Kuehl v. City of Edmonds

• Decision Date: 13 May 1916
• Docket Number: 12215.
• Citation: 91 Wash. 195,157 P. 850
• Court: Washington Supreme Court
• Parties: KUEHL et al. v. CITY OF EDMONDS.

157 P. 850

91 Wash. 195

KUEHL et al. v. CITY OF EDMONDS.

No. 12215.

Supreme Court of Washington, En Banc.

May 13, 1916

Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.

On rehearing. For former opinion, see 85 Wash. 307, 148 P. 19. Department opinion overruled, and judgment reversed and remanded.

Chadwick and Bausman, JJ., dissenting.

Preston & Thorgrimson and Turner & Hartge, all of Seattle, for appellant.

Earl W Husted, of Everett, for respondents.

ELLIS J.

In 1909 the city of Edmonds, a city of the third class, provided by ordinance for the improvement of Dayton street. An assessment roll was made assessing the property benefited for the full cost of the improvement, amounting to $8,317.33. At the suit of Peabody and others the superior court enjoined the collection of the assessment for any greater amount than $4,375.75. The city appealed, and in Peabody v. Edmonds, 68 Wash. 610 123 P. 1018, we found that the estimated cost of the improvement was $6,025.75. Following the case of Chehalis v. Cory, 54 Wash. 190, 102 P. 1027, 104 P 768, we held that an assessment only to the extent of that estimate was valid. Shortly thereafter an assessment to that amount was levied. Some time later a reassessment or supplemental assessment was made under the act of 1911, which in the meantime had been enacted. This included the balance of the principal of the cost of the improvement amounting to $2,292.33, and interest on all the warrants issued, amounting to $2,161.34, making a total of $4,453.67, which is the amount of the new roll. From this supplemental assessment certain interested property owners appealed to the superior court. That court held that the council had no power to make a reassessment or supplemental assessment, and, further, that our former decision in Peabody v. Edmonds, supra, was res judicata of the amount which could be lawfully assessed against the property. There was no showing that the council acted fraudulently or was in any way guilty of bad faith in the premises. There was no showing that the property in the district was not benefited in the full amount of the original and supplemental assessments, nor that the property of the appellants was assessed in excess of its proportion of the actual benefits conferred by the improvement. The city appealed. That decision was affirmed by Department 1 of this court in Kuehl v. City of Edmonds, 85 Wash. 307, 148 P. 19. A rehearing having been granted, the case was reheard by the court en banc.

On mature reconsideration we are forced to the conclusion that the department decision is erroneous in that throughout it apparently proceeds upon the assumption that by the act of 1911 the Legislature for the first time authorized a reassessment for the actual cost of the improvement up to the full amount of the special benefits to the property assessed, notwithstanding the original assessment had been held void in whole or in part for lack of a sufficient preliminary estimate, whereas section 6, p. 229, Laws 1893 (2 Rem. & Bal. Code, § 7899), which was in full force when the improvement here in question was made, and when the judgment setting aside the first assessment was entered, contained susbstantially the same provisions as those of sections 42 and 43 of the act of 1911 (Laws 1911, pp. 468, 469). As a matter of fact, the body of the law relating to reassessments was not materially changed, but was re-enacted, by the act of 1911. Compare the statute of 1893 as amended in 1909 (Laws 1909, p. 128; 2 Rem. & Bal. Code, §§ 7893, 7894, 7895 and 7899) with sections 42 and 43 of the statute of 1911 (3 Rem. & Bal. Code, §§ 7892-42, 7892-43). The provisions relating to reassessments, being carried forward and re-enacted in substance in the statute of 1911, are not to be construed as a new enactment, but as a continuing law from the first enactment in 1893. This is not only true as matter of construction, independent of statutory declaration to that effect ( County of Pierce ex rel. Maloney v. Spike, 19 Wash. 652, 54 P. 41), but it is so declared in section 70 of the statute of 1911 in express terms as follows:

'Any acts or parts of acts herein repealed, which are re-enacted in form or in substance in this act shall not be construed as new enactments but as continuations and amendments of such acts or parts of acts.

