Tacoma Bituminous Paving Co. v. Sternberg

The opinion of the court was delivered by

Reavis, C. J.

Action in mandamus. The petitioner (appellant), is the holder of street grade assessment warrants issued by the city of Tacoma for the improvement of Pacific avenue in said city. The action was begun by motion and affidavit. The evidence was stipulated, and findings thereon made by the court. The defendant is the city treasurer. The material facts are that the warrants •were drawn upon a local improvement fund created by the city council, and under Ordinance ISTo. 876, passed the 15th day of August, 1893. The ordinance creates the fund to pay for the improvement and describes specifically the property to hear the burden. On the same day the council adopted the following resolution:

“That the time which shall hereafter he set at which the assessment roll for the paving of Pacific avenue from South Seventeenth street to South Twenty-fifth street shall become delinquent shall he at least two years from the time of the completion of said improvement.”

On the 25th of August following, the contract for the improvement of the street was executed between the appellant and the city of Tacoma. The contract recites that the paving company will improve the avenue in conformity with the terms of the ordinance as amended, and according to the drawings and specifications in the office of the hoard of public works, for the sum of $69,950. There is provision for the commencement of the work on the 30th of August, 1893, the whole to he completed within ninety days from the date of the contract, with some exceptions for contingent delays. The manner of payment is provided, — that the city shall issue to the paving company or its assigns warrants on the special tax fund assessed for making such improvement to the amount of seventy-five per cent, during the progress of the work, and the whole thereof upon its completion, — and certain assurances are given that claims for material and labor have been satisfied. It is also stipulated that, in consideration of the issuing of the warrants as stated, the paving company waives the right to demand and receive payment from the city of any money from time to time as provided in the charter, and the following stipulation is made:

“It is the understanding and ag’reement of the partieshereto that the party of the second part waives all right to have the assessment upon the property owners become due prior to two and one-half years after the completion of this improvement, thereby waiving no rights, however, as to the interest to accrue on said warrants.”

The work under the contract was completed by the paving company about the 1st of November, 1893. On the 11th of November, 1893, an ordinance (No. 918) was adopted by the city council authorizing the drawing of warrants on the general fund for the interest thereafter to become due on the street improvement warrants. The ordinance provided that warrants be drawn on the general fund at times thereafter to he set by the city council when the assessment roll for the improvement of Pacific avenue should become delinquent, and providing: “Said warrants shall be in an amount equal to two' and one-half years’ interest at eight per cent, per annum on any and all warrants which shall have been or may hereafter be issued for the improvement of the said street.” The assessment roll was approved by the council on the 3d of February, 1894, and the council then, in accordance with law, fixed the time within which the assessment might be paid to the city treasurer, which time expires on the 18th of hlarch, 1896. The contract price of the improvement was $69,950, and the amount assessed against the property owners ivas that amount. On the 1st day of April, 1896, appellant presented its warrants to the city •treasurer, and demanded payment of the same, together with the interest accrued thereon. The treasurer tendered the amount of the warrants, together, with interest accrued thereon at the rate of seven per cent, per anmim from the 18th of March, 1896, to the 1st of April, 1896, which tender ivas refused by appellant, it demanding interest from the dates at which the several warrants were originally presented for payment and payment refused for want of funds, to the said 1st of April, 1896, at the rate of eight per cent, per annum. During the pendency of the action defendant has paid the plaintiff the face of the Avarrants Avithout any interest thereon, under an agreement that payment shall not prejudice either party in the action. On the 1st of April, 1896, the treasurer held in cash collected upon the assessment roll $21,008.43, which sum was sufficient to pay appellant’s warrants, together AATith interest as demanded, and also to pay all unpaid Avarrants draAvn on the fund issued prior to plaintiff’s AA-arrants, together Avith interest thereon at the rate of eight per cent, per annum; and there was uncollected then upon the assessment roll $44,386.60, together with whatever interest might haAre accumulated from the 18th of March, 1896, to the 1st of April, 1896. There were then outstanding, unpaid, but presented for payment, Avarrants upon the fund to the amount of $64,775.08. The general fund Avarrants authorized by Ordinance Eo. 918 had never heen issued. After the completion of the work and the assessment was made, such assessment was declared- A7oid in the superior court of Pierce county, which decision Avas affirmed upon appeal to this court, and, the city under the statute authorizing reassessments, is reassessing the cost and expense of the improvement upon the abutting property for the same sum as specified in the original assessment, together with interest from the 18th of March, 1896.

The Avarrants held bv appellant Avere originally presented in the fall -of 1893. It will be observed that the contract provided that appellant Avaived all right to have the assessment become due until two and one-half years after the completion of the improvement. The resolution adopted at the same time the ordinance was enacted shows that the local tax assessed was not to be due until at least two years from the time the improvement was made. The stipulations of the contract show that the local improvement warrants, when issued, were received by appellant in payment. It is apparent from the resolution and'the contract that no interest would accrue upon these warrants issued against the improvement fund until the tax became delinquent, March 18, 1896; that is, the taxpayer against whom this special fund was levied could not be charged with interest until his delinquency occurred. The ordinance providing for the local improvement made provision for the payment of a certain sum, and the assessment was levied in that amount. At this time the contract gave the appellant the right to have collected the sum assessed. It was its duty to look to this fund for its complete payment. It has been determined that there is no general liability of the city for either principal or interest on such warrants, in the absence of a specific contract on the part of the city or the city’s actual collection and misappropriation of the funds from the local assessment. The case of Philadelphia, Mortgage & Trust Co. v. New Whatcom, 19 Wash. 225 (52 Pac. 1063), cited by counsel for appellant, has been virtually overruled and the rule just stated announced in Potter v. Whatcom, 25 Wash. 207 (65 Pac. 197). But we have seen from the purport of the contract and the resolution it was not in contemplation that these warrants should bear interest until due; that, is, until the tax became delinquent. The special fund created for the payment of the local improvement is or will be in the possession of the city treasurer for the payment of appellant’s warrants, and all others issued against the fund, and payable, with interest thereon from the 18th day of March, 1896, at seven per cent. The special fund was limited to the estimated cost and contract price, and the appellant contracted to loot to this fund for its payment. It is evident that at the time the demand was made and the action instituted, the tender of the defendant was all that plaintiff was entitled to out of the local improvement fund. Whatever claim appellant may have by virtue of Ordinance Mo. 918, providing for the drawing of warrants on the general fund for interest for two and one-half years at eight per cent., is not before the court in this action. This is a proceeding in mandamus to compel the city treasurer to pay what is due appellant from the local improvement fund created by the city council. As has been seen, the city treasurer tendered the amount due appellant on its warrants from this fund. There is no plain nor clear duty imposed on the treasurer to pay from any other fund any amount claimed by appellant. Suggestions of claims against the city generally for interest, urged by counsel for appellant, cannot he ihe subject of litigation in this proceeding.

The judgment is affirmed.

Anders, Fullerton, White and Dunbar, JJ., concur.