Kline v. City of Tacoma

The opinion of the court was delivered by

Dunbar, J.

This action, it'seems to us, falls squarely within the decision announced by this court in Buckley v. Tacoma, 9 Wash. 253 (37 Pac. 441). It was conceded by one of the attorneys for respondents that the case in its general features could not be distinguished from that case. It was contended, however, by respondents’ other attorney that there were some distinguishing features; but we are entirely unable to discover them.

The main proposition decided in the Buchley case was that the improvement had not been ordered by resolution, as required by the charter. In the case at bar, the resolution for the improvement is identical with that in the former case. It is argued by counsel for respondents that it was sufficient that the resolution declared the intention of the council to improve these streets, but in the Buchley case this court said:

“ But, perhaps, the greatest defect of this resolution is that, while it declares the intention of the council to improve N street, it does not order anything, and furnishes no basis for any action on the part of the engineer and board of public works.”

It is contended earnestly by the respondents that this action cannot be maintained because it is a collateral proceeding instead of a direct one. The case of Buckley v. Tacoma was also a collateral attack, if indeed the present case is a collateral, instead of a direct, attack. But', conceding for the purposes of this case, though a doubtful proposition considering the fact that the law makes no-provision for an appeal from such orders, that this is a collateral proceeding, the point raised by the respondents is not well taken; for even collateral attacks will be entertained where the judgment or action is absolutely void. It was held by this court in the case above cited that the action of the corporation was void. After mentioning the authority which was granted to the corporation to improve the streets, and asserting that under the facts shown in that case the corporation had exceeded its authority, this court said:

“ It is unnecessary to cite authorities on these points. The A B G of the laws of municipal corporations, that the power to levy special assessments is to be construed strictly, that the mode prescribed is the measure of power, and that material requirements must be complied with before there is any liability, is all that need be quoted. Spokane Falls v. Browne, 3 Wash. 84 (27 Pac. 1077). An assessment made contrary to these principles is void, and an injunction lies to restrain its collection. Dill. Mun. Corp. §§ 803-4; High, Injunctions, § 539.”

We also held there that the objections raised by the appellant went to the jurisdiction of the city to make the improvements at all at the expense of abutting property, by reason of a complete failure to carry out the plain conditions of the charter; which were conditions precedent to the exercise of the power.

Long and learned briefs have been filed by the attorneys for respondents in support of their contentions, but as this court went into many of the questions discussed there at some length in the case mentioned above, and decided it adversely to the respondents’ contention, we do not feel called upon now to again enter upon a discussion of those questions.

So far as the question of waiver is concerned, we think the many cases cited by respondents on that proposition are not applicable to the facts shown in the case at bar.

The judgment will, therefore, be reversed.

Scott, Anders and Gordon, JJ., concur.