Wright v. City of Tacoma

• Decision Date: 27 January 1888
• Citation: 3 Wash.Terr. 410,19 P. 42
• Court: Washington Supreme Court
• Parties: WRIGHT ET AL. v. CITY OF TACOMA ET AL.

19 P. 42

3 Wash.Terr. 410

WRIGHT ET AL. v. CITY OF TACOMA ET AL.

Supreme Court of Territory of Washington

January 27, 1888

Appeal from second district court.

Action by Charles B. Wright and others against the city of Tacoma and others to set aside an assessment for street improvements levied upon plaintiffs' property. Judgment for defendants, and plaintiffs appeal.

Evans, Sears & Huston, for appellants.

Thomas Carroll, for appellees.

LANGFORD J.

There are from the transcript two questions to be decided: Whether the city council, by authority conferred upon that body by the city charter, had authority to form an assessment district for the purpose of grading a street, upon the petition presented to the council which appears in the record; second, if they had not, then, if appellants, lot-owners in said district stood by, without objection or protest, after notice of the intention of the city that it would proceed to let the contract for grading, upon the hope of paying the contract price out of assessments upon appellants and other lot-owners, can they, after the contract is thus let, object to the assessment upon account of defects in said petition? The city charter contains, among other things, the following provisions: "Sec. 48. Ninth. To provide for opening, widening, clearing, grading, graveling, bridging macadamizing, curbing, guttering, draining, or other manner of improving or repairing of streets, highways, and alleys and for the construction and repairing of sidewalks upon said streets, highways, and alleys. Said improvements shall not, however, be made at the expense of the owners of said lots or parcels of land fronting upon such street, highway, or alley, or portion thereof, proposed to be improved in any of the manners herein recited, unless the resident owners of more than one-half of the property fronting upon the proposed improvement shall have petitioned the city council to order such improvements to be made, except as provided in section one hundred and fifteen." "Sec. 114. Before ordering any work done or improvements made authorized by section 48 of this city charter, the city council shall pass a resolution declaring its intentions so to do, and shall thereafter cause a survey, diagram, and estimate of the entire cost thereof to be made by the city surveyor; and the said survey, diagram, and estimate shall be filed in the office of the city clerk, for the inspection of all parties interested therein; and the said city clerk shall forthwith cause a notice of such filing of such survey, diagram, and estimate to be published weekly for two successive weeks, in some newspaper published in the city. Such notice must contain a true copy of said resolution of intention, and must specify the street, highway, or alley, or part thereof, proposed to be improved, and the kinds of improvement proposed to be made, together with such estimated cost and expense thereof; and that, if sufficient remonstrance be not made before the expiration of ten days after date of last publication, said improvement will be made at the expense of owners of the lots and the parcels of the land fronting upon the street, highway, or alley proposed to be improved within the limits of the improvement thereof, lengthwise of said street, highway, or alley. Sec. 115. If, within ten days from the final publication, the persons owning one-half or more of the lots or parcels of land fronting upon the street, highway, or alley proposed to be improved, within the limits aforesaid, shall file with the city clerk a remonstrance against said improvement, grade, or alteration, the same shall not be made at the expense of the owners of the lots or parcels of land fronting upon such street, highway, or alley as aforesaid, unless the city council shall deem such work or improvement necessary; but no such work shall be done, or improvement be made, unless upon a unanimous vote of all councilmen then present. Sec. 116. If no such remonstrance be made and filed as provided in the last section, and the owners of the lots and parcels of land fronting upon such street, highway, or alley proposed to be improved, within the limits aforesaid, shall be deemed to have consented to the making of said improvement, or if such remonstrance has been made and filed, and the said city council nevertheless order such work to be done or said improvement to be made, as provided in section 115, the council, at its earliest convenience thereafter, and within six months from the publication of such notice, may establish the proposed grade or make the proposed improvement, at the cost and expense of the owners of the lots and parcels of land fronting upon the street, highway, or alley proposed to be improved within the limits aforesaid, either by or through the street commissioner or other officer designated by the council, or by contract let by the council to any person: provided, that no contract shall be made providing for the payment to the contractor for such improvement of any greater amount than the estimated cost and expense thereof, published as aforesaid, to complete some general system of improvement."

It is claimed by the appellant that the petition, and all the proceedings under it, are void, because upon its face it does not state that the lot-owners are residents.

The charter provides that the signers must be residents, but it does not provide how the fact of residence shall be made to appear to the council. When a statute provides a mode in which a thing shall be made to appear, that mode must be strictly followed; when it does not provide such mode, the officers may adopt what mode they please to determine the fact. The city council adopted its own mode to determine the fact of residence, which it had a right to do. Much has been said about another petition for another district, with different boundaries, but we deem the whole affair as irrelevant. The boundary of an assessment district must be ascertained before assessment or taxation can be had therein and the purpose for which it is desired must, under this charter, appear. Each of these must appear by petition. The same district cannot have more than one boundary specified therein, as there can be but one boundary to an...