26 Wash. 84 | Wash. | 1901
The opinion of the court was delivered by
Action in mandamus. The petitioner (appellant), is the holder of street grade assessment warrants issued by the city of Tacoma for the improvement of Pacific avenue in said city. The action was begun by motion and affidavit. The evidence was stipulated, and
“That the time which shall hereafter he set at which the assessment roll for the paving of Pacific avenue from South Seventeenth street to South Twenty-fifth street shall become delinquent shall he at least two years from the time of the completion of said improvement.”
On the 25th of August following, the contract for the improvement of the street was executed between the appellant and the city of Tacoma. The contract recites that the paving company will improve the avenue in conformity with the terms of the ordinance as amended, and according to the drawings and specifications in the office of the hoard of public works, for the sum of $69,950. There is provision for the commencement of the work on the 30th of August, 1893, the whole to he completed within ninety days from the date of the contract, with some exceptions for contingent delays. The manner of payment is provided, — that the city shall issue to the paving company or its assigns warrants on the special tax fund assessed for making such improvement to the amount of seventy-five per cent, during the progress of the work, and the whole thereof upon its completion, — and certain assurances are given that claims for material and labor have been satisfied. It is also stipulated that, in consideration of the issuing of the warrants as stated, the paving company waives the right to demand and receive payment from the city of
“It is the understanding and ag’reement of the partieshereto that the party of the second part waives all right to have the assessment upon the property owners become due prior to two and one-half years after the completion of this improvement, thereby waiving no rights, however, as to the interest to accrue on said warrants.”
The work under the contract was completed by the paving company about the 1st of November, 1893. On the 11th of November, 1893, an ordinance (No. 918) was adopted by the city council authorizing the drawing of warrants on the general fund for the interest thereafter to become due on the street improvement warrants. The ordinance provided that warrants be drawn on the general fund at times thereafter to he set by the city council when the assessment roll for the improvement of Pacific avenue should become delinquent, and providing: “Said warrants shall be in an amount equal to two' and one-half years’ interest at eight per cent, per annum on any and all warrants which shall have been or may hereafter be issued for the improvement of the said street.” The assessment roll was approved by the council on the 3d of February, 1894, and the council then, in accordance with law, fixed the time within which the assessment might be paid to the city treasurer, which time expires on the 18th of hlarch, 1896. The contract price of the improvement was $69,950, and the amount assessed against the property owners ivas that amount. On the 1st day of April, 1896, appellant presented its warrants to the city •treasurer, and demanded payment of the same, together with the interest accrued thereon. The treasurer tendered the amount of the warrants, together, with interest accrued thereon at the rate of seven per cent, per an
The Avarrants held bv appellant Avere originally presented in the fall -of 1893. It will be observed that the contract provided that appellant Avaived all right to have
The judgment is affirmed.
Anders, Fullerton, White and Dunbar, JJ., concur.