Dowell v. City of Portland

10 P. 308, 13 Or. 248, 1886 Ore. LEXIS 16

• Court: Oregon Supreme Court
• Decided: March 15, 1886
• Status: Published

Opinions

Waldo, C. J.

The charter of the city of Portland provides that the assessment roll of taxes for a street improvement, called in the charter the “ Docket of City-Liens,” shall contain the name of the owner of the property assessed, or shall state that the owner is unknown. The lots were assessed to a stranger to the title. This case arises on an attempt to reassess to the true owner after a sale on the first assessment and payment of the purchase price.

“Tax titles were unknown to the common laws of England. The only way in which an Englishman’s lands could be involuntarily aliened, except in case of forfeiture for treason, was by judgment of law; or as it is expressed in the great charter, ‘ law of the land.’ ” (9 Amer. Law Rev. 566.) An American may be deprived óf his lands without the judgment of his peers, and even without notice; but it is to the credit of the common law that no sanction for such proceedings is found in its bosom, and that its wise rule of statutory construction, that statutes in derogation of its principles áre to be strictly construed, has not tended to facilitate the divestiture of property by such proceedings — proceedings which are not only alien in principle, but even in the language in which they are expressed. When counsel say, “This is a proceeding in rem,” we expect some argument better suited, as the author of the Commentaries in another connection has said, for a despotic monarchy than the free constitutions of an English people.

In this case, the name of a stranger having been entered on the docket, the sale was void as to the plaintiff. (Smith v. Cofran, 34 Cal. 316; Hubbell v. Weldon, Hill & D. Sup. 142; Bush v. Williams, Cooke, 274; Abbott v. Lindenbower, 42 Mo. 162; Dunn v. Winston, 31 Miss. 137; Clarke v. Strickland, 2 Curt. 444; Corporation of Washington v. Pratt, 8 Wheat. 681.)

A power has been stated to be the dominion which one-person exercises over the property of another. (Maundrell: v. Maundrell, 10 Ves. jun. 265.) The city exercised a naked-statutory power. It was not adjudicating anything, and therefore not exercising jurisdiction over anything,, in any juridical sense; or, if so, then every grantee of a. power is exercising jurisdiction when he executes the. power. When the reassessment was ordered, the property had been sold and the assessment paid into the city treasury. The power to sell had been executed and exhausted. There was no authority to refund and reassess. This .suit, therefore, cannot be maintained. (Hamilton v.. Valiant, 30 Md. 139; Lyon Co. v. Goddard, 22 Kan. 398; Harper v. Rowe, 53 Cal. 234; Curry v. Hinman, 11 Ill. 420; Homestead Co. v. Valley R. Co., 17 Wall. 153; Peebles v. Pittsburgh, 101 Pa. St. 304; St. Paul v. Mullen, 27 Minn, 78; Allen v. Smith, 1 Leigh, 231-250; Irvine v. Elnonti 8; East, 54; Smith v. Bowes, 38 Md. 466; Blackwell on Tax Titles, 356.)

The decree below must be reversed, and the court below directed to make the injunction perpetual.