City of Seattle v. Sylvester-Cowen Inv. Co.

• Decision Date: 15 November 1909
• Citation: 55 Wash. 659,104 P. 1121
• Court: Washington Supreme Court
• Parties: CITY OF SEATTLE v. SYLVESTER-COWEN INV. CO.

104 P. 1121

55 Wash. 659

CITY OF SEATTLE v. SYLVESTER-COWEN INV. CO.

Supreme Court of Washington

November 15, 1909

Department 1. Appeal from Superior Court, King County; R. B. Albertson Judge.

Proceedings by the City of Seattle for a special street assessment to which the Sylvester-Cowen Investment Company filed objections. From a judgment confirming the assessment, the objector appeals. Affirmed.

Bamford A. Robb, Carkeek & McDonald, O. A. Tucker and Leroy A. Todd, for appellant.

Scott Calhoun and King Dykeman, for respondent.

GOSE J.

The city of Seattle by an ordinance entitled 'An ordinance providing for the laying out, widening, extending, and establishing of Meadow place, University boulevard, and East Seventieth street, as public streets, highways, boulevards and park ways in the city of Seattle, between East Green Lake boulevard and Fifteenth Avenue Northeast, over and across certain lots, blocks, tracts and parcels of land in said city, and providing for the condemnation and appropriation to the public use as a park of certain other lands and premises adjoining and proximate thereto, and providing for the taking and damaging of land and other property necessary therefor and for the ascertainment any payment of the just compensation to be made for the private property to be taken or damaged for said purpose, and for the assessment of a just and equitable proportion of said compensation and of the necessary expenses upon the private property benefited, and providing for the payment of the remainder of said compensation and other necessary expenses from the general fund of the city of Seattle,' provided for the laying out, widening, extending, and establishing of Meadow place University boulevard, and East Seventieth street, as public streets, highways, and boulevards in the city, and provided for the condemnation and appropriation to the public use of other contiguous land as a park. During the pendency of the proceeding the property sought to be appropriated for park purposes was acquired by the city at private treaty. A trial was had for the purpose of ascertaining the compensation to be made for the property taken and damaged. Thereafter the board of eminent domain commissioners to whom the matter was referred prepared and filed an assessment roll for the purpose of creating a fund with which to pay the damages awarded for the taking of the land for street purposes. The appellant in due time filed written objections to the assessment, raising numerous questions touching its validity, all of which save one the court overruled, reduced the assessment against private property to the extent of $14,500, assessed this additional sum against the city, and entered a judgment confirming the assessment thus modified. From this judgment an appeal has been taken.

The first point urged is that the court erred in giving the nonobjecting property owners their proportionate benefit of the reduction. The proceeding was based on Laws 1907, p. 316 c. 153. The trial court observed in passing on the question that it would be unfair to reduce the assessment of one property owner without making a corresponding reduction in favor of the other property owners similarly situated, and that the reduction would be proportionate upon all property in the assessment district. It is contended that under section 28 of the statute, which provides that 'as to any property to the assessment of which objections are not filed as herein provided, default may be entered and the assessment confirmed by the court.' It was the duty of the court to enter a judgment against all noncontesting property owners. The familiar rule of construction is invoked that, where a statute provides for the discharge of a public duty, the word 'may' is construed to be mandatory. While conceding this to be a general rule of construction, we must not be unmindful of another canon which requires that an act must be construed as an entirety for the purpose of discovering its intent and purpose. Section 23 of the act enjoins upon the commissioners the duty to estimate what proportion, if any, of the total cost of the improvement will be a benefit to the public, and what proportion thereof will be a benefit to the property benefited, 'and apportion the same between the city and such property so that each shall bear its relative equitable proportion.' Section 24 requires the commissioners to certify the assessment roll to the court before which the proceeding is pending. Section 25 provides that after the return of the assessment roll the court shall make an order setting a time for the hearing, notice of which shall be given by the commissioners to each owner of property assessed. Section 27 provides that 'the court shall retain full jurisdiction of the matter until final judgment on the assessments.' Section 29 provides that the court shall have authority at any time before final judgment to modify, alter, change, annual, or confirm any assessment returned, or cause it to be recast by the same commissioners, or may appoint other commissioners in place of all or any of the commissioners first...