Stephens v. City of Spokane

• Citation: 39 P. 266,11 Wash. 41
• Parties: STEPHENS v. CITY OF SPOKANE.
• Decision Date: 01 February 1895
• Court: Washington Supreme Court

39 P. 266

11 Wash. 41

STEPHENS v. CITY OF SPOKANE.

Supreme Court of Washington

February 1, 1895

Appeal from superior court, Spokane county; James Z. Moore, Judge.

Action by W. M. Stephens against the city of Spokane. From an order sustaining a demurrer, and judgment thereupon for defendant plaintiff appeals. Reversed.

Jones Belt & Quinn, for appellant.

James Dawson, for respondent.

DUNBAR J.

This is an action brought on four street-grade warrants of the city of Spokane, for $500 each, and interest thereon, issued April 12, 1889, and drawn on the Mallon street fund. In 1888 the city of Spokane duly passed an ordinance for the grading of Mallon street, and let the contract for the grading thereof to one V. M. Massey, who, in April, 1889, finished the same according to the plans and specifications, and the same was thereupon accepted by the city as a full performance of the contract. This ordinance is pleaded in the complaint. The contract entered into between Massey and the city is also pleaded, which contract provided, among other things, that if any payments upon said contract became due and payable, and the said fund had not been recovered, the city would issue its warrants or certificates of indebtedness redeemable within one year. In pursuance of said contract, the city issued, among others, its four certain warrants which are set forth in the complaint. It is alleged that the warrants set out were, on the 13th day of April, 1889, duly presented for payment to the city treasurer of the defendant corporation, and payment thereof was refused for want of funds; that the warrants have been duly assigned to plaintiff; that they are long past due, and wholly unpaid that the city of Spokane has wholly failed, neglected, and refused to take any steps for the purpose of creating a fund to be known and designated as the "Mallon street fund"; that it has failed, neglected, and refused, and still fails, neglects, and refuses to carry out said contract upon its part by the payment to this plaintiff, or to any other person for him, of the amount of said warrants; and that, on account of said failure, neglect, and refusal of the officers of the defendant city to keep and perform said contract, the plaintiff, as the assignee and owner of the warrants, has been damaged in the sum of $2,805.26; wherefore plaintiff demands judgment for that amount. A demurrer was interposed to this complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the court, and a final judgment entered against the appellant.

Section 3 of the charter of 1886 granted the power, in general terms, to the city, to assess, levy, and collect taxes for general municipal purposes; and section 7 provides that the city "shall have power to construct sidewalks, and to curb, pave, grade, plank, macadamize and gutter any street or streets, highway or highways, alley or alleys therein, or any part thereof; and to levy and collect a special tax or assessment on all lots or parcels of land fronting on such street or streets, highway or highways, or any part thereof, sufficient to pay the expenses of such improvements, and for such purposes may establish assessment districts," etc. Section 8 provides that "the city of Spokane Falls has power to provide for clearing, opening, graveling, repairing and clearing streets, alleys and highways, and for the prevention and removal of all obstructions therefrom." In the case of Soule v. City of Seattle, 6 Wash. 315, 33 P. 384, 1080, this court held, in construing similar charter provisions, that the city was not limited to special assessments as a means of improving its streets in any way it saw fit. On that proposition we think the decision in that case is conclusive of the question raised in this case as to the power of the city to pay for these improvements, and we pass that phase of the case without further comment.

The brief of the respondent charges the appellant with making a misstatement in his opening brief, in alleging that the city has never taken any steps whatever towards creating a fund to be known as the "Mallon street fund," and has never paid, and now refuses to pay, to plaintiff the amount of these warrants, claiming that it has no authority or power to pay the same from any other fund than the Mallon street fund which, as before stated, has never existed, and which the city has never...