Buckley v. City of Tacoma

• Decision Date: 27 June 1894
• Docket Number: 1,234.
• Court: Washington Supreme Court
• Parties: BUCKLEY v. CITY OF TACOMA ET AL. No. 1,233. WINGATE ET AL. v. SAME ET AL.

37 P. 441

9 Wash. 253

BUCKLEY v. CITY OF TACOMA ET AL.

WINGATE ET AL. v. SAME ET AL.

No. 1,234.

Supreme Court of Washington

June 27, 1894

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by J. M. Buckley and by Robert Wingate and others against the city of Tacoma and others to set aside assessments for local improvements. From judgments for defendants, plaintiffs appeal. Reversed.

Doolittle & Fogg, for appellant Buckley.

S. C Milligan, for appellants Wingate et al.

F. H. Murray and S. A. Crandall, for respondents.

STILES J.

The enabling act for cities of the first class (Gen. St. § 520) provides that any such city framing a charter for its own government shall have power (subdivision 10) "to provide for making local improvements, and to levy and collect special assessments on property benefited thereby, and for paying for the same or any portion thereof;" (subdivision 13) "to determine what work shall be done or improvements made at the expense, in whole or in part, of the owners of the adjoining, contiguous, or proximate property, or others specially benefited thereby, and to provide for the manner of making and collecting assessments therefor." Section 52 of the charter of Tacoma begins thus: "The city government of Tacoma shall have powers by ordinance and not otherwise," repeating the language of the statute, with the exception of the last clause of subdivision 13, for which there is substituted "Provided the manner of making and collecting assessments therefor shall be as prescribed in this charter." But when the reader of the charter gets to article 12, which is a complete code of street improvement and assessment law, he finds that not an ordinance, but a resolution, is required. Appellants make a strong point of this, and insist that anything less than an ordinance renders the whole proceedings leading up to a street assessment void. But the learned judge who heard the case below held that the specific provisions of the article mentioned must govern the general ones of section 52, and we quite agree with his conclusion. Although the enabling act conferred the power, it did not undertake to say how it should be exercised. Very often such powers are made effective through general ordinances, but here the charter framers, and thereby the city en masse, have seen fit to prescribe even a more solemn and formal law on the subject by providing for a charter system which is rigidly binding upon both the legislative and executive powers of the corporation. We do not see how any substantial injury can be done, either, through this construction, and it remains merely to examine the record, to see how the mandates of the charter have been carried out.

The charter provides for the establishment of a board of public works, with a clerk, and specifically delegates to it many executive duties, and the appointment of sundry officers among whom is a city engineer, who is required to make all necessary surveys of public work under the direction of the board. Article 12, so far as is necessary for the consideration of this case, reads as follows:

"Sec. 135. All applications for establishing or changing the grade of any street or streets, the improvement of public grounds or buildings, the laying out, establishing, vacating, closing, straightening, widening or improvement of any street, road or highway, or the laying out or opening of any new street through public or private property, and for all public improvements which involve the necessity of taking private property for public use, or where any part of the cost or expense thereof is to be assessed upon private property, shall be made to said board, and such work or improvement, shall not be ordered or authorized until after said board shall have reported to the city council upon said application. But before any work or improvements as above contemplated shall be commenced, the city council, when recommended by the board of public works shall pass a resolution ordering that said work be done; provided that all applications for the purpose of changing the grade, or of making any improvements upon any street, avenue or alley, within the city shall be signed by at least three resident freeholders, owners of property abutting upon said street, avenue or alley; provided, however, that the city council may without petition or recommendation have power to order the improvement of any street, avenue or alley, or any part thereof by a two-third vote of all members of the city council.

