Jones v. City of Seattle

The opinion of the court was delivered by

Gordon, J.

Appellant is the owner of certain lots in the city of Seattle, which were included within the limits of an assessment district established for the purpose of paying the expenses of replanting and otherwise improving a part of Eirst avenue in said city. He brought this action for .the purpose of enjoining the city from issuing, and respondent Smart & Co', from receiving, certain improvement bonds in payment of the contract price for said improvement, which was undertaken pursuant to the provisions of ch. 96, Laws 1893, p. 231; ch. 110, Laws 1897, p. 316; and various provisions of article 8 of the city charter adopted March 3, 1896. The lower court sustained separate demurrers to the complaint; and, the plaintiff having refused to amend and elected to stand by his complaint, judgment was given dismissing the action, and the plaintiff has appealed.

1. The first objection urged is that no notice of hearing or intention of the council to act upon the subject matter of making the improvement was ever given or made. It appears from the complaint that the proceeding was instituted by a petition to the city council, which petition was signed by the owners of a majority of the property fronting upon the street and assessable to pay the cost of tlie improvement. It was not necessary that any notice should he given before the council could legally act upon this petition. It being conceded that the petition conformed to the statute and was joined in by the owners of the property chargeable with the cost of the improvement, the council were authorized to proceed forthwith without giving any notice. Subdivision 2 of § 11 of article 8 of the city charter expressly authorized the council to proceed upon receiving such a petition, and neither the charter nor any provision of the statute requires notice.

'2. The act of 1897 (Session Laws, p. 316), in effect provides that, when local improvements are ordered in a city of the first class, the cost of that part of the improvement included within the limits of the street intersections may be included in the amount of the total cost assessed against the abutting property; and § 2 provides that, before exercising the power granted by that act, the city council shall, by general ordinance, declare its intention to make such improvement under the provisions of that act. The act also contains this provision, viz.:

“ Nothing herein shall be construed as repealing or modifying any existing manner and method for cities of the first class to make improvements as herein provided for, but shall be construed as an additional and concurrent power and authority.”

It is claimed that the ordinance which authorized the improvement in question did not comply with this act; but it appears from the complaint that by ordinance No. 4492, approved May 5, 1897, the city council declared it to be the intention of the city to make all improvements of the character here called in question under the provisions of the act of 1897, supra. The provisions of that ordinance must be considered in connection with the special ordinance providing for this improvement. The two must be construed together. In fact, §3 of the ordinance directing and authorizing this improvement, provides that the assessment “shall he made upon said property in all respects as provided by said article 8 of the city charter as now in force, and said ordinance Ho. 3349 as amended by ordinance Ho. 3440.” Construing this special improvement ordinance in connection with the general ordinance to which it expressly refers, it becomes at once apparent that the improvement is made pursuant to the act of 1897, supra, which, as We have seen, authorizes the inclusion in the amount of the total cost assessed to the property included within the assessment district of the cost of that portion of the improvement which is included within the limits of street intersections; and the objection is without force.

3. It is next urged that, under the system adopted by the council for the letting of contracts, it is impossible to determine whose bid would be the lowest, the law requiring that all contracts “ shall be let to the lowest bidder.” Under the system referred to, different portions of the work are segregated and bids are received for each portion. We think this is a matter solely within the discretion of the city council; and if it is decided by them, as it was in the present instance, that, by pursuing such a course, the whole improvement can be made at less cost than by one letting, there is nothing in the law applicable to the case which will prevent such a course being pursued.

4. Section 12 of article 8 of the city charter provides that, upon return of the assessment roll, notice must be given in the official newspaper of the city notifying all persons interested of the filing of the roll and requiring them to appear at a time fixed (not less than fifteen days from the date of the notice), and make objections thereto. Such notice was given in the present case, and it is urged that it is insufficient. No authorities are cited to sustain this view, and, inasmuch as the notice is in compliance with the charter requirement, we are disposed to hold it sufficient. We are also inclined to think that the notice in the present case might he held sufficient, under New Whatcom v. Bellingham Bay Improvement Co., 16 Wash. 131 (47 Pac. 236).

6. What has been said under the last point discussed is sufficient to dispose of the contention that the notice to the property owner of his opportunity to redeem from the assessment was insufficient. The notice in question was mailed by the clerk, and conforms in every respect to § 1 of ch. 96, Laws 1893, p. 231.

6. The final contention is that the ordinance providing for the assessment in the present case did not prescribe the form of the bonds to be issued; and subdivision 3 of § 13 of article 8 of the city charter is relied upon in support of the contention. Among other provisions in that section is the following:

“ Such ordinance shall prescribe the form of bonds to be issued, and may provide that the entire issue of bonds shall be issued to the contractor in payment for the making of the improvement. Otherwise the city comptroller shall sell the bonds at not less than their par value net, and pay the proceeds thereof to the city treasurer, to be by him kept in the fund to be paid out on warrants drawn thereon as other city moneys are disbursed by him.”

The contract for the improvement in the case we are considering was entered into long before the passage of the ordinance approving the assessment roll, and the contract in terms provided for paying the contractor by delivering to him the entire issue of bonds. This course is authorized by the section of the charter just quoted; and it is admitted by the complaint that at the time of entering into the contract, and at all times since, there was in force a general ordinance of the city which prescribed the form of all local improvement bonds, or bonds issued in payment of improvements of the character with which we are at present concerned. This, we think, was a substantial compliance with the requirements of the charter.

We think the demurrers were properly sustained, and the judgment of the superior court is affirmed.

Scott, C. J., and Andees, Rea vis and Dunbab, JJ., concur.