King County v. City of Seattle

• Decision Date: 25 January 1941
• Docket Number: 28090.
• Citation: 7 Wn.2d 236,109 P.2d 530
• Parties: KING COUNTY et al. v. CITY OF SEATTLE et al.
• Court: Washington Supreme Court

109 P.2d 530

7 Wn.2d 236

KING COUNTY et al. v. CITY OF SEATTLE et al.

No. 28090.

Supreme Court of Washington, En Banc.

January 25, 1941

Suit to quiet title by Edward Burkheimer and wife against the City of Seattle, a municipal corporation, and others, wherein King County, a class A county of the state of Washington was joined as a party plaintiff. From a decree quieting title in Edward Burkheimer and wife, the named defendant appeals.

Affirmed.

Appeal from Superior Court, King County; Malcolm Douglas, judge.

A. C Van Soelen, Corp. Counsel, and John A. Homer, both of Seattle, for appellant.

Skeel McKelvy, Henke, Evenson & Uhlmann and Peter Balkema, all of Seattle, amici curiae.

B. Gray Warner and Lloyd W. Shorett, both of Seattle, for King County.

Burkheimer & Burkheimer, of Seattle, for Burkheimer and others.

DRIVER, Justice.

King County sold to Edward Burkheimer and wife, in the manner provided by statute, nine lots in the city of Seattle which the county had previously acquired for taxes. The county treasurer's deed was delivered to the purchasers, who brought suit to quiet title, joining King County therein as a party plaintiff. A trial to the court resulted in a decree in favor of the plaintiffs, from which, defendant City of Seattle has appealed.

The city's interest in the lots consists solely of an unpaid balance on local improvement assessments levied against them prior to the sale. It is conceded that a valid sale would cut off the lien of the assessments; but the city claims that the sale was void because the publication of notice of sale was not legally sufficient.

The applicable statute, Rem.Rev.Stat.Supp. § 11294, provides that, in the sale of real property which a county has acquired for taxes, 'It shall be the duty of the county treasurer * * * to publish once a week for three consecutive weeks a notice of the sale of such property * * *.' (Italics ours.) In the case at bar, the notice of sale was published in a weekly newspaper on Thursday November 16th; Friday, November 24th; and Thursday, November 30, 1939. (Thursday, November 23rd, was Thanksgiving, a legal holiday, and the newspaper did not go to press that day.) The sale date was Thursday, December 7, 1939. The sole question for determination is whether such publication of notice sufficiently complied with the requirements of the statute. To answer the question, it is necessary that the statutory purase 'once a week for three consecutive weeks' be examined and construed.

The term 'three consecutive weeks' has been held by this court to mean a period of twenty-one consecutive days, during which the publication must actually be operative. In other words, where publication for 'three consecutive weeks' is required, there must be a lapse of not less than twenty-one days between the day of first publication of the notice and the day of sale or other appointed act or event. See Ball v. Clothier, 34 Wash. 299, 75 P. 1099; In re Hoscheid's Estate, 78 Wash. 309, 139 P. 61; Wyant v. Independent Asphalt Paving Co., 118 Wash. 345, 203 P. 961.

In the instant case, there was publication of the notice for 'three consecutive weeks' under the rule announced in the cases just cited, because twenty-one days elapsed between November 16th, the day of first publication, and December 7th, the date of sale. What, then, is the meaning of 'once a week,' the other words of the statutory phrase under consideration?

Appellant maintains that 'once a week' means at regular intervals of seven days; that exactly seven days, no more or no less, must intervene between any publication and the next ensuing publication; or, to put it in another way, that each succeeding publication after the first one must be made on the same day of the calendar week as the first publication.

The authorities agree that a week must comprise seven consecutive days, but they are not in accord as to what particular days the week shall comprise; or, differently stated, they do not agree as to the specific day on which the first week of the prescribed period of publication shall be deemed to commence. By far, the most common methods of computation are the calendar week, which is considered to begin on the Sunday preceding the day of first publication and to extend through the next ensuing Saturday; and what has been called the statutory week, which is deemed to commence on, and to include, the day of first publication and to run for seven consecutive days. These two methods are exemplified, respectively, by the cases of Ronkendorff v. Taylor's Lessee, 4 Pet. 349, 7 L.Ed. 882, and Raum v. Leach, 53 Minn. 84, 54 N.W. 1058.