"Sec. 136. Upon the adoption or passage of any resolution by the city council for the improvement of any street, avenue or alley, the board of public works shall cause a survey, diagram and estimate of the entire cost thereof, to be made by the city engineer; said diagram and estimate shall be filed in the office of the board of public works for the inspection of all parties interested therein. The clerk of said board shall forthwith cause a notice of such filing to be published daily for ten days in the official newspaper; such notice shall contain a copy of the said resolution passed by the city council, and must specify the street, highway, avenue or alley, or part thereof, proposed to be improved, and the kind of improvement proposed to be made, together with the estimated cost and expense thereof, and also a general description sufficient for indentification of the property to be charged with the expenses of making such improvements, and that if sufficient remonstrance be not made before the expiration of ten days after the date of the last publication, said improvement will be made at the expense of the owners of the lots and parcels of land described in said notice as hereinafter provided; but if within ten days after the final publication of said notice the persons owning one-half or more of the lots or parcels of land to be taxed for said improvements shall file with the clerk of the board of public works a remonstrance against said improvement, grade or alteration, the same shall not be made at the expense of the owners of the lots so described, unless the city council, by a two-thirds vote of all the members thereof, order said improvement made notwithstanding such remonstrance.

"Sec. 137. If no remonstrance be made and filed as provided in the last preceding section, then owners of the lots and parcels of land described in said notice shall be deemed to have consented to such improvement; or if such remonstrance has been made and filed, and the city council has ordered such work to be done or improvement to be made, the expense thereof shall be charged to the property described in said notice in the manner as hereinafter provided, and the board of public works, shall, at its earliest convenience, and within six months thereafter, establish the proposed grade or make the proposed improvement; provided, that no improvement shall be made when the estimated cost thereof shall exceed 50 per cent. of the assessed value of the property to be assessed.

"Sec. 138. Such cost and expenses of making said improvement shall be assessed upon the adjoining, contiguous or proximate lots or parcels of land described in said notice."

Without petition, the council passed this resolution, by unanimous vote: "Resolved by the city council of the city of Tacoma, that said city council hereby declares its intention to improve N street, in Buckley's addition, from Steele street to Pine street, at the expense of the abutting owners. Grading and sidewalking. To be done by day labor." The board of public works, in due course, published a notice as follows: "Notice is hereby given that the following is a true copy of a resolution of intention passed by the city council February 27, 1892, to wit: 'Resolved, by the city council of the city of Tacoma, that said city council hereby declares its intention to improve N street, in Buckley's addition, from Steele street to Pine street, at the expense of the owners of the lots and parcels of land affected by said improvement, according to the city charter; said improvement to consist of grading to an established grade, and building sidewalks on both sides thereof. And the city engineer is hereby ordered to make a survey, diagram, and estimate of the said improvement, and file the same in the office of the board of public works.' That the survey, diagram, and estimate of the cost of said improvement were filed in the office of the board of public works March 7, 1892, by the city engineer, and the estimated cost thereof is $1,850."

The filing of a diagram and estimate consisted in the engineer's writing in an estimate book kept in the office of the board the following:

                            N Street in Buckley's Addition.
                Steele to Prospect  cut     78  fill  1,055  curb    810
                Prospect to White    "     539   "      157   "      270
                White to Oak         "   1,453
                Oak to Race          "     575   "       46   "       29
                Race to B'd'y        "      92   "      317   "      290
                                         -----        -----        -----
                     Totals              2,737        1,575        1,309
                          2,136 lineal feet of 7 walk.
                             80 " " " " aprons.
                            344 " " 6 " Xings.
                          2,136 " " gutters.
                            424 " " drain box.
                 1,800 feet frontage.
                 Estimate March 7, 1892, $1,850.
                

No remonstrance of the owners of half or more of the lots to be assessed for the improvement was filed, and the board without further order from the council, proceeded to make the improvement, completing it June 4, 1892, at a cost of $1,885.94. August 6th, following, the council passed an ordinance (No. 688) entitled: "An ordinance providing for the improvement of N street from Steele street to Pine street, creating a fund, and providing for payment by...