Hapgood v. City of Seattle

• Decision Date: 16 August 1912
• Citation: 125 P. 965,69 Wash. 497
• Parties: HAPGOOD et al. v. CITY OF SEATTLE.
• Court: Washington Supreme Court

125 P. 965

69 Wash. 497

HAPGOOD et al. v. CITY OF SEATTLE.

Supreme Court of Washington

August 16, 1912

Department 1. Appeal from Superior Court, King County; H. A. P. Myers Judge.

The City Council of the City of Seattle having confirmed a supplemental assessment over the objection of G. W. Hapgood and others, they appealed to the superior court, where the action of the City Council was affirmed, from which they again appealed. Affirmed.

Ballinger Battle, Hulbert & Shorts, Wm. Hickman Moore, Edwin C. Ewing McClure & McClure, Brady & Rummens, Peters & Powell, Byers & Byers, Wm. Martin, and W. A. Keene, for appellants.

James E. Bradford, Wm. B. Allison, Leander T. Turner and Preston & Thorgrimson, all of Seattle, for respondent.

PARKER J.

These are appeals from judgments of the superior court for King county, affirming the action of the city council of Seattle in making and confirming a supplemental assessment against property of appellants for the cost of a local street improvement. The same contentions are made by appellants in each case in this court, so our discussion and conclusions will apply alike to all.

In December, 1905, the city council of Seattle passed Ordinance No. 13,102, providing for the change of grades of Jackson and other streets in the city, providing for the institution of condemnation proceedings to acquire and damage property rights as against the owners of abutting property necessary to the making of such change of grades, and providing for the levying of special assessments by eminent domain commissioners against property benefited by such change of grades to pay the damages awarded in such proceedings, as authorized by the eminent domain law applicable to cities. While this ordinance did not make provision for the construction of the physical improvement, it manifestly contemplated the making of such improvement upon acquiring the right to damage abutting property by the change of the grades. Thereafter, in February, 1906, the city council passed Ordinance No. 13,309, providing for the improvement of Jackson and other streets by the change of the grades thereof as contemplated by the Condemnation Ordinance No. 13,102, creating a local improvement district and providing for the payment of the cost of the improvement by special assessment against the property of the district benefited thereby; such assessment to be levied by the city council in pursuance of statute, charter, and ordinance provisions applicable to local improvement assessments in the city. A contract for the construction of the improvement having been entered into by the city, an assessment was accordingly levied against the property in the district by the city, which was confirmed by Ordinance No. 17,126, in October, 1907. Thereafter, in August, 1910, the city council passed Ordinance No. 24,827, canceling of record assessments charged against certain of the property within the district, reciting and providing in that ordinance as follows:

'Whereas, under Ordinance No. 13,309 of the city of Seattle, creating local improvement district No. 1213, there was improved Jackson street and certain parts of certain other streets and avenues; and whereas, said ordinance authorizing said improvement required that all property abutting adjacent or proximate to said portion of said streets and avenues, named and described in section 1 thereof, to such distance back from the marginal lines thereof as prescribed by the city charter, should be deemed to be property specially benefited by said improvement, and that the total cost and expense of such improvement should be defrayed by the collection of special assessments against such property; and whereas, certain tracts, pieces and parcels of land within the limits of said district, as created by said ordinance, were by the jury impaneled for the ascertainment of damages in the condemnation proceedings had for the establishment of the regrade elevations in said local improvement district, found to be damaged by reason of said regrade; and * * * whereas, under certain decisions of the Supreme Court of the state of Washington, certain assessments in said local improvement district are null and void, either in whole or in part: Now, therefore, be it ordained by the city of Seattle as follows:

'Section 1. That the assessments levied against the lots, parcels, pieces and tracts of land hereinafter in this section enumerated, for the improvement of Jackson street, and certain parts of certain other streets and avenues, all in the city of Seattle, under Ordinance No. 13,309, creating local improvement district No. 1213, be, and the same hereby are, canceled and annulled, to wit.'

It is manifest from the record that the passage of this ordinance was prompted by the result of certain litigation prosecuted by owners of certain property charged by the original assessment with a portion of the cost of the improvement, culminating in the decisions of this court in the cases of Schuchard v. Seattle, 51 Wash. 41, 97 P. 1106, and Seattle & P. S. Packing Co. v. Seattle, 51 Wash. 49, 97 P. 1093, where it was held that property which is found by the jury in a condemnation proceeding to be damaged is not chargeable by assessment with any of the cost of the improvement contemplated by such condemnation proceeding. Under these decisions, the assessments thus canceled of record by this ordinance were invalid and unenforceable. It is also apparent from the record that the passage of this ordinance was intended as a preliminary step to the making of a reassessment by 'supplemental assessment,' as the city called it, under the authority of the reassessment law; and the reassessment provisions of the city charter, which are in substance the same. Rem. & Bal. Code, §§ 7893, and following; section 18, art. 8, City Charter. Thereafter, in December, 1910, the city council passed Ordinance No. 25,840, providing for a supplemental assessment against the benefited property within the district, to make up the deficiency caused by the invalidity of the assessments canceled of record by Ordinance No. 24,827. An assessment roll was made up accordingly, omitting therefrom all charges against property which had been found to be damaged in the condemnation proceeding, and against which the invalid canceled assessments had been levied by the original assessment, and charging the deficiency caused thereby against other property in the district, including the property of these appellants, which had already been assessed by the original assessment. Notice of hearing upon this supplemental assessment was given as the law directs, when these appellants filed their objections thereto, which were by the council overruled and the supplemental assessment roll confirmed in May, 1911, by Ordinance No. 27,259. Appeals were taken therefrom by the objectors to the superior court from that confirmation, and, the decision of that court being adverse to them, they have appealed to this court. The original assessment, in so far as it was valid, was not disturbed or changed by the supplemental assessment; but the supplemental assessment was made in addition thereto. This seems to account for the city giving the new assessment that name rather than the name of 'reassessment,' as it is called in the law and charter provisions under which it was made. This, however, does not change its legal effect, as we will presently see. Other facts will be noticed as may be found necessary in our discussion of the several contentions of appellants.

It is first contended by counsel for appellants that the supplemental assessment was erroneously made and confirmed because it resulted in the total of the original and supplemental assessment exceeding 50 per cent. of the assessed value of the real estate, exclusive of improvements, within the improvement district, in violation of the limitation prescribed by section 7571, Rem. & Bal. Code, as follows: 'It shall be lawful for any city of the first class to order any improvement, the cost of which is to be charged to abutting property, when said cost shall not exceed fifty per cent. of the valuation of the real estate exclusive of improvements within the proposed improvement district according to the valuation last placed upon it for purposes of general taxation.' The city charter permits this limit to be exceeded under...