Bellingham Bay Company v. New Whatcom

Prior to February 16, 1891, there were in the state of Washington two cities, known as 'Whatcom' and 'New Whatcom.' On that date they were consolidated in conformity with the general laws of the state, the consolidated city taking the title of the 'City of New Whatcom.' In July, 1890, and prior to the consolidation, New Whatcom ordered the improvement of Elk street, between Elk street east and North street. The contract therefor was let in August, 1890. The contract was completed and the improvement accepted by the city, and in October, 1890, an assessment was levied upon the abutting property. After the consolidation, the present city of New Whatcom commenced several suits in the superior court of Whatcom county against various defendants owning lots abutting on the improvement, and sought to obtain decrees foreclosing the liens created by the assessment. On January 13, 1894, the superior court entered decrees annulling the assessment, and these decrees were affirmed by the supreme court of the state on February 14, 1895. The ground of the decision was, as stated by the trial court in its conclusions of law, 'that said assessments were not made or apportioned in accordance with the benefits received by the property, but were made upon an arbitrary rule, irrespective of the benefits.' On March 9, 1893, the legislature passed a general act providing for the reassessment of the cost of local improvements in case the original assessment shall have been or may be directly or indirectly set aside, annulled, or declared void by any court. Laws Wash. 1893, p. 226.

Sections 4, 5, and 8 bear upon the matter of notice, and are as follows:

'Sec. 4. Upon receiving the said assessment roll the clerk of such city or town shall give notice by three (3) successive publications in the official newspaper of such city or town, that such assessment roll is on file in his office, the date of filing of same, and said notice shall state a time at which the council will hear and consider objections to said assessment roll by the parties aggrieved by such assessment. The owner or owners of any property which is assessed in such assessment roll, whether named or not in such roll, may within ten (10) days from the last publication provided herein, file with the clerk his objections in writing to said assessment.

'Sec. 5. At the time appointed for hearing objections to such assessment the council shall hear and determine all objections which have been filed by any party interested, to the regularity of the proceedings in making such reassessment and to the correctness of the amount of such reassessment, or of the amount levied on any particular lot or parcel of land; and the council shall have the power to adjourn such hearing from time to time, and shall have power, in their discretion, to revise, correct, confirm or set aside, and to order that such assessment be made de novo, and such council shall pass an order approving and confirming said proceedings and said reassessment as corrected by them, and their decision and order shall be a final determination of the regularity, validity and correctness of said reassessment, to the amount thereof, levied on each lot or parcel of land. If the council of any such city consists of two houses the hearing shall be had before a joint session, but the ordinance approving and confirming the reassessment shall be passed in the same manner as other ordinances.'

'Sec. 8. Any person who has filed objections to such new assessment or reassessment, as hereinbefore provided, shall have the right to appeal to the superior court of this state and county in which such city or town may be situated.'

On March 18, 1895, the city council passed an ordinance prescribing the mode of procedure for collecting the cost of a local reassessment upon the property benefited thereby. On June 10, 1895, it ordered a new assessment upon the blocks, lots, and parcels of land benefited by the improvement on Elk street, hereinbefore described, and directed the various officers of the city to take the steps required by the general ordinance of March 18th. These steps were all taken in conformity to such ordinance, and on August 7, 1895, a further ordinance was passed, reciting what had been done, approving it, and confirming the reassessment.

The recital in that ordinance in respect to notice was as follows:

'Whereas, said city council did on the 8th day of July, 1895, order said assessment roll filed in the office of the city clerk, and fixed Monday, July 22d, 1895, at 7:30 p. m., as a time at which they would hear, consider and determine any and all objections to the regularity of the proceedings in making such assessments, or to the amount to be assessed upon any block, lot or tract of land for said improvements; and

'Whereas, notice of such hearing was duly published in the official paper of the city of New Whatcom, to wit, in the Daily Reveille, in three consecutive issues thereof, the same being the issues of July 9th, 10th and 11th, 1895.'

The Bellingham Bay & British Columbia Railroad Company was a private corporation, organized under the laws of the state of California, but authorized to do business in the state of Washington, and having its principal office in the city of New Whatcom. It was the owner of certain property abutting upon the Elk street improvement, and which, by the proceedings of the city council, was held benefited by such improvement, and charged with a portion of the cost. Failing to pay this charge, the city of New Whatcom instituted suit in the superior court of Whatcom county to foreclose the liens created by the reassessment. A decree was rendered in favor of the city, which, on appeal, was affirmed by the supreme court on December 8, 1896 (16 Wash. 131, 47 Pac. 236), whereupon this writ of error was sued out.

L. T. Michener, for plaintiffs in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.