Smith v. City of Seattle

• Decision Date: 21 June 1901
• Citation: 25 Wash. 300,65 P. 612
• Parties: SMITH v. CITY OF SEATILE et al.
• Court: Washington Supreme Court

65 P. 612

25 Wash. 300

SMITH v. CITY OF SEATILE et al.

Supreme Court of Washington

June 21, 1901

Appeal from superior court, King county; Boyd J. Tallman, Judge.

Action by Lyman C. Smith against the city of Seattle and others. From a judgment in favor of defendants plaintiff appeals. Affirmed.

Clise &amp King and E. F. Blaine, for appellant.

W. E Humphrey and Edward Von Tobel, for respondents.

WHITE J.

The complaint in this action in substance alleges that the city of Seattle is a city of the first class; that the city has passed an ordinance providing for the laying of a water main with the necessary gates, tees, crosses, fire hydrants, and other appurtenances, for a reasonable water service and fire protection, along a certain street in said city; that the plaintiff is the owner of a lot fronting on said street; that for the purpose of paying for said water main and its gates, etc., the city has created a local improvement district, and that the lot of the plaintiff is in said district; that the ordinance provides that the property abutting on the street along which the main is laid, especially benefited thereby, shall bear the cost of construction; that R. H. Thomson, Frank, N. Little, and Luther B. Youngs constitute the board of public works of said city; that said board of public works is about to let a contract for the construction of said water main, etc., and by so doing will create a cloud upon the title of the plaintiff, and will create an apparent lien upon said premises for the sums assessed against the same for said water main, etc. The ordinance directing the laying of the water main is referred to and made a part of the complaint. It provides that assessments be levied and collected upon all lots and parcels of land benefited by said improvement, to defray the cost and expenses thereof; that local improvement district bonds be issued, and that said assessment shall become a first lien upon all property liable therefor for the payment of said bonds; that the mode of payment shall be by the mode of 'payment by bonds,' as provided by an act of the legislature of the state of Washington entitled 'An act authorizing the issuance and sale of bonds by cities to pay for local improvements,' etc., approved March 14, 1899. The ordinance establishes a local improvement district by metes and bounds, in which the plaintiff's lot is included, and provides that the property within the district, and none other, shall be deemed to be the property specially benefited, and that the cost and expenses of the improvement, including necessary incidental expenses, shall be defrayed by the collection of a special assessment upon the property in said district, except 18 per cent. of the same, exclusive of fixed expenses thereon, which shall be paid from the water fund of the city. The complaint further alleges that in 1890 the city of Seattle purchased its water plant and issued its general bonds therefor; that in 1892 it issued its general bonds in the sum of about $1,000,000, and that the money received from said bonds was expended principally in laying water mains along the streets of the city, and the interest thereon is met and paid by a general tax on all the property within said city; that the city had also just finished what is known as the 'Cedar River Water Extension' to the existing waterworks, at a cost of about $1,200,000, which has been paid for by warrants against the water fund of the city, and which the city binds itself to redeem in an amount not less than $100,000 per year out of its water fund, or from any source the city may desire, the city reserving the right to make such payments in such amounts as it may desire on January 1st and July 1st of each year after January 1, 1902. The complaint also alleges that the city charges for water supplied to its inhabitants certain fixed rates, and that these rates are in excess of the actual cost to said city of the water supplied; that the main provided for by the ordinance in question is for the purpose of delivering water to the people residing on the street on which the main is to be laid, and for which water the city will require payment in advance at fixed rates, in excess of its actual cost to the city. It is also alleged that the plaintiff appeared before the city council and objected to the proposed improvement before the same was ordered. The objections so made are set out in the complaint. An injunction is prayed for, to restrain the defendants from laying down the water main, under said ordinance, in front of the plaintiff's premises, at the cost and expense of the abutting property in said district. To the complaint a demurrer was interposed and sustained. The plaintiff elected to stand upon his complaint. The defendants accordingly had judgment. From the judgment this appeal is prosecuted.

The constitution provides that corporations for municipal purposes shall not be created by special laws, but that the legislature by general law shall provide for such incorporation; that the charters of all cities shall be subject to and controlled by general law; that a city containing a population of 20,000 inhabitants or more shall be permitted to frame a charter for its own government consistent with and subject to the constitution and laws of this state. Section 10, art. 11, Const. The city of Seattle has more than 20,000 inhabitants, and, under authority conferred in the constitution, has framed its own charter. By the power given under the provision of the constitution cited, the legislature has provided that cities of the first class shall be organized and governed according to the law providing for the government of cities having a population of 20,000 inhabitants. Section 734, 1 Ballinger's Ann. Codes & St. In the act providing for the government of cities having a population of 20,000 inhabitants it is provided that such cities shall have power 'to provide for making local improvements, and to levy and collect special assessments on property benefited thereby, and for paying for the same or any portion thereof; * * * to determine what work shall be done or improvements made at the expense, in whole or in part, of the owners of the adjoining, contiguous, or proximate property, or others specially benefited thereby and to provide for the manner of making and collecting assessments therefor; to provide for erecting, purchasing or otherwise acquiring water works, within or without the corporate limits of said city, to supply said city and its inhabitants with water, or to authorize the construction of same by others when deemed for the best interests of such city and its inhabitants, and to regulate and control the use and price of the water so supplied'; and shall have power 'to provide for levying and collecting taxes on real and personal property for its corporate uses and purposes, and to provide for the payment of the debts and expenses of the corporation; * * * to borrow money for corporate purposes on the credit of the corporation, and to issue negotiable bonds therefor, on such conditions and in such manner as shall be prescribed in its charter; but no city shall, in any manner or for any purpose, become indebted to an amount in the aggregate to exceed ten per centum of the value of the taxable property therein, to be ascertained by the last assessment for city purposes previous to the incurring of such indebtedness.' Section 739, Id. Many other powers are given by section 739, supra, but for the purposes of this case it is unnecessary to enumerate them. It is also provided in the same act that a city adopting a charter under its provisions should have all the powers which are now or may hereafter be conferred upon incorporated towns and cities by the laws of this state, and all such powers as are usually exercised by municipal corporations of like character and degree, whether the same shall be specifically enumerated or not in the act, and that the rule that statutes in derogation of the common law should be strictly construed should have no application, but that the same should be liberally construed for the purpose of carrying out the object for which it was intended. Sections 741, 742, Id. This act was passed to carry out the mandatory provision of the constitution that the legislature should by general laws provide for the incorporation of cities, and that cities and towns should be subject to and controlled by such general laws. To this act and general laws we must look for the powers of such corporation, and the powers so given must control unless they clearly contravene some other constitutional provision. The constitution, in addition to the powers conferred by section 10, art. 11, provides that 'the legislature may vest the corporate authorities of cities, towns and villages with the power to make local improvements by special assessment, or by special taxation of property benefited. For all corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes, and such taxes shall be uniform in respect to persons and property within the jurisdiction of the body levying the same.' Section 9, art. 7, Const. It will be observed that equality of taxation under this section applies only to general taxation for corporate purposes. The part of the section relating to local improvements permits taxation according to local benefits. The city charter of the city of Seattle provides that: 'Whenever the public interest or convenience may require, the city council is hereby authorized and empowered to order the whole or any part of the streets, lanes, alleys, squares or places of the city to be graded or regraded to the official grade, planked or replanked, paved or repaved, macadamized or remacadamized, graveled or...