Kasper v. City of Edmonds

Decision Date17 November 1966
Docket NumberNo. 38717,38717
Citation69 Wn.2d 799,420 P.2d 346
CourtWashington Supreme Court
PartiesWilliam KASPAR, on behalf of himself and as a representative of a class of property owners similarly situated, Appellant, v. CITY OF EDMONDS, a City of the Third Class under the Laws of the State of Washington, Respondent.

Hullin, Ehrlichman, Carroll & Roberts, A. Wesley Hodge, Seattle, for appellant.

Ogden, Ogden & Murphy, James A. Murphy, Seattle, for respondent.

FINLEY, Judge.

The question for determination in the instant case and in a companion appeal, Thymian v. Massart, Wash., 420 P.2d 351 (1966), concerns the meaning of the words "total cost of the improvement" as they appear in the presently effective version of RCW 35.43.180, which provides for restraint of local improvement projects by protest of the owners of property within the proposed local improvement district. The problem is whether "total cost of the improvement" means the total cost of a project, including the amount proposed to be contributed from municipal funds, or whether it simply refers to the assessed cost as borne by the property owners whose property is specially benefited. Viewed from a slightly different vantage point, the basic issue is whether the legislature intended to allow a municipality to deprive property owners of their right of protest when the municipality involved proposes to provide, from one fund or another, more than forty per cent of the amount required to finance the local improvement.

The case was heard on a stipulated set of facts. The City of Edmonds, by Ordinance No. 1092, ordered the improvement of Ninth Avenue from Main Street to Casper Street in Edmonds, and thereby created Local Improvement District No. 131 (hereinafter referred to as LID 131). The project cost for the proposed LID 131 was estimated at $112,000. Of that amount, $52,661 was to be assessed against the property owners. The balance of $59,339 was to be paid from the respondent city's Arterial Street Fund, if available; otherwise, from the Street Department Fund. Appellant and other property owners to be affected filed timely protests with the City of Edmonds in accordance with the provisions of RCW 35.43.180. These protests represented 88.1% of that part of the cost of the project which was to be assessed against and borne by the property owners. The city ignored the protests, and proceeded with the formation of LID 131. Appellant Kasper brought this action as a representative of a class of similarly situated property owners seeking a writ of prohibition to restrain the respondent city from further proceedings on LID 131. The trial court dismissed appellant's petition, from which judgment this appeal followed.

The statute involved, RCW 35.43.180, presently and at all times pertinent here, reads as follows, with the words added by a 1957 amendment (ch. 144, § 12, Laws of 1957) in italics, and the portion added by a 1963 amendment (ch. 56, § 2, Laws of 1963) in brackets:

Restraint by protest. The jurisdiction of the legislative authority of a city or town to proceed with any local improvement initiated by resolution shall be divested by a protest filed with the city or town council within thirty days from the date of passage of the ordinance ordering the improvement, signed by the owners of the property within the proposed local improvement district subject to sixty percent or more of the total cost of the improvement including federally-owned or other nonassessable property as shown and determined by the preliminary estimates and assessment roll of the proposed improvement district [or, if all or part of the local improvement district lies outside of the city or town, such jurisdiction shall be divested by a protest filed in the same manner and signed by the owners of property which is within the proposed local improvement district but outside the boundaries of the city or town, and which is subject to sixty percent or more of that part of the total cost of the improvement allocable to property within the proposed local improvement district but outside the boundaries of the city or town, including federally-owned or other nonassessable property: * * * ]

The respondent city argues that "total cost of the improvement" clearly means just what it says; i.e., the total cost of the entire project regardless of the source of funds. 1 If the respondent was correct, however, "including federally-owned or other nonassessable property" would be mere surplusage, as any percentage of the cost allocable to such property would necessarily already have been included in "total cost." If, however, "total cost" means assessed cost, as appellant argues, some meaning at least can be assigned to "including federally-owned or other nonassessable property." In that case, the phrase would mean that the required sixty per cent figure would have to be computed on the basis of all the theoretically assessable property, rather than on just the actually assessable property; and in certain cases such a formulation would make a considerable difference. Further, it should be noted that the statute refers to "total cost * * * as shown and determined by the preliminary estimates and assessment roll of the proposed improvement district * * *." If total project cost was meant, there would seem to be no reason to refer to the assessment roll, and, more particularly, no reason to speak of estimates in the plural, thus perhaps indicating the estimates which are mailed to property owners, estimating their assessments, when reference to an estimate in the singular would have more accurately portrayed the basis for determining entire project cost. While it may well be somewhat true that "ambiguity lies only in the eye of the beholder," it seems patent that the protest statute is ambiguous in and of itself. Indeed the respondent seems almost to concede that in the very least the statute is ambiguous since so much of its brief is devoted to attempting to establish a proper construction of the statute. 2

It thus becomes the duty of the court to determine the legislature's intention in making the 1957 amendment set forth above. Clearly the purpose behind the basic statute is to provide property owners with some control over public officials through a right to protest and thereby refuse to pay for local improvements. If the city is right in its interpretation of the statute, the right of protest has become almost illusory, as a municipality can effectively destroy the possibility of protest by proposing to allocate at least forty per cent of the cost of an improvement to public funds just as the City of Edmonds did in the present case. The respondent city argues that the 1957 amendment was merely an additional step in a legislative program over the years to limit the right of protest and to make improvement projects easier for cities and towns. See ch. 135, § 1, Laws of 1923; ch. 144, § 12, Laws of 1957; ch. 7, § 35.43.180, Laws of 1965. We think, however, that the pattern of limiting the right has been something less than consistent. See ch. 56, § 2, Laws of 1963. The respondent also emphasizes the proposition that a complete denial of the right of protest is not objectionable on constitutional grounds. 13 McQuillin, Municipal Corporations § 37.52, at 190 (3rd ed. 1949). 3

Even granting the validity of these last two arguments by respondent, we think the important point to be that the legislature has granted the significant right of protest to property owners. If respondent's proposed interpretation prevails, cities and towns have complete, unbridled discretion as to whether a right of protest exists or not. As respondent has pointed out, sections .080, .110, .140, and .190 of RCW 35.43 all make it clear that a municipality can assess "in whole or in part" to property owners any part of a proposed improvement it sees fit (respondent's italics). RCW 35.43.200, RCW 35.43.170, and RCW 35.44.020 are much to the same effect. It seems very unlikely that the legislature would put the power to prohibit protests completely in the unguided discretion of cities and towns. The right of protest is the property owners' limitation on a municipality's power of assessment; 4 in the absence of a clear statement, should a municipality be allowed to control its own limitations? Adopting the respondent's version of the protest statute would place this court in the peculiar and awkward position of judicially sterilizing the major portion of RCW 35.43.180. The right of protest would become...

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