Rosenthal v. City of Tacoma, 30540.

• Decision Date: 24 June 1948
• Docket Number: 30540.
• Citation: 31 Wn.2d 32,195 P.2d 102
• Parties: ROSENTHAL et al. v. CITY OF TACOMA.
• Court: Washington Supreme Court

195 P.2d 102

31 Wn.2d 32

ROSENTHAL et al. v. CITY OF TACOMA.

No. 30540.

Supreme Court of Washington

June 24, 1948

Department 2

Action by S. Rosenthal and others against the City of Tacoma, a municipal corporation, to review the action of the city council confirming an assessment roll presented by the commissioner of public works levied against lots owned by plaintiffs for a portion of the construction costs of a concrete sidewalk, retaining wall, and guard rail. From the judgment, the City appeals.

Judgment affirmed.

Appeal from Superior Court, Pierce County; Ernest M. Card, Judge.

Clarence M. Boyle, Corp. Counsel, Dean Barline, Horace G. Geer and Robert E. Cooper, all of Tacoma, for appellant.

W. W Mount, of Tacoma, for respondents.

JEFFERS Justice.

This action involved the legality of an assessment levied by the city of Tacoma against lots 3 to 24, inclusive, block 1307 New Tacoma Addition to the city of Tacoma, for fifty per cent of the construction costs of a concrete sidewalk, retaining wall and guard rail. This property lies on the east side of Market street in Tacoma, between South Thirteenth and South Fifteenth streets, and the above improvements were constructed in front of the property. All the lots assessed lie below the level of Market street, and are not accessible to the sidewalk in their present state.

There is no dispute as to the material facts. On October 16, 1946 John S. Roberts, commissioner of public works of the city of Tacoma, notified each of the respondents (owners of the lots assessed) that the sidewalk abutting his property was in such condition 'as to render the same as unfit and unsafe for public travel.' The notice further provided: 'You are further notified that pursuant to authority contained in Section 9331, Remington's Revised Statutes, and by Ordinance No. 12794 of the City of Tacoma [passed Feb. 6, 1946], you are instructed and required to renew said sidewalk upon which your said property abuts, according to plans and specifications hereto attached, within ninety (90) days from October 15, 1946; that the estimated cost of such renewal is the sum of [the amount varied in the notices to the property owners, and in each case exceeded fifty per cent of the assessed valuation exclusive of improvements] * * *.'

Attached to this notice were copies of the blueprints showing the work and type of structure as originally planned. Copies of such blueprints were also made a part of the original contract entered into between the city and J. E. Wells.

The total estimated cost of the improvement as originally planned was approximately $26,000. The total assessed valuation of the real estate, exclusive of improvements, according to the valuation placed upon it for general taxation purposes, was $12,550.

None of the owners of the property involved petitioned for the improvement. The city council never adopted a resolution declaring its intention to order such improvement, nor did it ever fix a time for a public hearing, or give those interested an opportunity to appear Before the council and present their objections.

On February 5, 1947, the city council passed ordinance No. 13013, authorizing the board of contracts and awards to call for bids and let a contract for the reconstruction of five hundred fifty feet of sidewalk, including construction of a retaining wall and guard rail, all in accordance with plans and specifications on file in the office of the commissioner of public works. The cost of such improvement was to be paid from the general fund, and the fund reimbursed to the extent of such cost from moneys to be collected under assessments to be thereafter levied against the properties adjacent to and abutting upon such sidewalk.

On March 3, 1947, the city of Tacoma entered into a contract with J. E. Wells for the performance of the work. Mr. Wells' bid, based upon the work to be done as originally planned, was approximately $20,628.

According to Mr. Bantz, Tacoma city engineer, after construction work had been started, it was found necessary to change the plans and redesign the entire structure. Without attempting to describe in detail the difference in the structure as originally planned and the one actually constructed, it is sufficient, we think, to state that the retaining wall was a different structure entirely. This wall, as constructed, was about twenty feet in height, twelve to twenty inches in thickness. Mr. Bantz stated that there was no question but that this wall would furnish some support for the street. As finally completed, there are really two structures, namely, a sidewalk and a retaining wall and base. The final cost of the improvement was $61,374.35.

