Allen v. City of Bellingham

• Decision Date: 23 January 1914
• Citation: 137 P. 1016,77 Wash. 469
• Parties: ALLEN et al. v. CITY OF BELLINGHAM et al.
• Court: Washington Supreme Court

137 P. 1016

77 Wash. 469

ALLEN et al. v. CITY OF BELLINGHAM et al.

Supreme Court of Washington

January 23, 1914

Department 2. Appeal from Superior Court, Whatcom County; John A Kellogg, Judge.

Action by C. W. Allen and others against the City of Bellingham and others. From a judgment of dismissal, plaintiffs appeal. Affirmed.

Black &amp Black, of Bellingham, for appellants.

Dan F North and Walter B. Whitcomb, both of Bellingham, for respondents.

MAIN J.

This action was brought for the purpose of enjoining the collection of certain reassessments for local improvements. On May 25, 1908, the city council of Bellingham passed a resolution declaring its intention to construct a trunk sewer outlet on C street between Holly and Laurel streets, and do such other work as might be necessary in connection therewith. This resolution reads as follows:

'Whereas it is necessary to improve C street from Holly street to Laurel street by the construction of a trunk sewer outlet, and doing such other work as may be necessary in connection therewith at a total estimated cost of twenty-two thousand two hundred and fifty-two dollars and sixty-one cents ($22,252.61) and in accordance with the plans and specifications prepared therefor and now on file with the comptroller, which cost it is proposed to assess against the property which can be conveniently sewered or drained by said trunk sewer and included in an assessment district hereafter to be established according to law.

'It is further hereby resolved that all persons interested desiring to make protests against the said improvement may file their protests at any time before 8 o'clock p. m., Monday, June 8th, 1908, in the office of the city comptroller.

'It is further hereby resolved that the manner of making said improvement and the method of payment therefor and all protests against the same will be considered at a regular meeting of the city council to be held in the council chambers at the city hall at the hour of 8 o'clock p. m. of said Monday, June 8, 1908, at which time and place all persons desiring to be heard are hereby notified to be present.'

On June 15, 1908, in pursuance of the intention declared in the resolution, ordinance No. 871 was passed, which provided for the construction of the sewer outlet, and for the levying and collection of a special assessment to pay for the same. Subsequently the sewer was constructed and the assessment roll prepared. Thereafter, and on January 21, 1910, the Bellingham Bay Land Company, W. R. Moultray, John Siegfried, and Thos. W. Miller, all of whom are appellants in this action, instituted an action in the superior court for Whatcom county to enjoin the collection of the assessment. Judgment was rendered vacating, setting aside, and holding void the assessment. On April 10, 1911, ordinance No. 1587 was approved, which provided for a reassessment of the property benefited by the construction of the sewer in C street between Holly and Laurel and the doing of such other work as was necessary in connection therewith, and created an assessment district. Thereafter the board of public works of the city of Bellingham prepared an assessment roll, and notice was published that a hearing would be had upon the same on November 20, 1911. This roll was not approved by the city council, and a resolution was passed directing that a new roll be prepared. A new roll was prepared, and on March 18, 1912, was confirmed by the city council. No claim is made that an opportunity was not given to make objections to this roll and to have a hearing thereon. The present action was instituted for the purpose of restraining the collection of the assessment made in the reassessment roll of March 18, 1912. The complaint is voluminous, but the facts stated are sufficient for an understanding of the questions which are presented. To the complaint a demurrer was interposed and sustained. The appellants elected to stand upon their complaint, and refused to plead further. Judgment was entered dismissing the proceeding, from which an appeal is prosecuted.

The principal contentions of the appellants are: First, that the city council had not acquired jurisdiction to make the reassessment in question; second, that the former proceeding in which the original assessment was held to be void was res judicata as against the right to reassess; and, third, that in any event the reassessment could not be made under ordinance No. 1587 after the council had rejected the first roll prepared thereunder and by resolution directed the making of a new roll.

I. It is earnestly contended that the resolution above set out, declaring the intention to make the improvement, was not sufficient to confer jurisdiction, and therefore the reassessment was made without due process of law.

Section 327 of the city charter, being one of the sections in which the city is empowered to provide sewerage, requires that 'All proceedings for the assessment of...