ERROR TO THE SUPREME COURT OF THE STATE OF OREGON.
MR. JUSTICE BREWER 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, decided in 1879, 8 Oregon, 67, 83, 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. Paulsen v. Portland, 16 Oregon, 450, 464. 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
§ 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 Pac. Rep. 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 exercise 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 Kansas, 156, it was held thus: "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,
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. Lynchburg, 84 Virginia, 861; Williams v. Detroit, 2 Michigan, 560; Gatch v. Des ...