Town of Tumwater v. Pix

• Decision Date: 30 November 1897
• Citation: 18 Wash. 153,51 P. 353
• Parties: TOWN OF TUMWATER v. PIX.
• Court: Washington Supreme Court

51 P. 353

18 Wash. 153

TOWN OF TUMWATER v. PIX.

Supreme Court of Washington

November 30, 1897

Appeal from superior court, Thurston county; Charles W. Hodgdon Judge.

Action by the town of Tumwater against William Pix. Judgment for defendant, and plaintiff appeals. Reversed.

Milo A Root, for appellant.

H. L. Forrest and Byron Millett, for respondent.

GORDON J.

Appellant a municipal corporation of the fourth class under the laws of Washington, brought this action to enforce the collection of an amount levied by reassessment, on account of street improvements, against respondent's property. From a judgment in respondent's favor, the town has appealed.

From the record and briefs of counsel, it appears that the principal reason for the judgment of the lower court was that it had never been determined by the decision of a court of competent jurisdiction that the original assessment was illegal or void. Upon the argument of the cause in this court, it was conceded by counsel that this branch of the case falls within the ruling of this court in State v City of Ballard, 16 Wash. 418, 47 P. 970, in which we held that no prior adjudication of the invalidity of an assessment in a direct proceeding was necessary before the city could proceed to reassess under the provisions of the act of 1893 (Sess. Laws 1893, p. 226). It appears from the record in this case that the town council of the town of Tumwater, at a meeting held on October 28, 1891, adopted the following resolution: "Be it resolved by the council of the town of Tumwater (1) that Third street in East Tumwater be, and is hereby, created an assessment district, for the purpose of the improvement of said street. Be it further resolved, that the property owners abutting on said Third street in East Tumwater and the town of Tumwater be assessed pro rata for any and all improvements made on said Third street in East Tumwater." Third street in East Tumwater runs from Cleveland avenue, on the east, to A street, on the west; and respondent's property fronts thereon, on the north side, between A and B streets. It appears that a contract was let by the town authorities to one Scott for grading and improving Third street, east of B street, to Cleveland avenue. It also appears that the work on Third street, between A and B (being that portion of the street directly in front of respondent's property), was done by the city authorities at or about the same time that the work was done by Scott on the remainder of the street. It is apparent that the original proceedings whereby it was attempted to assess the abutting property for the cost of the improvement were illegal and void, because the property to be charged was not assessed in proportion to the benefits. But on the 27th day of November, 1894, the town proceeded to pass an ordinance providing for a reassessment to pay the cost of the improvement. This ordinance was passed pursuant to the general power conferred upon towns and cities under the act of 1893, supra. The ordinance referred to created and defined an assessment district, which district included respondent's property, and levied an assessment upon the property fronting upon said street, in proportion to the benefits received, sufficient to cover the total expense of the work thereon. The ordinance also provided "that each and every person owning any of said lots or tracts, or being in any way interested, may appear before the town council on or before the 17th day of December, 1894, and show cause, if any there be, why the assessment herein made should not become binding and a lien upon the property affected thereby; and upon said day said council shall consider any...