In re Howard Ave., North, in City of Seattle

• Decision Date: 25 September 1906
• Citation: 44 Wash. 62,86 P. 1117
• Parties: In re HOWARD AVENUE, NORTH, IN CITY OF SEATTLE. v. CITY OF SEATTLE. SEATTLE SCHOOL DIST. NO. 1
• Court: Washington Supreme Court

86 P. 1117

44 Wash. 62

In re HOWARD AVENUE, NORTH, IN CITY OF SEATTLE.

SEATTLE SCHOOL DIST. NO. 1 v. CITY OF SEATTLE.

Supreme Court of Washington

September 25, 1906

Appeal from Superior Court, King County; George E. Morris, Judge.

Proceeding by the city of Seattle to condemn land for extending Howard Avenue, North, in said city. From an order confirming an assessment against lots of Seattle school district No. 1, it appeals. Affirmed.

Fullerton J., dissenting.

Kenneth Mackintosh and R. W. Prigmore, for appellant.

Scott Calhoun and O. A. Tucker, for respondent.

CROW, J.

Under authority of the eminent domain act applying to cities of the first class (chapter 84, p. 189, Sess. Laws 1893; Ballinger's Ann. Codes & St. 775 et seq.), and ordinance No. 10,850, enacted in pursuance thereof, the city of Seattle instituted this proceeding to condemn lands for the purpose of laying off, widening and extending Howard avenue. An assessment district was created, and an assessment made upon real estate especially benefited, to pay for the property taken and the costs of the proceeding. Objections being regularly heard by the superior court of King county, said assessment was in all respects confirmed. Six lots owned by Seattle school district No. 1, benefited by said improvement were assessed. The school district filed its objections to said assessment, and now appeals from the order of the superior court confirming the same.

It appears that appellant's lots were used exclusively for public school purposes. Therefore the controlling question involved in this appeal is whether they were subject to assessment or, in other words, whether the city of Seattle had power, acting through its commissioners appointed by the superior court, to impose an assessment upon them. The appellant contends (1) that under the Constitution and laws of this state, no authority either express or implied is conferred upon the respondent city to assess the property of said school district; and (2) that by the express terms of the charter and ordinances of said city, the property of the school district is exempt from such assessments. It must be conceded that the eminent domain act above mentioned, under which the city has proceeded, does not, by its express terms affirmatively, direct that the school district shall be assessed. Section 2 of said act does direct, however, that if the ordinance enacted by the city shall provide that such improvement shall be paid for wholly or in part by special assessment upon property benefited, the proceedings for making such special assessment shall be as in said act perscribed. Section 22 (page 196) provides: 'It shall be the duty of such commissioners to examine the locality where the improvement is proposed to be made, and the lots, blocks, tracts and parcels of land that will be specially benefited thereby, and to estimate what proportion of the total cost of such improvements will be of benefit to the public and what proportion thereof will be of benefit to the property to be benefited, and apportion the same between the city and such property, so that each shall bear its relative equitable proportion; and having found said amounts to apportion and assess the amount so found to be of benefit to the property upon the several lots, blocks, tracts and parcels of land in the proportion in which they will be severally benefited by such improvement. * * *' These sections and others in the act seem to comtemplate that all benefited property located within the assessment district shall be assessed, without expressly excepting any property either public or private. The respondent contends that no such express exception having been made, appellant's property is liable. Appellant contends that, as the statute does not in so many words direct that public school property shall be assessed, authority to make an assessment does not exist, nor can it be implied. Well-considered cases have been cited in the briefs, supporting each of these contentions there being an irreconcilable conflict of authority. Appellant, in support of its position, has cited, with others, the following cases: City of Pittsburg v. Sterrett Subdistrict School (Pa.) 54 A. 463, 61 L. R. A. 183; City of Clinton v. Henry County (Mo.) 22 S.W. 494, 37 Am. St. Rep. 415; Sutton v. School City of Montpelier (Ind. App.) 62 N.E. 710; City of Louisville v. Leatherman (Ky.) 35 S.W. 625; Witter v. Mission School District (Cal.) 50 P. 905, 66 Am. St. Rep. 33; Harris County v. Boyd (Tex. Sup.) 7 S. W. 713. The respondent cites, with others, the following cases: Board of Commissioners v. City of Ottawa (Kan.) 31 P. 788, 33 Am. St. Rep. 396; Edwards & Walsh, etc., v. Jasper County (Iowa) 90 N.W. 1006; Higgins v. Chicago, 18 Ill. 276; Scammon v. Chicago, 42 Ill. 192; County of McLean v. City of Bloomington, 106 Ill. 209; Adams County v. City of Quincy (Ill.) 22 N.E. 624, 6 L. R. A. 155; Sioux City v. School District, 55 Iowa, 150, 7 N.W. 488; Hassan v. City of Rochester, 67 N.Y. 528.

Our view is that the authorities cited by the respondent are the best founded in reason. We think that said eminent domain act, under which the city authorities have proceeded, must be held to impose upon the commissioners a legal duty to assess the property of the appellant in proportion to the benefits received. There is no contention that the lots have been improperly included within the assessment district, or that they have not been especially benefited by the improvement. Had the Legislature, in enacting the law of 1893, intended to exempt public school property from its just proportion of the burdens of said special assessment, it is only reasonable to assume that such intention would have been expressly declared in the words of the statute. An exemption of any portion of the benefited property located within the assessment district would necessarily cause an increased burden to be imposed upon other benefited property located therein; and, in view of this result, we should refrain from adopting a construction of the statute which would relieve appellant's property, especially when there is no good reason for holding that such an exemption was intended by the Legislature.

In Edwards & Walsh, etc., v. Jasper...