Pratt v. City of Seattle

• Decision Date: 22 April 1920
• Docket Number: 15719.
• Citation: 189 P. 565,111 Wash. 104
• Court: Washington Supreme Court
• Parties: PRATT v. CITY OF SEATTLE.

189 P. 565

111 Wash. 104

PRATT v. CITY OF SEATTLE.

No. 15719.

Supreme Court of Washington, En Banc.

April 22, 1920

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by D. O. Pratt against the City of Seattle to enjoin the consummation of two proposed bond issues, evidencing a general indebtedness of the city. Judgment for defendant, and plaintiff appeals. Affirmed in so far as injunction against first bond issue was refused, but reversed and remanded in so far as injunction against second bond issue was refused.

Fred W. Catlett, of Seattle, for appellant.

Walter F. Meier, Corp. Counsel, and Robt. H. Evans, both of Seattle for respondent.

Peters & Powell, Preston, Thorgrimson & Turner, and Donworth, Todd &amp Higgins, all of Seattle, amici curiae.

PARKER, J.

The plaintiff, Pratt, a resident and taxpayer of the city of Seattle, commenced this action in the superior court for King county, seeking a judgment enjoining the city and its officers from consummating two proposed bond issues evidencing a general indebtedness of the city, one for $270,000 and one for $110,000; the former to pay judgments awarding compensation for the taking and damaging of private property resulting in the change of grades of Shilshole avenue, made in eminent domain proceedings prosecuted by the city, and the latter to pay the cost of the physical improvement of that avenue at the grades as changed. In the initial ordinances authorizing the condemnation proceedings and the making of the physical improvement, the city provided for the payment of compensation to the owners of the property to be taken and damaged by the change of grades and for the physical improvement exclusively by assessments against the property which it was then supposed would be benefited thereby, which plans for raising funds to pay such damages and cost of the physical improvement were thereafter changed by the city to that of making the whole cost of both propositions a general indebtedness of the city, which it is now proposed to evidence by the bond issues in question. The case was submitted to the superior court for final decision upon the admitted facts appearing in the pleadings, resulting in a judgment denying to the plaintiff the relief prayed for, and dismissing the action. From this disposition of the case the plaintiff has appealed to this court.

The question of the legality of each of the bond issues is presented in a separate cause of action. While they have some facts in common, we think the controlling legal principles lead to different results. We shall therefore discuss them separately.

The controlling facts of the case touching the rights of appellant and the power of the city, in so far as we are here concerned with the first cause of action, may be summarized as follows:

On August 15, 1912, the city passed Ordinance No. 29834 changing the established grades of Shilshole avenue and directing the corporation counsel to commence and prosecute condemnation proceedings in the superior court for King county, to the end that the city acquire the necessary property rights to enable it to make such change of grades. It was provided in this ordinance:

'That the entire cost of the improvement provided for herein shall be paid by special assessment upon property specially benefited in the manner provided by law, and that no part thereof shall be paid from the general fund of the city of Seattle.'

While the word 'improvement' is there used as descriptive of the proposition, manifestly it does not mean physical improvement, since the ordinance makes no provision for any such improvement, though of course the city authorities no doubt contemplated the making of a physical improvement at the changed grades, after acquiring by condemnation proceedings the right so to do. It is equally plain that the words 'cost of the improvement,' as used in this quoted portion of the ordinance, mean only the cost of the acquisition of such property rights as will enable the city to thereafter physically improve the avenue at the changed grades. Thereafter condemnation proceedings were accordingly commenced and prosecuted in the name of the city in the superior court for King county, resulting in an adjudication that the contemplated use of the property rights so sought to be acquired by the city was a public use, and in verdicts and judgments awarding the owners of the property compensation for their property to be taken and damaged for such use. Some of these judgments were, in form, satisfied upon the record of judgments in the superior court, the judgment creditors receiving therefor from the city warrants upon the special assessment fund which it was contemplated would thereafter be created and raised by special assessment against property it was thought would be benefited by the change of the grades. The balance of the judgments remain wholly unsatisfied and unpaid in any form.

