The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1893-05-15

Again, % tie time this Improvements VS. on
dcred snd the contract made sse coassffn'aonai
restrictions upon municipal indebtedness "sss
In iorce and it appears ln the case 'nas
TIE city OF seattle limited 10 III per cesI On
about sss,ge.oo0, she Already had cat nef oos'-
cations for upward OF tfDU Al amount iatoc-
yond her lawful Indebtedness IEiS ccn1isaon
Of things any one contracting wisa ass -.
bound 20 know, % II or1iuancc 81 was nos ini.y
explicit in limiting the recourse OF the respona-
eut's a.a.raoY 10 the euecsni assessment 70 be
| levied upon south Tsslfsh street properly ne
must be taken 70 have been aware snat At tie
| date of his contract tie power % the CITY 10
agree either express or tmpiiediy. or oy any
war OF original liability or - gusfsntof 20 Pay
| hira any sum Vas completely gone unless pax
haps BY express assignment o. ea'tea' 's''
| erae.
But the resrodnent encsavors to avoid this
tuyn os .g.:Ys hy two arguments: Firsf-Thas
be Ia. right to recover damages Tor the failure
| 70 levy the assessment and procure the fund
second-Thst he had 10 remedy woafsvef when
he brought his suis
ON the art point We ara no. with him This
10 not an action against officers for the neglect
OF . DUTY whereby i.Yeparabis loss has occurred.
II he couId recover ns ali. II must be upon the
contract Of his ass.gnor. or upon his Warrants
The con:rae: called for payments ''out OF a
special fund created for that purpose" ana the
warrants directed tho treasurer 20 pay them
tout OF south Twelfth street improvement
funds. under ordinance No LAS. not otherwise
appropriated" no other considerations inter
veuiug Ii the fund failed the implied agree
ment would be to pay absolutely.
Its true that the debt Iimts imposed upon
municipal corporations are held not 10 imply
where one suffers a wrong 1t their hands which
is ex del!ctu: but whatever might be held to be
the character OF ,hs action. IL is not based upon
a tort, but upon q voluntary delinquency.
Plainly. II such cases A. this were TO De allowed
10 fall within the principles governing accl-
censs due TO the had condition OF strcets. there
might rs well be an end 10 oil restrictive iegis-
lasson upon the powers OF cities 70 incur debt.
Constitutions and acts OF the legislature would
be OF ~ little preventative force - cobwebs in
cyclone
Concerning the remedy. Having contracted
with smart, the statute aud ordinance .3s be-
came part OF the contract, which neither the
state nor the city could alter in any substantial
particular so a. TO jeopardixe the payment
OF the contract price Of the work. There
must be an assessment Of this property to pay
for this work, aud IL the law which Was part
OF this contract had been entirely swept away
and no other substantial pronision made, the
courts would still be bound TO interfere even to
the extent o! themselves making ana enforcing
the assessment ii there were no proper officers
OF the city TO perform that work. But the new
city charter OF 1880. which went into operation
no obstacles whatever in the way Of making
such an assessment A change was made in the
method OF assessment. viz: From the valuation
to frontage, ana the city now rays for street In
terseetsons: the former was al immatcrial
change In the remedy so far a. the contractor
was concerned. but tho latter was OF interest TO
him inssmueh as no might have to rely upon 4
fund which was already ovefdrawn. He was
entitled to have the assessment for tho whole
cost OF tho work spread over the snme property
that was liable Tor IL under the Law governing
bis contract
The record shows that after tho cass OF Wilson
Va. Seattle was decided no steps ware taken
looking toward a new assessment but an
amendment to the charter providing for new
assessments In such cases was made March s.
loa2. after the commencement: OF this action. An
ait vi the Legislature approved March ., 1888,
confirmed this amendment and provided a con-
current remedy ia such cases. this act went into
effect Immediately. The delay In making new
assess ment io- this improvement 10 shown to
have been due TO the doubt which the officials
al the city OF Seattle had as to the legality Of
such proceeding, even after the adoption Of
the charter amendment, without special author
lily from the legislature. Bur where. ~ in this
case, the jurisdiction Of the corporation to order
and eontrae. for the Improvement IL unques-
toned and here that Jurisdiction Was regularly
exercised, and the work was done. NO can dis
cover no valid reasen for holding that the
power of the city 20 levy aud collect
the assessment was exhausted by the
ahortiye effort which resulted In tho Wilson
case. Tho charter Of lS,s. being permissive. aud
having LETT the regulation Of all details to the
council, none OF the provi sioas OF ordinance No
7S5, prescribing the time within which the sew
cral steps for the assessment must bs taken.
