Real Estate Investment Co. v. City of Spokane

Chadwick, J. The city of Spokane, by appropriate preliminary proceedings, declared its intention to improve a part of Prospect street in that city, made an estimate of the cost of the improvement, and prepared an assessment roll which came on for hearing on the 8th day of December, 1908. The hearing was then continued until December 22, 1908, when is was considered upon the following objection and protest theretofore filed by appellant: “Spokane, Wash., Nov. 18, 1908. “To the Honorable City Council: “The undersigned, owners of property along Prospect avenue, protest against the grading and sidewalking of said avenue between Grand street and City View street, according to the plans and specifications now on file in the city engineer’s office, and respectfully petition that the assessment for grading and sidewalking said avenue be not confirmed. “The bid for grading said avenue is $9,620, and for sidewalking the same is $1,720. The foregoing charges, in our judgment, are excessive. Our properties are not sufficiently valuable to justify any such expenditure. The benefit which we will receive will not be anywhere near in proportion to the cost of this work. A few years ago Grand street north of Twelfth avenue was graded at what was deemed to me a high cost. The Grand street grade is now being contested in the courts upon the ground of the excessive cost, with the likelihood of the assessment on that street being declared invalid. The Prospect avenue assessment approximates the Grand street assessment just mentioned. We ask that the present assessment be not confirmed, so we may have an opportunity to work out a plan of grading that will be satisfactory to us and at a reasonable cost. Respectfully.” Then followed the name of the property owner, a description of its property, and the particular sums assessed against the several tracts. At the time set for hearing, appellant appeared by counsel and orally protested. Appellant’s objections were overruled, and a resolution passed confirming the assessment. An appeal was taken to the superior court within ten days thereafter. On January —, 1909, the city [418] duly passed an ordinance confirming the assessment roll, but no appeal was thereafter taken by appellant, it relying upon its appeal from the order evidenced by the resolution. After a trial on the merits had proceeded to some length, and appellant had rested, judgment was entered on motion of respondent, confirming the assessment upon the ground and for the reason that no testimony had been adduced to show that the council acted in bad faith or fraudulently in levying and confirming the assessment. The learned trial judge felt himself bound by the terms of chapter 150, Laws of 1905, page 281 (Rem. & Bal. Code, §7905 et seq.), entitled: “An act to validate assessments made, or which may be made, to pay for local improvements, by any incorporated city in this state, and to prohibit the setting of such assessments aside or declaring the same invalid upon any ground other than upon the ground of fraudrather than by chapter 118, Laws of 1901, page 243, § 2 (Rem. & Bal. Code, § 7552), under which the appeal had been taken. Reference to the act of 1905 will show that it nowhere and in no way refers to appeals or appellate procedure, but is an independent act which, although inartificially drawn, seems intended to validate all assessments, unless fraud be affirmatively shown when such assessments are drawn in question, upon a foreclosure proceeding. We cannot believe that it was the intention of the legislature when enacting the law to nullify and repeal by implication the act of 1901, allowing an appeal to be taken from an onerous or oppressive assessment or one made without reference to the benefits when levied under an ordinance so providing. The act of 1905, being independent of' all others, was, in our opinion, clearly intended to save assessments of the tax- — ■ except in cases of fraud — when attacked collaterally, leaving to the aggrieved property owner existing remedies and the right to raise any objection - upon direct attack. We are-convinced that the statute of 1905 was passed to meet this condition and is not controlling in this case, and so hold. [419] But it is insisted that, although appellant had the right of appeal, the judgment must be sustained for two reasons, (1) the protest made by appellant was insufficient to operate as an objection under the statute, and (2) the appeal was premature, being taken before the passage of the ordinance confirming the assessment, by which method alone a legal confirmation may be had. Treating these propositions in their order, we may admit that the protest which we have set out is informal, and would not be sustained as a sufficient pleading in a court of law. But the statute contemplates that the proceedings before the city council will be informal, and if it be made to appear that the property owner appeared and objected, although in the most general terms, he should not be denied his remedy, or his protest be measured by the technical rules of pleading. There was enough to show, that the property owner considered the whole cost of the improvement excessive, that its property was not sufficiently valuable to justify the expenditure, that the benefit was not in proportion to the cost of the work, that it desired to suggest or bring about a plan of grading at a more reasonable cost;, and that the assessment should not be confirmed. All that is required is that the “objection shall state clearly the grounds of objection.” The protest was clear enough to put the council to a consideration of it, and this being so, it was sufficient to sustain a right of appeal. Nor do we think the appeal was premature. The charter of the city, § 67, is silent as to the manner of confirmation; but the statute, Laws 1901, page 240, § 2 (Rem. & Bal. Code, §7532), provides that the council shall “confirm the same, as corrected by resolution or ordinance, in conformity with the charter of such city.” But it is said that, inasmuch as the Ordinance No. A-1,088, § 8, provides that, “At the time appointed for hearing objections to such assessment the council shall hear and determine the objections which have been filed by any party interested to the regularity of the proceedings in making such assessment and to the correctness of the amount of such assessment, or of the [420] amount levied upon any particular lot or parcel of land; . . . and confirm the same as corrected, or set aside such roll, and order that said assessment be made de novo, or refuse to confirm such roll, as to the council shall appear equitable and just. All orders of confirmation shall he hy ordinance,” no confirmation could be legally made except by ordinance; and the case of Bellingham Bay Imp. Co. v. New Whatcom, 17 Wash. 496, 50 Pac. 477, is cited as conclusive upon this point. That case arose under chapter 95, Laws 1893, page 226, and aside from the fact that the act of 1893 provided in terms that the assessment or reassessment should be approved and confirmed hy ordinance, we find by examination of the briefs and records in that case that objections had been considered by a committee of the whole council which had reported its consideration and recommendation, but no action either by resolution or ordinance had been taken by the council at the time of the appeal. The power of the council must rest upon the charter and the general law so far as it has assumed to declare the attendant procedure, and when the council has, either by resolution or ordinance, approved the roll, it is conclusive so far as the objecting property owner is concerned; for the object of the 1901 law in this regard is to fix the time and the fact rather than the manner of the council’s doings. Respondent has discussed in some degree the merits of the case, but we conceive from a consideration of the whole record that the court entered judgment confirming the assessment because of the technical objection that no fraud had been shown, and not upon the merits, and therefore the merits of the case should not be decided without a full hearing in the court below. For the reasons assigned, the judgment of the lower court is reversed, and this cause is remanded for a new trial. Rudkin, C. J., Fullerton, Gose, and Morris, JJ., concur.