Northwestern & P. Hypotheek Bank v. City of Spokane

• Decision Date: 10 January 1898
• Citation: 18 Wash. 456,51 P. 1070
• Court: Washington Supreme Court
• Parties: NORTHWESTERN & PACIFIC HYPOTHEEK BANK v. CITY OF SPOKANE ET AL.

51 P. 1070

18 Wash. 456

NORTHWESTERN & PACIFIC HYPOTHEEK BANK v. CITY OF SPOKANE ET AL.

Supreme Court of Washington

January 10, 1898

Appeal from superior court, Spokane county; William E. Richardson Judge.

Action by the Northwestern & Pacific Hypotheek Bank (Northwestern &amp Pacific Mortgage Company), a corporation, against the city of Spokane, and W. S. McCrea, treasurer of such city, for an injunction. From a decree for plaintiff, defendants appeal. Reversed.

A. G Avery, Corp. Counsel, for appellants.

Blake & Post, for respondent.

DUNBAR J.

This is an action brought by the respondent against the city of Spokane and its treasurer, to prevent by injunction the sale of certain of respondent's real estate to satisfy the assessment made thereon to pay for the grading and improving of certain streets in the city of Spokane on which the said real estate abutted. The lower court granted the injunction prayed for in the complaint, and from its judgment this appeal is taken.

It seems to us that almost every question involved in this case has been decided by this court in various cases in opposition to respondent's contention. Outside of the question of the statute of limitations,-and we now decide that the statute of limitations does not run in this case,-the questions raised here are such questions as should have been raised before the city council, under the notice which was confessedly given to the respondent.

It is contended by the respondent that the fact that the assessment was made according to the valuation instead of according to benefits, invalidates it; but that was one of the very questions which should have been presented to the city council. It was held in City of New Whatcom v. Bellingham Bay Imp. Co. (Wash.) 51 P. 360 that the fact that an assessment was not legally levied as respects benefits charged could not be urged on foreclosure when objections had not been urged at the time of making the assessment. That holding would dispose of the question at issue here, even if it were conceded that the statute of 1893 required the assessment according to benefits where the charter of the city provided for an assessment according to valuation. The statute, in speaking of this question, uses the following language: "To this end the board of public works or other proper authority of such city or town shall make a new assessment roll in equitable manner with reference to the benefits received, as near as may be in accordance with the law in force at the time such re-assessment is made." It is conceded that the charter of Spokane provided for the assessment of the streets according to value, and we are inclined to think that the law just quoted did not intend to abrogate the city charters in existence at the time assessments were made. However, as we have said before, this was one of the questions which should have been submitted to the council, under section 5 of the act of 1893; and, the question not having been raised there, the action of the city council in that respect is conclusive. So it may be said of all the other questions raised in respondent's brief. None of them go to the question of jurisdiction of the council to act on the subject-matter. The council was given jurisdiction to make this assessment. The language of the statute is plain and far-reaching. Section 5 provides: "At the time appointed for hearing objections to...