1902). THE STATE OF WASHINGTON on the Relation of N. H. Latimer,
Respondent,
vs.
W. J. HENRY et al., as Commissioners of Skagit County,
Appellants
No. 3942
SUPREME COURT OF WASHINGTON
28 Wash. 38, 68 P. 368
March 21, 1902, Decided
Appeal from Superior Court, Skagit County. -- Hon. JESSE P.
HOUSER, Judge.
STATUTES -- CONSTITUTIONALITY OF CURATIVE ACT.
It is within the power of the legislature to enact a statute
authorizing the making of an assessment to cover the cost of work
done on a public improvement under a void law.
DRAINAGE -- CONSTITUTIONAL LAW -- ASSESSMENT AGAINST SCHOOL
LANDS.
That part of § 8 of the act of 1895 (Bal. Code, § 3762),
concerning the payment of benefits for drainage ditches which
provides that "when an assessment shall be apportioned against
any school lands of the state, the county shall pay the same out
of its general fund and have a lien on the proceeds of the sale
of such lands" for its reimbursement, is unconstitutional on the
ground that funds raised by taxation for general county purposes
cannot be applied to the payment of assessments for local
improvements, and on the further ground that the proceeds of the
sales of school lands cannot be diverted from the permanent and
irreducible common school fund.
DRAINAGE.
Although school lands benefited by the construction of a ditch
cannot be rendered liable for the payment thereof, such benefits
cannot be charged up against private property, and, in such
cases, the assessment should be levied against the school lands,
leaving it to the state to provide therefor by proper
legislation.
DRAINAGE -- INVALIDITY OF PORTION OF ACT -- EFFECT.
An act providing for the construction of ditches for
agricultural, sanitary, and domestic purposes is not
unconstitutional by reason of the invalidity of a portion of the
act providing for the assessment of school lands to help pay
therefor, when the act, after the exclusion of such void portion,
is sufficient in itself to constitute a complete law, capable of
being executed without any dependence upon the rejected portion.
DRAINAGE -- DUE PROCESS OF LAW.
The act of 1895 (Bal. Code, §§ 3755-3762), providing for the
payment of expenses theretofore incurred in the construction of
ditches is not subject to the objection that it deprives the
landowner of property without due process of law, because no
provision is made in the act in positive terms for contesting the
assessments imposed by the county commissioners, since the act
itself provides that in a suit to enforce the lien the property
owner might set up any matter respecting the amount or legality
of the assessment, and in addition an ample remedy for reviewing
the proceedings of the board of commissioners is provided by writ
of certiorari under the general laws of the state.
DRAINAGE -- COUNTY COMMISSIONERS -- PRESUMPTIONS AS TO
IMPARTIALITY.
The fact that county commissioners are to disburse moneys in a
ditch fund under their control in the way pointed out by law, on
the happening of certain events determined by them judicially
would raise no presumption that they would not be an impartial
tribunal.
M. P. Hurd, Henry McBride, Thomas Smith and E. C. Million, for
appellants.
Frank Quinby and Kerr & McCord, for respondent.
