Alexander v. City of Tacoma

• Decision Date: 14 July 1904
• Citation: 35 Wash. 366,77 P. 686
• Court: Washington Supreme Court
• Parties: ALEXANDER v. CITY OF TACOMA et al.

77 P. 686

35 Wash. 366

ALEXANDER v. CITY OF TACOMA et al.

Supreme Court of Washington

July 14, 1904

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Lucien H. Alexander against the city of Tacoma and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Ellis & Fletcher and Arthur Remington, for appellant.

Emmett N. Parker, Harvey L. Johnson, and E. R. York, for respondents.

FULLERTON C.J.

On May 14, 1892, the city council of the city of Tacoma passed a resolution declaring it to be its intention to improve that part of Tacoma avenue between the center of North Fourth street and the center of North Fifth street by 'paving the roadway fifty-four (54) feet wide with bituminous rock upon six (6) inch concrete foundations.' Thereupon the city engineer made a survey of the contemplated improvement prepared a diagram of and specifications for the same, and made an estimate of the cost thereof; including within his survey, diagram, specifications, and estimate of cost, 640 lineal feet of eight-foot walk and 677 lineal feet of concrete curb, not mentioned in the resolution of the city council. Bids for the work according to the disgrams and specifications of the city engineer were advertised for, and a contract let to the lowest bidder thereon, being for the sum of $5,795. Included in this contract was a clause by which the contractor guarantied to keep the pavement in repair for a period of five years. The contractor entered immediately upon the performance of the work, and completed the same about the middle of September, 1892. Thereupon the city council levied an assessment upon the property benefited to pay the cost of the work, in the sum of $5,800, or $5 in excess of the contract price. On January 28 1893, and after the city officers had commenced proceedings to enforce collection of the assessment, one J. D. McAllister brought an action against the city to restrain collection of the assessment, and to cancel the same. Issue was taken on the allegations of the complaint, a trial had, and a judgment entered dismissing the action. This judgment was reversed on appeal to this court (9 Wash. 272, 37 P. 447), and the cause remanded, with instructions to enter a judgment canceling the assessment. On February 15, 1896, the city council attempted a reassessment of the property under Acts 1893, p. 226, c. 95, by passing an ordinance authorizing such a reassessment. Under this ordinance a reassessment was made by the assessing officers according to benefits; the officers finding that the several lots were benefited equally, and to an amount equal to the original assessment. After the assessment roll had been returned, notice was given of the filing of the same, and a time fixed when objections thereto would be heard. The appellant, within the time required, filed objections to the assessment, and, at the time fixed, appeared to contest the same, when the hearing was postponed by the committee of the council having the matter in charge to a day certain, and on the latter day to no fixed date, but with the understanding that it might be called up after notice to the parties interested. Nothing further was done in the matter until July 11, 1896, when the city council, without notice to the appellant, dismissed the proceedings by repealing the ordinance authorizing the assessment. At this same date a new ordinance was introduced, providing for a reassessment or the property, which passed the council on July 18, 1896. This last ordinance was in turn repealed on July 15, 1897; and on July 18, 1897, the council passed Ordinance No. 1214, being the fourth ordinance providing for an assessment of the property benefited, and the ordinance under which the assessment now in question was made. This last ordinance recited, among other things, the making of the original improvement, and the original assessment to pay the cost of the same; the fact that the original assessment was approved and confirmed by the city council, but was thereafter declared void by the courts, and that it was intended by the ordinance in question to reassess the property to pay the cost of the original improvements; reciting further that the cost of the improvement was $5,800. The ordinance directed that an assessment be made by the commissioner of public works on the lots benefited by the improvement in an equitable manner, according to benefits, to an amount equal to the cost of the improvement, as recited in the ordinance, and interest thereon from November 30, 1902, at the legal rate. The officer named in the ordinance made a new assessment in accordance therewith, valuing the benefits to the several lots equally, and at sums the aggregate of which equaled the amount of the original costs and interest, as directed in the ordinance. On the filing of the assessment roll with the city clerk, that officer caused to be published the required notice of the time and place when and where objections thereto could be heard. On the day fixed for the hearing, no objection having been filed, the city council examined the roll, and by ordinance approved and confirmed the assessment as made by the commissioner, and directed that the city treasurer proceed to collect the same. No notice, other than that required by statute, was given the appellant of any of these subsequent proceedings; and he had no actual notice thereof until after the proceedings had been confirmed by the city council, and his right of appeal therefrom to the superior court had expired.

The appellant owns a lot abutting upon the improved street, which is among the lots assessed to pay for the improvement, and he brings this action, asking the court to direct that the city council reopen the assessment proceedings, and, after permitting the appellant to file his objections thereto, reconsider and rehear the matter in the light of such objections, the same as if they had been presented in due time at an original hearing, and in the meantime enjoin a sale of the property. He contends that because he once appeared before the city council in opposition to the reassessment, and was promised by the city officers that his council should be personally notified of the subsequent proceedings taken in the matters then pending, he was entitled to be personally notified of the last attempt at reassessment, and that the failure of the city officers to so notify him or his counsel of such attempt was so far arbitrary and in fraud of his rights as to require a vacation of the order confirming the assessment, notwithstanding the city proceeded with reference to giving notice in accordance with the statute, and actually gave such notice as is therein required. The appellant also contends that the superior court is the proper forum in which to urge this objection, and that that court, as a court possessing powers of an equitable nature, has the right to grant the relief demanded.

Whether or not the proposition last mentioned is sound, in law, we shall not now stop to inquire, as it is manifest that such a power will not be exercised until the applicant has made a reasonably clear case calling for its exercise, and it seems plain to us that the record here does not present such a case. The appellant's claim that he was prevented from having a hearing on his objections to the reassessment before the city council by the arbitrary action of the...