Kuhn v. City of Port Townsend

• Decision Date: 24 September 1895
• Citation: 41 P. 923,12 Wash. 605
• Parties: KUHN v. CITY OF PORT TOWNSEND ET AL.
• Court: Washington Supreme Court

41 P. 923

12 Wash. 605

KUHN v. CITY OF PORT TOWNSEND ET AL.

Supreme Court of Washington

September 24, 1895

Appeal from superior court, Jefferson county; R. A. Ballinger Judge.

Action by Joseph A. Kuhn, for the benefit of himself and others similarly situated, against the city of Port Townsend and others, to restrain the collection of taxes. From a judgment for defendants, plaintiff appeals. Affirmed.

Morris B. Sachs, for appellant.

Trumbull & Trumbull, for respondents.

GORDON, J.

This was an action brought in the superior court of the county of Jefferson for the purpose of restraining the collection of taxes assessed against the lands of plaintiff for municipal purposes. The ground upon which relief is sought is that the property against which said taxes are levied is situated within that portion of territory attempted to be annexed to the city of Port Townsend by virtue of certain proceedings upon the part of the officers of said city, which proceedings, he alleges, were had and taken without authority of law, and are therefore void. Issue of fact was joined by answer and reply, and thereafter, upon motion of the respondents, judgment was rendered upon the pleadings in favor of respondents, from which judgment this appeal is prosecuted.

The city of Port Townsend was incorporated under an act of the legislature of the territory of Washington approved November 29, 1881. The theory of the complaint, and the sole ground upon which the relief is sought, is that the attempted annexation proceedings were void. The prayer of the complaint is: "That upon the final hearing herein the court will order and declare the said attempted annexation of said property so as hereinbefore set forth attempted to be annexed to said city of Port Townsend, and the acts and doings of said city of Port Townsend in relation thereto void, and of no effect."

Various errors are assigned in the appellant's brief, relating principally to matters within the discretion of the lower court, all of which, save those hereinafter noticed, were abandoned upon the oral argument in this court; and, although we have examined and considered them, we do not think that any of them are of sufficient importance to warrant a reversal of the cause. Section 9 of the act of March 27 1890, being section 501, 1 Hill's Code, is as follows "The boundaries of any municipal corporation may be altered and new territory included therein, after proceedings had as required in this section. The council, or other legislative body of such corporation, shall, upon receiving a petition therefor, signed by not less than one-fifth of the qualified electors thereof, as shown by the vote cast at the last municipal election held therein, submit to the electors of such corporation, and to the electors residing in the territory proposed by such petition to be annexed to such corporation, the question whether such territory shall be annexed to such corporation and become a part thereof." The section further provides for the calling of a special election to be held for that purpose, and giving notice therefor, and provision is made for canvassing and declaring the result. Continuing, the section provides that: "If it shall appear upon such canvass that a majority of all the votes cast in such territory and a majority of all the votes cast in such corporation shall be for annexation, such legislative body shall, by an order entered upon their minutes, cause their clerk, or other officer performing the duties of clerk, to make and transmit to the secretary of state a certified abstract of such vote, which abstract shall show the whole number of electors voting in such territory, the whole number of electors voting in such corporation, the number of votes cast in each for annexation and the number of votes cast in each against annexation." It then provides that "from and after the date of the filing of such abstract such annexation shall be deemed complete, and thereafter such territory shall be and remain a part of such corporation." It is alleged in the complaint that this section does not apply to, and has no relation whatsoever to, the city of Port Townsend. Learned counsel for the appellant, in his very able and exhaustive brief, has failed to advance any reasoning in support of the position thus assumed. A similar question was involved in the case of State v. Warner, 4 Wash. 773, 31 P. 25, and of that section this court there said: "In our judgment, there can be no doubt that the intention was to make it apply to municipal corporations of every class, whether existing under special territorial charters or under the constitution and subsequent laws of the state." Further consideration convinces us that this is the true meaning of that section.

It appears from the complaint in this action that in September 1890, a petition was presented to the council of the said city, signed by a number of persons, requesting that said outlying territory (describing it, and which includes the lands of appellant) be annexed to the city of Port Townsend, and that the city limits be extended so as to include the same. Continuing, the complaint alleges that "the said city council, in pursuance thereof, and in attempting to annex the said property and extend said boundaries, caused a notice of a special election to be published." Then follows the notice, the sufficiency of which is not questioned. "That said city council caused said notice of said election to be published for the time required by law in a newspaper printed and published within the limits of the city of Port Townsend, as required by the acts of the legislature aforesaid." Further, it alleges that "on October 27, 1890, an election was held under and by virtue of said notice, and thereafter the council proceeded to declare the result, and made its finding and declaration in respect thereto, showing a majority of 341 in favor of annexation, and thereupon the city council made an order that the city attorney and clerk draw an abstract to be filed with the secretary of state." Continuing, the complaint alleges "that ever since the finding and declaration aforesaid as to the canvassing of said vote and the drawing and filing...