The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1893-01-29
THE DORIAN DECISION.
Important Ruling by the State
Supreme Court.
SEQUEL TO THE WILSON CASE.
An Arbitrary and Embarrassing Decree
Modifed-Tbousands of Dollars
Saved to the City.

sands OF dollars OF assessments for street
| improvements as TO which the city's
| counsel felt great embarrassment It has
| the merit Of proving, moreover. that the
| supreme court has the courage 10 recede
| from position when It finds it ua;enable.
| In 1891. in the appeal OF Wilson against
| the city from 4 decision of the superior
! court. the higher tribunal decided against
| the city, the effect being TO guash the
| assessment levied upon property owners
| Tor the improvement OF South Twelfth
| street. The court held that the council
could know that the proper notice had
been given gin no other way than by the
certificate or aft iavit of the publisher. and
! until that document lay before it it had
no jurisdiction" As in no case in the
history OF the city had there been such a
proceeding, the effect was 10 create an
informaity Pin every assessment.
The case OF the city against Francis
Doran and Elizabeth Anderson was under
trial at the time. conducted by w. s..
Relfe and w. IL. Moore on behalf of the
city, and they being defeated in the
superior court. appealed and raised the
point IN question as direct issue. Their
brief was very able pleading and the re-
suit has been complete victory for them
and for the city.
The decision is given in full. as it is of
interest to every delinquent liable to as
sessment made under the old charter. 1t
is as follows:
In April, 1890. the city OF Seattle commenced
Two suits to ioreclose liens claimed by it against
the defendants for the cost OF the improvement
OF Filth street, assessed against certain property
owned by said defendants respectively, Ole suit
being to enforce the lien against lots aad in
block b Of Boren's addition to the city, be ong
ing 70 Elizabeth Anderson, and the other TO
foreclcse SUCH lien against lot OF blocl; 81 OF
said addition, the property of Francis Doran.
BY consent the cases were tried together. Judg-
ment was rendered for the defendants. and the
city appealed
The principal error complained OF by the ap-
pelant is that the court refused TO permit testi-
mony to prove the publication of the notice re-
garding the assessment roll required by section
of ordinance No. 737, which is as follows:
Sec 5. That within three days after filing
the roll the clerk shall give notice by publica-
ton OF such filing, That the same is open 20 in
spect!on, and that any person feeling aggrieyed
thereby shall apply to the council at It's first
regular meeting, the date to be therein stated.
Notice to be published ten days in each success
slve issue of news paper
1t seems that the court refused to permit this
proof in accordance with the opinion heretofore
rendered by this court in Wilson VS.. City of Sc
council could know OF the fact of the publica-
ton IN no other way than by the certificate
affidavit OF the publisher, and until that docu-
ment was before it, il had no jurisdiction to
proceed.
The language used in Wilson against the city
OF Seattle in this particular is somewhat I'M
fortunate. The matter Itself was not directly
Ill issue in said cause, and no particular atten-
ton had been directed thereto There is moth
Ing In the charter. or in any OF the dnances of
said city to which CUR attention has been
called, which requires the proof of the publica.
ton OF such notice to be preserved by the city
clerk in any particular way, or at all, for that
matter, though doubtless the city records
should show in some way that such notice was
published, and a regular way would be by an
affidavit OF the publisher, ana such affidavit
thus appearing would be held to be prima facie
proof tending to establish the publication of
the notice would be- permissible. The court
below WAS Justified under the decision men,
toned in holding as it did, but we are satisfied
that that decision went too far 1t is the fact of
the publication which gave the city council
jurisdiction to proceed, and not the proof OF it,
under the circumstances. q Dillon, MI. Cor,
4th Ed. S500)
The appellant sought to prove ordinance No
go, directing the improvement, by introducing
the ordnance book into which the same had
been copied. BY this copy it did not appear
that said ordinance had been approved or signed
by the mayor There was proof to show that
the original ordinance had been destroyed by
fire. and that it had been approved and signed
by jacob fur,h, acting mayor. The respondent
objected 10 this proof on the ground that parol
testimony could not be introduced to show that
the ord nance had in fact been signed, Is the Of
flcial record thereof failed TO show il. AMI he
further Obj Gets upon the ground that it did not
sufficiently appear that said said Jacob Furth
was the acting mayor or mad authority to sign
said ordinance
Upon the first proposition satisfied that
p1Toi proof was admissible to show the tact that
the ordinance had been signed. This testimony
was not contradiction of the record, but was
offered to supply dciec. or omission The
proof showed that il was the clerks custom, in
copying the ordinances into the ordinance book
not % write he mayors name therein, but to
leave the place blank, and that the mayor would
therea!t ter, from time 20 time. resign said ord-
nance IN said book. In this instance il had not
been signed. see knight vs.. Railway Co, 70
Mo. 231
As to the further point in relation 10 the an.
thority possessed by Furth, it appears tina. some
weeks prior 10 the time ordinance No. 9-5was
pa sed, the mayor stated TO the council tna: he
to be absent from the city for some weeks.
whereupon the council elected Councilman
jacob FuEth 10 act during his absence
II Is coGtended by the respondent that there
wa nothing to show the mayor was not III the
city nj the time this ord nance was aprroyed
aud for that reason the proof was insufficient to
SHOW any authority in Furth to act The char
ter provided that during the temporary absence
OF the mayor OF the city, or ii he was from ai!y
reason unable 10 act, the council should eject
one o. their own members acting mayor, and
tEereupon the acting mayor should transact all
the duties Of said Office during said Temporary
absence or disability.
Respondent urges in this connection ,hs.
there should have been proof OF the mayors
disability or INABILITY TN at saii time hv rea
Fu.,h mai ssrye! acting mayor from time [,
time since tha time Of bis election down 10 AMI
Including the time of the HassaCc and approval
o. this ordinance. The proof is not entirely
clear rs 70 whether the regular mayor was nh.
sen. from the city during all this time nor IL
there any proc: 10 SHOW tina. he was Iucolnpe-
tent or unable 10 act for any other reason Bat
We think :hat under the circumstances there
WAS sufficient proof prilna faci 10 show author.
Iiy IN EuTtA 10 approve the ordinance as actin,
icaynr.
\ further point Is made by the RESPONDENTS
that the judgment should Dc affirmed whatever
view se Jasy entertain OF the preceding maj
tsrs, on the ground tina: there is 40 proof that 4
majority OF the property owners residing along
the line OF said improvements had psti;!oue,
therefor, or ;hat sad improvements were
authorized al a REGULAR meeting OF the CITY
council. 81! the members present voting IN the
affirmative. The record Of the meeting attas
time this ordinance was passed states thar the
sauIe wa> pass,d, and that several councilmen.
raj y4ta in fhaa