WHITE, J. REAVIS, C.J., and FULLERTON, HADLEY, MOUNT and ANDERS,
JJ., concur. WHITE
{*40} This appeal is prosecuted from a judgment awarding mandamus
in favor of the respondent, requiring appellants, as
commissioners of Skagit county, to proceed to make an assessment
by the apportionment of the cost of the construction of a
drainage system, known as the "Olympia Marsh Ditch," against
various tracts of land claimed to be benefited by such
improvement, excluding therefrom certain school lands. In the
year 1891 the commissioners of Skagit county, acting under the
law of March, 1890 (Laws 1889-90, p. 652), caused to be
constructed a system of drainage, on what is known as the
"Olympia Marsh," and, to pay for the same, caused to be issued
warrants upon the county auditor out of a fund known as "Olympia
Marsh Ditch Fund," which was a receptacle for moneys to be
collected from the assessments to be levied upon land benefited
by such system of drainage. The law having been declared void by
this court, Skagit County v. Stiles, 10 Wash. 388 (39 P. 116),
and the assessment invalid, as a consequence there was not
sufficient money ever paid into this fund to redeem the warrants,
and the legislature of 1895 passed an act in the nature of
remedial legislation (Session Laws 1895, p. 142), which provides
for a reassessment of the property in such cases. Under the
provisions of this last act the county commissioners have caused
to be condemned the right of way for the ditch in question, and
proceeded to ascertain the aggregate cost of the ditch and
apportion the cost to the lands claimed to be benefited, the
amount as so apportioned being $ 15,184.98, and fixed a day for
the hearing of said apportionment, gave notice to land owners,
and, upon the hearing, and upon the objection of the land owners,
the commissioners refused to proceed further on {*41} the ground
that the law was unconstitutional and void, and that they had no
jurisdiction. In order to pay for the right of way of the land
condemned, the commissioners had issued bonds, as provided for in
the law of 1895, to the amount of $ 1,600, and sold the same to
the respondent herein, and as the owner of such bonds, and also
as the holder of a warrant for $ 500 issued October 6, 1891, on
account of the original construction of the ditch, respondent
brought this action in mandamus to compel the appellants, as
county commissioners, to proceed to make a reassessment in
accordance with the law of 1895. The trial court ordered the
reassessment made, excluding all school lands, and it is from
this decision that appellants bring this action here for review.
The answer of the county commissioners to the affidavit for the
writ is as follows:
"That of the lands included within township 35 north, and range 3
and 4 east, in Skagit county, Washington, and referred to in
plaintiff's affidavit, a part thereof consists of state or school
lands, being in section 36 and township 35 north, of range 3
east, and section 16 in township 35 north, of range 4 east, all
of which said school lands are still owned and controlled by the
state of Washington, and that the tax so assessed and levied
thereon will amount in the aggregate to $ 2,500; and, if these
defendants are compelled to proceed under the law of 1895 to make
a complete and perfect assessment for the payment of the
indebtedness referred to in plaintiff's affidavit, the said
county of Skagit will be compelled to advance, for the use and
benefit of the state of Washington, and without any benefit to
the said county, the said sum of $ 2,500, and that by so doing
the said county of Skagit will be deprived of property without
having received any benefit therefor or without due process of
law. This defendant alleges that the improvements as heretofore
made or as contemplated are of no benefit to the said {*42}
county of Skagit at large, and these defendants allege that such
assessment as to such county would be depriving the said county
(of property) without due process of law, and contrary to the
provisions of the constitution of the state of Washington and the
fourteenth amendment to the constitution of the United States,
the benefits of which provisions are hereby especially set up and
claimed by these defendants both for themselves and said county
of Skagit."
The defendants further allege:
"That the statute upon which these proceedings are based is
unconstitutional and void, and in conflict with the fourteenth
amendment to the constitution of the United States, in that it
deprives the owners of the land described in said affidavit of
their property without due process of law, and these defendants
for themselves and for the owners of said property hereby set up
and claim the benefit of the provisions of the said fourteenth
amendment to said constitution."
Appellants in their brief contend that the action of the trial
court was erroneous and should be reversed for the following
reasons, towit: (1) That the entire act of 1895 is
unconstitutional and void and in conflict not only with the
constitution of the state of Washington, but with the fourteenth
amendment to the constitution of the United States; (2) that,
conceding the law of 1895 to be otherwise valid, it is void as to
the county because it requires the county to advance and pay any
assessment upon school lands; (3) that the act of 1895 is invalid
because it fails to provide for an impartial tribunal to
determine the benefits and make the assessments; (4) that the
said law is invalid because it requires that assessments shall be
made to an amount equal to the outstanding warrants, regardless
of whether the cost exceeds the benefits; (5) that the judgment
is erroneous in that it requires that all {*43} school lands
shall be excluded from assessment. The appellants, for one
reason, urge that the act is unconstitutional because it attempts
to breathe life into the acts of the county commissioners which
were had and done under a void law, and, as a void law confers no
rights, rights cannot be built up under it. This very point was
suggested in Lewis County v. Gordon, 20 Wash. 80 (54 P. 779), and
decided adversely to the contention of the appellants. Touching
the identical ditch in controversy in this action, where, under
the first section of the act of 1895, a suit was instituted to
condemn a right of way, this court held in Skagit County v.