could be mandatory. unless it be the single one
OF notice TO property owners. Bat the entire
proceedings looking To the assessment having
been held weld for want Of the notice, the record
Of at assessment was cleared. and 10 person
could object II new proceedings were instituted
and regularly pursued This would no: DC a re-
assessment OF property once legally charged. as
sometimes eccars to maze up deficiency. bat q
rev proceeding from tho beginning. sacn as
hiss been sustained by authority. Pond vs.. Ne
gus, Mass. 20; Hines v. Isavenxorth. } Kan,
ls6. Himmsiuian vs.. Cosran, So Cal. ALL
wssgree with the las: named case in holding
that il was tue right Of the contractor to have a
valid assessment laid uron the property aeas-
a;ea. snd this was rssht which eca.d no; 10
taken sway by a change in tho lsw amounting
10 a deprivation @. the Night tn 70 paid, or by
any neg failure OF the officers az the city
Il seems, however. that the course Of the city in
tais case has not bscn one OF neglect. except IN
the matter ot the notice in the FIRE. instance
After the decision IN thu Wilson case the delay
arose entirely from honest doubt a. 10 the law
OF the case In which ths rsspar deaf seesns TO
have shared. inssmach as he never moved to
have a new assessment made. Under these cir
eumssauccs We do not thiGk respondent was eu-
titled to the Judgment awarded him: but in 80
concluding We desire 10 have II understood .ha
the controlling reasons OF sais iee.sien are the
recuis, provisions OF Ire charter of 1885, which
left il 80 the ely 10 regulate special assessments
the terms Of the contract with smart, and the
fact tina. in juno, issa tire city Of seattle was
prohibited from making Al onea contract fos
such street work by reason es tho debt llyais 4
| -. PER cent. which il Aad largely exceeaca
Ne leave II an entirely open question whether
maaiel pals,sss nav net. under aiifssea; cream
stances. make themselves Liable by omissions Of
| tie character presented here.
Whether the sciien Of the rnaynr. clerk ana
Comptroller ii issuing warrants 10 smart, the
contractor. In advance o. tas cosiecsloe Of the
asssss glenI WAS regular or not ara unable TO
saw, - tac ordinances ot shs city GA this sub
/ tscs ATE no; IA tie record ees However that
usF -. tSey are not ent.sled 70 cvRu that
sEacan, @! confederation which attaches ~ the
gs1srsl variant 81 sarA SIS CORPORATION upan
ia .reAsary, Eas eeaiyses in tAis case Al has
| hSsa SAID. called ter payment ogst Of spseia.
fan. 80 IL csssEsi. sHt RS s}sse WAS stated an,
| subsequent clause peosi&@d iast warrants
/ should IN issued "a aAass A. ias first regular
meeting ~ tue eesafaoa soaasll ia each month
frosa ia3y - tsecegaaS- Inclusive t0s u reg sszs
O. The contract price % w0gA e.ssaEle;e,s Daring
the preceding asogsa, sgss SSr sNc balance a, the
Trst Eaestng 81 sae ee9Geti Alter fha sna an
ct gse wa7s aaa fts sgafovs, - Ehs city su-.
vsySs. The warrants oefoEs were SANG. in m .
! last s0ag maasAs. and respondent Claimed sua
/ wAs &s.ossa lzseFest al Tea per eenE upaa each
o. tasEa tsoNs tie a@ts 81 its presentation tn tae
/ srs&sasvr ulthia !ss sxys 81 iss issue. 40.
,so9ssy shss wss error. evea tAoNga the e4tY
/ wee Get3y rssIoas BE. ter wAsa the eau trsS,
sss sasaso Il gzasE have s<sa uaasrss0os sh&: