13 Wash. 236 | Wash. | 1895
The opinion of the court was delivered by
This appeal is from an order of the the superior court of Spokane county, directing the issuance of a peremptory writ of mandamus requiring the appellant as treasurer of the city of Cheney to make and publish calls for certain warrants issued by said city and to pay the same upon presentation. The warrants in question were issued to the respondent in payment for certain street grading in accordance with a contract between the respondent and the council of said city. They were drawn upon the general fund of the city, and the contention of the appellant is that the city authorities had no power to enter into a contract with respondent, providing for the payment of the grading of streets out of the general fund of the city.
The city of Cheney was incorporated under a special act of the territorial legislature approved November 28, 1883. Sub-division 6 of § 1, ch. 5, of said charter, provides that said city shall have the power and authority “ to construct and repair sidewalks and to curb, pave, grade, macadamize and gutter any streets, highways or alleys therein at the cost and expense of the
Second National Bank v. City of Lansing, 25 Mich. 207; Zottman v. San Francisco, 20 Cal. 97 (81 Am. Dec. 96); Johnson v. Common Council of Indianapolis, 16 Ind. 227.
In the case first above cited it is held:
“ Improvements in the city of Lansing for which special assessments are authorized, are not'chargeable on the city as ordinary corporation debts; and there is no liability to pay for them except through assessments paid for that specific purpose.”
An examination of the charter of the city of Cheney discloses that nowhere else therein is any power conferred on the city to grade streets or to pay for such grading in any other manner than that pointed out in subd. 6, above quoted; and in this respect its charter differs from those under consideration in Soule v. Seattle, 6 Wash. 315 (33 Pac. 384, 1080), and Stephens v. Spokane, 11 Wash. 41 (39 Pac. 266), in which cases this court held that the city was not limited to special assessments as a means of improving its streets in any
But it is urged by counsel for respondent that the provisions of subd. 6, § 1, ch. 5, supra, are inoperative because subd. 8 of the same section provides that the ordinance of the city shall provide “ the mode by which the charge on the respective owners of lots or land shall be determined for the purposes authorized by this act;” and that the provisions of said subdivisions 6 and 8, cannot be enforced inasmuch as it is beyond the power of the authorities to create a personal debt against the owner of the lots or land so benefited for the expense of the grading and improvement. Assuming (without deciding) this to be a correct view, it does not in our opinion furnish a sufficient reason for holding that the authorities of the city could bind it by a contract beyond the express or implied powers conferred upon them by law. It might be suggested that the city may become incorporated under the provisions of the general law for
We express no opinion upon the question of practice relating to the issuance of the alternative writ in this case, hut for the foregoing reasons the judgment will be reversed and the cause remanded for dismissal.
Hoyt, C. J., and Anders, J., concur.
Scott and Dunbar, JJ., dissent.