City of Seattle v. Doran, 5 Wash. 482

City of Seattle v. Doran

5 Wash. 482 | Wash. | 1893

Lead Opinion

The opinion of the court was delivered by

Scott, J.

In April, 1890, the city of Seattle commenced two suits to foreclose liens claimed by it against the defendants, for the cost of the impi’ovement of Fifth street assessed against certain property owned by said defendants respectively, one suit being to enforce the lien against lots four and five, in block thirty-five of Boren’s addition to the city, belonging to Elizabeth Anderson, and the other to foreclose such lien against lot seven, of block thirty-four, of said addition, the property of Francis Doran. By consent the cases were tried together. Judgment was rendered for the defendants and the city appealed.

The principal error complained of by the appellant is, that the court refused to permit testimony to prove the publication of the notice regarding the assessment roll required by § 5 of ordinance No. 737, which is as follows:

*484“Sec. 5. That within three clays after filing the roll, the clerk shall give notice, by publication, of such filing — that the same is open to inspection, and that any person feeling aggrieved thereby may apply to the council at its first regular meeting, the date to be therein stated. Notice to be published ten days in each successive issue of newspaper. 5 ’

It seems that the court refused to permit this proof in accordance with the opinion heretofore rendered by this court in Wilson v. Seattle, 2 Wash. 548 (27 Pac. Rep. 474), wherein it is stated that the council could know the fact of the publication in no other way than by the certificate or affidavit of the publisher, and until that document was before it, it had no jurisdiction to proceed. The language used in Wilson v. Seattle, in this particular, is somewhat unfortunate. The matter itself was not directly in issue in said cause, and no particular attention had been directed thereto. There is nothing in the charter, or in any of the ordinances of said city to which our attention has been called, which requires the proof of the publication of such notice to be preserved by the city clerk in any particular way, or at all for that matter, though doubtless the city records should show in some way that such notice was published, and a regular way would be by an affidavit of the publisher, and such affidavit thus appearing would be held to be prima facie proof of the publication; but in the absence of any such requirement, competent proof tending to establish the publication of the notice would be permissible. The court below was justified under the decision mentioned in holding as it did, but we are satisfied that decision went too far. It is the fact of the publication which gave the city council jurisdiction to proceed, and not the proof of it, under the circumstances. 1 Dillon, Mun. Cor. (4th ed.), § 300.

The appellant sought to prove ordinance No. 955, directing the improvement, by introducing the ordinance book *485into which the same had. been copied. By this copy it did not appear that said ordinance had ever been approved, or signed by the mayor. There was proof to show that the original ordinance had been destroyed by fire, and that it had been approved and signed by Jacob Furth, acting mayor. The respondent objected to this proof on the ground that parol testimony could hot be introduced to show that the ordinance had in fact been signed, as the official record thereof failed to show it. And he further objects upon the ground that it did not sufficiently appear that said Jacob Furth was the acting mayor, or had authority to sign said ordinance.

Upon the first proposition, we are satisfied that parol proof was admissible to show the fact that the ordinance had been signed. This testimony was not a contradiction of the record, but ivas offered to supply a defect or omission. The proof showed that it was the clerk’s custom in copying the ordinances into the ordinance book not to write the mayor’s name therein, but to leave the place blank, and that the mayor would thereafter from time to time re-sign said ordinances in said book. In this instance it had not been so signed. See Knight v. Kansas City, etc., R. R. Co., 70 Mo. 231. As to the further point in relation to the authority possessed by Furth, it appears that some weeks prior to the time ordinance No. 955 was passed, the mayor stated to the council that he was to be absent from the city for some weeks, whereupon the council elected Councilman Furth to act during his absence. It is contended by the respondent that there was nothing to show the mayor was not in the city at the time this ordinance was approved, and for that reason the proof was insufficient to show any authority in Furth to act. The charter provided that during the temporary absence of the mayor of the city, or if he was from any reason unable to act, the council should elect one of their own members acting mayor, and there*486upon the acting mayor should transact all the duties of said office during said temporary absence or disability. Respondent urges in this connection that there should have been proof of the mayor's disability or inability to act at said time by reason of his absence or otherwise. It appears that Furth had served as acting mayor from time to time since his election down to and including the time of the passage and approval of this ordinance. The proof is not entirely clear as to whether the regular mayor was absent from the city during all this time, nor is there any proof to show that he was incompetent or unable to act for any other reason. But we think that there was sufficient proof, prima facie, to show authority in Furth to approve the ordinance as acting mayor.

A further point is made by the respondents that the judgment should be affirmed, whatever view we may entertain of the preceding matters, on the ground that there is no proof that a majority of the property owners residing along the line of said improvements had petitioned therefor, or that said improvements were authorized at a regular meeting of the city council, all the members present voting in the affirmative. The record of the meeting at the time this ordinance was passed states that the same was passed, and that several councilmen, naming them, voted in the affirmative, and that none voted against it. It does not affirmatively appear that all the membei’S of the council were present, nor is it entirely clear that the proof which was offered established the fact that it was a regular meeting, but we think the proof tended to show that it was an adjourned meeting from a regular meeting; and the records showing the vote in favor of the ordinance, and not showing any against it, or that any other members were present at the time, we think it was prima facie sufficient to establish the fact that the ordinance was duly passed. Chosen Freeholders v. State, 24 N. J. Law, 718.

*487There are some presumptions in favor of such proceedings. Where, as in this matter, the record states that the ordinance was passed, it will be presumed to have been regularly passed in so far as the vote thereon is concerned. Generally', however, in proceedings of this kind to establish and enforce liens against property, there is no presumption in favor of their validity, and it is incumbent upon the city to show each and every necessary step to establish its claim. Pittsburgh v. Walter, 69 Pa. St. 365.

The judgment is reversed and the cause remanded for further proceedings.

Anders, C. J., and Hoyt and Dunbar, JJ., concur.

Concurrence Opinion

Stiles, J.

(concurring').—In my judgment the court is in error in its treatment of the case of Wilson v. Seattle, supra. It is correct in saying that the language used in that decision was unfortunate, for the proper ground of that decision was that in a case of certiorari, where nothing was presented but the record, the court could know whether there had been publication or not only from the record; and as that contained no proof of any publication the conclusion must necessarily be that there had been none. But certiorari was permitted in the Wilson case only because the property owner had no other way of preserving his rights, and thé judgment resulted in setting aside the assessment, because the law had taken away the defense of the owner upon all but technical grounds. Here, however, the proceeding is a foreclosure, under the charter of 1886, and all defenses can be presented, and the whole matter adjusted upon an equitable basis; therefore the Wilson case has no application, and I concur in the result.