While this court has not, in so many words, declared its adoption of the calendar week, the statutory week, or any other system of computation, the cases of Ball v. Clothier, In re Hoscheid's Estate, and Wyant v. Independent Asphalt Paving Co., cited supra, plainly imply a preference for the statutory-week method of computation. As has been pointed out, it was held in those cases that the required number of weeks for publication of a notice must elapse between the day of first publication and the day of sale, 'weeks,' in that sense, being construed to mean successive periods of seven consecutive days each. This clearly indicates that publication was held to begin, and to become effective, on the day of first publication. The first week of publication therefore was deemed to comprise, and to include, the day of first publication and the next ensuing six consecutive days thereafter. On the other hand, the rule of the three cited cases can not be reconciled with the calendar-week method of computation. Under that method, the first week begins on the Sunday next preceding the day of first publication and ends on the following Saturday. Thus, for example, in a case where publication once a week for two consecutive weeks is required, if publication were made on two consecutive Fridays, then, under the calendar-week method, the second week of publication would be deemed to end on the Saturday following the second publication; and publication for the prescribed period having been completed, the sale could legally be held on the next ensuing Monday, although only ten days, rather than the fourteen days required by the rule, would have elapsed between the first publication and the day of sale.

But whatever may be the method of computation employed, the great majority of the cases hold that it is sufficient if there be at least one publication during each of the weeks into which the prescribed period of publication has been bracketed, and that it is not essential for each publication to be made upon the same day of the calendar week. The leading case in the enunciation of this rule is Ronkendorff v. Taylor's Lessee, above cited. There, the Supreme Court of the United States [4 Pet. 360, 7 L.Ed. 882], had under consideration an act of Congress which required publication of notice of sale of real property 'once a week * * * for three months.' 3 Stat. 589, § 10. The publications of notice effected under the statute were not all made on the same day of the calendar week. It was there contended, as it is by the appellant in the case at bar, that, once the first publication had been made, it was essential to the validity of the notice that subsequent publications should follow regularly every seventh day thereafter. This contention was answered as follows in the Ronkendorff case: 'The words of the law are, 'once a week.' Does this limit the publication to a particular day of the week? If the notice be published on Monday, is it fatal, to omit the publication until the Tuesday week succeeding? The object of the notice is as well answered by such a publication, as if it had been made on the following Monday. A week is a definite period of time, commencing on Sunday and ending on Saturday. By this construction, the notice in this case must be held sufficient. It was published Monday, January the 6th, and omitted until Saturday, January the 18th, leaving an interval of eleven days; still, the publication on Saturday was within the week succeeding the notice of the 6th. If would be a most rigid construction of the act of congress, justified neither by its spirit nor its language, to say that this notice must be published on any particular day of a week. If published once a week, for three months, the law is complied with, and its object effectuated.'

Other jurisdictions which have held that each publication need not be on the same day of the calendar week are: New York, in Steinle v. Bell, 12 Abb.Pr., N.S., 171--see, also, Wood v. Knapp, 100 N.Y. 109, 2 N.E. 632; Massachusetts, in Bachelor v. Bachelor, 1 Mass. 256; Pennsylvania, in Stoever's Appeal, 3 Watt. & S. 154; Minnesota, in Raum v. Leach, 53 Minn. 84, 54 N.W. 1058, supra; Nebraska, in Burr v. Finch, 91 Neb. 417, 136 N.W. 72; New Hampshire, in Cass v. Bellows, 31 N.H. 501, 64 Am.Dec. 347; Kansas, in Fidelity Nat. Bank & T. Co. v. Cloninger, 142 Kan. 558, 51 P.2d 35; Louisiana, in Re City of New Orleans, 52 La.Ann. 1073, 27 So. 592, Hansen v. Mauberret, 52 La.Ann. 1565, 28 So. 167--see, also, Keife v. La Salle Realty Co., 166 La. 553, 117 So. 588, and Champion Box Co. v. Manatee Crate Co., 5 Cir., 75 F.2d 340.

The following three cases are the only cases which have been cited as sustaining appellant's position: In re King, 14 F. Cas. page 502, No. 7,779, 7 N.B.R. 279; Dayton v. Mintzer, 22 Minn. 393; Hernandez v. His Creditors, 57 Cal. 333.

The first case, In re King, which was decided by the United States District Court for the Southern District of New York in 1872, squarely supports appellant's contention. It should be noted, however, that, although that case involved the construction by the federal court of a New York statut...