Seattle Cedar Lumber Mfg. Co. v. City of Ballard

• Decision Date: 28 July 1908
• Citation: 50 Wash. 123,96 P. 956
• Court: Washington Supreme Court
• Parties: SEATTLE CEDAR LUMBER MFG. CO. v. CITY OF BALLARD et al.

96 P. 956

50 Wash. 123

SEATTLE CEDAR LUMBER MFG. CO. v. CITY OF BALLARD et al.

Supreme Court of Washington

July 28, 1908

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by the Seattle Cedar Lumber Manufacturing Company against the city of Ballard and another. Judgment for plaintiff. Defendants appeal. Affirmed.

Scott Calhoun and Howard A. Hanson, for appellants.

Peters & Powell, for respondent.

HADLEY C.J.

This is an action to enjoin the city of Ballard and the city marshal thereof from collecting or attempting to collect a special assessment for the construction of a sewer. The plaintiff is the owner of real estate which was assessed for said improvement in the aggregate sum of $746.67. It is conceded by the defendants that the city proceeded in accordance with chapter 160, p. 406, of the Laws of 1891, entitled 'An act to provide for the drainage of cities of the second third and fourth class by the construction of sewers and drains.' It is contended by the defendants that the procedure was also authorized by chapter 126, p. 244, of the Laws of 1899, entitled 'An act authorizing cities and towns other than cities of the first class to construct sewers and drains within assessment districts, and to levy and collect special assessments and taxes to pay therefor and declaring an emergency,' and also by chapter 27, p 30, of the Laws of 1903, entitled 'An act to amend section two (2), of an act entitled 'An act authorizing cities and towns, other than cities of the first class, to construct sewers and drains within assessment districts, and to levy and collect special assessments and taxes to pay therefor, and declaring an emergency,' approved March 14 1899.' The plaintiff's position is that all legislation upon the subject, so far as cities of the third class are concerned, was superseded by chapter 124, p. 231, of the Laws of 1903. The facts with regard to the method of procedure were set up by way of answer to the complaint, and the plaintiff thereupon demurred to the affirmative answer. The demurrer was sustained, and, the defendants declining to plead further, judgment was entered declaring the assessment void and restraining the defendants from collecting or attempting to collect it. The defendants have appealed.

The real contention on the appeal is whether chapter 124, p. 231, of the Laws of 1903 has superseded all other legislation upon the subject of sewer construction in cities of the third class. The lower court held that it has. The first legislation upon the subject is found in section 124, c. 7, p. 187, Laws of 1889-90. That section was a part of the charter adopted in 1890 for all cities of the third class. It provided for payment of the expense of making and repairing sewers out of the sewer fund, which fund was sustained by general taxation. The next legislation was that found in chapter 160, p. 406, of the Laws of 1891, which was an act to provide for the construction of sewers in cities of the second, third, and fourth classes. That act authorized the establishment of sewer districts and the special assessment of property benefited. The procedure as there outlined is initiated by a petition signed by persons owning a majority of the land to be included in the district, and it is concluded after the intermediate steps by a summary sale of the property by the city marshal as the means of enforcing collection. The next statute bearing upon the subject is that of section 5, c. 70, pp. 159, 160, of the laws of 1893. It will be seen that the section is an amendment of section 124 of the act of 1890, which related to cities of the third class only, and this act of 1893 still declares that the expense of making and repairing sewers in cities of the third class shall be paid by the city out of the sewer fund. The next statute is that of chapter 126, p. 244, of the Laws of 1899, which authorizes the establishment of assessment districts for sewer construction in cities and towns other than those of the first class, and provides for payment by the installment and bond method. The next statute is that of chapter 113, p. 229, of the Laws of 1901, which is entitled as follows: 'An act amending section 943 of Ballinger's Codes and Statutes of Washington, relating to assessments for local improvements.' Section 943 of Ballinger's Ann. Codes & St., which is specifically amended by this statute of 1901, is the original section 124 of the statute of 1890 heretofore mentioned as a part of the original charter for cities of the third class. This statute of 1901 still declares that the expense of making and repairing sewers shall be paid by the city out of the sewer fund. The next statute is that of chapter 27, p. 30, of the Laws of 1903, which provides for special assessments for sewer construction in cities and towns other than...