# Portland Lumbering & Manufacturing Co. v. City of East Portland

> Oregon Supreme Court · July 1, 1889 · 18 Or. 21

URL: https://www.frixlaw.com/law-library/cases/6895461

## Case

- **Full name:** THE PORTLAND LUMBERING & MANUFACTURING CO. v. THE CITY OF EAST PORTLAND
- **Court:** Oregon Supreme Court
- **Decided:** July 1, 1889
- **Citations:** 18 Or. 21; 22 P. 536; 1889 Ore. LEXIS 67
- **Precedential status:** Published
- **Opinion:** Concurrence by Lord
- **Judges:** Lord, Strahan, Thayer
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6895461

## Opinion text

Lord, J., concurring.
For the purposes of this case, it may be admitted that a municipal corporation cannot contract in any other mode than is authorized by it? charter. When to make a contract for the improvement of a street and to provide the funds to pay for it, the charter prescribes it shall only be done by local assessments on the abutting property, this amounts to a direct inhibition against making any contract for such improvements bnly as such mode is pursued, and the failure or omission of the city to create the fund from the resources indicated to pay for such improvements, when made, will not subject the city to any general liability therefor. The reason is plain. As the city is without any general power to contract for and provide the funds to pay for such improvements, except by way of local assessments, it necessarily results that it cannot be subject to any general liability. To subject the city to a general liability, there must be some general power under which it would be authorized to raise the funds to pay for such improvements. But where such general power is conferred, and an improvement is projected to be paid for out of funds to be derived from local assessments, and the city authorities upon whom is devolved the duty, neglect or fail to take the requisite proceedings to create the lien which is to supply the funds to pay for such improvement—the improvement being within the scope of the general power of the corporation, independent of the special mode by local assessments—such neglect or *38 omission, after the improvement is made, will subject the city to a general liability to pay therefor. By the charter of East Portland the trustees are authorized and empowered to improve streets, parts thereof, etc., and to do this, it is expressly given full power to provide everything necessary to the exercise of the powers granted, which necessarily includes the right to levy taxes and pay for such improvements of its streets out of the general fund. In a word, the general power is given to make street improvements and to provide the means of paying therefor. In addition to this, there is also conferred the power to make such improvements, etc., of streets by means of local assessments, or the creation of liens upon the property of abutting owners, as prescribed by § 2 et seq. As this last mode involves that kind of interference with individual right of property as subjects it to liens for local assessments upon the theory of benefits received, such powers can only be exercised where it is expressly conferred and the mode of its exercise prescribed; hence, to enable the city to make improvements by means of local assessments upon the adjoining property, it was necessary, to expressly confer the power and the mode of its exercise, as without it the city would be confined to the general power. Such special mode of -making such improvements and supplying the funds to pay for them is not, therefore, exclusive, but it was inserted in the charter ex rei necessitate, because it must be there to authorize the city to make such improvements by local assessments; but its existence does not abate or nullify the general power conferred, as both may coSxist without conflict, and be exercised as justice may require. So that, according to my view, there is the general powder conferred on the corporation to make such improvement of streets or parts of streets, and to pay therefor -without resort to the special mode by local assessments. And, if the corporation contract for such improvements, and the improvements are made, but are to be paid for by local assessments upon abutting property, and the city fails to perform its duty by doing the acts prescribed by the charter *39 to supply such fund, such negligence or omission of duty will subject it to a general liability. In N. P. L. & M. Co. v. East Portland, 14 Or. 6, 7 , while the personal opinion was expressed that the city did not have any power to contract for a street improvement, it was held that where it undertook to provide for the payment of such improvement by local assessments, but failed or neglected to perform the required acts intended to supply such fund, a general liability attaches in consequenee thereof. The language of Mr. Justice Thayer in that case is: “I do not think the city has any power to enter into any such engagement for the improvement of a street; but it does undertake to perform all the acts required by the charter, intended to supply the requisite fund to defray the expense attending it. And a failure to comply with any of the requirements of the charter by which the fund may be realized would subject it to a general liability.” My concurrence in that result rests upon the principle that the right to subject the city to a general liability is based upon the general power conferred to make such improvement and to defray the expenses thereof out of the general fund; for, if the city has not such general power, but is confined exclusively in making and defraying the expenses of such improvements to the fund derived from local assessments upon abutting property, there would be no authority, even though there was a failure to perform all the required acts intended to provide such fund, and to subject the acts to a general liability. It would be ultra vires, and, in my judgment, the case in 14 Or., supra, could not be sustained. The right to subject the city to a general liability finds its authority in the general power conferred to make such improvements, as without it such improvements could only be authorized in the special mode prescribed, which would necessarily be exclusive, and could only be paid for out of the funds derived from local assessments. Unless, therefore, the city has the general power to make such improvements, the court could not subject it to a general liability, as it did in the case referred to, where the fund to pay for such *40 improvements was to be derived from local assessments which failed by reason of neglect to comply with the requirements of the charter; but according to my construction of the charter, I understand the city has the general power, expressly conferred, to make such improvements, and to do all acts or things necessary to effect that object, as well as the special power to make such improvements and to defray the expenses attending it by local assessments upon the abutting property; and that when such special power has not been pursued by reason of neglect, or omission, of the city authorities to take the proper steps to create the fund to pay for the improvement when the contract for such improvement has been fully performed on-the part of the contractor, that the city may be subject to a general liability, because the improvement made, and of which the city has the benefit, was within the scope of its general powders, and for which the city could have pro\rided and paid out of the general funds. It may be true that it imposes some hardship when an impi-ovement is projected, the expense of which is to be defrayed by local assessments, that all should be taxed for the failure of the city officers „o do their duty; but it is a greater hardship that he who performed the labor, or supplies the materials, or both, for making such improvements, and of which the city has the possession and benefit, should go without his pay, especially when the evil complained of may be remedied by procuring proper legislative authority to make a valid reassessment of the property in view of an assessment that is insufficient or defective, and thereby provide for reimbursement.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6895461. Public record. Not legal advice.