In view of the notice actually given of the meetings of the
freeholders appointed to estimate the proportionate cost of a sewer
in Portland, Oregon, and to assess the proportionate share of the
cost thereof upon the several owners of property benefited thereby,
and in view of the construction placed upon the ordinance by the
City Council, and in view of the approval of the proceedings by the
supreme court of the state as being in conformity with the laws
thereof,
held that, notwithstanding the doubt arising from
the lack of express provision for notice, the requirements of the
Constitution as to due process of law had not been violated.
On March 5, 1887, the Common Council of the City of Portland
passed an ordinance, No. 5068, providing for the construction of a
sewer in the north part of the city, and known as "Tanner Creek
Sewer." In pursuance of that and subsequent ordinances, the sewer
was constructed, and the cost thereof cast by a special assessment
upon the lots and blocks within a prescribed district. The validity
of this assessment was challenged by this suit, the plaintiffs
being lot owners in the sewer district. The suit was commenced in
the Circuit Court of the State of Oregon for the County of
Multnomah. That court sustained a demurrer to an amended complaint
and dismissed it, and this decree of dismissal was affirmed by the
supreme court of the state. 16 Or. 450.
Page 149 U. S. 31
The burden of the complaint rested upon these allegations:
"Said ordinance numbered 5068, approved March 5, 1887, is
unconstitutional and void in this:"
"§ 121 of chapter 10 of the charter of the said City of
Portland, providing for the construction of sewers, under and by
virtue of which said ordinance numbered 5068 was passed, is in
violation of the Fourteenth Amendment to the Constitution of the
United States, as it provides for taking private property for
public use without due process of law, and said ordinance numbered
5068 is also unconstitutional and void as it determines arbitrarily
and absolutely that the property therein described is benefited by
said Tanner Creek sewer without giving to the owners of said
property any notice or opportunity to be heard upon that question.
Said ordinance numbered 5162, approved August 19, 1887, is
unconstitutional and void upon the same grounds as those upon which
said ordinance numbered 5068 is unconstitutional and void as
aforesaid, and also because said ordinance numbered 5162 provides
for an assessment of the property therein named for the
construction of said Tanner Creek sewer without providing for any
notice to the owners whose property is therein and thereby
assessed."
"Said ordinances, and each of them, and said assessment, were
and are unconstitutional, illegal, and void because -- and these
plaintiffs aver the fact to be as now stated -- plaintiffs had not,
nor had any of them, any notice of the said proceedings of the said
Common Council, or any opportunity to be heard as to whether or not
their property, or the property of any of them, was or could be
benefited by said sewer, or as to the amount that was or should be
assessed upon the several parcels of property named in said
ordinance numbered 5162."
"Said ordinances, and each of them, and said assessment, were
and are illegal and void for the reason -- and these plaintiffs
aver the fact to be -- that said Common Council and the said
viewers, and each of them, knew that a large proportion of the
property described in said ordinances, including the property of
these plaintiffs, was and is a long distance away from said Tanner
Creek sewer, and never would or could
Page 149 U. S. 32
be benefited by said sewer, and that a considerable portion of
said property was lower in elevation than the bottom of said sewer,
and that it was physically impossible for said property to be
drained into said sewer or to be benefited by it in any way."
"And said ordinances and assessment, and each of them, were and
are a gross abuse of power by said Common Council, and in fraud of
the rights of these plaintiffs."
"Said assessment is illegal and void, and in violation of §
121 of chapter 10 of the charter of the said City of Portland,
because -- and these plaintiffs aver the fact to be -- that said
assessment was not made upon the property directly benefited by
said sewer, but was made indiscriminately upon a large section of
the City of Portland, and without reference to the benefits to the
property therein contained."
Section 121 of the city charter is as follows:
"The council shall have the power to lay down all necessary
sewers and drains, and cause the same to be assessed on the
property directly benefited by such drain or sewer, but the mode of
apportioning estimated costs of improvement of streets, prescribed
in sections 112 and 113 of chapter 10 of this act, shall not apply
to the construction of such sewers and drains, and, when the
council shall direct the same 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 improvements,
provided that the council may
at its discretion, appoint three disinterested persons to estimate
the proportionate share of the cost of such sewer or drain to be
assessed to the several owners of the property benefited thereby,
and in the construction of any sewer or drain in the city shall
have the right to use and divert from their natural course any and
all creeks or streams running through the city into such sewer or
drain."
Oregon Session Laws, 1882, p. 171.
