Neer v. Salem

149 P. 476, 77 Or. 42, 1915 Ore. LEXIS 81

• Court: Oregon Supreme Court
• Decided: June 8, 1915
• Status: Published

Opinion

Mr. Justice McBride

delivered the opinion of the court.

1. The refunding provisions of the charter and ordinance do not include plaintiff. They expressly confine the right to receive the refund to persons holding “the record legal title on December 2, 1912,” at which date, and for a long time previous thereto, the record legal title was in plaintiff’s grantee, TIattie P. Stith. With the equity of this plan of refunding we have nothing to do, although as a general rule it would seem to be as fair as any that could be devised. The sewer assessments were not a personal charge against the property owners, but against the lots affected by it when the change was made, so that instead of each lot being liable for its proportionate share of the $180,000, or thereabouts, which was the cost of the improvement, each lot was subjected to its proportionate share of taxation to pay the interest and finally the principal of the $480,000 bond issue provided to pay for all street improvements in the city. We have no means of determining whether or not the property is less burdened by the latter method than the former, as that involves speculation as to the amount of taxable property in the city other than land, the future growth of the municipality, and other factors in the problem not before us. The idea of the framers of the charter probably was that, as the land would doubtless have to bear a great portion of the burden of taxation under the bonding scheme, it would be more equitable to return the amounts already paid in to the then owners of the land, than to others who had disposed of their landed interests. That the plan will work out exact justice in every instance is not to be expected, but that it will as nearly approximate justice as any other that could have been devised is very probable.

Let us adopt plaintiff’s view and apply it to Mrs. Stith’s situation. She bought this property with an assessment upon it, the validity of which was in controversy. Plaintiff was so confident the assessment would be declared invalid that he was willing to take $3,600 and assume the risk of paying it. He got his price, lost the suit, and paid the assessment. Now, if the money so paid is refunded to him, Mrs. Stith’s property must respond in increased general taxation every year until the bonds which take the place of the original assessment, together with their annual interest, are discharged. It will therefore be seen that there is nothing so inequitable about the method devised by the city as to render it obnoxious to law. Authorities have been cited to the effect that a right to a refund does not run with the land and will not pass with a conveyance thereof. Borton v. City of Portland, 62 Or. 544 (125 Pac. 847), Smith v. City of Minneapolis, 95 Minn. 431 (104 N. W. 227), and Bernays v. Wurmb, 4 Mo. App. 231, are cases relied upon; but an examination shows that the holding was made by reason of the wording of the ordinances under which the cases arose. Thus in Borton v. City of Portland the ordinance provided for a refund to “persons who have paid the assessments.” In Smith v. City of Minneapolis the city ordered an improvement and collected from plaintiff’s grantor an assessment against his lot to pay for it. Subsequent to the purchase by Smith of the lot so assessed, the improvement was abandoned and the amount of the assessment refunded to plaintiff’s grantor. Whereupon Smith sued the city to recover the amount of the assessment. It was held that as he had not paid the money, and no improvement had been made, he was not entitled to recover, and that the right to recover the refund did not run with the land. In Bernays v. Wurmb the refund was authorized to be paid to “the persons who had paid the taxes, ’ ’ and it was held that a grantee who purchased subsequent to the payment by his grantor was not entitled to the refund. It will be seen from the foregoing cases that the assertion by the courts that the right to the money refunded does not follow the title, but belongs to the person who paid the taxes, is not a statement of a general principle of law, but is based upon the express or implied terms of the particular statute or ordinance there being considered.

2. Counsel for plaintiff also contend that plaintiff is entitled to recover back the amount of the assessment irrespective of the ordinance, because the method of paying for the improvement has been changed; but no case has been cited, and we believe none exists, where this doctrine has been sanctioned by any court. The cases cited to sustain this contention are: Riker v. Mayor of Jersey City, 38 N. J. Law, 225 (20 Am. Rep. 386); City v. Hill, 39 N. J. Law, 555; McConville v. St. Paul, 75 Minn. 383 (77 N. W. 993, 74 Am. St. Rep. 508, 43 L. R. A. 584); and San Antonio v. Walker (Tex. Civ. App.), 56 S. W. 952. The two New Jersey cases are to the effect that, where assessments have been voluntarily paid upon á levy afterward declared invalid by the courts, the money so paid may be recovered back. The Minnesota case holds:

“Where a municipal corporation has, after the commencement of a street improvement and after the collection of a special assessment therefor, wholly abandoned such improvement, a person, whose property has not been benefited in any manner by the work already done, and who has, by judicial proceedings, been compelled to pay the full amount of his assessment, is entitled to recover from the city the amount paid by him, with interest, as upon a failure of consideration.”

This case appears to state clearly the conditions of a recovery.

The case at bar may be distinguished in this: (1) The assessment here was finally declared legal by the highest tribunal, whereas in the case cited the assessment proceedings were by stipulation of the parties declared null and void. (2) In the case at bar the improvement had been completed and the plaintiff’s property had received the benefit of it before he sold to Mrs. Stith, while in the case cited the improvement had not been completed and plaintiff’s property had received no benefit; and, benefit to the property being the consideration, such consideration failed.

While there is testimony that nothing was added to the purchase price on account of the assessment, the same witness also testifies that there was an agreement at the time of the purchase that if it was adjudged legal plaintiff should pay it, so that the lien was considered and entered into the contract of purchase; and it would seem highly improbable that Mrs. Stith would have taken the property at the price she paid with a stipulation that she should pay the assessment if it should he adjudged legal. There would be little justice or equity in compelling her to pay it indirectly by increased taxation on her property merely because the city had changed the method of paying for the improvement.

Considering the whole case made by plaintiff, we conclude that he has shown no right to recover either under the charter and ordinance or otherwise; and the judgment is reversed, and the cause remanded, with directions to enter judgment for defendant.

Reversed. Rehearing Denied.

Mr. Chief Justice Moore and Mr. Justice Burnett took no part in the consideration of this case.