4 SPOKANE v. RIDPATH.
Opinion Per PARKER, J. 74 Wash.
[No. 10890. Department One. June 3, 1913.]
THE CITY OF SPOKANE, Respondent, v. W.M. RIDPATH et al.,
Appellants. «1»
MUNICIPAL CORPORATIONS - IMPROVEMENTS - PETITION - SIGNATURES -
JURISDICTION TO ORDER IMPROVEMENT. That an initiatory petition
for an improvement was not signed by a majority of the property
owners, as required by the city charter, is not a jurisdictional
defect where the charter also authorized the improvement without
such signatures if ordered by a two-thirds vote of the council,
and the council afterwards ordered the improvement by a unanimous
vote.
SAME - PROCEEDINGS - "RESOLUTION" - NECESSITY. A charter
provision requiring a city council ordering an improvement to
direct the board of public works, "by resolution" to prepare a
report, is substantially complied with by ordering such report
"on motion"; there being, in substance, no difference between a
resolution and a motion.
SAME - ASSESSMENTS - VALIDITY - PRIOR EMINENT DOMAIN
PROCEEDINGS - NECESSITY. The failure of a city to acquire, by
eminent domain proceedings, the right to change the grade of a
street, does not invalidate an assessment to defray the cost of
making the improvement, and cannot be urged as a defense to an
action to foreclose the lien of the assessment.
Appeal from a judgment of the superior court for Spokane
county, Huneke, J., entered December 2, 1911, upon findings
in favor of the plaintiff, in an action to foreclose special
assessment liens. Affirmed.
D.W. Henley, for appellants.
H.M. Stephens and Arthur L. Hooper, for respondent.
PARKER, J. - This is an action to foreclose liens for special
assessments, levied upon abutting property to pay the cost of
improving, "by regrading, curbing and sidewalking," a
portion of Sixth avenue in the city of Spokane. A decree being
rendered by the trial court in favor of the city, as prayed for,
certain of the defendants have appealed. We think the record
«1» Reported in 132 Pac. 638.
SPOKANE v. RIDPATH. 5
June 1913 Opinion Per PARKER, J.
warrants us in proceeding upon the theory that the
controlling facts involved are not subject to controversy.
About the year 1888, the city having established the grade
of Sixth avenue in front of appellants' property, graded the
avenue accordingly, but evidently did not then lay sidewalks
thereon. Thereafter appellants improved their property by
grading their lawns with reference to the grade then established.
Thereafter, in the fall of 1904, a petition was filed
with the city authorities asking for the parking and sidewalking
of Sixth avenue, including the portion thereof in front of
appellants' property. This petition was signed by certain
owners of property fronting upon the avenue, but such
owners were the owners of less than "one-half of the property
subject to contribute to such improvement." In this respect the
petition was insufficient as an initiatory step in the making
of the proposed improvement, as will appear by reference to
certain charter provisions to be hereafter noticed.
Thereafter, on December 27, 1904, the board of public works of the
city submitted this petition to the city council, together with
plans and specifications for "regrading, curbing and
sidewalking" the portion of the avenue asked to be improved, and
recommended that the improvement be made. At the same
time, the board of public works submitted to the city council
an ordinance to reestablish the grade of Sixth avenue,
including the portion thereof proposed to be improved, and
recommended its passage. Thereafter, on January 10, 1905, the
city council passed the ordinance reestablishing the grade of
Sixth avenue, the grade thus established being from six to
twenty inches lower than the previously established grade.
Thereafter, on February 28, 1905, the city council instructed
the board of public works "to prepare new plans and
specifications for the sidewalking and curbing" of the portion of
Sixth avenue proposed to be improved. Thereafter, on March
28, the board of public works made its report to the city
council and submitted new plans and specifications which were
then approved by the city council. Thereafter, on April 5,
6 SPOKANE v. RIDPATH.
Opinion Per PARKER, J. 74 Wash.
