93 Wash. 422 | Wash. | 1916
The plaintiffs, Annie Wilce et al., commenced this action in the superior court for Spokane county, seeking to have the city of Cheney and its officers enjoined from constructing a proposed local street improvement and charging the cost thereof by special assessment against the property of the plaintiffs and others. The cause being heard upon the merits in the superior court, judgment was rendered
The contention of counsel for appellants is, speaking generally, that the city is proceeding without jurisdiction, or rather in the wrongful exercise of jurisdiction, in that the improvement, as finally ordered by ordinance and for the construction of which a contract was entered into, includes items of construction not mentioned or contemplated by the terms of the resolution of the city council declaring its intention to construct the improvement, and that, therefore, appellants had no opportunity to object to the improvement as finally ordered and contracted for by the city.
The controlling facts are not in dispute and may be summarized as follows: In May, 1915, the city council adopted a resolution declaring its intention to improve a number of the streets of the city by grading, constructing cement sidewalks, crosswalks, and gutters, and by “constructing drainage culverts and catch basins, as will more fully appear from the diagram and print which the committee on ‘Streets and Alleys’ is hereinafter ordered to provide; constructing a concrete gutter, also concrete curbs on First street between D street and G street.” This quoted language is the only portion of the resolution which could be construed as having reference to the items of construction of which appellants complain. The resolution directs notice of hearing to be given, and also directs the committee on streets and alleys to prepare estimates of the cost of the proposed improvement, and also a diagram thereof and of the district showing the property to be charged with the cost thereof, as required by the local improvement law. Notice was accordingly duly given and an estimate and diagram also were prepared and filed. Upon this diagram there is designated as a part of the proposed improvement a storm sewer six blocks long in one of the streets proposed to be improved, and also five manholes in connection therewith. These are the principal items of construction complained of by appellants as not being provided for or men
By the general local improvement law, the initiation of a local improvement proceeding may be either upon petition of the owners of property to be benefited by such improvement or directly by resolution of the city council. Section 10 of the law, relating to the initiation of such a proceeding by resolution, reads as follows:
“Any such improvement may be initiated directly by the city or town council by a resolution declaring its intention to order such improvement, setting forth the nature and territorial extent of such proposed improvement, and notifying all persons who may desire to object thereto to appear and present such objections at a meeting of the council at the time specified in such resolution; and directing the proper board, officer or authority to submit to the council at or prior*425 to the date fixed for such hearing the estimated cost and expense of such improvement, and a statement of the proportionate amount thereof which should be borne by the property within the proposed assessment district, and a statement of the aggregate assessed valuation of the real estate, exclusive of improvements, within said district according to the valuation last placed upon it for the purposes of general taxation, together with a diagram or print showing thereon the lots, tracts and parcels of land and other property which will be specially benefited thereby and the estimated amount of the cost and expense of such improvement to be borne by each lot, tract, or parcel of land or other property. Such resolution shall be published in at least two consecutive issues of the official newspaper of such city or town, the date of the first publication to be at least fifteen (15) days prior to the date fixed by such resolution for hearing before the city council. . . .” Laws of 1911, p. 444, § 10 (Rem. 1915 Code, § 7892-10).
It is insisted in appellants’ behalf that the city council’s resolution of intention to construct the improvement did not, as required by § 10 of the local improvement law above quoted, include the storm sewer and manholes which were constructed as a part of the improvement, so as to furnish appellants an opportunity to object to the construction of the improvement as finally ordered and contracted for by the city authorities. Counsel invoke a rule of strict construction and of strict compliance with the provisions of § 10 such as, they argue, find support in the early decisions of this court in Buckley v. Tacoma, 9 Wash. 253, 37 Pac. 441; McAllister v. Tacoma, 9 Wash. 272, 37 Pac. 447, 658, and Kline v. Tacoma, 11 Wash. 193, 39 Pac. 453, dealing with somewhat similar provisions of the then existing city charter of Tacoma. In the Buckley case, the initial resolution was in terms a resolution of intention, while the charter provided in terms that it should be a resolution ordering the improvement. It declared the council’s intention as follows:
“To improve ‘N’ street in Buckley’s addition from Steele street to Pine street at the expense of the abutting owners. Grading and sidewalking.”
While we would not now be inclined to overrule those decisions were the facts there involved again presented to us under the provisions of the then existing charter of the city of Tacoma, we think they are not controlling here in the light of a later expression of this court and the present local improvement law. In North Yakima v. Scudder, 41 Wash. 15, 82 Pac. 1022, it was held that the estimates and plans on file might be looked to in aid of the resolution of intention, manifestly upon, the theory that the estimates and plans on file, before the time for filing remonstrance by the property owners expires and after which the question of finally order
Some contention is made that the culverts and catch basins were also wrongfully included in the improvement. This contention is manifestly without merit, in view of the fact that “culverts and catch basins” are specifically mentioned in the resolution of intention as constituting a part of the proposed improvement.
Some contention is made resting upon the fact that the resolution of intention does not in terms seem to direct the streets and alleys committee to prepare the diagram so as to show the storm sewer, manholes, and other details of the construction of the improvement thereon. However, when the resolution of intention is read as a whole, it is, we think, plain that the council intended such details to be shown upon the diagram, as they are in fact shown. We conclude that the diagram in this respect was as effectual in informing the property owners of the nature of these items of construction as if the direction to the streets and alleys committee had been more specific in the resolution as to placing of this data upon the diagram.
We conclude that the superior court properly disposed of the cause, and its judgment is therefore affirmed.
Morris, C. J., Main, and Holcomb, JJ., concur.