42 Wash. 370 | Wash. | 1906
— The city of Seattle, acting under its powers as a city of the first class, caused one of its principal streets (Howard avenue), together with certain connecting streets, to be graded, paved with asphalt, and otherwise improved; declaring, in the preliminary resolution, that it was its intention to assess the costs thereof to the property sper cially benefited by the improvement. The plan adopted was that prescribed by the act of hi arch 14, 1899, which provides that bonds may be issued to pay the cost of a street improvement redeemable out of a fund created by a special assessment on the property benefited, payable in installments running over a period not exceeding ten years. Laws 1899, p. 234.
The contract for doing the work was let to the relator, who agreed to take bonds in payment of the contract price to the amount of any balance that might remain due after the owners
The assessment roll, as prepared and filed by the board of public works, was made to include property back from the marginal lines of the improved streets for a distance of 120 feet only. On the filing of this roll, the following notice was given:
“Notice of Assessment Roll.
“Notice is hereby given that the assessment roll of local improvement district No. 902, for the improvement of Harvard Avenue and Harvard Avenue North, from East Roy street to Broadway; Boylston Avenue North from East Roy St. to East John St.; Boylston Ave. from East Denny Way to East Hnion St.; Belmont Ave. North from East Roy St. to East Denny Way; East Mercer St., East Republican St., East Harrison St., East Thomas St., East John St., East Denny Way, all from the west line of Belmont Avenue North to the West line of North Broadway; East Howell street, East Olive St., East Pine St. and East Pike St., all from the west line of Boylston Ave. to the west line of Broadway; East Hnion St. from the east line of Bellevue Ave. to the*373 west line of Broadway; Seneca St. and Spring St. from the east line of Boylston Ave. to Harvard Avenue, all in the city of Seattle, by paving the same with asphalt, etc., under ordinance Ho. 10710 has been reported by the board of public works to the City Council of the city of Seattle, and is now on file in the office of the city comptroller, and ex-officio city clerk, and that the same is now open for public inspection at said office and will remain open for inspection until Monday, the 22nd day of August, 1904, at 5 t’clock p. m., and all persons interested, are hereby requested to appear before the city council at a session thereof to be held in the council chamber in the city hall on said 22nd day of August, 1904, at 8 o’clock p. m., and make objections thereto. At said time so fixed, the city council will consider any and all objections made^' and will make such corrections in said roll as it deems just, and will then, by ordinance approve such roll and levy and assess the amounts thereof against each parcel and lot of land and part thereof shown in said roll, and detclare the same a first lien thereon. Said matter may be adjourned to a later date if so ordered, by the city council. John Hiplinger, city comptroller and ex-officio city clerk.”
At the hearing held pursuant to the notice, the city council, without any further notice, amended the roll so as to make it include all property back from the improved streets for a distance of 180 feet, and passed an ordinance levying an assessment upon the property included within the roll as so amended. It is the relator’s contention that the property included in this outer rim of sixty feet has been assessed without notice to its owners, and that this fact renders the whole assessment void. The city disputes both the fact and the conclusion drawn from the fact, and these conflicting contentions constitute the principal questions to be considered.
As to the fact, it seems to us that there can be but little question that this outer rim was assessed without notice to its owners. The assessment roll as made out and filed by the board of public works did not include any part of it, and it was to this roll that the attention of the owners was directed by the published notice. This notice, it will be ob
Whether the omission to give the notice renders the assessment void, is a more serious question. It is conceded that it is necessary to the validity of every law prescribing a method for imposing a special assessment upon real property that it provide for notice to- the owner of the property, and afford him an opportunity to be heard concerning the correctness of the assessment, at some stage of the proceeding, before the assessment becomes absolute or his property is taken to satisfy the lien of the same. But it is said that only one notice is necessary, and that this notice may be given at any stage of the proceedings; and since there can be no foreclosure of the assessment lien in this instance^without a further notice to the property holder, the requirements of the law are satisfied, and the assessment, though it may be voidable, is not void. It is held, however, and it seems to be the general rule, that to render the assessment valid, even when made under a constitutional law, it is essential that the notice be given at that stage of the proceedings the law directs that it be given, and if more than one is provided for, more than one must be given-. Wilson v. Seattle, 2 Wash. 543, 27 Pac. 474; Buckley v. Tacoma, 9 Wash. 253, 37 Pac. 441; Haisch v. Seattle, 10 Wash. 435, 38 Pac. 1131; Stuart v. Palmer, 74 N. Y.