1905, an ordinance was passed by the city council providing
for the construction of the improvement according to the
plans and specifications which had been approved by the
council on March 28, 1905, and also providing for the creation of
a local improvement district and the levying of special
assessments upon the property therein, including the property of
appellants, to pay the cost of the improvement. This
ordinance was passed by the unanimous vote of the city
council. Thereafter the improvement was constructed, and an
assessment roll made and filed in the usual manner, apportioning
and charging the cost of the improvement to the several lots
and parcels of land within the improvement district, and upon
due notice given to the property owners as the law directs,
there being no protest or objection made to any of the
assessments, the same were duly confirmed by the council by
ordinance passed on September 6, 1905. It is to foreclose the
liens of certain unpaid assessments so made, that this action is
prosecuted.
The argument of counsel for the appellants proceeds upon
the theory that the city council never acquired jurisdiction
to construct this improvement and pay for it by local
assessments levied upon the property of appellants and others. To
support this theory, two principal contentions are advanced:
first, that the making of the improvement upon the local
assessment plan was not initiated in the manner provided by
the charter so as to give the council jurisdiction to proceed
therewith; and second, that the making of the improvement
upon the regrade of the avenue, claimed to be materially
different from the previously established grade, without first
acquiring the right by eminent domain proceedings as against
appellant and other property owners to construct the improvement
upon the new grade, was an omission of a prerequisite
jurisdictional step to the making of the improvement and
levying of the assessment.
The first of these contentions is rested upon the following
provisions of the then existing charter of the city of Spokane:
SPOKANE v. RIDPATH. 7
June 1913 Opinion Per PARKER, J.
"Sec. 61. . . . No improvement, where the whole or
any portion of the cost and expense thereof is to be defrayed
by the collection of special assessments upon the property
specially benefited thereby, shall be ordered unless the owners
of at least one-half of the property subject to contribute to
such improvement, shall file a petition therefor; provided, that
the legal representatives of such owners may sign such
petition for and on behalf of the owners; provided further,
that such improvement may be ordered without petition by
an ordinance which shall have passed by a vote of at least
two-thirds of the whole council."
"Sec. 62. . . . Whenever, in the absence of any petition,
the council shall deem it advisable to order such
improvement, it shall by resolution direct the board of
public works to prepare and transmit a report of such work;
and said board shall thereupon prepare and file such report
in the same manner as if there had been a petition therefor
and favorable report by the board."
It is insisted that, because the petition for the improvement
which was filed in the fall of 1904 was insufficient as an
initiatory step, in view of its want of sufficient number of
signatures of the owners, all subsequent proceedings looking
to the making of the improvement and levying of the
assessment must fall. Admitting, for argument's sake only, that
a petition with a sufficient number of signatures might
become a necessary jurisdictional step in the absence of the
improvement being ordered by ordinance passed by at least a
two-thirds vote of the whole council, it seems to us that, in
view of the fact that the council did eventually order this
improvement by an ordinance passed by its unanimous vote,
it thereafter became immaterial that the petition filed some
months previous asking for the improvement happens to be
defective. We are quite unable to see how what may have
been previously done by the property owners in the way of
attempting to properly petition for this improvement can in
any degree lessen the power of the council to order the
improvement by an ordinance passed by a unanimous vote, as
8 SPOKANE v. RIDPATH.
Opinion Per PARKER, J. 74 Wash.
they are clearly authorized to do by the provisions of SS 61
of the charter above quoted.
It is also insisted that, viewed as an improvement ordered
by the council without petition from the property owners,
the council did not "by resolution direct the board of public
works to prepare and transmit a report of such work," as
provided by SS 62 of the charter above quoted. Even admitting
that this provision of the charter is more than merely
directory in its force, we have noticed that, on February 28,
1905, before the ordering of the improvement by the
ordinance passed by unanimous vote, the council instructed the
board of public works to prepare new plans and
specifications for the improvement, the board having previously
recommended the making of the improvement. It is true that
this action of the council appears in its record in the form of
an informal motion made and carried, rather than in the form
of a resolution. It seems, however, that in substance there is
no difference between a resolution and a motion. Indeed, the
terms are practically synonymous. 34 Cyc. 1667; Black's
Law Dictionary, 1027. We think this action of the council
previous to the final ordering of the improvement by
ordinance by unanimous vote complied with the spirit of the
charter provisions above quoted.
