913A, In re Northwest Boulevard, Dist. No. 913A

• Decision Date: 11 February 1914
• Citation: 138 P. 560,78 Wash. 94
• Court: Washington Supreme Court
• Parties: In re NORTHWEST BOULEVARD, DIST. NO. 913A. VAN DER CREEK et al. v. CITY OF SPOKANE.

138 P. 560

78 Wash. 94

In re NORTHWEST BOULEVARD, DIST. NO. 913A. VAN DER CREEK et al. v. CITY OF SPOKANE.

Supreme Court of Washington

February 11, 1914

Department 1. Appeal from Superior Court, Spokane County; W. A. Huneke Judge.

Proceeding for the reassessment of benefits derived from the improvement of Northwest Boulevard, District No. 913A, from the west line of Monroe street to the west city limits, in Spokane, in which A. Van Der Creek and others filed objections. From a judgment sustaining the objections, the City appeals. Affirmed.

H. M. Stephens, Wm. E. Richardson, Ernest E Sargeant, Dale D. Drain, and F. D. Allen, all of Spokane, for appellant.

Starkey & Belknap and Morrill, Chester & Skuse, all of Spokane, for respondents.

CHADWICK J.

The city of Spokane passed an ordinance providing for the improvement of Northwest Boulevard, and creating an assessment district. The value of the abutting property according to the valuation last placed upon it for purposes of general taxation, was $58,493, and its assessable value under the special assessment law (chapter 98, § 12, Laws of 1911) was $29,246.50. An estimate of the cost was made at $129,000. A contract was let to do the work for $121,000, and the cost, as finally settled for the purpose of assessing the cost to the abutting property, was fixed at $135,200.50. A roll was made up and brought on for confirmation. Certain property owners objected, but the roll was confirmed over their protest. Upon appeal to the superior court the assessment was set aside, and a reassessment ordinance was passed. Objections were made by those formerly objecting and others who had made no objection to the original roll. The reassessment roll was confirmed. On appeal the reassessment roll was set aside. The city has appealed, and submits several questions for answer:

'First. May property owners who did not file objections to the confirmation of the first assessment roll, upon the ground that such assessment exceeds 50 per cent. of the assessed valuation of the property in the district, and who were not parties to any litigation affecting the first roll, file objections to the reassessment roll prepared in said case as a result of objections filed and an appeal taken by other property owners, and base those objections upon grounds which existed against the first assessment roll, and which were the subject of controversy between the appealing property owners and the city on that roll?

'Second. Where an assessment has been declared invalid because it exceeds the 50 per cent. of the assessed valuation of the property, may the city reassess the whole cost of such improvement against the property included in the original assessment district, including that the owners of which protested and appealed from the first roll?'

The answer to these questions is to be found in the statute. Act 1911, supra. Prior to the enactment of this law the only limitation fixed by general law upon the taxing power of the city in matters of this kind was that they should keep within the range of benefits, the amount of which was too often fixed arbitrarily and without right or reason, and, being always determined at the discretion of the board of commissioners, could not, in the absence of a positive or constructive fraud, be reviewed by the courts. Clearly there was a mischief made possible by an existing law, and it was the manifest purpose of the act of 1911 to remedy this, and to prevent a recurrence of existing abuses which had at times resulted in confiscation. To that end a limitation was fixed beyond which the city could not go without the sanction of the owners of property within the affected area; the limit being 50 per cent. of the value of the property as shown by the tax rolls.

There can be no question as to the invalidity of the original assessment. A reassessment is permitted under sections 42 and 43 of the act of 1911. We shall not set them forth in this opinion, for a most casual perusal will show that the statute contemplates an assessment de novo. A reassessment is authorized only when the first assessment has 'failed to be valid,' and to leave no question open as to the meaning of the words quoted, the term 'invalidity' has been defined a 'want of form or insufficiency, informality, or irregularity, or nonconformance with the provisions of law, charter, or ordinance.' In the case at bar there was no pretense of conforming with the limitation fixed by law. The assessment was invalid within the letter of the statute. The new proceeding was undertaken as if no assessment had ever been made. The law does not undertake to define or limit the rights of protesting parties on reassessment, but does say in terms that the reassessment shall be made in accordance with the provisions of law and ordinance existing at the time the reassessment is made.

'* * * This assessment [a reassessment] is not based on the other one, but has its foundation in the ordinance providing that the improvement should be made, and that it should be paid for by special assessment.' Farr v. West Chicago Park Com'rs, 167 Ill. 358, 46 N.E. 893. We held, when considering a like contention made under the act of 1907, that nonobjecting property owners were entitled to a proportionate benefit where the original assessment had been reduced by the court upon the appeal of others; reference being had to the underlying principles of the law. Seattle v. Sylvester Cowen Inv. Co., 55 Wash. 659, 104 P. 1121.

The argument is made that the only constitutional limitation upon the power of the city to levy a special assessment to pay for municipal improvements is that the tax shall not exceed the benefit. Const. art. 7, § 9. This was undoubtedly the rule, and it has been frequently declared by this court prior to the enactment of the act of 1911. By this later enactment, which is a general law, the limit of an assessment is 50 per cent. of the valuation of the benefited property. A general law governing cities and towns, and which limits the power granted, when passed in conformity with article 11, § 10, of the Constitution , is, in so far as the subject-matter of the enactment is concerned and the municipality affected, a limitation of equal force and as imperative in its workings as if it were a part of the Constitution itself. Franchises and contracts of cities must give way before such laws, for their potency is that of the Constitution, while the act of a city is permissive only. The general law under which a city exercises its power is its Constitution, in which it must be able to show authority for the acts which it assumes to perform. Cooley, Con. Lim. (6th Ed.) 227; Dillon, Mun. Corp. (5th Ed.) 237, 587.

This argument disposes of the cases of Collins v. Ellensburg, 68 Wash. 212, 122 P. 1010, and Chandler v. Puyallup, 70 Wash. 632, 127 P. 293, which are relied on to prove that the council had power, in the absence of objections, to assess or reassess without limit. In those cases the irregularities went to matters of procedure only, and were properly held not to be jurisdictional. See, also, Allen v. Bellingham, 137 P. 1016. Here the invalidity touches a positive prohibition of the statute. Under the cases cited ( Rucker v. Everett, 66 Wash. 366, 119 P. 807, 38 L. R. A. [N. S.] 582; Collins v. Ellensburg, 68 Wash. 212, 122 P. 1010; Chandler v. Puyallup, supra; Hypotheek Bank v. Spokane, 18 Wash. 456, 51 P. 1070; Anna Wright v. Tacoma, 23 Wash. 109, 62 P. 444; In re Westlake Ave., 40 Wash. 144-156, 82 P. 279) appellant contends that a property owner who makes no protest is conclusively presumed to be satisfied with the assessment, and will not be thereafter heard to question it. We have said enough to show that the power to tax up to 50 per cent. of the assessed valuation is a limitation and not a grant of power, and these cases are inapplicable because of the reasons sustaining the Collins and Chandler Cases, or because the proceedings were brought into question in a collateral proceeding.

The statute, section 12, Act of 1911, has never been squarely passed on by this court, but it seems to have been assumed, in Hapgood v. Seattle, 69 Wash. 497 125 P. 965, and Inner Circle Property Co. v. Seattle, 69 Wash. 508, 125 P. 970, that a city has no jurisdiction to assess beyond the limit of 50 per cent. of the...