17 Wash. 344 | Wash. | 1897
The opinion of the court was delivered by
Plaintiff brought this action to recover the amount due on certain warrants originally issued to one Clark for the improvement of a street in the defendant city. On August 12, 1891, said city passed an ordinance providing for a general scheme of street improvements by assessing the cost thereof upon the property specially benefited, with a further provision that the city council might expend moneys from the general fund for a portion of the amount corresponding with the benefit it should deem the improvement to be to the city at large, and also for street crossings. In pursuance of this ordinance a resolution was adopted for the improvement of the street for which these warrants were issued. On November 25, 1891, a contract was entered into between the city and said Clark therefor, which only in terms provided for payment for the work from the fund to be created by an assessment upon the property fronting on the street where it was improved. The work was performed under the contract, and on July 30, 1892, it was accepted by the city council; and on that date the council assessed the property within the particular
One question presented regarding the right of the plaintiff to recover on the ground of an unreasonable delay on the part of the city council in enforcing the assessment, has been disposed of contrary to the plaintiff’s contentions herein, by the decision rendered in the German-American Savings Bank v. Spokane, ante, p. 315. It remains first to be considered whether the right to enforce the assessment scheme had become lost by lapse of time. If so, a further question as to the liability of the city by reason of it must be decided.
In Spokane v. Stephens, 12 Wash. 667 (42 Pac. 123), we held that actions for the foreclosure of such liens must be commenced within two years after the cause of action accrued, and a re-examination of the question does not lead us to doubt the soundness of that holding. This was the statute in force at the time these improvements were undertaken, but it does not appear from the answer at what time the causes of action on the first attempted assessment accrued, if they could have been held to have ac
It has been held by some courts that the statute would be regarded as commencing to run from the time a cause of action could have been perfected by the exercise of reasonable diligence, and such rule seems to he a just and sound one. 13 Am. & Eng. Ene. Law, p. 726, and cases there cited. But if that rule is adopted, the time that the city was in good faith proceeding with the invalid assessment scheme should be excluded. The statute should not he deemed to have commenced running until the expiration of that time, and the re-assessment might he made within two years from then. There is nothing in the answer to show that the statute had run, under that theory, for it does not appear at what time it was found that the original assessment scheme was defective and would have to be abandoned. Only that on May 11, 1896, the city commenced the new assessment aforesaid, which it was prosecuting when this action was begun. The statute of limitations is not such a meritorious defense that either the law or the facts should he strained in aid of it; and there is also another view urged upon our attention by counsel for appellant, which seems to> be well taken, and that is with reference to the act of 1893 (Laws 1893, p. 226), providing for a re-assessment. A cause of action under this statute could not be deemed to have accrued immediately when the act took effect, for it is self-evident that some time would have been required to perfect a reassessment thereunder, and by allowing the shortest possible time therefor, two years would not have expired
Reversed.
Anders, Gordon and Reavis, JJ., concur.
Dunbar, J., dissents.