State v. City of Ballard

• Decision Date: 05 February 1897
• Citation: 16 Wash. 418,47 P. 970
• Parties: STATE EX REL. HEMEN v. CITY OF BALLARD ET AL.
• Court: Washington Supreme Court

47 P. 970

16 Wash. 418

STATE EX REL. HEMEN v. CITY OF BALLARD ET AL.

Supreme Court of Washington

February 5, 1897

Appeal from superior court, King county; J. W. Langley, Judge.

Mandamus on relation of F. P. Hemen, against the city of Ballard and others, to compel the levy of assessments for street improvements. Judgment for the relator, and defendant city appeals. Affirmed.

P. V. Davis, for appellant.

Battle & Shipley, for respondent.

GORDON J.

The town of Ballard was originally incorporated under the provisions of the act of February 2, 1888, providing for the incorporation of towns, which act was held unconstitutional in Territory v. Stewart, 1 Wash. St. 98, 23 P. 405. Thereafter the town of Ballard attempted to reincorporate under the provisions of the act of March 27, 1890 (sections 496-500, inclusive, 1 Hill's Code), which latter act, in Town of Denver v. City of Spokane Falls, 7 Wash 226, 34 P. 926, was also held invalid. After such attempted reincorporation, proceedings were taken for the improvement of a large number of streets in the said city, and assessments were levied upon property fronting on said streets, to defray the expenses of such improvement. Said assessments so attempted to be levied were not paid by the property owners, and thereafter became delinquent. From time to time during the progress of the work, street-grade warrants were issued by the city to the contractors, in payment of labor and materials used in such improvement. These warrants were made payable out of special street improvement funds. Thereafter they were presented to the municipal authorities for payment, and payment refused, on account of the lack of funds. On March 9 1893, an act was passed legalizing and validating the incorporation or reincorporation of towns and cities attempted under the provisions of the act of March 27, 1890 (Sess. Laws 1893, p. 183).

The respondent herein, who is the owner of a large number of the warrants heretofore referred to, commenced this suit for the purpose of compelling the authorities of Ballard to levy reassessments under the provisions of the act of March 9 1893 (Sess. Laws, p. 226), to enforce the payment of the cost of improving said streets. The affidavit of respondent in support of his motion for the writ, in addition to stating the facts already recited, sets out the various ordinances and proceedings under which the improvements were made, and the attempted assessments laid; also, that demand had been made by the holders of the warrants upon the authorities of Ballard to take proceedings to raise funds for their payment. To the alternative writ which was issued, and the affidavit upon which it was based, the city entered a general demurrer, which was overruled; and, appellant having elected to stand by its demurrer, the court proceeded to hear the cause, made its findings of fact and conclusions, and entered a decree, in which it was determined that the original proceedings for the levying of the assessment were invalid and void, and directed the issuance of a peremptory writ requiring the authorities of Ballard to proceed in the manner provided by law for the making of reassessments. From the order overruling this demurrer, and the decree as entered, the city has appealed.

It is urged by the appellant that the demurrer should have been sustained, for three reasons:

1. Because there had been no prior judicial determination of the invalidity of the original assessments as to any of the streets which had been improved. This contention is founded upon a provision contained in section 1 of the act of 1893 which in substance is as follows: That whenever an assessment for laying out, establishing, or grading any street, avenue, or alley, or for any local improvement which has heretofore been made, or which may hereafter be made, by any city or town, has been or may be hereafter declared void, and its enforcement under the charter or laws governing such city or town refused by the courts of this state, or for any cause has been heretofore, or may be hereafter, set aside, annulled, or declared void by any court, either directly or by virtue of any decision of such court, the council of such city or town shall, by ordinance, order and make a new assessment or reassessment upon the lots, etc. It is not pretended that any authority existed in the town of Ballard, as incorporated under the acts of 1888 or 1890, supra, to levy assessments for street improvements or otherwise, inasmuch as both of those acts were unconstitutional. Territory v. Stewart, supra; Town of Denver v. City of Spokane Falls, supra. The effect of these decisions was to render all proceedings attempted by virtue of those acts ineffectual for any purpose, as much so as if they had been so declared by a decree in a direct proceeding; and the language of section 1, supra, clearly includes such a case. That language is "or declared void by any court, either directly or by virtue of any decision of such court." Hence we think that no prior adjudication of the invalidity of these various assessments in a direct proceeding was necessary before the city could proceed to reassess under the provisions of the act of ...