. 109 ( 62 Pac. 444 ).”

7. This ruling by the highest court of the land demonstrates that the amendment of the city charter in question is a valid exercise of municipal power, and that it is permissible to provide for local taxation to reimburse the municipality for expenses already incurred in making improvements of the kind mentioned. The change was so designed as to include the whole *130 subject matter contained in the section of the legislative charter upon which the plaintiffs rely in respect to the acquirement of jurisdiction to tax. Hence the earlier enactment must yield to the later one, where they conflict: Strickland v. Geide, 31 Or. 373 ( 49 Pac. 982 ). The initiative power conferred upon the legal voters of cities and towns by Article IY, Section la, and Article XI, Section 2, of the state Constitution sanctions the adoption of the amendment known as Section 132a of the Medford Charter.

8,9. This new provision is very sweeping in its terms. It substantially provides that, no matter what the defect in the former proceeding, whether it be jurisdictional or otherwise, and no matter whether it shall have been declared void by judicial decision or if the common council shall be of the opinion that the assessment is illegal or doubtful for any reason, it may commence anew and proceed as stated in the revised charter. It cannot be contended that, as a preliminary to a valid assessment under this amended charter, the council must make a fictitious impost or attempt to act without jurisdiction. To urge this would be to say that a void act is the essential foundation for a valid one. The law does not require a vain thing, and hence considering the whole scope of the amendment, we hold that at any time after the improvement is laid down the city council, upon giving to the property holders to be affected the required notice and an opportunity to be heard, may proceed to assess and levy taxes to reimburse the municipality for the expense of the already installed improvement. Counsel for petitioners has divined this result. He says:

“While industrious citizens are busy at their ordinary vocations, special elections may be called for the purpose of voting charter amendments such as 132a. *131 In a city containing more than 10,000 people, only 310 persons may vote upon sneh an amendment, 175 for and 135 against the measure, adopting it by 40 votes.”

Such consequences may be appalling to the taxpayer, but they present no judicial question. The initiative and referendum system has let loose upon the state such agencies and such results. "We are subject to a system of government by.popular election. If industrious citizens would protect themselves, they must make attendance at the ballot-box part of their ordinary vocations, and so continue until the people in their wisdom shall devise a more conservative system of government.. Until that period shall arrive, the courts can only declare the law as it is, leaving the-change to be wrought by the people themselves, the original source of all constitutions and laws.

We are urged to take up the question of the actual benefits to be derived or not by the property of the plaintiffs from the construction of the sewer in question. As an authority for so doing, we are cited to the case of Myles Salt Co. v. Board of Commrs., 239 U. S. 478 ( 60 L. Ed. 392 , 36 Sup. Ct. Rep. 204). That was a suit to restrain the sale of plaintiff’s land for a tax levied by the defendant drainage district. It seems that the property of the plaintiff consisted of an island surrounded on two sides by bayous, on the rear by a salt-water marsh, and on the front by a bay. The island rose abruptly 175 feet or more above the surrounding marshy lands which were to be drained. The problem upon the island was to prevent washing and erosion, and the allegations were to the effect that the district had been made arbitrarily to include this elevation so as to levy taxes upon it for a scheme that would not, in any way, benefit the property, but would impose *132 a burden upon it for the benefit of the land of others, and that this was done without any just reason. Summing up the complaint, it is thus characterized in the opinion of the court ':

“The charge is that plaintiff’s property was included in the district, not in the exercise of ‘legal legislative discretion,’ not that the scheme of drainage would inure to the benefit of the property, even indirectly, but with the predetermined ‘purpose of deriving revenues to the end of granting a special benefit to the other lands subject to be improved by drainage, without any benefit’ to plaintiff ‘or its property whatever,’ present or prospective.”

10,11. The case was before the court on a general demurrer to the complaint. Nothing appeared in the pleading to indicate, as here appears, either that the question of benefit to or taxability of the property of plaintiff had been heard or determined by any lawfully established tribunal, or that an opportunity had been given for that purpose. On the demurrer the allegations necessarily were taken to be true as alleged. If nothing else appeared, the demurrer was properly sustained. But the present case is widely different. Written large on the amendment is the provision that notice shall be given, a time fixed for considering protests, and that the council shall hear and determine all objections to the proposed tax. It is a proper exercise of legislative power to commit this hearing and determination to the municipal council. Its decision must be respected in a collateral attack upon it, in the absence of any allegation of fraud in the procedure. This is in accordance with our previous decisions. It is not out of harmony with the doctrine of the Myles Salt Co. Case (Myles Salt Co. v. Board of Commrs.), 239 U. S. 478 ( 60 L. Ed. 392 , 36 Sup. Ct. Rep. 204). *133 It comports with the rule laid down in the syllabus of French v. Barber Asphalt Paving Co., 181 U. S. 324 ( 45 L. Ed. 879 , 21 Sup. Ct. Rep. 625):

“It was not the intention of the Fourteenth Amendment to subvert the systems of the states pertaining to general and special taxation. That amendment legitimately operates to extend to the citizens and residents of the states the same protection against arbitrary state legislation, affecting life, liberty, and property as is afforded by the Fifth Amendment against similar legislation by Congress, and the federal courts ought not to interfere when what is complained of is the enforcement of the settled laws of the state, applicable to all persons in like circumstances and conditions, but only when there is some abuse of law, amounting to confiscation of property, or deprivation of personal rights.”

Hughes v. Portland, 53 Or. 370 ( 100 Pac. 942 ), cited by the plaintiffs, was a case of a writ of review directly attacking the proceeding itself. It was not a suit to enjoin the collection of a tax involving a collateral attack upon the assessment. The question at issue in Terwilliger Land Co. v. Portland, 62 Or. 101 ( 123 Pac. 57 ), was the matter of competition in obtaining bids from contractors. In that case the council had specified a particular kind of patented pavement of which a certain company had the monopoly, and it appeared that by the terms of the advertisement no other person could bid for the work. It was held that this was an incurable violation of the charter providing for competition in such work. No such question arises here. In Dyer v. Bandon, 68 Or. 406 ( 136 Pac. 652 ), the objection to the method of acquiring jurisdiction was that the notice did not specify the kind of improvement proposed, although this feature was required by the charter. No question is here raised about the terms of the *134 notice. The contention is that the power to give notice, and in pursuance thereof to assess the plaintiffs’ property for an already established improvement, is utterly wanting. The fallacy of the position of the plaintiffs is that they rely upon the legislative charter and ignore the subsequent amendment made by the voters of the town. The sweeping provisions of the latter enactment enable the council to take up any previous improvement within the direct scope of municipal powers by a new and distinct proceeding, and after giving notice and an opportunity to be heard * and determining objections thereto, to proceed to reimburse the city for previous expenses in that direction. The power is far-reaching, and may fall into the hands of irresponsible parties, and may be exercised in a manner abhorrent to conservative citizens, yet it exists; and, in the absence of any allegation of fraud on the part of those using the authority, we must respect their determination.

The petition for rehearing is denied.

Reversed. Rehearing Denied.

Mr. Chief Justice Moore, Mb., Justice McBride and Mr. Justice Benson concur.