'All rights of action under existing laws which this act in any way supersedes or repeals, if the same at the time of taking effect of this act shall not have been commenced, shall proceed under the provisions of this act. All actions and proceedings, which may be pending in court under existing laws which this act in any way supersedes or repeals, shall proceed without being in any manner affected by the passage of this act. All proceedings commenced by any city or town before the taking effect of this act, relating to the making of any local improvement, shall proceed without being in any manner affected by the passage of this act, except as provided in section [7892]-24.' Laws 1911, p. 480.

When this section is read in its entirety, the statement in the department opinion that 'the limit of the power under the act of 1911 is to make all necessary assessments, reassessments or supplemental assessments within the limit of the sum fixed by the law governing the improvement at its inception' loses all point. This is manifest from the simple fact that the law at the time of the inception of the improvement fixed no limit to the power to reassess other than the actual cost of the improvement apportioned according to special benefits.

It may be objected that the statute of 1893 did not provide for a supplemental assessment. True, it did not eo nomine, but it did provide for a reassessment whenever an original assessment had been declared void 'in whole or in part,' which comes to the same thing. Law of 1893, p. 234, § 3 (2 Rem. & Bal. Code, § 7893).

The department opinion argues that:

'The basic principle underlying the Cory Case and our former decision in this case is that, where the Legislature has granted a general power or a power with limitation, a city, in the exercise of that power, may so conduct itself as to work an estoppel, and the relative rights of the property owner and the city will be fixed and determined by reference to the law as it

existed at the time.'

This is true, but the estoppel only extends to the original assessment, since the law as it existed at that time, while it required a preliminary estimate of the cost and a hearing thereon pursuant to notice as a prerequisite to a valid original assessment (Rem. & Bal. Code, § 7705), also declared in section 7899, the section relating to reassessments, that:

'The fact that the contract has been let or that such improvement shall have been made and completed in whole or in part shall not prevent such assessment from being made, nor shall the omission, failure or neglect of any officer or officers to comply with the provisions of the charter or laws governing such city or town, as to petition, notice, resolution to improve, estimate, survey, diagram, manner of letting contract or execution of work, or any other matter whatsoever, connected with the improvement and the first assessment thereof, operate to invalidate or in any way effect [affect] the making of the new assessment or reassessment as provided for by this chapter, charging the property benefited with the expense thereof: Provided, that such new assessment shall be for an amount which shall not exceed the actual cost and value of the improvement, together with any interest that shall have lawfully accrued thereon, and that such amount be equitably apportioned upon the property benefited thereby, according to the provisions of the charter or laws of such city or town. It being the true intent and meaning of this chapter to make the cost and expense of all local improvements payable by the real estate benefited by such improvement by making a reassessment therefor, notwithstanding that the proceedings of the common council or board of public works or any of its officers may be found irregular or defective, whether jurisdictional or otherwise; when such reassessment is completed all sums paid on the former attempted assessment shall be credited to the property on account of which the same was paid.'

This section was just as much a part of the law as it existed at the time the improvement was made, entering into the transaction and fixing the rights of the parties, as was section 7705, providing for the estimate. It is an unequivocal declaration that the insufficiency of the estimate is no bar to a reassessment to pay for the improvement 'charging the property benefited with the expense thereof,' not exceeding 'the actual cost and value of the improvement,' and interest. That there might be no mistake as to this intention, the section concludes with the emphatic declaration of an intent to authorize such reassessment even when the proceedings of the council or officers 'may be found irregular or defective, whether jurisdictional or otherwise.' These same provisions, without a material change, and almost in haec verba, are re-enacted in section 43 of the statute of 1911 (3 Rem. & Bal. Code § 7892-43), under which the reassessment here in question was made.

The department opinion, still overlooking the identity of section 43 of the act of 1911 so far as material to the point involved with section 6 of the statute of 1893 (2 Rem. & Bal. Code, § 7899), or failing to note the controlling significance of that fact, says:

'We may assume, as a matter of law and practice in all cases of this kind, that the sum estimated is a fair amount to be allowed for the improvement; that it is the limit of power and is binding upon the

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