McLean, 20 Wash. 92 (54 P. 781), that the act of 1895 was
constitutional. In Lewis County v. Gordon, supra, it was also
held that the legislature might properly authorize payment in
condemnation proceedings of expenses incurred under the act of
1890, and that the construction of ditches for drainage of land
otherwise useless for agricultural purposes was a public use.
Some of the questions now presented as to the constitutionality
of the act are for the first time brought to our attention under
this appeal.
We think, because the state has an interest in the health of its
citizens, that the legislature had authority to provide that
school lands benefited should be taken into consideration in
apportioning the cost of the improvements; that the portion of
the cost appertaining to the school land benefited should not be
assessed against private property benefited. So far as the act in
question seeks to accomplish these objects it is not
unconstitutional. McLean County v. Bloomington, 106 Ill. 209;
Hassan v. Rochester, 67 N.Y. 528.
We do not mean to hold that funds derived from the sale of school
lands can be appropriated to any other use, or that school lands
can be assessed and sold to pay for {*44} local improvements. We
do not think this can be done. The state holds these lands in
trust for a particular purpose. Under the constitution the
proceeds of the sale of these lands constitute a portion of the
permanent and irreducible common school fund. This fund cannot be
devoted to any other purpose. The lands cannot be sold to pay for
local improvements, for thereby they might be totally absorbed
and diverted from such fund; for, while it may be true in theory,
it is not always true in fact, that lands exposed to sale for the
payment of local improvement assessments will bring enough to
cover the enhanced value of the land. Edgerton v. Huntington
School Township, 126 Ind. 261 (26 N.E. 156); People ex rel.
Little v. Trustees of School Township, 118 Ill. 52 (7 N.E. 262).
The question before us relates purely to the right of the state
to apportion a public burden upon public in common with private
property in proportion to the benefits conferred upon that
property. While special assessments against private property may
be collected from the property itself, the act under
consideration does not attempt to apply this rule to public
property. It provides a different method as to such property for
the collection of the assessment. The method provided may be
unconstitutional, but it does not follow from that fact that the
entire act is unconstitutional. The state has received a benefit
conducive to the health of its inhabitants from the improvement,
and it is to be presumed that, after it has enacted that the
burden shall rest alike upon private and public property
benefited, it will provide a lawful way to pay its share. This is
a subject for further legislation if the provision made for the
payment of the state's proportion is invalid. As was said by the
supreme court of New York, in the case of Hassan v. Rochester,
supra :
{*45} "Although the state cannot be made a party to an action to
enforce such a claim and be sued in its sovereign capacity it may
be assumed that the state will provide means for the liquidation
of assessments imposed by virtue of laws enacted by its
legislature, and that as has been frequently done heretofore,
appropriations will be made for that purpose. As we have seen,
the state has practically recognized its liability to municipal
corporations for assessments imposed, and those who are to be
benefited by the assessments of its lands have, at least, a right
to the advantage which may be derived from the probable and
perhaps certain payment of the same. We have been referred to
some authorities bearing upon the subject of the liability of the
state for assessments for its lands, but none of them, we think,
conflict with the principle that the state, through its
legislative power, may authorize its lands to be assessed for
local improvements."
The legislature has no power to impose taxes upon counties,
cities, towns, or other municipal corporations, or upon the
inhabitants or property thereof for county, city, town, or other
municipal purposes, but may by general law vest in the corporate
authorities thereof power to assess and collect taxes for such
purposes. § 12, art. 11, of the constitution. This section only
authorizes a general law for the collection of taxes by the
corporate authorities of the county for general county purposes.