The property owners protested, whereupon the commissioner of public works made up an assessment roll, in which the property owners were to bear fifty per cent of the cost, or $30,687.16, and the city was to bear fifty per cent of such cost.

A hearing was had on the assessment roll, and while no notice of such hearing was published, the property owners appeared by their counsel, and presented and filed written objections. These objections were overruled, and the council, on September 24, 1947, passed ordinance No. 13204, confirming the assessment roll as presented by the commissioner of public works.

The property owners appealed to the superior court for Pierce county, in accordance with the provisions of Rem.Rev.Stat. § 9374. While the city contended that none of the provisions of Rem.Rev.Stat. title 60, chapter 27, the local improvement act of 1911, of which § 9374, supra, is a part, was applicable to the assessment here involved, it was stipulated between counsel for the parties that the cause could be heard and determined under the above form of appeal, but that the city should not be construed to have waived the right to question any portion of chapter 27, title 60, supra, except that no question would be raised as to the form of appeal procedure.

The matter came on for hearing Before the court on December 8, 1947, and thereafter and on January 7, 1948, the court made and entered findings of fact, conclusions of law and a judgment. By its judgment the court set aside the assessment roll of the city as adopted by the passage of ordinance No. 13204, wherein appellant property owners were assessed the total sum of $30,687.16. The city has appealed from the above judgment.

Appellant makes eighteen assignments of error.

It is admitted by appellant that in making the improvement here in question, it did so under the provisions of Rem.Rev.Stat. §§ 9331 and 9332, which sections were passed by the legislature in 1905 as §§ 1 and 2, chapter 37, Laws of 1905. Chapter 37 is a special act '* * * relating to maintenance, repair and renewal of sidewalks in cities of the first, second, third and fourth class, and other cities and towns of equal population working under special charters, and providing for the payment thereof by the owners of abutting property.'

Respondents make two contentions in support of the judgment entered, and these contentions raise the two main questions to be determined herein. It is first contended that chapter 37, Laws of 1905, under which the city proceeded, was repealed by implication by chapter 98, Laws of 1911. It is next contended that if chapter 37, Laws of 1905, is still in effect, nevertheless the city was not, by such act, authorized or justified, under the guise of renewing a wooden sidewalk, in constructing a steel reinforced concrete retaining wall, separate and apart from a steel reinforced concrete sidewalk, and assessing against the abutting property owners fifty per cent of the cost of both structures, regardless of the amount. If either of the foregoing theories be correct, the judgment of the trial court must be affirmed, because it is the rule in cases triable de novo that if the decision of the trial court can soundly rest on any ground, it must be sustained. State ex rel. Spokane, etc., Branch v. Justice Court, 189 Wash. 87, 63 P.2d 937.

We shall first discuss the question of whether or not chapter 37, Laws of 1905, was by implication repealed by chapter 98, Laws of 1911. We preface this discussion with the statement that we fully recognize that repeals by implication are not favored. We stated in Abel v. Diking & Drainage Imp. Dist. No. 4, 19 Wash.2d 356, 363, 142 P.2d 1017, 1020: 'Repeals by implication are ordinarily not favored in law, and a later act will not operate to repeal an earlier act except in such instances where the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede the prior legislation on the subject, or unless the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot, by a fair and reasonable construction, be reconciled and both given effect. State ex rel. Spokane & Eastern Branch of Seattle First Nat. Bank v. Justice Court, 189 Wash. 87, 63 P.2d 937, and cases therein cited; 25 R.C.L. 920, Statutes, § 170.' (Italics ours.)

It may be admitted that chapter 98, supra, does not specifically, by reference thereto, repeal chapter 37, Laws of 1905, but chapter 98 does contain the following provision:

'Sec. 71. * * * All acts and parts of acts enumerated in the following schedules, and all acts and parts of acts in conflict with the provisions hereof, are hereby repealed.' (Italics ours.)

We also appreciate that, when an act contains a schedule of certain acts specifically repealed, a presumption might arise that the legislature did not intend to repeal other acts not specifically mentioned. We referred to and discussed this presumption in Great Northern R. Co. v. Glover, 194 Wash. 146, 156, 77 P.2d 598, 603:

'Appellant...