The remaining question is, did the failure of the city to
acquire the right to change the grade of Sixth avenue,
assuming that the change was material, by eminent domain
proceedings, affect the validity of the assessment? It seems
clear that the levying of the assessment to defray the costs
of making the improvement was an exercise of the taxing
power, which is a wholly different power from that of eminent
domain. If appellants were damaged by the change of this
grade, it is manifest that their rights in that regard were
subject to protection in an eminent domain proceeding, or
by interference in their behalf by a court of equity enjoining
the change of grade, or by a suit for damages; but the fact
that they may have been damaged by change of the grade, if
SPOKANE v. RIDPATH. 9
June 1913 Opinion Per PARKER, J.
any such damages have been suffered by them, does not affect
the city's power to levy the assessments here involved. A
similar contention to that made by the appellants here was
disposed of by the supreme court of California in Hornung
v. McCarthy, 126 Cal. 17, 58 Pac. 303, where a
constitutional eminent domain provision similar to our own was
invoked. The court said:
"'Looking at this defense from the most favorable standpoint,
it is evident that it is untenable. The section of the
constitution just quoted refers to, and is intended to
regulate, the exercise of the right of eminent domain; whereas
special assessments for local improvements, such as the tax
bills before us, are referable to and sustainable under the
taxing power. This distinction is well recognized both here
and elsewhere in the United States (Garrett v. St. Louis,
25 Mo. 505, 69 Am. Dec. 475; Lewis on Eminent Domain,
SS 5). If the taxing power has been called into play in the
mode required by law for the purpose of paying for a local
improvement, such as paving or grading a street, it is no
defense to a bill issued therefor to say, as is said here, that
the street, or the improvement, damaged and did not benefit
the property, though, if such were the fact, the party might
have his action (on a proper showing) under the constitution
for such injury. (Householder v. Kansas, 83 Mo. 488.) If
the city had invoked the power of eminent domain unlawfully
in the premises, it could be held actionable therefor,
but that would not interfere with the collection of the special
tax bill for an improvement regularly made under the taxing
power. The right of action which a person would thus have
against the municipality would constitute no just defense to
the claims of the contractor who had made the improvement
and to whom, under the law in question, the tax assessment is
payable.' Our conclusion is, that the assessment was not
void upon the grounds above noted."
No other authority has come to our notice out of harmony
with this view, while the following may be cited in support of
it: Lewis, Eminent Domain (3d ed.), SS 5; Duncan v.
Ramish, 142 Cal. 686, 76 Pac. 661; Engebretsen v. Gay, 158
Cal. 27, 109 Pac. 879; Barfield v. Gleason, 111 Ky. 491,
23 Ky. Law 128, 63 S.W. 964; Louisville Steam Forge Co.
10 CONTINENTAL DISTRIBUTING CO. v. SMITH.
Statement of Case. 74 Wash.
v. Mehler, 112 Ky. 438, 64 S.W. 396, 652; It, re Cruger, 84
N.Y. 619.
It might well be argued, notwithstanding we might regard
the contentions made by counsel for appellants as establishing
the irregularities they claim in the initiation of this
improvement, that, in view of the fact that the assessment was
confirmed upon due notice, without objection upon the part of
any of the property owners, the validity of the assessment as
against all of such defects and irregularities was finally
adjudicated in favor of the city upon its confirmation by the
city council. Rem. & Bal. Code, SSSS 7532, 7533; Rucker
Bros. v. Everett, 66 Wash. 366, 119 Pac. 807, 38 L.R.A.
(N.S.) 582. However, in view of what has been said, we
need not pursue the inquiry along these lines further.
The judgment is affirmed.
CROW, C.J., MOUNT, CHADWICK, and GOSE, JJ., concur.