9 Wash. 253 | Wash. | 1894
The opinion of the court was delivered by
— The enabling act for cities of the first class (Gen. Stat., § 520) provides that any such city framing a charter for its own government shall have power:
(Subd. 10.) “To provide for making local improvements and to levy and collect special assessments on property benefited- thereby, and for paying for the same or any portion thereof. ’ ’
(Subd. 13.) “To determine what work shall be done or improvement made at the expense, in whole or in part, of the owners of the adjoining, contiguous, or proximate property, or others specially benefited thereby, and to provide for the manner of making and collecting assessments therefor.”
Sec. 52 of the charter of Tacoma begins thus: “The city government of Tacoma shall have powers, ly ordinance and not otherwise,” repeating the language of the
But when the reader of the charter gets to article 12, which is a complete code of street improvement and assessment law, he finds that not an ordinance, but a resolution, is required. Appellants make a strong point of this, and insist that anything less than an ordinance renders the whole proceedings leading up to a street assessment void. But the learned judge who heard the case below held that the specific provisions of the article mentioned must govern the general ones of § 52, and we quite agree with his conclusion. Although the enabling act conferred the power, it did not undertake to say how it should be exercised. Very often such powers are made effective through general ordinances, but here the charter framers, and thereby the city en masse, have seen fit to prescribe even a more solemn and formal" law on the subject by providing for a charter system which is rigidly binding upon both the legislative and executive powers of the corporation.
We do not see how any substantial injury can be done, either, through this construction, and it remains merely to examine the record to see how the mandates of the charter have been carried out.
The charter provides for the establishment-of a board of public works, with a clerk, and specifically delegates to it many executive duties, and the appointment of sundry officers, among whom is a city engineer who is required to make all necessary surveys of public work under the direction of the board.
Article 12, so far as is necessary for the consideration of this case, reads as follows:
‘ ‘ Seo. 135. All applications for establishing or changing the grade of any street or streets, the improvement of pub-*257 lie grounds or buildings, the laying out, establishing, vacating, closing, straightening, widening or improvement of any street, road or highway, or the laying out or opening of any new street through public or private property, and for all public improvements which involve the necessity of taking private property for public use, or where any part of the cost or expense thereof is to be assessed upon private property, shall be made to said board, and such work or improvement shall not be ordered or authorized until after said board shall have reported to the city council upon said application. But before any work or improvements as above contemplated shall be commenced, the city council, when recommended by the board of public works, shall pass a resolution ordering that said work be done: Provided, That all applications for the purpose of changing the grade, or of maldng any improvements upon any street, avenue or alley, within the city shall be signed by at least three resident freeholders, owners of property abutting upon said street, avenue or alley: Provided, however, That the city council may, without petition or recommendation, have power to order the improvement of any street, avenue or alley, or any part thereof, by a two-thirds vote of all members of the city council.
“Sec. 136. Upon the adoption or passage of any resolution by the city council for the improvement of any street, avenue or alley, the board of public works shall cause a survey, diagram and estimate of the entire cost thereof, to be made by the city engineer; said diagram and estimate shall be filed in the office of the board of public works for the inspection of all parties interested therein. The clerk of said board shall forthwith cause a notice of such filing to be published daily for ten days in the official newspaper; such notice shall contain a copy of the said resolution passed by the city council, and must specify the street, highway, avenue or alley, or part thereof, proposed to be improved, and the kind of improvement proposed to be made, together with the estimated cost and expense thereof, and also a general description sufficient for identification of the property to be charged with the expenses of making such improvements, and that if sufficient remonstrance be not made before the expiration of ten days after*258 the date of the last publication, said improvement will be made at the expense of the owners of the lots and parcels of land described in said notice as hereinafter provided; but if within ten days after the final publication of said notice the persons owning one-half or more of the lots or parcels of land to be taxed for said improvements shall file with the clerk of the board of public works a remonstrance against said improvement, grade or alteration, the same shall not be made at the expense of the owners of the lots so described, unless the city council, by a two-thirds vote of all the members thereof, order said improvement made not-, withstanding such remonstrance.
