White v. City of North Yakima

• Decision Date: 08 September 1915
• Docket Number: 12586.
• Court: Washington Supreme Court
• Parties: WHITE et al. v. CITY OF NORTH YAKIMA et al.

151 P. 645

87 Wash. 191

WHITE et al. v. CITY OF NORTH YAKIMA et al.

No. 12586.

Supreme Court of Washington

September 8, 1915

Department 1. Appeal from Superior Court, North Yakima County; E. B Preble, Judge.

Action by E. B. White and others against the City of North Yakima and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Wilson & Hatfield, of North Yakima, for appellants.

Wende &amp Taylor and Guy O. Shumate, all of North Yakima, for respondents.

HOLCOMB J.

This is an appeal from a final order dismissing plaintiffs' case after sustaining the demurrer of the defendants jointly to plaintiffs' second amended complaint. Appellants allege for themselves and others similarly situated that they own property abutting upon North First street in North Yakima. They allege that this street constitutes an ideal example of an arterial highway as contemplated and defined by chapter 51 of the Session Laws of 1913, entitled 'An act relating to the improvement of streets and highways and providing for the payment of the cost thereof jointly by the assessment of property specially benefited and by counties and cities or towns'; that the city of North Yakima proposed by ordinance to pave said streets under the provisions of chapter 98, Laws 1911, and to charge the entire cost thereof to the abutting property owners including the proportionate share of such assessment to these plaintiffs; that the proportionate share thereof so proposed to be assessed to these plaintiffs was in excess of 50 per cent. of the value of their property according to its assessed valuation exclusive of improvements; that the proposed improvement was of greater special benefit to the city of North Yakima and the county of Yakima than to the plaintiffs; that the proposed paving was instituted for the benefit of the city of North Yakima and the county of Yakima, and especially for the purpose of facilitating trade between the merchants of Yakima avenue in the city and the farmers of the Selah and Wenas valleys in the county; that the actual benefit thereof to the abutting property owners did not exceed 25 per cent. of the value of said property, exclusive of improvements; that the proposed assessment would cost these plaintiffs at least 75 per cent., and in some instances 100 per cent., of the value of their property, exclusive of its improvements. The officers of the city of North Yakima, the city itself, and the contractor were made parties defendant.

A temporary injunction was asked to restrain the city from making said improvement in the manner proposed and from prosecuting said work, and it was asked that upon the hearing the injunction be made final, and that the city be forever enjoined from assessing the cost thereof to the abutting property owners. The complaint further prayed for equitable relief. The appeal raises three questions:

First. Can the city improve a street which is, in fact, an arterial highway, and assess the entire cost thereof to the abutting property owners?

Second. Can the city make an improvement which is, in fact, of greater special benefit to the city and county at large than the abutting property owners, and charge the entire cost thereof to the abutting property owners?

Third. Is chapter 51, Laws 1913, mandatory or discretionary?

North Yakima is a city of the second class, and has heretofore adopted the commission form of government, and on the 29th day of January, 1914, the city commissioners duly passed an ordinance, pursuant to chapter 98, Laws 1911, as amended by chapter 131, Laws 1913, providing for the construction of a pavement on North First street from the south line of East E street, northerly to the north limits of the city, a distance of four blocks (excepting certain portions thereof, traversed by railways), and creating a local improvement district embracing all property on either side of the proposed improvement for a distance back to the center of the block on either side of said improvement. Prior to the passage of the ordinance a resolution of intention to make the improvement was duly passed and published as by law required, and no objections thereto were made. Subsequent to the pasage of the ordinance the city entered into a contract with the Cascade Construction Company for the making of the improvement for the sum of $20,630.35. The entire matter is controlled by the question of what is the legislation in force. All other questions are dependent upon that.

The Legislature of 1913 passed two acts concerning improvement of public highways. The first, designated chapter 51, was finally passed on March 5 and approved by the Governor March 11, 1913. The second, known as chapter 131 was finally passed on March 8 and approved by the Governor on March 20, 1913. Chapter 131 simply amends section 6 of chapter 98, Laws 1911, by adding street lighting and planting of shade trees to the enumeration of public improvements within the powers of cities and towns under chapter 98. The object and scope of chapter 51, Laws 1913, is stated in its enacting clause:

'An act relating to the improvement of streets and highways and providing for the payment of the cost thereof jointly by the assessment of property specially benefited and by counties and cities or towns.'

This act contains no repealing clause of any other statute; neither does it in terms specifically amend chapter 98, Laws 1911, or any other statute. The first section defines streets located in certain ways and connected with public roads or highways permanently improved in a specified manner and not less than two miles in length as 'arterial streets,' and provides that cities and towns 'may' improve such 'arterial streets' in a specified manner 'under the provisions of this act.' Section 2 provides for initiation by cities and towns, 'whenever they shall desire,' of proceedings to permanently improve such 'arterial streets * * * under the provisions of this act,' and that the proceedings therefor shall be forthwith by certified copy, transmitted to the board of county commissioners. 'If the board of county commissioners shall approve such resolution the city council or other governing body * * * shall thereupon be empowered to and shall improve such arterial street as above provided and to enter into contracts therefor.'

Appellants read the word 'may,' in the first section, as 'shall,' and construe this act, therefore, as mandatory upon cities and towns whenever they shall undertake to improve an 'arterial street,' and therefore insist that the city proceeds upon a fundamentally wrong basis in the matter, which fundamentally wrong proceeding can and should be corrected and controlled by the courts. This construction, it seems to us, would effect an implied repeal of so much of chapter 98, Laws 1911, as relates to the improvement of such streets.

To work a repeal by implication the later statute must be irreconcilable with the provisions of the former act. ...