Abernethy v. Town of Medical Lake

• Decision Date: 05 June 1894
• Parties: ABERNETHY v. TOWN OF MEDICAL LAKE.
• Court: Washington Supreme Court

37 P. 306

9 Wash. 112

ABERNETHY v. TOWN OF MEDICAL LAKE.

Supreme Court of Washington

June 5, 1894

Appeal from superior court, Spokane county; Norman Buck, Judge.

Action by Robert Abernethy against the town of Medical Lake on a town warrant. Judgment for defendant, and plaintiff appeals. Affirmed.

Prather & Danson, for appellant.

Jones Belt & Quinn, for respondent.

STILES J.

It was decided in City of Pullman v. Hungate (Wash.) 36 P 483, that those municipal incorporations which were declared to be void in Territory v. Stewart, 1 Wash. St. 98 23 P. 405, and whose attempted resuscitation was held unsuccessful in Town of Denver v. City of Spokane Falls 7 Wash. 226, 34 P. 926, had been legally established as corporations by the act of March 9, 1893 (Laws, p. 183), and that a complaint which showed an attempt at a street assessment under the act of 1890 could be maintained under the act of 1893. City of Pullman v. Hungate has been followed in several other cases, and it applies in this case, where there was a contract made by the town to pay money, instead of a tax or assessment levied by it. The town, in territorial days, took steps towards the grading of a street at the expense of property owners. The contractor failed to complete the work, and, after the reorganization of the corporation in 1890, the council proposed to persons who had been bondsmen of the contractor that if they would finish the work the town would accept it and "ratify the indebtedness incurred on said street." The proposition was accepted, the work completed, and reported satisfactory, and an ordinance was passed declaring a certain sum to be indebtedness of the town in favor of plaintiff's assignor. Without further order, the mayor and clerk issued warrants, the payment of which was limited to the "Lefevre Street Grade Fund," but there was no such fund, and payment has been refused by the treasurer for want of fund.

The authority of City of Pullman v. Hungate must decide this case on the main point of the plaintiff's right to have a recovery. The act of 1893 expressly provides that all contracts made by the cities and towns therein legislated for are declared legal, and of full force and effect. The undertaking of the respondent town was a contract which the legislature could have authorized the town to make, and it could, therefore, render it valid afterwards, the other party consenting. That, under the act of 1888, streets could be improved only at the expense of abutting owners (if such, in fact, be the case), can have no effect to restrict the payment of this debt to a "grade fund." The...