City of Seattle v. Hill

• Decision Date: 14 May 1896
• Citation: 14 Wash. 487,45 P. 17
• Parties: CITY OF SEATTLE v. HILL ET AL.
• Court: Washington Supreme Court

45 P. 17

14 Wash. 487

CITY OF SEATTLE v. HILL ET AL.

Supreme Court of Washington

May 14, 1896

Appeal from superior court, King county; J. W. Langley, Judge.

Action by the city of Seattle against G. A. Hill, Alonzo Hull, and others, to foreclose a lien for an assessment for local improvements. There was a judgment for plaintiff, and defendant Hull appeals. Affirmed.

De Bruler & Jackson, for appellant.

W. T Scott, for respondent.

GORDON J.

The act of March 9, 1893, authorizes cities in this state to issue improvement bonds in payment of the cost and expense of local improvements, etc., and provides that such bonds, when issued to the contractor constructing the improvement, or sold in the manner authorized by the act, shall transfer to the contractor or other owner or holder all the right and interest of such city in and with respect to every such assessment and the lien thereby created against the property assessed, and chargeable with the cost of such improvement. This action was brought by the respondent, a city of the first class, to recover the amount due upon a local improvement bond issued to the contractor, and by him assigned to the city, and to foreclose the same on certain real estate owned by the defendants Hill, and chargeable with the cost of such improvement, in which action Alonzo Hull, the appellant, was made a party. It appears that, prior to the levying of the assessment or the issuance of the bond in question, defendants Hill had executed a mortgage upon the premises to Hull. Upon the trial below, the court found that all of the proceedings necessary, under the law and the charter and ordinances of said city, to make the said assessment a legal charge and tax against the said property, including the letting of the contract for said improvement under the charter, the performance of the work under said contract, and the acceptance thereof by the board of public works, were duly had, and entered a decree foreclosing the assessment bond against the property, and giving the same priority over the mortgage to appellant; and from this decree the mortgagee, Hull, has appealed.

The real question to be determined is whether the lien of the assessment is entitled to superiority over appellant's mortgage, which was prior in point of time. Appellant insists that the lien given for assessments and local improvements is not a lien of the force and extent of a tax lien. Whether this position can be maintained can be determined only from consideration of the various provisions of statute authorizing the assessment, and providing the manner of its enforcement. Assessments levied for the improvement of a street are based upon the same sovereign power which is asserted in the levying of general taxes. People v Mayor, etc., of City of Brooklyn, 4 N. Y. 419. On page 433 of Elliott on Roads and Streets, the author says "While it is true that an assessment is not, strictly, a tax, it is also true that it is levied by the sovereign power for the general public good. It is also true that a mortgagee is benefited to the extent that the land is improved, for, to the extent that the land is improved, to that extent is its value augmented. We cannot perceive why it is not in the power of the legislature to create a lien, and give it priority over all private rights or estates. *** Every one who acquires an interest in land does it subject to the right of the sovereign to lay general taxes upon it, and to...