31 Wash. 153 | Wash. | 1903
The opinion of the court was delivered by
- This appeal is from a judgment of the superior court setting aside and declaring void a reassessment made by the city of Tacoma in certain reassessment proceedings for street improvements made upon a portion of Pacific avenue, in said city. The original proceedings for the improvement were begun in 1893, and provided for paving the street with bituminous rock upon a concrete foundation, and with granite curb stones on both sides of the street. Such proceedings were had that in August, 1893, a contract was entered into between the city of Tacoma and the Tacoma Bituminous Paving Company, by which the said company undertook to construct said work according to the plans and specifications prepared therefor. The contract price was $69,950. An assessment district was created, and the entire cost of the improvement was assessed to the abutting property within the district. The assessment was confirmed in 1891. Thereafter, in 1898, the city instituted reassessment proceedings. The respondents entered objections to the reassessment before the city council, and from an order of the city council denying their objections, and confirming the reassessment roll, they appealed to the superior court. That court entered judgment to the effect that the entire reassessment is void, and the city has appealed to this court.
ex rel. Hemen v. Ballard, 16 Wash. 418 (47 Pac. 970); Tumwater v. Pix, 18 Wash. 153 (51 Pac. 353); Port Angeles v. Lauridsen, 26 Wash. 153 (66 Pac. 403).
Since we entertain the views above expressed, it is unnecessary to discuss other points urged by appellant under this assignment of error.
Tt is assigned that the court erred in its twenty-fifth
But while we think the expense of future repairs cannot he added to the assessment, yet the mere fact that they may have been so added should not be held to invalidate the whole assessment in this proceeding to reassess. This is a proceeding to determine the amount that shall now be assessed against the property, and, if any sum was improperly included in the cost price, it should be deducted from the total amount, and a proper reapportionment of the balance should be assessed. This rule was pursued in Fehler v. Gosnell, supra, where a similar condition was presented, and we think it the just method. What, then, was the additional cost by reason of this provision in the contract and bond? The trial court found that the cost was materially increased, but that the amount could not be determined from the evidence. There was, however, evidence bearing upon that subject, and, while it may not have been of the most convincing character, yet it seems to us, if the court could find from the evidence that the cost was materially increased, it could, based upon evidence in this record, have determined the amount of such increase. It often happens that courts are not satisfied in their own minds as to what may be the exact truth; but, realizing that they must depend upon the frailties and imperfections of human testimony, it becomes their province to make some findings as to material facts when there is any evidence upon the subject. It therefore seems to devolve upon us to make a finding upon this subject. The witness Brown was an officer of the paving company, and as such may be said to be interested. He testified, over objection, that no added cost was considered by his
It is urged by respondents that items for the expense of inspection and engineering, which were included in the cost price, cannot be included in the reassessment, and the same contention is made as to the cost of that portion of the pavement lying between the street railway tracks and for the space of two feet outside of the rails. The
Respondents also contend that the cost of street intersections was improperly included in the assessment. The charter grants the following powers: “To determine what work shall be done or improvements made at the expense in whole or in part of the owners of the adjoining contiguous or proximate property, or others specially benefited thereby.” The power thus conferred is general. When the charter or statutory authority specifies no particular method of paying the cost of street intersections, it
Respondents contend that interest was improperly included by the city council in the reassessment. This question was determined by the decision in Lewis v. Seattle, 28 Wash. 639 (69 Pac. 393), and by otter cases there cited. Interest from the date fixed for delinquency of the original assessment was properly included in the reassessment.
The statute of limitations is also urged. The original assessment was confirmed in 1894. The limitation at that time, as construed by this court in Spokane v. Stevens, 12 Wash. 667 (42 Pac. 123), was two years. In 1895 a ten-year limitation act was passed, which went into effect prior to the expiration of two years from the confirmation of the first assessment. The statute was therefore extended, and this proceeding is not barred. State ex rel, Hemen v. Ballard, supra; Bowman v. Colfax, 17 Wash. 344 (49 Pac. 551).
This disposes of all the questions raised which we deem it essential to discuss. For reasons stated, the judgment is reversed, and the cause remanded with instructions to the court below to enter judgment modifying the reassessment made by the city in the following particular only, viz.: An amount equal to ten per cent, of the original cost of the improvement shall he deducted from the total reassessment, and the remainder shall he apportioned upon all the property described in the reassessment roll in the same relative ratio as now set forth in the roll, with inter
Fullerton, C. J., and Mount and Dunbar, JJ., concur.