Soule v. City of Seattle
| Decision Date | 08 May 1893 |
| Citation | 33 P. 384,6 Wash. 315 |
| Parties | SOULE v. CITY OF SEATTLE. [1] |
| Court | Washington Supreme Court |
Appeal from superior court, King county; R. Osborn, Judge.
Action by M. C. Soule against the city of Seattle to recover the amount due on certain city warrants issued to a contractor for certain street improvements, and by the latter assigned to plaintiff. From a judgment for plaintiff, defendant appeals. Reversed.
Geo Donworth and James B. Howe, for appellant.
Blaine & De Vries, for respondent.
After the decision of this court in Wilson v. City of Seattle 2 Wash. St. 543, 27 P. 474, respondent, as assignee of the contractor for the work on South Twelfth street, brought a suit against the city, setting out the facts showing the issuance to his assignor of a large number of city warrants as partial payment of his claim for the work done in grading sidewalking, and guttering the street, their nonpayment, and the failure of the city to provide any fund for their payment by means of a special assessment. The complaint was addressed to the equity side of the court, and prayed judgment for the face of the warrants and interest, and for further relief in equity. The judgment was for the full amount claimed, and for a warrant to be issued by said city of Seattle, as provided by law.
The city, appealing, makes numerous objections, the most important of which are summed up in the proposition that it could in no such event as has here transpired, under the law, be held liable for the cost of work done in grading South Twelfth street. It is maintained that section 7 of the charter of 1886 referred only to repairs of streets, while section 8 provided for new grading; that section 8 expressed the only power the city had to grade, and, as the means therein mentioned for paying the cost were local assessments, there was no other source to which a contractor could look; that the city was the mere agent of the property holders, and that only to the extent of furnishing officers to levy and collect assessments; and that no liability could in any event attach to the city at large, or, at least, not until there was a positive refusal to make an assessment, or such delay or other circumstance as would lose to the contractor his compensation for his work and materials. There are cases which go to the extent of holding that, where there was either lack of statutory power or a failure to acquire jurisdiction of the subject-matter, a municipal corporation must be entirely absolved from paying such claims. Hunt v. Utica, 18 N.Y. 442; Swift v. Williamsburgh, 24 Barb. 427; Leavenworth v. Rankin, 2 Kan. 357; Goodrich v. Detroit, 12 Mich. 279; Johnson v. Indianapolis, 16 Ind. 227; Bond v. Newark, 19 N. J. Eq. 376. But it is beyond all question, it seems to us, that the city in this instance was not limited to special assessments as a means of improving its streets in any way it saw fit. Section 7, by its terms, covered every imaginable improvement, and for such purposes it could borrow money under the provisions of section 24. The authority of section 8 was merely permissive, and was probably expressed solely for the reason that, unless expressed, it could have no existence. The charter of the city of Memphis contained the substance of all there was in these two sections, 7 and 8; and in reference to it the United States supreme court said: Memphis v. Brown, 20 Wall. 289-310. To the same effect is Hitchcock v. Galveston, 96 U.S. 341. In Portland Lumbering & Manuf'g Co. v. City of East Portland, 18 Or. 21, 22 P. 536, the statute construed would seem to read almost in the form in which appellant contends that this one should be construed; but the agreed price for the material used in the improvement of a street was held to be recoverable where warrants had been issued payable out of a fund to be collected from assessments, but the fund had not been provided. The concurring opinion of Lord, J., is devoted to a clear showing of the distinction between the general power to improve streets and the special power to do so by local assessments. The able dissenting opinion of Thayer, C.J., is based entirely upon the fact that, in his view, the only power expressed was to improve by local assessments. But it would not be profitable to pursue this matter further, since in the case before us there are other elements in it which are decisive. Section 8 of the charter contained little in addition to the conference of power to levy special assessments, but section 10 gave the city authority by ordinance to prescribe the method of assessing and collecting such taxes; and the city, availing itself of its alternative authority in the premises, by Ordinance 737, adopted in 1886, elected to make all of certain classes of street improvements by the method of special assessments, and regulated the proceedings for levying and collecting the same. Section 2 of that ordinance reads as follows: "Whenever the common council of the city of Seattle shall cause any part of any street, highway, or alley therein to be curbed, paved, graded, macadamized, or guttered, or any sidewalk to be constructed in any such street, highway, or alley, the whole cost of such improvement shall be levied and become a lien upon the taxable real estate fronting on the part of such street, highway, or alley so improved and within the assessment district to be established, as hereinafter provided." The eighth section provided that when an assessment had been ordered paid to a contractor, a duplicate of the roll should be delivered to him, so that he might collect or foreclose, in accordance with the statute. This ordinance became a general law of the city, and was fair notice to all persons dealing with it in such matters that contracts for street grading and sidewalks would be paid out of special assessments, and not from the street fund or general fund. Again, at the time this improvement was ordered and the contract made, the constitutional restrictions upon municipal indebtedness were in force, and it appears in the case that, although the city of Seattle was limited to 1 1/2 per cent. on about $16,000,000, she already had out her obligations for upwards of $400,000, an amount far beyond her lawful indebtedness. This condition of things any one contracting with her was bound to know; so, if Ordinance 737 was not fully explicit in limiting the recourse of the respondent's assignor to the special assessment to be levied upon South Twelfth street property, he must be taken to have been aware that at the date of his contract the power of the city to agree, either expressly or impliedly, or by way of original liability or as guarantor, to pay him any sum, was completely gone, unless, perhaps, by express assignment of current revenue.
But the respondent endeavors to avoid this turn of affairs by two arguments: (1) That he has a right to recover damages for the failure to levy the assessment and procure the fund; (2) that he had no remedy whatever when he brought his suit.
On the first point, we are not with him. This is not an action against officers for the neglect of a duty, whereby irreparable loss has occurred. If he could recover at all, it must be upon the contract of his assignor, or upon his...
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