SEACPM18831019

382 JOURNAL OF THE PROCEEDINGS OF THE Oct 12/83

Ordered that the Mayor be + he is hereby requested to return without the same having been approved by him, the Ordinance adopted at the meeting of October 12.1883 + entitled "An Ordinance to amend Section Five (5) of Ordinance No. 246 entitled 'An Ordinance fixing the pay, fees, and compensation of the City Officers of the City of Seattle." In favor of said order Harris, McDonald, Rasin & Wusthoff. Against the same Day, Clancy & Ranke

Claims Paid Pine St Improvement # 421 J. M. Snow Engineering $35 Strong & Haskins Contract Work Final payment 818.47

Miscellaneous Ordered that with the consent of the Contractor, the Contract for the construction of a sidewalk on Spring Street be and the same is hereby rescinded.

Ordered that the Council stand now adjourned until Friday October 19.1883 at 7 1/2 o'clock P.M.

Attest: E. S. Osborne, Clerk Approved: H. G. Struve, Mayor

Oct 19/83 Be it remembered that on this the 19th day of October 1883 the Common Council of the City of Seattle meets in its Council Chamber pursuant to adjournment.

The following Officers are present towit. His Honor the Mayor H. G. Struve and Councilmen Thomas Clancy, B. F. Day, George W. Harris, Charles McDonald, U. M. Rasin, Otto Ranke and F. W. Wusthoff.

Thereupon the following proceedings are had:

Petitions Rec'd From Wm Haskins for the right to complete the grading of Columbia Street. Referred to Street Committee.

From R. Merchant and Co for the privilege of having a crosswalk [-----] [---------] Referred to Street Committee

Communications Rec'd

383 COMMON COUNCIL OF THE CITY OF SEATTLE Oct 19/83

From His Honor the Mayor returning an Ordinance entitled "An Ordinance to amend Ordinance No. 410" without his approval and with his objections in writing to such approval, which objections read as follows, towit:

Office of the Mayor of the City of Seattle Oct 19, 1883 To the Common Council of the City of Seattle Gentlemen - I regret that I am unable to convince myself that Ordinance No - to amend Ordinance No. 410, ought to be approved and I therefore return the same without approval.

The Ordinance proposes to change the course of Jackson Street, after a contract has been let and is partly completed for the improvement of Jackson Street as laid out by Ordinance No. 410 and after over one thousand dollars in scrip has been issued for such improvement and a large additional liability has been incurred for such Improvement.

The following is a brief recapitulation of facts necessary to a full understanding of the situation:

On the 4th day of June 1883 the Council passed an Ordinance for the extension of Jackson Street and the condemnation of real estate necessary therefor. The first Section of that Ordinance provides that said Street be extended easterly from the present eastern terminus thereof at the eastern boundary of James McNaught's First Addition to Seattle, to the West shore of Lake Washington. The same Section also provided that a strip sixty-six feet in width between said termini running east and west be appropriated for the use of the public as a public Street to be called Jackson Street. The other Sections of the Ordinance provided for the [------] of appropriating the land, the assessment of damages and the levy of a tax to pay the same.

On the 6th day of July 1883 Ordinance 410 was passed amending the 1st Section of the original Ordinance by changing the eastern terminus from the West shore of Lake Washington to the Western terminus of Jackson Street in Burke's Second addition to Seattle. This amendment involved a change in the direction of the Street by a deflection from the direction [-------] adopted in the original Ordinance. Un-

384 JOURNAL OF THE PROCEEDINGS OF THE Oct 19/83

fortunately the City Attorney who drew this Ordinance inadvertently omitted the provision contained in the original Ordinance, appropriating the street as extended to the use of the public as a public street. This omission escaped the scrutiny of the Committee to whom it was referred as well as the Council and its presiding Officer.

