The Letter That Asked: Is Olympia's Street-Tax Ordinance Even Legal?

Editor Tribune: What is the matter with our city assessments with regard to street improvements? Are they illegal? What steps are our city authorities taking to collect the same? If they are not collected or are declared void by the courts, will the burden fall upon all the tax-payers owning property within the city limits? The above and kindred questions are propounded daily on our streets. If these assessments are illegal and void the sooner that fact is known and understood the better for all parties interested. If valid, their collection should be enforced.

Can there be any reasonable doubt to the ordinary mind that ordinance No. 495 of Olympia, under which such assessments were made, is void, as contravening both the state and United States constitutional provisions that no person shall be deprived of life, liberty or property without due process of law? This ordinance provides for making the assessment without notice to the owner, that he may appear at a time and place to be named and object to the levy thereof before it becomes a charge on his property. This right is fundamental and he cannot be legally deprived of it by any statute or city ordinance. This proposition is so plain and elementary that it is hardly necessary to cite authorities to substantiate it. Dillon on Municipal Corporations, section 803, note 1. The notice provided for in the above ordinance is not an excuse for a compliance with such constitutional provisions, as such notice relates to matters after judgment has been pronounced. It might with the same logic be urged that a judgment rendered by a court against a party without actual or constructive notice is valid if the sheriff holding an execution therein should notify the defendant of such prior proceedings in that action. Neither does it make any difference whether the property owner had actual notice; jurisdiction does not attach unless the ordinance under which the proceedings are had provides therefor before the making of the decision or finding in that behalf.

Another defect in such ordinance, which is of more or less significance, relates to the remedy for the collection of delinquent assessments by action in personam, which sections 7, 8 and 9 of this ordinance seem to contemplate, when the charter provides that the lien therefor shall be foreclosed in accordance with the provisions of the code of civil procedure. Where the statute creates a liability and provides a remedy, it must be followed to the exclusion of every other, though the remedy provided be inadequate. Section 817 of Dillon on Municipal Corporations. There are other cogent reasons concerning the acts and proceedings under the above and other enactments that would make such assessments void, but which would consume too much space to enumerate in detail this time.

There are substantial grounds for believing that some of the principal provisions of our city charter and statutes under which our city officials have been and are now acting are in violation of constitutional law and cannot stand the test of judicial criticism and investigation. It has been urged that those property owners who petitioned for improvements abutting their property are estopped from questioning the jurisdiction which they specially invoked in the premises. However just this position may be in point of morals, will it bear the test of legal criticism, when we remember that the city council derives its power to make these assessments through valid laws and ordinances, and not by acts of private parties who cannot exercise judicial functions over a subject matter that has been delegated to a particular body or tribunal? The state legislature can provide for a valid reassessment when the original one has failed through some irregularity, which ought in justice and equity to be sustained. Judge Dillon, in speaking of the subject, says: 'The original assessment for a local improvement proving insufficient, the legislature may constitutionally authorize a reassessment, and make it operate upon the property benefited — that is, upon all that was originally liable to contribute.'

Some who have already paid their assessments contend that if others are not made to pay theirs that they propose to sue the city for money paid. It would seem that such persons would have pretty hard work to maintain their actions, unless they were compelled to pay to prevent a seizure of their property, and paid under protest; for money paid with knowledge of the facts, or where they may be readily ascertained, cannot form the basis of a civil suit, and ignorance of the law excuses nobody.

Before concluding this article, let me state that in my opinion, notwithstanding the many irregularities of our city officials, much undeserved abuse has been heaped upon them. Citizens urged the improvements to be made and when made are dilatory in paying for them, and the contractors and employees who have done the work want their pay, and blame the council because they cannot get it, while the parties in the background are seldom criticised for their delinquencies. It will hardly be questioned that there is always more or less 'slick' work going on in different departments of municipal government. This cannot be helped with existing political machinery; it is inadequate to the end. The management of a city's business is a vast undertaking, involving many and varied responsibilities. It is impossible for seven or eight men, even if they could give their whole time to it, to be situated so that they might know just what is going on in every department, and in every locality, every hour in each day of the year, and keep all the municipal machinery moving to a nicety, without peculation, fraud, or error. Reforms must begin with the citizens themselves. In some cities, citizens' committees have been formed for the purpose of keeping a lookout in municipal affairs. The unfortunate condition of our city's finances and the blunders made with reference to the late municipal bonds ought to prompt the incoming administration to pursue a conservative policy, to take frequent bearings, to find out as near as may be that which is right or wrong, and endeavor to base their actions on correct principles, and prepare to move sure-footedly in the future. — MARIUS.