Section 5 of Ordinance 5068 commences:
"SEC. 5. The streets and property within the district bounded
and described as follows shall be sewered and drained into the
Willamette River through the sewer in this ordinance provided
Page 149 U. S. 33
and ordered to be constructed along Tanner Creek and North
Eighth Street, from B Street, near the intersection of North
Fourteenth Street to the Willamette River, to-wit: beginning,"
and then, after defining the boundary of the sewer district,
declares:
"And as the lots and blocks and parts of lots and blocks
included within said district as above defined will be drained and
sewered both by surface drainage and underground sewerage, by and
through the sewer in this ordinance ordered to be located,
constructed, and put down, the said lots and blocks, and parts of
lots and blocks aforesaid, are hereby declared to be directly
benefited by such sewer, and subject to assessment therefor, in
proportion to the benefits received thereby as provided in section
121 of the city charter of the said city."
Section 12 is as follows:
"SEC. 12. That R. L. Durham, Charles G. Schramm, and H. W.
Monastes, disinterested persons, be, and they are hereby, appointed
viewers to estimate the proportionate share of the cost of said
sewer to be assessed to the several owners of property benefited
thereby in accordance with the provisions of section 121 of the
charter of said city, and report the same to the Common Council
within sixty (60) days from the date of the approval of this
ordinance by the mayor. Said viewers shall hold stated meetings in
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 estimate."
Ordinance 5162 contains these provisions:
"The City of Portland does ordain as follows:"
"SEC 1. The Common Council of the City of Portland having, by
Ordinance No. 5068, provided for the construction of a sewer,
together with the necessary catch-basins, manholes, lampholes, and
branches along Tanner Creek from North Fourteenth and B Streets to
North Tenth and H Streets, thence along North Tenth Street to I
Street, thence along I Street to North Eighth Street, and thence
along North Eighth Street to North Front Street, and thence
northeasterly to low water in the Willamette River;"
"And having therein and thereby appointed three disinterested
freeholders,
viz., R. L. Durham, H. W. Monastes, and
Page 149 U. S. 34
Charles G. Schramm, to estimate the proportionate share of the
cost of such sewer, to be assessed to the several owners of the
property benefited thereby, and said assessors having made their
report to the Common Council, which report, being satisfactory, is
hereby adopted, said report being in words and figure as follows,
to-wit:"
"To the Hon., the Common Council of the City of Portland."
" Gentlemen: The undersigned, appointed by your honorable body
to assess the cost of constructing a brick sewer along Tanner Creek
from North Fourteenth and B Streets to North Tenth and H Streets,
thence along North Tenth Street to I Street, thence along I Street
to North Eighth Street, thence along North Eighth Street to North
Front Street, thence northeasterly to low water in the Willamette
River, as provided by Ordinance No. 5068, would respectfully beg
leave to submit this our report."
" We met at the office of the auditor and clerk, and were
furnished with the plans, specifications, and contract, from which
we have ascertained the probable costs to be $35,652.20,
thirty-five thousand six hundred and fifty-two & 20/100
dollars."
" In accordance with the requirements of said Ordinance No.
5068, we gave notice of our first stated meeting June 25, 1887 at
6:30 o'clock P.M. (by publication of such notice in the Daily News,
the official paper of the city), at which time we met and proceeded
with our work, adjourning from day to day until the final
completion of our labors. We have assessed the cost of constructing
said sewer to the several lots, parts of lots, and tracts of land
included within the boundaries defined by you in your Ordinance No.
5068, in the several amounts as shown by the following tabulated
statement: [Omitted, per stipulation.]"
"SEC. 2. The auditor and clerk is hereby directed to enter a
statement of the assessment hereby made in the docket of city
liens, and cause notice thereof to be published in the manner
provided by the city charter."
"Passed the Common Council, August 17, 1887."
"W. H. Wood,
Auditor and Clerk"
"Approved August 19, 1887. "
Page 149 U. S. 37
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the 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. 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
Page 149 U. S. 38
§ 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 § 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
King Real Estate
Association v. Portland, decided in 1892 and reported in 31 P.
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, 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,
Page 149 U. S. 39
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;
Williams v. Detroit, 2
Mich. 560;
Gatch v. Des Moines, 63 Ia. 718;
Baltimore
& Ohio Railroad v. Pittsburgh, Wheeling &c. Railroad,
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, § 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 County, 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
Page 149 U. S. 40
district out of that area. For these no notice or assent by the
taxpayer was necessary. A sewer is constructed 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,
125 U. S. 355.
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,
140 U. S. 328.
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.
Page 149 U. S. 41
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 District, 111 U.
S. 701;
Spencer v. Merchant, 125 U.
S. 345. 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
Page 149 U. S. 42
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 ten 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.
