97 Wash. 371 | Wash. | 1917
Lead Opinion
Appeal from a judgment or decree of the superior court canceling a local improvement assessment.
No objections were filed nor appeal taken by respondents in the assessment proceedings, but an independent action in equity was instituted to cancel the assessment confirmed against their property.
Prior to May 12,1906, a movement was started to procure a regrade of that portion of Seattle locally known as Denny Hill. The improvement was initiated by a petition of property owners, which petition, among many others, contains the following recitals:
“That the undersigned hereby reserve the right to claim damages, and the city of Seattle shall ascertain in the manner provided by law the damages to the private property caused by the improvement herein petitioned for; said damages together with the proper costs to be paid by a special assessment to be levied against the property specially benefited. Any part of the compensation, damages or costs that is not finally assessed against said property specially benefited shall be paid from the general fund of the city of Seattle.
“The cost of grading and regrading the streets and avenues lying within the boundary lines of each sub-district as hereinbefore described, together with the cost of all other work necessary or incidental to said grading and regrading shall be borne entirely by the property lying within the limits of said sub-districts respectively, so far as the same may be legally made a lien upon said property.
*373 “And your petitioners do severally agree, and do hereby bind themselves to pay their just and proportionate part of-the cost of improving each sub-district as hereinbefore provided for, irrespective of any award of damages that may be made in favor of any individual property owners in the con-' demnation proceedings herein petitioned for.”
It is exclusively upon the clause last above quoted that appellants base their claim of right to make the assessment in controversy.
This petition was signed by May Ray, who with her husband at that time owned as community property the particular half lot here involved. After the filing of the petition of the appellant seeking condemnation of the property pursuant to the petition for the improvement, and before the trial of the cause and.the return of a verdict therein touching this property, Mrs. Ray and her husband conveyed the property to Katherine E. Poison, and thereafter on January 5,1916, Mrs. Poison conveyed the property to respondents.
The property owners’ petition and the ordinance providing for the condemnation required the widening of the streets involved, whereby twelve feet were to be taken off this property, and also required changes in the grades of the streets which resulted in leaving this particular half lot about fifty or sixty feet above the newly established grade.
At the trial of the condemnation proceedings touching this lot, testimony was introduced on the part of the city, before the court and jury trying the cause, to the effect that the improvements then upon the land, consisting of a three-story apartment house of the value of about $5,500 or $6,000, on account of the necessary one-to-one slope required by the ordinance to be made upon the property in excavating the streets to the new grade would be entirely destroyed; and also that the damages to that portion of the lot not taken by the proceedings by reason of the change of grade and the regrading of the street would far exceed in amount the special benefits to the lot by reason of the making of the contemplated im
After the entry of the judgment, and on September 28, 1907, the city caused to be prepared and filed an assessment roll to cover the cost of excavating the streets and making the physical improvement in accordance with the newly established grades. This roll showed that the lot here involved was assessed in the sum of $1,884.43. Mrs. Poison filed objections to the making of any assessments against the lot. The roll was then referred by the council to the street committee of the council for consideration and report. The city council and the street committee, while the roll was before them for consideration for many months, were advised, by the corporation counsel and by Mrs. Poison’s counsel who appeared before them on many occasions in support of the objections made to the assessment, of the fact of the making of the stipulation during the condemnation proceedings and of the award of damages to the remainder of the lot based on the stipulation, and the corporation counsel of the city advised the council and the street committee that, on account of that stipulation and the award based thereon, the property was exempt from assessment. Thereupon and by reason of the
The city made no other assessment against the lot on account of the improvement for nearly seven years, until October, 1915, when it passed an ordinance directing the making of a supplemental assessment, basing its right so to do upon the last clause, heretofore quoted, in the property owners’ petition. Pursuant to this ordinance, the city caused an assessment roll to be prepared and filed and an assessment to be made against this lot, which it confirmed by ordinance in July, 1916, long after the purchase by respondents. This is the assessment assailed by the respondents and which the lower court held was made by the city council without jurisdiction. Respondents had no notice of the preparation of this roll or that the city contemplated making any assessments against the property until long after the roll had been confirmed and placed in the hands of the treasurer for collection.
