DocketNumber: No. 1519
Citation Numbers: 10 Wash. 435, 38 P. 1131, 1894 Wash. LEXIS 240
Judges: Dunbar
Filed Date: 12/28/1894
Status: Precedential
Modified Date: 10/19/2024
The opinion of the court was delivered by
It would seem from the record in this, case, that the contract which the city entered into on June 26, 1890, or which it attempted to enter into, through Mayor Moran, was not in conformity with the ordinance which had been passed by the council, providing for the improvement of South Twelfth street, as said ordinance required the street to be graded from Yesler avenue to Stacy street, and sidewalks constructed on both co-extensive with the grade thereof between said points, under the'direction and supervision of the city engineer. This contract made an entirely new grade, or assessment, district from the one contemplated by the ordinance, and could not, therefore, under the rule-laid down by this court in Buckley v. Tacoma, 9 Wash. 253. (37 Pac. 441), be enforced.
An investigation of the record in this case convinces us-that the testimony overwhelmingly shows the fact to be that, the contract which Smart did enter into was never performed, but that the work was done in a manner which was in gross, violation of the contract, and of the ordinance providing for the improvement of said South Twelfth street, in a manner which was absolutely regardless of the interests of the respondents,that the work which was done was actually a damage
The appellants cite Cooley on Taxation (2d ed.), p. 671, to sustain their contention in this regard. The learned author on that page states the general rule, which is sustained by authority generally, that—
“ It is in general no defense to an assessment that the contract for the work has not been performed according to its terms. If the proper authorities have passed upon the question and accepted the work as satisfactory, the acceptance must be conclusive; there cannot and ought not to be an appeal from them to court or jury.” “But,” says the author, ‘ ‘ this doctrine must be confined within its proper limits; it cannot be extended to cover a case in which the authorities, after contracting for one thing, have seen fit to accept something different in its place ; for if this might be done, all statutory restraints upon the action of local authorities in these cases would be of no more force than they should see fit to allow them. And no doubt if it were claimed that by fraud the cost of a work was purposely made excessive, the fact might be inquired into and redress*438 obtained, either in a direct proceeding for the purpose, or on appeal if a competent appellate tribunal was provided.”
It seems plain that the strict requirements of the statute were not met in this case, and it has been decided by this court in Buckley v. Tacoma, supra, and in Spokane Falls v. Browne, 3 Wash. 84 (27 Pac. 1077), that the power to levy special assessments is to be construed strictly, that the mode prescribed is the measure of power, and that the material requirements must be complied with before there is any liability.
On the question of estoppel to inquire into the compliance or non-compliance with the conditions of the contract it was decided in Oregon & C. R. Co. v. City of Portland, 25 Or. 229 (35 Pac. 452), that—
“Where the measure of assessments for street improvements in a city is limited to the amount of benefits derived," and the common council is invested with a discretion in determining that amount, the courts will not review the determination of the council so long as its discretion is honestly exercised, and not abused. But where it appears that there is no necessity for the improvement; that, as made, it never has been used, though completed over two years, and probably never will be used; and that property assessed for benefits was not benefited, but actually damaged, a decree enjoining the collection of such assessment is proper.”
In this case it conclusively appears from the record that the property assessed was not benefited by the expense imcurred. It also conclusively appears that the street is in a worse condition than it was before the attempted improvements were made, and it must necessarity follow that the property adjoining has been damaged instead of improved. It appears also from the record in this case that the property holders remonstrated time and time again with the authorities against the manner in which the work was being conducted, but no attention was paid to their remonstrances. And it also appears that the defects in the work are so open and notorious that the city must be presumed to have taken notice of the non-fulfillment of the contract on the part of the contractor.
Scott and Stiles, JJ., concur.