Kuhn v. City of Port Townsend, 12 Wash. 605 (Pa. 1895)

The opinion of the court was delivered by

Gordon, J.

This was an action brought in the superior court of the county of Jefferson for the purpose of restraining the collection of taxes assessed against the lands of plaintiff for municipal purposes. The ground upon which relief is sought is that the property against which said taxes are levied is situated within that portion of territory attempted to be annexed to the city of Port Townsend by virtue of certain proceedings upon the part of the officers of said city, which proceedings he alleges were had and taken without authority of law and are therefore void. Issue of fact was joined by answer and reply, and thereafter, upon motion of.the respondents, judgment was rendered upon the pleadings in favor of respondents, from which judgment this appeal is prosecuted.

The city of Port Townsend was incorporated under an act of the legislature of the Territory of Washington,

approved November 28, 1881. Tbe theory of the complaint, and the sole ground upon which the relief is sought, is that the attempted annexation proceedings were void. The prayer of the complaint is, “that upon the final hearing herein the court will order and declare the said attempted annexation of said property so, as hereinbefore set forth, attempted to be annexed to said city of Port Townsend, and the acts and doings of said city of Port Townsend in relation thereto, void and of no effect.”

Various errors are assigned in the appellant’s brief, relating principally to matters within the discretion of the lower court, all of which, save those hereinafter noticed, were abandoned upon the oral argument in this court, and although we have examined and considered them, we do not think that any of them are of sufficient importance to warrant a reversal of the cause. Sec. 9 of the act of March 27, 1890, being §501, Gen. Stat., is as follows:

The section further provides for the calling of a special election to be held for that purpose and giving notice thereof,' and provision is made for canvassing and declaring the result. Continuing the section provides that:

“If it shall appear upon such canvass that a majority- of all the votes cast in such territory and a majority of all the votes cast in such corporation shall be for annexation, such legislative body shall, by an order entered upon their minutes, cause their clerk, or other officer performing the duties of clerk, to make and transmit to the secretary of state á certified abstract of such vote, which abstract shall show the whole number of electors voting in such territory, the whole number of electors voting in such corporation, the number of votes cast in each for annexation and the number of votes cast in each against annexation.”

It then provides that:

It is alleged in the complaint that this section does not apply to and has no relation whatsoever to the city of Port Townsend. Learned counsel for the appellant, in his very able and exhaustive brief, has failed to advance any reasoning in support of the position thus assumed.

■ A similar question was involved in the case of State, ex rel. Snell, v. Warner, 4 Wash. 773 (31 Pac. 25), and of that section this court there said:

Further consideration convinces us that this is the true meaning of that section.

It appears from the complaint in this action that in September, 1890, a petition was presented to the council of the said city, signed by a number of persons,

requesting that said outlying territory (describing it, and which includes the lands of appellant), be’annexed to the city of Port Townsend, and that the city limits be extended so as to include the Same. Continuing the complaint alleges, that “ the said city ■council, in pursuance thereof and in attempting to annex the said property and extend said boundaries, caused a notice of a speeial election to be published.” (Then follows the notice, the sufficiency of which is not questioned.) “That said city council caused said notice of said election to be published for the time required by law in a newspaper printed and published within the limits of the city of Port Townsend as required by the acts of the legislature aforesaid.” Further it alleges that, “ on October 27, 1890, an election was held under and by virtue of said notice and ■thereafter the council proceeded to declare the result and made its finding and declaration in respect thereto, showing a majority of 341 in favor of annexation, and thereupon the city council made an order that the city attorney and clerk draw an abstract to be filed with the secretary of state.” Continuing the ■complaint alleges, “that ever since the finding and declaration aforesaid as to the canvassing of said vote and the drawing and filing of the abstract aforesaid, with the secretary of state, the said city of Port Townsend has assumed and taken control of and legislated for and assessed taxes for general and special purposes upon and against all the property, both real and personal, within the limits described in and mentioned' in said notice of election.”

It is alleged in the answer and admitted by the reply that the plaintiff was a signer of the petition already mentioned, which was presented to the council asking for such annexation. It is also admitted that since

said attempted annexation various streets have been laid out within the territory so annexed by authority of said city, and improvements made thereon aggregating thousands of dollars; that the appellant also signed some of the petitions to the council praying for said improvements and the grading of said streets. It also appears that during the years 1891-2 he furnished the assessor of the city with a detail list of all his property within the limits thereof, including in said list his. property situated in the annexed portion of said city..

Upon the facts above noticed, we think the judgment, appealed from must be affirmed for two principal reasons, viz: (1) A private citizen cannot question the-right of a municipal corporation to exercise the authority, powers and functions of an. incorporated city; this. can be done only in a direct proceeding prosecuted by the proper public officers of the state. (2) The appellant is precluded by his conduct from maintaining the present action.

The following authorities, and many others that might be cited, support the first proposition above laid down. Voss v. School District, 18 Kan. 467; School District v. State, 29 Kan. 57; Graham v. City of Greenville, 67 Tex. 62 (2 S. W. 742); Stockle v. Silsbee, 41 Mich. 615 (2 N. W. 900); Clement v. Everest, 29 Mich. 19; Mullikin v. City of Bloomington, 72 Ind. 161; Atchison, etc., R. R. Co. v. Wilson, 33 Kan. 223 (6 Pac. 281).

In the case last above cited the court say:

except in a direct proceeding prosecuted at the instance of the state by the proper public officer.”

In Clement v. Everest, supra, it is said:

In Mulliken v. City of Bloomington, supra, the court say :

Without multiplying authorities upon a proposition so generally recognized and understood, we think it can be safely said that where the legislature has conferred upon a city the power to enlarge its corporate limits, and having jurisdiction of the general subject matter thereof the city authorities proceed to act and to declare a result, and thereafter to act upon such result, the legality of such acts cannot be called in question in a collateral proceeding. So here, the subject of annexing territory to the city was one over which the council of the city of Port Townsend had jurisdic

tion by virtue of § 9 of the act of 1890, supra. That jurisdiction was brought into exercise by the filing of the petition, regardless of whether the petition complied with-the statute, and regardless of . any errors or irregularities in the proceedings of the council.

“The power to hear and determine a case is jurisdiction; it is ‘coram judice,’ whenever a case is presented which brings this power into action.” United States v. Arredondo, 6. Pet. 691.

In Morrow v. Weed, 4 Iowa, 77 (66 Am. Dec. 122), it was held :

To the same effect is the very well considered case of City of Terre Haute v. Beach, 96 Ind. 143.

The objections urged against the proceedings of the council of the respondent city do not go to any question of jurisdiction, but constitute mainly irregularities and informalities not affecting jurisdiction, and afford no ground for collateral attack.

The appellant’s participation in the annexation proceedings, his subsequent recognition of the jurisdiction of the city authorities, his acquiescence in the result reached and declared by them, and his gross laches in the assertion of his rights, constitute an equitable bar to the cause of action which he, after the lapse of nearly three years, first attempted to assert; and it would be immaterial to the result were we to determine that his conduct amounted to a ratification or an election, or requires the application of the doctrine of estoppel. Strosser v. City of Fort Wayne, 100 Ind. 443; Hayward v. National Bank, 96 U. S. 611; Graham v. City of Greenville, supra.

In Strosser v. City of Fort Wayne, supra, it is said :

We think the lower court Was right in giving judgment for the respondents and in denying appellant’s application for leave to amend, and said judgment is affirmed.

Hoyt, C. J., and Anders, Dunbar and Scott, JJ., concur.