Goetter v. City of Colville

• Decision Date: 17 November 1914
• Docket Number: 11867.
• Citation: 144 P. 30,82 Wash. 305
• Court: Washington Supreme Court
• Parties: GOETTER et ux. v. CITY OF COLVILLE et al.

144 P. 30

82 Wash. 305

GOETTER et ux. v. CITY OF COLVILLE et al.

No. 11867.

Supreme Court of Washington

November 17, 1914

Department 1. Appeal from Superior Court, Stevens County; Henry L Kennan, Judge.

Appeal by Frank B. Goetter and wife against the City of Colville and others from the confirmation by the city council of an assessment roll for a local improvement. Appeal dismissed by the superior court, and appellants therein appealed to the Supreme Court. Affirmed.

Carey &amp Johnson and S. Douglas, all of Colville, for appellants.

F. Leo Grimstead and Stull, Wentz & Bailey, all of Colville, for respondents.

MAIN J.

This is an appeal from a judgment of the superior court, which dismissed an appeal from the decision of the city council confirming an assessment roll for a local improvement. On April 22, 1913, the city council of the city of Colville, Wash., a municipal corporation of the third class, adopted a resolution declaring its intention to order the construction of a sewer system for the sewerage of territory embraced within the boundaries as defined by the resolution. On May 27, 1913, after due and proper notice and a hearing upon the proposed improvement had been given, the city council passed an ordinance providing for the improvement. Thereafter a contract was let for the construction of the sewer system. In due course an assessment roll was prepared and filed with the clerk of the city. A time and place was then fixed for a hearing upon the roll and notice thereof given. Prior to the hearing upon the roll, the appellants filed with the city clerk written objections thereto. On October 7, 1913, the city council by ordinance confirmed the assessment roll. On October 23, 1913, Frank B Goetter and wife filed with the city clerk and with the clerk of the superior court for Stevens county their notice of appeal and bond on appeal. On November 1, 1913, the appellants filed with the clerk of the superior court a transcript, which contained, among other things, the assessment roll, the appellants' objections thereto, and the ordinance confirming the roll. This transcript did not contain the record of the city council with reference to the assessment. When the cause came on for trial a motion was made to dismiss the appeal on the ground that the appeal was ineffective because it did not contain the record of the city council relative to the assessment. This motion was sustained. Thereupon the appellants asked leave to supplement the record. This request was denied. Judgment was entered dismissing the appeal. From this judgment Goetter and wife have appealed.

The record presents two questions: First, did the transcript as filed in the superior court embody those things which were necessary to confer jurisdiction upon the superior court? And, second, did the court err in declining to permit the transcript to be amended or supplemented?

I. An appeal from the decision of the city council in a local assessment proceeding is special, and not a right which is inherent or constitutional. If a right of appeal exists, it must be by virtue of a statute. In the absence of a statute no such right would exist. McQuillan, Municipal Corp., vol. 2, § 2129; Randolph v. Indianapolis, 172 Ind. 510, 88 N.E. 949.

In the case last cited it was said:

'Statutory provisions for the improvement of streets and other highways, and for the assessment of the costs thereof against the property benefited are special in character, and, unless expressly granted, no appeal lies from any action or decision of the board or tribunal conducting such proceedings.'

Since the right to appeal must be given by an express statutory provision, an appeal is not effective unless it is taken within the time specified and in the manner designated by the statute. In the text of Abbott on Municipal Corporations, § 377, the rule is stated thus:

'As the right of appeal and review is a statutory one, the provisions requiring or providing for its exercise within a certain specified time, or in a designated manner, are generally considered mandatory, and if the right is not so exercised by the property owner, it is forfeited or lost. * * *'

Jurisdiction is conferred upon the superior court to hear appeals from decisions of the city council only by complying with the provisions of the statute. In White v. Tacoma, 20 Wash. 361, 55 P. 319, it was said:

'The council derived jurisdiction to reassess solely by virtue of that chapter (chapter 95, Laws 1893, p. 230) and only by complying with its provisions relating to appeals could the superior court

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