42 Wash. 551 | Wash. | 1906
— In September 1903, the city of Seattle by* ordinance directed that all that portion of Pike Street
The appellant, H. M. Peters, owned certain lots abutting upon Pike street, and by the terms of the ordinance ten feet off of the end of each of them was authorized to he taken for the use of the street. The corporation counsel began the proceedings, as directed, causing summons to be served ulpon the appellant as provided by law. The appellant appeared and filed an answer, in which he put in issue the allegations of the petition, and claimed that his property would he damaged by the proposed improvement to the amount of $60,000. On motion of the city, this answer was stricken by the, court, on the ground that an answer was neither necessary nor proper in such a proceeding. Thereafter a trial was had before a jury on the allegations of the petition, the court deeming them denied by operation of law. In this trial the appellant appeared and participated, and was awarded damages by the verdict of the jury in the sum of $10,000 for the part taken; the jury finding, however, that the remainder of his property would not be damaged by the improvement.
Thereupon, pursuant to the statute, the city filed a supplemental petition praying for the appointment of commissioners to make an assessment of the property benefited for tbe purpose of paying the awards made to those whose property was to be taken, and damaged. Commissioners were appointed, wbo made out and returned into court an assessment roll 'in which the remaining property of the appellant was assessed
The principal contention of the appellant is based upon the fact that the- city, after taking a portion of his lots for the purpose of widening the street and awarding him compensation therefor, assessed the remainder for benefits accruing to- them by reason of the improvement. This he says is taking his property without just compensation, and consequently without due process of law. But this precise question on a similar state of facts was before this court in Quirk v. Seattle, 38 Wash. 25, 80 Pac. 207, and we there held that the proceeding violated no provision of the constitution or laws o-f this state. This case is conclusive of the question, in so far as the state- constitution and laws are concerned, and obviates the necessity of further discussing it. It is suggested, however, that the assessment violates the Federal constitution, but we think that the supreme court of the United States decided to the contrary in Bauman v. Ross, 167 U. S. 548, 17 Sup. Ct. 966, 42 L. Ed. 270. The discussion in that case is able and exhaustive, and we do not feel that any thing could be added to the reasoning by which the conclusion is reached.
As to the remaining assignments of error, it is complained that the court erred in striking out the answer filed to the original petition, and in. refusing to hear evidence at the time the assessment roll was before the court for consideration to the effect that the buildings upon the appellant’s lots were damaged by the widening of the street. But these exceptions are without merit on this appeal. The ruling of the
Finally it is contended that the assessment is illegal and voidable, because the court ordered ten per centum to be deducted from the amount originally assessed against the pro-p erty, and made a charge against the general fund of the city. But we think there was no error in this. The statute gives the court power to modify, change, alter or annul the the assessment, and we think it may lawfully find that an improvement is of sufficient general benefit to- make a proportion of the cost a general charge against the municipality. If, however, it be intended by the objection to assert that the assessment was confined to- an arbitrary district which did not include all of the property specially benefited by the improvement, then the answer is that there is no evidence in the record that such is the case. In so- far as we can discover by the record all of the property specially benefited by the improvement is included in the assessment roll, and the court will not presume the contrary merely because the city council fixed a district for assessment purposes p-rior to making the improvement.
The judgment appealed from is affirmed.
Mount, O. I., Hadley, Dunbab, Eoot. and Cbow, JJ., concur.