The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1896-01-26
STREET GRADE TAXES
Another Legal Victory for the
City.
ReAssEssMENT VAL o
Supreme Court Decision IN the South
Fourteenth street Case-Char-
ter Provision Effective.

the corporation counsel for professional
reasons taking no part in the controversy.
The supreme court has handed down Ge-
cision sus staining the city in its reassess-
ment for the grading Of South Fourteenth
street The decision in some respects goes
even further than that rendered in the Di-
vision street case, but an odd feature VI il
Is that Judge Dunbar who wrote that de-
cision, dlssents from the conclusions IN this
although ne has not yet filed q dissenting
opinion. The text OF the decision is as fol-
lows:
This action was brought 20 prevent the
coliecUon or a tax for a street improve
ment levied upon the property OF the re-
spondents. and 10 have such tax declared
invalid and set aside and the lien thereof
removed. A motion was interposed 10 strike
the statement of facts from the record for
the reason that Ii could not be considered
for want OF sufficient exceptions to the
findings of fact made by the trial court
Upon the hearing of such motion it was
denied. for the reason that the statement
could be considered in the investigation Of
the errors assigned upon the denial of de-
PENDANTS motion for non-suit, though no
exceptions had been taken TO the findings
Of fact.
Upon a further examination of the record
we have become satisfied that the decision
or the case requires no examination of the
statement Of facts. The findings of fact
by the trial court were very full and COM
plete and their correctness is not chal-
lenSed in the brief OF appellants. Every
issue of fact presented by the pleadings
was covered by such findings, and they are
as favorable TO the appellants as they could
ask
From such findings, IL appears, among
other things that proceedings for the i'm
provement of Fourteenth street were COM
menced under the provisions of the char
Tor IF he -f-w 8 l. 49,
legislature by the act of 1856; that while
such proceedings were pending, the free
holders charter was adopted, and under its
provisions the Improvement was completed
and accepted by the city and an assess
ment made upon the abuttng property to
pay the cost of such improvement; that
reimbursement had been declared void and
of no effect, by the judgment of court
of competent jurisdiction; that hereafter an
amendment to said freeholders charter was
adopted, to the effect that, In all cases of
special assessments for local improve
ments, where said assessments had failed
TO be valid in whole or in part because
for want OF form, insufficency, informally
or irregularity or noncompliance with the
charter provisions governing such assess
ments. the city council were authorized to
reassess such special taxes or assessments
and to enforce their collection in accord
ance with the provisions of laws or ordln-
sessment:" that by virtue of the authority
conferred by this amendment a reassess-
ment was made upon the abutting proper
~ to pay for this improvement; that the
proceedings under which this reassess-
ment was made were In all respects regular
and such as were required by the provisions
OF said freeholders charter, as amended.
The trial court held that the original as
sessment was absolutely void for the rea-
son that the ordinance providing for the
Improvement had not been passed by a
unanimous vote of the council. The facts
upon which Il founded such holding were
that one L. +. Niesz, who was a member
of the council OF the city at the time. and
present when the vote was taken, did not
vote therefor: but it appeared that at the
time the vote was taken the mayor was
absent from the city, and that said Niesz
was the acting mayor, and as such presid-
ing at the meeting of the council at which
the ordinance was passed. This being so,
the sufficiency of the vote must depend
upon whether or not said Niesz, as such
acting mayor, had a right to vote upon
questions before the council.
There was a provision In the charter of
the city which required the mayor TO pre-
side at meetings of the common council,
and further provision that If he was alb
sent from such meeting the council should
select one OF its members to preside. There
was also a provision to the effect that If
the mayor was absent from the city the
common council should select one of its
number as acting mayor. and that the per-
son so selected should thereupon become
vested with all the powers of the mayor
until the return of such officer II there
had been only one provision in relation TO
the duty OF the council 10 select a presd-
ing officer when the mayor did not attend
meeting there would be reason for hold
ing that the selection of one of the mem
hers OF the council TO so preside would not
deprive him Of his right TO vote. But the
two distinct provisions. one of which went
simply 10 the selection of a presiding Off
Ger and the other to the election of an act
ing mayor. with all the powers of such
officer. including that Of presiding at the
council meetings. can only be given force
by holding that in one case the person Sc
lected retained the rights Of n member Of
the council. and in the other that he aid
not IN view or these provisions, we think
that Acting Mayor Niesz who presided
over the meeting, was not at the time on
titled 10 vote as a member of the common
council, and that the ordinance received a
sufficient vote
But If We are right in the conclusion n
which we have come as TO the force IN 10
given to the amendment 10 the charter
above set ont. the question as 10 whe+he-
or not THIS ordinance was proparlv passa7
IS immater.al In the case OF Frederick
Vs c.ty Of Seattle. Just decided II was
held that reassassment provided for BY
the act az the Legislature passed in iSq7coul3
be sustained even though the original as
sessme1t was void for want Of proper stems
~ give tie council jurisdiction az The sub
ject matter. and IN our opinion. this amend
ment 90 the charter gave 10 the common
council substantially the same AUTHORITY.
as Ga the act 81 the legislature under con-
sitera'ion .u that case. The Ian~u4e,a fs
r#1H Fe.t 80 80 g..