As to the property within the 120 foot limit, we think the assessment valid. The only objection urged against it is that the assessment cannot be valid as to part of the property, and invalid as to the remainder; that there is such an interdependent relation between the several parts that one part cannot be void without the whole being void. We cannot think, however, that these objections are sound. In an assessment based upon benefits, where each individual tract is assessed only its proportionate part of the whole, the owner of a tract justly assessed has no valid ground of complaint because his neighbor has been unjustly assessed. If he has been taxed in a lawful manner for his just proportion originally, his assessment does not become unlawful or unjust because of the fact that the assessment proves invalid as to* another tract, and he cannot be heard to complain of anything except unlawful or unjust exactions. Moreover, the uncomplaining owners of the tracts lawfully assessed have rights in the matter that ought not to be thus ignored. They should not be required, without just cause, to appear and contest anew the proportional share of the entire charge their property should bear, nor should their property be subjected to the additional costs of a reassessment where the original assessment is just. These proceedings, furthermore, while pending, affect injuriously the right a person has to deal with his property, as it renders it impossible for him to make as favorable contracts concerning it as he can do when his rights therein are fixed. He ought not, therefore, to be subjected to the loss and annoy
It seems h> us, als>o>, that a proper construction of the statute requires the holding that the assessment is to be declared void only so far as the necessities require. The statute provides that a property holder who has had notice and an op•portunity to contest the validity and correctness of the assessment, if dissatisfied with the order made by the city council, must appeal therefrom to the courts within a given time, or else be forever barred from questioning the regularity, validity or correctness of the assessment. It further provides.that, if an appeal from the order is taken, and the court finds the objection well taken, it shall correct, modify or annul the assessment only iru so far as it affects the property of the appellant, but that the action of the council in confirming the assessment shall be conclusive in all things upon all parties not appealing. If this statute is to be given effect, it must necessarily be held that an adjudication that the assessment is void as to one tract does not invalidate the entire assessment.
The case of Young v. Tacoma, 31 Wash. 153, 71 Pac. 742, and kindred cases cited, are not contrary to the principle here announced. The court there had in review assessments made under a statute that did not contain the provision cited. They were cases, also1, where the assessment was declared void for fundamental errors which affected the entire assessment, and were decided on a principle that would prevent the enforcement of the assessment, against any of the property included within the roll. Here the error affects only a part of the property, and no reasons exist for declaring the assessment void for anything more than the affected part. We conclude, therefore, that the assessment is invalid as to that property included within the so-called outer rim of sixty feet, but valid as to all of the remainder’ of the property.
These considerations determine the principal questions suggested by the record, but the city insists upon some minor
It is next said that the contractor was a party in interest in this assessment, and inasmuch as he made no objection to it while it was in progress, and took no appeal from the final order, he is now estopped to question its validity. But the contractor was not a party in the sense that the proceedings in any way bound it. Under its contract the city was. obligated to pay it in bonds payable out of a fund legally created. The creation of that fund was wholly the duty of the city. If the city did not legally create the fund, the contractor was not obligated to take the bonds, and the contractor’s first right to object to the proceeding arose when the bonds were tendered it. It could not intervene legally in
Lastly it is said that mandamus is not the proper remedy, but we think it is, on the principle that it affords the only complete and adequate remedy. State ex rel. Brown v. McQuade, 36 Wash. 579, 79 Pac. 207, and the other cases from this court there cited.
The order appealed from is reversed, and the cause remanded with instructions to enter an order directing the appellant to reassess that part of the assessment district outside of the 120 foot limit, for the amount heretofore apportioned to such part; namely, $2,222.29, and the accrued interest thereon. Neither party will recover costs on this appeal.
Mount, O. J., Hadley, Cbow, and Dunbab, JM., concur.