Kline v. City of Tacoma

• Decision Date: 14 February 1895
• Citation: 11 Wash. 193,39 P. 453
• Court: Washington Supreme Court
• Parties: KLINE ET AL. v. CITY OF TACOMA ET AL.

39 P. 453

11 Wash. 193

KLINE ET AL. v. CITY OF TACOMA ET AL.

Supreme Court of Washington

February 14, 1895

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Action by Nerman Kline, trustee, and others, against the city of Tacoma and others, to set aside an assessment levied for improvements. From the judgment dismissing the action plaintiffs appeal. Reversed.

Tillotson & Milligan, for appellants.

James Wickersham and Stacy W. Gibbs, for respondents.

DUNBAR J.

This action, it seems to us, falls squarely within the decision announced by this court in Buckley v. City of Tacoma, 9 Wash. 253, 37 P. 441. It was conceded by one of the attorneys for respondents that the case in its general features could not be distinguished from that case. It was contended, however, by respondents' other attorney, that there were some distinguishing features but we are entirely unable to discover them. The main proposition decided in the Buckley Case was that the improvement had not been ordered by resolution, as required by the charter. In the case at bar the resolution for the improvement is identical with that in the former case. It is argued by counsel for respondents that it was sufficient that the resolution declared the intention of the council to improve these streets, but in the Buckley Case this court said: "But perhaps the greatest defect of this resolution is that, while it declares the intention of the council to improve N street, it does not order anything, and furnishes no basis for any action on the part of the engineer and board of public works." It is contended earnestly by the respondents that this action cannot be maintained, because it is a collateral proceeding instead of a direct one. The case of Buckley v. City of Tacoma was also a collateral attack, if, indeed, the present case is a collateral instead of a direct attack. But conceding, for the purposes of this case, though a doubtful proposition, considering the fact that the law makes no provision for an appeal from such orders, that this is a collateral proceeding, the point raised by the respondents is not well taken; for even collateral attacks will be entertained where the judgment or action is absolutely void. It was held by this court in the case above cited that the action of the corporation was void. After mentioning the authority which was granted to the corporation to improve the streets, and asserting that under the facts shown in that case the corporation had exceeded its authority, this court said: "It is unnecessary to cite authorities on these points. The 'A B C' of the laws of municipal corporations, that the power to levy special assessments is to be construed strictly, that the mode prescribed is the measure of power, and that material requirements must be complied with before there is any liability, is all that need be quoted. Spokane Falls v. Browne, 3 Wash. St. 84, 27 P. 1077. An assessment made contrary to these principles is void, and an injunction lies to restrain its collection,"-citing Dill. Mun. Corp. 803; High, Inj. 539. We also held there that the objections raised by the appellant went to the jurisdiction of the city to make the improvements at all at the expense of abutting property, by reason of a complete failure to carry out the plain conditions of the charter, which were conditions precedent to the exercise of the power. Long and learned briefs have been filed by the attorneys for respondents in support of their contentions, but, as this court went into many of the questions discussed there at some length, in the case mentioned above, and decided it adversely to the respondents' contention, we do not feel called upon now to again enter upon a discussion of those questions. So far as the question of waiver is concerned, we think the many cases cited by respondents on that proposition are not applicable to the facts shown in the case at bar. The judgment will therefore be reversed.

SCOTT, ANDERS, and GORDON, JJ., concur.

HOYT C.J. (dissenting).

I did not concur in the opinion rendered in the case of Buckley v City of Tacoma, upon which the foregoing opinion is...