McAllister v. City of Tacoma

• Decision Date: 03 September 1894
• Citation: 9 Wash. 272,37 P. 658
• Parties: MCALLISTER ET AL. v. CITY OF TACOMA ET AL.
• Court: Washington Supreme Court

37 P. 658

9 Wash. 272

MCALLISTER ET AL. v. CITY OF TACOMA ET AL.

Supreme Court of Washington

September 3, 1894

On petition for rehearing. Denied.

For prior report, see 37 P. 447.

STILES, J.

A very earnest petition for a rehearing has been filed in this case, with a view to obviating what was said in the opinion concerning the power of the board of public works to contract for repairs in addition to the contract for the improvement. Two cases are cited from New York, one of which-People v. Maher (Sup.) 9 N.Y.S. 94-seems to sustain the view taken by this court. The other,-Schenectady v. Trustees (Sup.) 21 N.Y.S. 147,-it is claimed, states a case like the one at bar, and holds to the contrary. The contract in that case was that the work should be done in such a manner that no repairs would be needed for five years, and that if any should be required the contractor would make them. This was held to be a mere guaranty of the quality of the work, and therefore not within People v. Maher, where the contract was precisely like the one before us. Both of these cases were decided in the third department of the supreme court of New York, but by different judges, and the latter does not undertake to deny the authority of the former. The principle adopted by us was right, and we adhere to it. The anxiety of counsel in this matter seems to be directed to a large body of warrants which have been issued in payment of other like improvements in the city of Tacoma where the contracts were made by the board in the same way, but where assessments are not due; but it is evident that the provisions of the act of March 9, 1893, on the subject of reassessments, have been overlooked, and that the anticipated danger is more fancied than real. Certainly, if that act can have any force, the actual value of any improvement made, where there was jurisdiction to make it at the expense of abutting property, can be reassessed. Petition denied.

DUNBAR, C.J., and ANDERS and SCOTT, JJ., concur.