Collins v. City of Ellensburg

• Decision Date: 10 April 1912
• Citation: 68 Wash. 212,122 P. 1010
• Parties: COLLINS et al. v. CITY OF ELLENSBURG et al.
• Court: Washington Supreme Court

122 P. 1010

68 Wash. 212

COLLINS et al. v. CITY OF ELLENSBURG et al.

Supreme Court of Washington

April 10, 1912

Department 2. Appeal from Superior Court, Kittitas County; Ralph Kauffman, Judge.

Action by C. L. Collins and others against the City of Ellensburg and others. From a judgment of dismissal, certain of the plaintiffs appeal. Reversed, and remanded for further proceedings.

A. L Slemmons, of Ellensburg, for appellants.

John H McDaniels, of Ellensburg, for respondents.

ELLIS J.

Action to enjoin the city of Ellensburg, a municipal corporation of the third class, from collecting a special tax or assessment levied for the purpose of paying the cost of constructing a sewer. The trial court sustained a demurrer to the complaint. The plaintiffs electing to stand upon the complaint, the court entered a judgment dismissing the action. Certain of the plaintiffs have appealed.

The improvement consisted of the construction of an underground sewer in the alleys bisecting blocks numbered and relatively located as follows:

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The complaint alleges the passage by the city council and publication of three ordinances, providing for this improvement and making the assessment therefor. These ordinances are attached as exhibits, and made parts of the complaint. Ordinance No. 478, passed and approved September 28, 1909, and published September 29, 1909, declared and gave notice of the city's intention to construct a sewer from Fifth street to Second street, along each of the alleys bisecting all of the above-numbered blocks, excepting block 7, which was not mentioned. It described the general character of the proposed improvement as the laying of a 12-inch sewer pipe in ditches at a proper depth (about 9 feet) to properly drain the property to be benefited, and 'in accordance with the plans and specifications of the city engineer now on file with the said city council.' It declared that 'the estimated cost of said improvement is $6,000, which shall be assessed against the property benefited thereby, and that the cost to be assessed against each lot will be $60.' It stated that the improvement is to be 'for the special and exclusive use of the property abutting upon and approximate to the streets and alleys sought to be improved.' It fixed October 18 1909, at 7:30 o'clock p. m., as the time on or before which protests against the proposed improvement might be filed with the city clerk. On October 18, 1909, Ordinance No. 488 was passed, creating an improvement district including all of the above-mentioned blocks, excepting block 7, providing for the improvement, and declaring 'that the costs and expenses thereof, including the expenses of survey, plans and specifications by the city engineer, shall be assessed, and is hereby assessed, upon all of the property in said improvement district, by a special tax upon said property, levied in accordance with the last general assessment of said lands within said district for city purposes, exclusive of all improvements now existing thereon, and not exceeding the benefits derived from said improvements.'

It is alleged that the city proceeded with the construction of the sewer by day labor, and in connection therewith constructed and extended the sewer in the alley between Pearl and Main streets, bisecting blocks 10, 15, and 18 northerly through block 7 to Sixth street. On June 6, 1910, the final ordinance, No. 514, was passed, declaring $11,147.04 as the total cost and expense of the sewer, certifying the total valuation of all the land in the district, and benefited by the sewer, exclusive of improvements, according to the last assessment for city purposes, to be $135,115, and levying a special tax of 8 1/4 cents on the dollar of that valuation against all of the property included in the district, and including also block 7, to pay for the sewer.

Without further pursuing the allegations of the voluminous complaint, it will suffice to say that it is sufficient to make the basis for five points of attack upon the assessment.

1. It is first contended that the declaratory ordinance, No. 478 giving notice of the intention to make the improvement, was not sufficient to initiate a proceeding under the act of 1909, c. 60, p. 105 et seq. (Rem. & Bal. Code, §§ 7712-7718, inclusive), but was sufficient for a proceeding under chapter 26, Laws 1909, p. 38 et seq. (Rem. & Bal. Code, §§ 7705-7711, inclusive), amendatory of section 1 of chapter 70 of the Laws of 1907 (Bal. Code, § 943). It is claimed that the city, having initiated the proceeding under the last-mentioned law, could not proceed under the first, as it did by Ordinances 488 and 514. Section 1, c. 60, Laws of 1909, authorizes cities of the third class to construct surface of underground drains and sewers under the terms of that act, and closes as follows: 'Provided, that this act shall not be intended to supersede or repeal any law now in effect relating to the improvement of public streets by cities of the thrid class, but the same shall be considered concurrent and additional legislation thereto. Said cities being hereby authorized to proceed under the law as it now exists where the character of the improvement is sufficiently provided for under the existing law relating thereto.' Section 2 provides that, when it is desired to improve any streets or alleys by the construction of sewers or drains therein, a petition, signed by the owners of one-fourth in quantity of the property abutting thereon, may be presented to the city council, describing the improvement sought, and praying the council to proceed to establish and construct the improvement. Section 3 provides that, on the presentation of such petition, the council shall order a survey to be made, and, if the improvement is found practical, shall order plans and specifications to be prepared by the city engineer and filed with the council, and then proceeds: 'Thereupon said council shall by ordinance declare its intention to make such improvement, setting forth in such ordinance the name of the street, or streets, alley, or alleys, to be improved, the beginning, and the terminus of said improvement, and the general character of the same as shown by the plans and specifications on file, which said plans and specifications shall be approved and adopted in said ordinance, and an estimate of the cost of said improvement, and reciting further therein, whether said improvement, or any part thereof, is to be constructed as a main, or trunk line sewer, or for the special and exclusive benefit of the property abutting upon, or approximate thereto, and also what portion if any, of the costs of said improvement is to be assessed against the property abutting upon or approximate thereto, and fixing the boundaries so as to include all abutting or approximate property to be benefited by said proposed improvement, and setting forth what portion, if any, of the cost thereof shall be paid by the city from its general, or current funds. Said ordinance shall fix a time not less than ten days in which protests against such proposed improvement may be filed in the office of the city clerk. It shall be the duty of such clerk to cause such ordinance to be published in the official newspaper of the city for at least two consecutive issues of such paper before the time fixed in such ordinance for filing such protests, and proof of the publication of such ordinance by the affidavit of the publisher of such newspaper shall be filed with the clerk of such city, on or before the time fixed for such filing. If protests against the proposed amendment be filed by the owners of two-thirds in quantity of the lands abutting on, or approximate to said improvement on...