City of Seattle v. Seattle Elec. Co.

• Decision Date: 04 March 1908
• Citation: 94 P. 194,48 Wash. 599
• Parties: CITY OF SEATTLE v. SEATTLE ELECTRIC CO.
• Court: Washington Supreme Court

94 P. 194

48 Wash. 599

CITY OF SEATTLE v. SEATTLE ELECTRIC CO.

Supreme Court of Washington

March 4, 1908

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Proceedings between the city of Seattle and the Seattle Electric Company relative to an assessment for a street improvement. From an adverse judgment, said city appeals. Affirmed.

Root J., dissenting.

Scott Calhoun and Elmer E. Todd, for appellant.

James B. Howe and Hugh A. Tait, for respondent.

FULLERTON J.

The city of Seattle, pursuant to powers conferred on it by its charter and by the general laws, caused all that portion of Westlake avenue lying between Denny Way and Mercer street to be widened and otherwise improved. The respondent, Seattle Electric Company, owns and operates an electric railway on certain streets of the city of Seattle, among which is Westlake avenue, under a franchise granted by the city to J D. Lowman and Jacob Furth, of whom it is the successor in interest. The track on the improved part of Westlake avenue extends in both directions beyond such part, and such track is but a small portion of one general system of street railways operated by the respondent under the franchise above mentioned. The ordinance under which the improvement was made provided that the improvement should be paid for in part by an assessment on the property benefited thereby, and to that end commissioners were duly appointed to apportion the part assessed to the property between each several lot, block, tract, and parcel of land in the proportion in which they found each to be severally benefited. The commissioners so appointed made up an assessment roll as directed, in which they returned as property specially benefited the respondent's 'right of way and trackage upon Westlake avenue between Denny Way and Mercer street,' assessing thereon the sum of $2,500. To the report of the commissioners the respondent filed objections in writing, contending that the assessment in so far as it sought to impose a charge upon its right of way and track to pay the costs of the street improvement was contrary to law and void, and moved that such assessment be set aside and vacated. On the hearing, the court sustained the objections and made the orders moved for, further ordering that the amount of the assessment which the commissioners had sought to charge on the property of the respondent be paid by the city out of its general fund. The city appeals.

The section of the statute conferring authority upon the commissioners to make the assessment and the section under which they proceeded in making the assessment reads as follows: 'It shall be the duty of such commissioners to examine the locality where the improvement is proposed to be made, and the lots, blocks, tracts and parcels of land that will be specially benefited thereby, and to estimate what proportion of the total cost of such improvements will be of benefit to the public and what proportion thereof will be of benefit to the property to be benefited, and apportion the same between the city and such property, so that each shall bear its relative equitable proportion; and having found said amounts to apportion and assess the amount so found to be of benefit to the property upon the several lots, blocks tracts, and parcels of land in the proportion in which they will be severally benefited by such improvement: Provided that no lot, block, tract, or parcel of land shall be assessed a greater amount than it will be actually benefited, nor shall any lot, block, tract, or parcel of land which shall have been found by the jury or court to be damaged be assessed for any benefits: And provided further, That it shall not be necessary for said commissioners to examine the locality excepting where the ordinance provides for the establishment, opening, widening or improvement of streets, avenues, alleys or highways. Such part of the compensation, damages and costs as is not finally assessed against property benefited shall be paid from any general funds of the city or town applicable thereto.' Ballinger's Ann. Codes & St. § 796. A reading of this section makes it at once apparent that the commissioners are authorized to assess only lots, blocks, tracts, and parcels of land specially benefited to pay the costs of a street...