These satisfactions, in form, of some of the judgments, we must presume were in the manner and for the purpose as provided by section 953, Rem. Code, which requires a judgment creditor of a municipality to first satisfy his judgment upon the judgment records of the superior court and then take a certified transcript of the judgment and the satisfaction so made of record to the proper officer of the municipality liable to pay the same, when he becomes entitled to payment of the judgment. Following the entry of the condemnation judgments awarding compensation for property taken and damaged, the eminent domain commissioners of the city prepared an assessment roll, charging the entire cost thereof against the property supposed to be benefited by the change of grades. A hearing in the superior court upon the return of the assessment roll so made, as provided by sections 7787-7796, Rem. Code, resulted in the entry of an order by that court sustaining the right to levy special assessments to pay the cost of acquiring and damaging the private property as adjudged, over the objections of the owners of the property sought to be so assessed, and re-referring the assessment roll to the eminent domain commissioners, with direction to make certain modifications in the assessment as originally made by them. The objecting property owners thereupon appealed to this court from the order of the superior court, in so far as it sustained the right of the city to make any assessment to pay the cost of acquiring the property rights condemned by the city. Thereafter, on May 18, 1915, that order and judgment of the superior court was reversed by this court; it being held that none of the property of any of the objectors would receive any benefits whatever from the change of grades, as made by the city. In re Shilshole Avenue, 85 Wash, 522, 148 P. 781. That decision contains a history in considerable detail of that controversy, which, while interesting in this connection, need not be further noticed here.

The city has never made or attempted to make any other assessment roll looking to the raising of funds to pay the unsatisfied judgments, or those which were in form satisfied, or the special fund warrants issued for the latter. On May 1, 1918, the city passed Ordinance No. 38374, amending the above-quoted portion of Ordinance No. 29834, to read as follows:

'That the entire cost of the improvement provided for herein shall be paid from the general fund of the city of Seattle or such other fund as the city council shall direct.'

Thereafter on the same day there was passed Ordinance No. 38377, providing for the issuance of $270,000 of bonds evidencing a general indebtedness of the city, to raise funds to pay all of the judgments rendered in the condemnation proceeding, including the special warrants issued to those whose judgments were in form satisfied. This is the proposed bond issue included in the first cause of action, sought to be enjoined. The city has taken possession of all the property and caused all the damages for which the condemnation judgments awarded compensation, and has physically improved the street at the grades; but the city has not paid any of those judgments, except merely in form as above stated, though it has now full enjoyment of all the rights sought to be acquired by it in the condemnation proceedings.

Our problem, presented by the first cause of action, in its last analysis, as we view it, is this: Has the city the power to assume and pay as a general indebtedness the condemnation judgments awarding compensation for the property taken and damaged, which enabled it to lawfully change the street grades in question? Counsel for appellant contend that the city does not have such power, because the condemnation proceedings were commenced and prosecuted to final judgments only by authority of Ordinance No. 29834, which, in effect provided that the entire cost of acquiring the property rights sought to be condemned should be paid by special assessments upon the property specially benefited by the change of the street grades in question. In that behalf counsel invoke the law as announced in our decisions holding in substance that, when a municipality initiates a local improvement proceeding and constructs the improvement with the avowed purpose from the beginning to pay therefor exclusively from the proceeds of special assessments against property which it is contemplated will be benefited thereby, the city does not become liable for any part of the cost of such improvement as a general indebtedness, citing State ex rel. Security Sav. Soc. v. Moss. 44 Wash. 91, 86 P. 1129; State ex rel. Barnes v. Blaine, 44 Wash. 218, 87 P. 124; State ex rel. American, etc., Mortgage Co. v. Tanner, 45 Wash. 348, 88 P. 321; State ex rel. National Bank, etc., v. Tacoma, 97 Wash. 190, 166 P. 66...