“Sec. 137. If no remonstrancer,be made and filed as provided in the last preceding section, then owners of the lots and parcels of land described in said notice shall be deemed to have consented to such improvement; or if such remonstrance has been made and filed, and the city council has ordered such work to be done or improvement to be made, the expense thereof shall be charged to the property described in said notice in the manner as hereinafter provided, and the board of public works shall, at its earliest convenience, and within six months thereafter, establish the proposed grade or make the proposed improvement: Provided, That no improvement shall be made when the estimated cost thereof shall exceed 50 per cent, of the assessed value of the property to be assessed.
“Seo. 138. Such cost and expenses of making said improvement shall be assessed upon the adjoining, contiguous or proximate lots or parcels of land described in said notice. ’
Without petition the council passed this resolution, by unanimous vote:
“Resolved by the city council of the city of Tacoma, that said city council hereby declares its intention to improve lN5 street in Buckley’s addition from Steele street to Pine street at the expense of the abutting owners. Grading and sidewalking. To be done by day labor. ’ ’
The board of public works, in due course, published a notice as follows:
*259 ‘ ‘ Notice is hereby given that the following is a true copy of a resolution of intention passed by the city council February 27, 1892, to wit: ‘Kesolved by the city council of the city of Tacoma, that said city council hereby declares its intention to improve “N” street in Buckley’s addition from Steele street to Pine street at the expense of the owners of the lots and parcels of land affected by said improvement, according to the city charter. Said improvement to consist of grading to an established grade and building sidewalks on both sides thereof. And the city engineer is hereby ordered to make a survey, diagram and estimate of the said improvement and file the same in the office of the board of public works. ’
‘1 That the survey, diagram and estimate of the cost of said improvement were filed in the office of the board of public works March 7, 1892, by the city engineer, and the estimated cost thereof is $1,850.”
The filing of a diagram and estimate consisted in the engineer’s writing, in an estimate book kept in the office of the board, the following:
“N street in Buckley’s addition.
Steele to Prospect............................................cut 78 fill 1,055 curb 810
Prospect to White.............................:.............. “ 539 “ 157 “ 270
White to Oak................................................... “1,453 “ ........ “ ........
.Oak to Race........................................................ “ 575 “ 46 “ 29
Race to B’d’y...................................................... “ 92 “ 317 “ 290
Totals............................................................ “2737 “ 1,575 “ 1,309
2.136 lineal feet of 7' walk.
80 “ “ “ aprons.
344 “ “ 6 Xings.
2.136 “ “ gutters.
424 “ “ drain box.
1,800 feet frontage.
Estimate March 7, 1892, $1,850.”
No remonstrance of the owners of half or more of the lots to be assessed for the improvement was filed, and the board, without further order from the council, proceeded to make the improvement, completing it June 4, 1892, at a cost of $1,885.94.
“An ordinance providing for the improvement of ‘X’ street from Steele street to Pine street, creating a fund and providing for payment by assessment upon the adjoining, contiguous and proximate lots or parcels of land under the provisions of the city charter now in force. ’ ’
The body of this ordinance being as follows:
“Be it ordained by the city of Tacoma:
“Section 1. That ‘N’ street in the city of Tacoma be improved from Steele street to Pine street according to the plans and specifications of the city engineer on file in the office of the board of public works.
“Sec. 2. That a fund be and is hereby created and an assessment be levied and collected upon the adjoining, contiguous or proximate lots and parcels of land as provided by the city charter now in force, to defray the cost and expense of said improvement according to the provisions of the city charter, which assessment shall be a lien upon the property liable therefor.
“Sec. 3. The board of public works is hereby authorized and directed forthwith to enter upon and complete said improvement by day labor, and to proceed in the premises as provided in the city charter. . .
In these cases the appellants sought to enjoin the collection of the assessments levied upon lots owned by them, but the relief was refused.
Four things plainly appear from the record thus set out, viz.:
1. No resolution was passed ordering any improvement made on N street.
2. The engineer did not file a diagram in the office of the board.
3. Neither the board nor its clerk published a notice containing a copy of the resolution that was passed.
4:. The notice contained no description of the property to be charged.
The question is, when did the city obtain jurisdiction to make this improvement and charge abutting property with the expense ? Obviously so far as these cases go, it was when such proceedings had been taken by the city as that the owners of the property to be charged had had the notice prescribed by the charter, and were bound to remonstrate or be estopped. To bring matters to such a point in a case where the proceeding is without petition, the council must have ordered the improvement, the engineer must have filed a diagram and estimate, and the clerk of the board must have published the notice.
