In re Westlake Ave.

• Decision Date: 14 September 1905
• Parties: In re WESTLAKE AVE. v. CITY OF SEATTLE. MAIN IMP. CO. et al.
• Court: Washington Supreme Court

82 P. 279

40 Wash. 144

In re WESTLAKE AVE.

MAIN IMP. CO. et al. v. CITY OF SEATTLE.

Supreme Court of Washington

September 14, 1905

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Condemnation proceedings by the city of 'Seattle for the taking of land for Westlake avenue. From an order confirming the assessment of benefits, the Main Improvement Company and others appeal. Reversed.

Littell Shepard & Lyter, and Tucker & Hyland, for appellants.

Scott Calhoun and Elmer E. Todd, for respondent.

ROOT J.

By Ordinance No. 7,733, approved February 13, 1902, the city council of the city of Seattle determined to extend and establish Westlake avenue, and created a local improvement district of property to be specially benefited thereby; said district to be assessed to pay for the property taken or damaged in establishing and extending said avenue. In accordance with this ordinance condemnation proceedings were instituted under the city's power of eminent domain, and compensation awarded for the taking and damaging of private property thereby. To determine the benefits to be derived and to assess the same, the court appointed three commissioners, who returned an assessment roll December 1, 1903, which roll included the property inside, as well as considerable property lying outside, of the limits of the improvement district prescribed by the city council in said ordinance. Upon motion the court set aside this roll, and appointed a new board of commissioners to prepare another roll. The second board was directed by the court to assess only the property contained in the improvement district established by the city ordinance aforesaid. Two of the members of the former board were appointed upon the new board, with one other member. The second board returned another assessment roll covering only property within the district as described in the ordinance. The total amount of the assessment was $206,000, of which about $20,000 was assessed to the city as a whole. The total above mentioned contained an item of $5,000, which was the estimated cost and expense incurred in preparing the first assessment roll. The improvement was intended to afford a more convenient access from the northern part of the city to the business center, and to establish an avenue upon which the commercial business of the city might readily be extended. From the evidence of the commissioners it appears that all of the property covered by the first assessment roll was specially benefited. It appears that most of the property included in the first roll, and much included in the second, is not property abutting upon Westlake avenue and is not 'contiguous,' as that term is ordinarily understood; some of said property being nearly or quite a half a mile distant from said contemplated improvement. The assessment roll returned by the second board was, after some modifications, ratified by the superior court. From this order of confirmation appeals are taken by several property owners affected thereby. These appeals were heard, and have been considered, together. Various contentions are made as to the asserted illegality of said order and the proceedings leading up thereto.

Constitutionality. First, it is submitted that the statute under which the assessment was made is unconstitutional, in that it assumes to authorize an assessment by the court. Article 7, § 9, of our Constitution, provides: 'The Legislature may vest the corporate authorities of cities, towns, and villages with power to make local improvements by special assessment, or by special taxation of property benefited.' It is contended that this authority vests in the city the power to make such assessments, and that said power cannot be delegated to a court. 'While statutes authorizing courts to assess taxes are generally unconstitutional, yet those authorizing the exercise of a certain supervision and also the assessment of certain taxes are often regarded as valid.' 8 Cyc. 836b. The city, and not the court, is authorized to take the initiative in the matter of such improvements and the assessments to pay therefor. It was the legislative power of the city, exercised by its council, that occasioned the imposition of the assessment. The state Legislature gave the city the authority to levy such a tax. It provided the method by which it should be done. By this plan the apportionment of the tax to the various parcels of property is made by a board of commissioners appointed by the court. These commissioners, by operation of law, become in effect officials or agents of the municipality for the performance of this service. Upon the completion of the commissioners' work it may be called in question by any interested person before the court, which is vested with revisory powers. The function of the court in these proceedings is to settle disputes and to correct errors and inequalities called to its attention, and thereby relieve the assessment of any lack of uniformity or other injustice. That the act of the Legislature invokes the assistance of the court to obviate errors in, and facilitate the accomplishment of, a special assessment, does not, in our opinion, render the statute obnoxious to the Constitution. Lake v. City of Decatur, 91 Ill. 596; Cooley, Taxation, pp. 47, 313, 314, 364; State ex rel. Mayor v. Ensign, 54 Minn. 372, 56 N.W. 41; Bauman v. Ross, 167 U.S. 548, 17 S.Ct. 966, 42 L.Ed. 270. We may observe, however, that we think the statute in question goes as far as permissible in the direction of imposing upon the judiciary legislative functions.

It is urged that much property not 'contiguous' to the improvement is assessed. This proceeding was commenced under the provisions of the act of 1893. Laws 1893, p. 189, c. 84. While section 19 of said statute would seem to restrict the assessment to 'contiguous' property benefited, it is questionable whether the act, construed as a whole, should be given that effect. There is also much doubt as to whether the term 'contiguous,' as used in the statute, should be given the literal meaning which its derivation might suggest, and which some of appellants insist upon. Authority is not wanting for an interpretation giving this term, as employed in statutes of this character, a more comprehensive meaning. However, we do not regard a determination of either of these questions essential in this case. Before the supplementary petition herein was filed, and before assessment for this improvement was apportioned or confirmed, the Legislature amended said section 19 by eliminating therefrom the word 'contiguous.' Laws 1903, p. 241, c. 129. No valid reason is shown why the new law should not be controlling in this proceeding. Consequently the assessment could be legally apportioned upon the property benefited, regardless of whether or not it was contiguous. Spokane v. Browne, 8 Wash. 317, 36 P. 26; Cline v. Seattle, 13 Wash. 444, 43 P. 367; Lewis v. Seattle, 28 Wash. 639, 69 P. 393.

Error is assigned by one appellant upon the action of the court in sustaining a 'lump' assessment against two entirely separate portions of a certain lot; these parcels being separated by the width of the new avenue. We think this assignment well taken. While these tracts were formerly portions of the same lot, the laying out of the new avenue pursuant to the condemnation proceedings terminated the entity of said lot, and left the untaken portions as separate and distinct parcels. The tax for the benefits accruing to each of these should have been assessed thereupon separately.

Objection is made that the commissioners, in estimating the benefits to be assessed upon certain property, did not take into consideration the special use being made of said property and for which it was well adapted for the future. It was the duty of the commissioners to regard this special use, and to consider any and all uses being made of property, or for which the property was, or would naturally and with reasonable probability become, suitably adapted. In the light of all these facts, and the character and extent of the improvement, it was for the commissioners to say how much such property was benefited.

Contention is made that the commissioners, in apportioning benefits took into consideration matters remote, speculative, vague, and conjectural, which they thought might exist in the future. It was the duty of the commissioners, having regard for the present use, character, and value of each parcel of property, to consider what benefits now accrued to said property by reason of those results naturally and reasonably to be expected as concomitants of the changed condition occasioned by the improvement in question. Probable and logical sequences, rather than fanciful and visionary anticipations, must guide the action of the commissioners in estimating such benefits. Lewis on Eminent Domain, § 478, uses the following language: 'In estimating the value of property taken for public use it is the market value of the property which is to be considered. The market value of property is the price which it will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who is under no necessity of having it. In estimating its value, all the capabilities of the property, and all the uses to which it may be applied or for which it is adapted, are to be considered, and not merely the condition it is in at the time and the use to which it is then applied by the owner. It is not a question of the value of the property to the owner; nor can the damages be enhanced by his unwillingness to sell. On the other hand, the damages cannot be measured by the value of the property to the party condemning it, nor by its need of the particular property. All the facts as to...