Appellants contend that the corporation counsel, at the time of the trial of the condemnation proceedings, evidently overlooked the provision contained in the property owners’ petition wherein the signers agreed to pay their just and proportionate share of the cost of making the improvement notwithstanding any award of damages in the condemnation proceedings. But this assertion is not borne out by the record.
It must be remembered that, by another clause in the petition of the property owners, they reserved the right to claim all damages from the city, to be ascertained in the manner provided by law; and while they did in a further paragraph agree to bind themselves to pay their just and proportionate part of the cost of improving irrespective of any award of damages, nevertheless their later agreement and stipulation made at the trial of the condemnation proceeding modified
Appellants contend, however, that the corporation counsel of the city of Seattle had no authority to enter into such a stipulation as that made at the condemnation trial, and that the 'city could not be bound thereby.' That contention cannot be sustained. The corporation counsel was a duly authorized representative of the city to act for it in all trials and proceedings at law. It is a general rule that a party to an action is bound by the stipulations and agreements entered into by his counsel in open court as a part of the proceedings in the cause; and the acts and doings of the attorney are the acts and doings of the client. 4 Cyc. 934-5; 2 R. C. L., § 63, p. 986; Coonan v. Loewenthal, 129 Cal. 197, 61 Pac. 940. If the corporation counsel had no authority to make such stipulation, he had no authority to proceed in any way during the trial unless each step that he took was first authorized by the legislative or political body of the city.
It is contended by appellants that the court had no jurisdiction over the subject-matter, this contention being based upon § 23 of chapter 98 of the Laws of 1911, p. 455, relating to local improvements, which provides, among other things, that:
“Whenever any assessment roll for local improvements shall have been confirmed by the council . . . the regularity, validity, and correctness of the proceedings relating to such improvement, and to the assessment therefor, including the action of the council upon such assessment-roll and the confirmation thereof, shall be conclusive in all things upon all parties, and cannot in any manner be contested or questioned in any proceeding whatsoever by any person not filing written obj ections to such roll in the manner and within the time provided in this act, and not appealing from the action of the council in confirming such assessment-roll in the*378 manner and within the time in this act provided. No proceeding of any kind shall be commenced or prosecuted for the purpose of defeating or contesting any such assessment, or the sale of any property to pay such assessment, or any certificate of delinquency issued therefor, or the foreclosure of any lien issued therefor,” etc. Rem. Code, § 7892-23.
Section 70 (p. 480) of the same chapter specifically reserves all rights of action under existing laws which this act in any way supersedes or repeals, if the same at the time of taking effect of this act shall have been commenced.
“All actions and proceedings, which may be pending in court under existing laws which this act in any way supersedes or repeals', shall proceed without being in any manner affected by the passage of this act.” Rem. Code, § 7892-70.
These proceedings were begun long prior to the passage of chapter 98 of the Laws of 1911, p. 441 (Rem. Code, § 7892-1 et seq.), and this suit is exactly the same kind of a suit as that brought in the cases of Michaelson v. Seattle, 63 Wash. 230, 115 Pac. 167, and Seattle School Dist. v. Seattle, supra. The lower court therefore had jurisdiction of the subject-matter and of the parties.
It is further contended that the city council had jurisdiction to levy and confirm the assessment regardless of the stipulations entered into in the condemnation proceeding. As was aptly observed by Judge Rudkin in Schuchard v. Seattle, 51 Wash. 41, 97 Pac. 1106:
“If the city cannot deprive a citizen of his property without due process of law in a single proceeding, it cannot accomplish the same result by two or more proceedings. Whether the proceedings are dependent or independent, the fact remains that an attempt is here made to levy an assessment on property for a local improvement after all local and special benefits to the property have been offset against damages.”
While the question there determined was slightly different from the question here involved, the logic of the observations
The judgment is right and must be affirmed. It is so ordered.
Ellis, C. J., Mount, Parker, and Fullerton, JJ., concur.
Rehearing
On Petition eor Rehearing.
[En Banc. Nov. 16, 1917.]
By inadvertent clerical error, this case,
though submitted and heard by the full bench, was signed only by the judges of Department Two, which is one ground of petition by appellants for a rehearing En Banc.
The other grounds upon which a rehearing has been de
The petition for rehearing, having been examined by the entire court, the original opinion is by a majority thereof sustained and rehearing is denied.