1. The resolution. The initiative step is the resolution which orders the improvement to be made. No such order can be intelligible which does not reasonably describe the kind of improvement intended, not, as counsel for respondent suggests would follow, with such particularity as would be necessary in the making of a contract for the work, but with such fullness of description as would enable an engineer who had no previous familiarity with the matter to make his diagram and estimate after survey of the street. Allowing that the verbless phrase used in the resolution before us means that it is the intention of the council to improve the street by grading it and constructing sidewalking, the query at once suggests itself: What is to be the extent of the grade, and what kind of sidewalk is proposed ? There may or may not have been an established grade on N street, and if there were such a grade, it may or may not have been the intention to conform to it in making this improvement. There is an infinite variety of sidewalks — wood, iron, stone, brick, concrete — of more forms than there are materials, some cheap and some expensive, but
The resolution of intention should have defined the improvement intended, and directed the board of public works to proceed with its execution as defined, after notice, and upon the failure of property owners to present a sufficient remonstrance.
2. The diagram and estimate. The charter prescribes that a diagram and estimate shall be filed after a survey by the engineer. So far as the property owner is concerned with the estimate, the gross estimate of the cost and the total amount of frontage would seem to be about all he is interested in, since the charter method of payment is according to the front foot, and he can be charged for nothing in excess of the estimate. These two items, therefore, would enable him to calculate his probable expense. But the diagram, if it serves any purpose at all to the owner, must be intended to show him how the improvement, when
There was no attempt to comply with the charter in the matter of a diagram in this instance, and therefore one of the purposes of giving a notice was rendered futile.
3. The notice. By the notice published, the owners of property abutting upon 1ST street from Steele to Pine, were given to suppose that the council had passed a resolution which was never before that body. The framer of the notice appears to have been appi’ehensive that the resolution as passed was defective in some particulars, and therefore he changed it, and added to it matter enough to more than double its actual length. The publication of a copy of the resolution in the notice is intended to bring home to the property owner information that the council has acted in a matter of interest to him, and to let him know precisely what it has done and proposes to do. This copy to be published means a literal copy according to the usual way in which the word is used, and not the construction which the clerk of the board of public works may put upon the meaning of the resolution. However, in justice
It is unnecessary to cite authorities on these points. The A B C of the laws of municipal corporations, that the power to levy special assessments is to be construed strictly, that the mode prescribed is the measure of power, and that material requirements must be complied with before there is any liability, is all that need be quoted. Spokane Falls v. Browne, 3 Wash. 84 (27 Pac. 1077). An assessment made contrary to these principles is void, and injunction lies to restrain its collection. Dill., Mun. Corp., §§ 803-4; High, Injunctions, § 539.
4. It only remains to determine whether ordinance No. 688 had any effect to validate the assessment. That it did not must be apparent at a glance. The work had been done beyond recall, and no remonstrance of property owners could have any possible effect. That it gravely ordered the board of public works to proceed with an improvement which had been completed two months before, only made its weakness the more apparent. Why it should have been passed, unless through a consciousness on the part of the council that what had been done in the matter was wholly without force to render an assessment valid, it is hard to guess. “Before any work or improvement
We regret to disagree with the learned judge who passed upon these cases in the superior court, and who prepared a careful and extended opinion which has been presented to us by counsel. But either the point was not pressed, or the opinion fails to observe, that the objections raised by the appellants go to the jurisdiction of the city to make the improvement at all at the expense of abutting property, by reason of a complete failure to carry out the plain provisions of the charter which were conditions precedent to the exercise of the power. Under these circumstances there is no greater legal or equitable right in the city to be reimbursed its outlay than there is in a trespasser upon land who makes valuable improvements and is dispossessed by an ejectment suit. It has done what it did in its own wrong, without previously qualifying itself to have reimbursement; and to now declare that because the law upholds local assessments on the theory of benefits, a city which omits the steps necessary to bring it under the operation of that law shall have the same right to enforce its assessments as one which takes those steps would be to deprive the property owner of that which the charter in distinct terms gives him, viz., aright to be heard upon the question of the advisability of the improvement before it is undertaken. There may be cases in which such circumstances exist as should estop an owner from objecting to an assessment in any event, but we do not find them in these cases.
The judgments are reversed, and the causes remanded
Dunbar, C. J., and Anders and Scott, JJ., concur.