In September 1883 the necessary steps were taken for the appraisment of the land appropriated by the appointment of these assessors, who have performed their duty as required by law and by the assessment district. An Ordinance was also passed providing for the improvement of that portion of Jackson Street so extended by Ordinance 410 by grading the same and constructing a sidewalk from the East side of 12th to Market Street. Under this Ordinance the City made a contract for this improvement with G. N. Alexander, which was executed on Sept 28, 1883 and under its provisions the Contractor has completed about one third of the Contract and is entitled to a considerable amount in addition to the sum already paid him, and he is now actively engaged in prosecuting the work. In this posture of affairs it is brought to the attention of the Council and alleged that Ordinance 410 is defective for its intended purpose, because it omits the active clause in Sec. 1 of the original Ordinance providing for the appropriation of the Street to the uses of the public as a public Street. The vital question to be determined is whether or not this amendatory Ordinance extinguishes the positive provisions in the original Ordinances for the appropriation of the land by the exercise of the right of eminent domain. As I conceive the law to be this question is certainly free from doubt. Many rules of construction may be invoked to preserve the vitality of the Ordinances. The title of the original Ordinance may be called in aid and that provides in positive terms for the condemnation of real estate necessary for the extensnion of the Street. Each of the other Sections of the original Ordinance which remain unrepealed, treats of the tract of land therein described as being unrepealed. And in addition thereto Section 79 of the City Charter requires that any Ordinance or Section thereof amended [-----] be [-----] and Ordinance No.

385 COMMON COUNCIL OF THE CITY OF SEATTLE Oct 19/83

410 contained no express repealing clause whatever. Therefore in the absence of an express repealing clause, the omitted portion not being repugnant to any provision of Ordinance 410 may be allowed to stand and the two may be read in pari materia. These are simple suggestions thrown out without consultation with the City's legal advisor and may be without merit. But I entertain no doubt of the legal proposition that remedial legislation may be had by a curative Ordinance and by a configurative act of the Legislature now in session which may have a retrospective operation and cure any possible defect in Ordinance No. 410. If this course is pursued, the serious complications which are now threatening to entail litigation and possible pecuniary loss upon the City may be avoided. If on the other hand, I should approve the Ordinance herewith returned, what will be the consequence? All the proceedings had for the condemnation of the land would be vitiated and annulled. The Ordinance providing for the grading of Jackson Street as then established, would become inoperative as this new proposed Ordinance does not embrace the same territory. It would operate as a breach of Mr. Alexander's Contract, because neither he nor the Sureties on his bond have up to this time consented to any modification of the Contract, which would be necessitated by the change contemplated in this new Ordinance. New proceedings for the condemnation of this Street would have to be instituted, new assessors appointed, new surveys made, new assesment rolls and lists prepared and in fact all acts already performed would have to be recommenced and completed de novo. All damages sustained by the Contractor would have to be paid by the City and the City would probably lose all payments already made. A new Ordinance for the improvement of the Street would have to be enacted and a new Contract entered into, and in all probability refractory property owners liable to pay taxes for improvements would take advantage of any [-------] to evade the payment of the improvement tax and impose additional burden to be borne by [-----] people of the City

386 JOURNAL OF THE PROCEEDINGS OF THE Oct 19/83

which they ought not to be compelled to assume.

It is with the utmost reluctance that I undertake to oppose the collective wisdom and judgement of the Council and the City Attorney, but certainly the situation is sufficiently grave to make a full reconsideration of both law and facts applicable to the case in every way desirable.

H. G. Struve Mayor

Reports Rec'd From the Attorney on the status of Washington Street Sidewalk. Ordered filed

Committees Reports Rec'd From Street Committee recommending the granting of the petition of D Kellogg et al for changing the grade elevations on Madison Street. Adopted

Applications for Licenses Ordered that licenses be issued as follows, towit: Hentry Duhemel for Retail liquor for 3 months from Oct 20 The A. P. Hotaling Co do 6 21 do wholesale 6 16 Otto Fuhrmann pigeon Hole table 3 20 Aug. Mehlhom + Co Grocery 6 21 do Pool table 6 21 Wm Busha Retail 3 17

Claims A claim is presented by Walter Collins for damages caused by injuries received from falling from 5th Street in the sum of $1500.00 Ordered that the said claim be + is hereby rejected.

Consideration of Ordinances And now in complyance with the request made by the Council at its last meeting the Mayor returned without the same having been approved by him an Ordinance entitled "An Ordinance to amend Section Five (5) of Ordinance No. 246 entitled 'An Ordinance fixing the pay, fees and compensation of the City Officers of the City of Seattle." Thereupon after amending said Ordinance the same is adopted upon the following Vote, towit: In favor of adoption Clancy, Day, Harris