Chandler v. City of Puyallup

• Decision Date: 29 October 1912
• Citation: 127 P. 293,70 Wash. 632
• Parties: CHANDLER et at. v. CITY OF PUYALLUP et al.
• Court: Washington Supreme Court

127 P. 293

70 Wash. 632

CHANDLER et at. v. CITY OF PUYALLUP et al.

Supreme Court of Washington

October 29, 1912

Department 2. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by C. C. Chandler and others against the City of Puyallup and others. From a judgment dismissing the action, plaintiffs appeal. Affirmed.

F. R Baker and F. D. Davis, both of Tacoma, for appellants.

M. F Porter, of Puyallup, and W. H. Pratt, of Tacoma, for respondents.

ELLIS J.

The plaintiffs brought this action to quiet title to their respective properties against certain special assessments levied thereon by the city of Puyallup for street paving. Upon a hearing the action was dismissed by the superior court at the plaintiff's cost. The plaintiffs have appealed.

The appellants contend that the city council was without jurisdiction to make the assessment, because only one publication of the initial resolution was made, whereas the statute (Rem. & Bal. Code, § 7705) requires two publications. This is the only objection urged against the validity of the assessments. It is not claimed that the work was not done, nor that the appellants' properties were not benefited thereby. We think the evidence sufficiently shows that the resolution was published only once, but it does not follow that the proceedings were void. While the records of the city council are not in evidence, the city clerk was permitted to testify from them. The time set for remonstrances by the resolution was April 28, 1909. This appeared in the resolution as published. At that time, as the clerk testified, a remonstrance was presented 'by citizens' asking the council to defer action, and the matter was continued for one week. On May 5, 1909, the time to which the hearing was continued, 'a remonstrance from owners of property within bounds of the proposed district' was considered and discussed by persons both for and against the adoption of the proposed district as outlined in the resolution, and the council overruled the remonstrances. It does not appear from the evidence whether the protestants were these appellants or other property owners. The appellants, however, in their brief admit that they appeared and protested, and that their protests were overruled. Nowhere in the evidence does it appear, nor do the appellants in their briefs claim, that the objection now urged was ever made before the city council or called to its attention. Having admittedly appeared in response to the defective notice, it was incumbent upon them to show that they then objected to the sufficiency of the notice.

Otherwise we must treat that objection as waived, unless the failure to publish the notice twice was jurisdictional in the absolute sense that it could not be waived in any manner. There is much reason in the view that this notice has nothing to do with the constitutionality of the law. Its purpose was not to accord a hearing upon the validity of the assessment or as to the benefit therefrom to the property within the district but to accord a hearing as to the limits of the district, and as to whether the district should be formed at all. The publication of the initial resolution or ordinance, antedating as it does any assessment, cannot affect the constitutional requirement as to due process of law one way or another. The...