City of New Whatcom v. Bellingham Bay Improvement Co.

16 Wash. 131 | Wash. | 1896

The opinion of the court was delivered by

Scott, J.

This is a consolidated action of a number of suits presenting similar questions brought by plaintiff against the defendant to foreclose liens for street assessments under the provisions of the act (Laws 1893, p. 226), authorizing the reassessment of costs of local improvements. Plaintiff had judgment and the defendant has appealed.

Some of the findings of fact are excepted to on the ground that they are not supported by, or are contrary to, the evidence. These findings relate to the ordering of the improvements, letting of the contract, execution of the work, the attempt to levy an assessment therefor according to benefits and that it had been rendered ineffectual by a decision of the supreme court, the making of the reassessment, the amount due from the defendant, and its non-payment and delinquency.

It is contended that there was no evidence to support the findings with reference to the first assessment upon which the reassessment is based. The record shows that the original assessment roll, the pleadings, findings and judgment of the superior court, and the judgment of this court, whereby said assessment was held ineffectual and void, were introduced in evidence, and this was sufficient, prima facie at least, to support said findings. See Town of Elma v. Carney, 4 Wash. 418 (30 Pac. 732).

The other findings questioned involve, first, the sufficiency of the notice given appellant of the reassessment. The act (§ 4), provides that such notice shall be given by three successive publications in the official newspaper of the city or town where such assessment roll is on file, that it shall contain the date when it was filed and state a time at which the council will hear and consider objections to the roll, and provision is made for the filing of objections at any time within ten days from the last publication of the notice.

It is conceded that notice by publication is sufficient, but the objection urged is that the time prescribed is so short as not to constitute due process of law, and many cases are cited by both sides upon this much litigated question. It is well settled that the legislature has power primarily to prescribe the kind of notice to be given, although it cannot dispense with all notice, and it has also been held that where a notice is not prescribed, if a reasonable notice is in fact given, that is sufficient. Paulsen v. Portland, 149 U. S. 30 (13 Sup. Ct. 750); Williams v. Mayor, 2 Mich. 560; Gatch v. City of Des Moines, 63 Iowa, 718 (18 N. W. 310); Baltimore & O. R. R. Co., v. Pittsburg, etc., R. R. Co., 17 W. Va. 812; Hagar v. Reclamation Dist., 111 U. S. 701 (4 Sup. Ct. 663).

See, also, as bearing upon this act, Frederick v. Seattle, 13 Wash. 428 (43 Pac. 364).

We are of the opinion, under the authorities, that it should not be held that the notice prescribed in the act, which it is conceded was given, did not constitute due process of law, as applied to the facts of this case. It appears that the appellant has been contesting the proceedings to collect the costs of these improvements for several years past, and that no hardship has re-suited in consequence of the shortness of time prescribed. The notice of the filing of the assessment roll, while it fixed a time within which objections might be filed, was not in fact the only notice of the proceedings. The proceedings to reassess the property had been pending for some time. The reassessment could be had only by. ordinance, and the ordinance had to be published in the official newspaper, and it appears that the ordinance providing for this reassessment was duly passed and published. It set forth in substance the facts relating to the first assessment.

Appellant was in a sense a party to the entire proceedings from the beginning, and although this would not dispense with notice of the reassessment, it should have some bearing in determining the sufficiency of the notice given in considering the length of time allowed for filing objections.

Appellant contends that the court erred in striking portions of appellant’s answer, whereby appellant sought to attack the validity of the assessment on the ground of its not having been made according to benefits, but as the appellant did not appear and file any objections against the proposed assessment after ample opportunity to do so, we think it was not entitled to offer proof to contest the same in the foreclosure suit on that ground, and that the paragraphs in question were properly stricken. Of course, it must appear that the assessment was according to benefits. Session Laws, 1893, p. 227. And § 5, p. 160, provides :

“ That the cost and expense thereof shall be taxed and assessed upon all the property in such local improvement district, which cost shall be assessed in proportion to the number of feet of such lands and lots fronting thereon, and included in said improvement district, and in proportion to the benefits derived by said improvement.”

While the language here may be somewhat involved, it is apparent that the controlling idea is that the assessment must be according to benefits, at the same time having reference to the frontage of the lots. In this case the council found that the property was equally benefited in proportion to its frontage, and, while in fact the assessment under that finding was made according to the front foot, it was also made according to benefits.

It is contended that the court erred in admitting certain ordinances in evidence on the ground that they were not competent proof of the facts therein recited. However this may be, it is not apparent that the court attached any weight to them as proof of the facts recited, and as a prima facie case to support the findings and judgment was made by the production of the assessment roll and the records of the previous action, and as there was no contradictory proof, there was no harmful error in this respect in admitting them.

It is further contended that the court erred in taxing an item of costs for copies of ordinances introduced in evidence, on the ground that the originals must be produced, or an inability to produce them shown, before certified copies could be offered, and the other party burdened with costs to that extent, if the decision should go against it. It would be most inconvenient to require the production of original ordinances in actions of this kind, and keep them tied up in court pending the determination of the case, and it was proper to use certified copies instead. These ordinances were matters of public record and were duly pleaded, and proof of them was rendered necessary in consequence of the issues raised hy the defendant. Ordinarily, production and proof of such ordinances is not rendered necessary by the pleadings, but the appellant, having denied their existence, has no meritorious ground of complaining as to the manner adopted in proving them.

It is also contended that the court erred in providing in the decree that the city might purchase the lands at the foreclosure sale. Its charter authorizes it to purchase, lease, receive, hold and enjoy real and personal property, and to control and dispose of the same for the public benefit, and the legislature has recognized the right of any municipal corporation to bid in property, in default of other bidders, when sold for special assessments. Laws 1898, p. 379, § 122. It would certainly be a hardship if, in the absence of other purchasers, the city was not authorized to bid up to the extent of the charges against the property. The liens must be foreclosed by an action in court, and this should not be rendered ineffectual in consequence of an inability to sell the land, if there should be no other bidders.

Affirmed.

Anders, Dunbar and Gordon, JJ., concur.