"No tax shall be levied except in pursuance of law; and every law
imposing a tax shall state distinctly the object of the same, to
which only it shall be applied." § 5, art. 7.
From this last section of the constitution it seems too plain for
argument that the funds of the county raised by taxation for
general county purposes cannot be applied to the payment of
assessment of costs against school lands improved in a local
assessment district. Such application is not for a county
purpose. On this ground, as well as for the reason that the
proceeds of the sale of school lands cannot {*46} be directly or
indirectly diverted from the permanent and irreducible common
school fund, we hold that part of § 8 of the act of 1895 which
provides that the county shall pay the assessment apportioned
against school lands out of its general fund, and have a lien on
the proceeds of the sale of such lands from which it is to be
reimbursed, unconstitutional and void.
Notwithstanding the provision of the act requiring the county to
pay the assessment against school lands is unconstitutional, the
rest of the act can be upheld. No doubt many districts have
proceeded under this act, and, for the improvements, bonds and
warrants to a large amount are outstanding. These obligations
should not be repudiated unless the rules of construction
imperatively require us to hold the entire act unconstitutional.
It is important to the health of the inhabitants of the state
that marsh and swamp lands be drained. In an early case, in
passing upon the question of the formation of irrigation
districts under the irrigation act of 1890, we said:
"When any question involving the constitutionality of an act of
the legislature is presented to a court for adjudication, it
calls for the utmost care and consideration of such court in
determining the same, and if this is true in an ordinary case, it
is much more so in the one at bar, which presents a question of
public policy of the gravest nature; one in fact upon which
depends to a great extent the prosperity of a very considerable
portion of the inhabitants of the state." Board of Directors v.
Peterson, 4 Wash. 147 (29 P. 995).
The same language is applicable to the case now under
consideration. The rule for determining whether the act is void
as a whole, or only in part, is that, if the invalid portions can
be separated from the rest, and if, after their excision, there
remains a complete, intelligible, and valid statute capable of
being executed, and conforming {*47} to the general purpose and
intent of the legislature as shown in the act, it will not be
adjudged unconstitutional in toto, but sustained to that extent.
It is necessary that the remaining portions be sufficient in
themselves to constitute a complete, intelligible law, and one
capable of being executed, and that they should be so independent
of the rejected portions that it may be fairly presumed that the
legislature would have enacted the restricted statute by itself
without making the rejected portions a condition to the passage
of the whole act. Cooley, Constitutional Limitations (6th ed.),
p. 210; Black, Interpretation of Laws, p. 96.
Have we a right to presume that the legislature would not have
enacted the law in question without inserting the provision as to
payment by the county of the costs apportioned to the school
land? We think not. The improvement of land was not the
principal object. As declared in the title, the ditches
contemplated were for agricultural, sanitary, and domestic
purposes. The health of the people was one of the principal
considerations for the passage of the act. This is a matter of
the very highest importance to the state. We are not warranted in
believing, under these circumstances, that the legislature would
not have passed the act with the omission of the unconstitutional
portion. We therefore conclude that the remainder of the act at
least is constitutional, unless subject to some other and fatal
objection.
The appellants claim that the board of county commissioners is
not an impartial tribunal to determine the benefits and make the
assessments, because the act provides that if any one makes an
exception to the apportionment and the board sustains the
exception, the costs of the hearing thereon shall be paid out of
the county treasury. From {*48} what we have heretofore said, it
is clear that no portion of the general funds of the county can
be applied to the payment of such costs, and such costs can only
be paid out of the ditch fund authorized by the act. It is true
that under the act the commissioners have the disbursement of
this fund, but the presumption is that they will discharge their
duties in a lawful manner. The mere fact that they are to
disburse the funds under their control in a way pointed out by
the law, on the happening of certain events determined by them
judicially, is not sufficient to make it manifest that they are
not an impartial tribunal. Costs to be assessed for local
improvements cannot exceed the benefits conferred. Section 3 of
the act of 1895, in effect, so provides. It requires the county
commissioners to ascertain the aggregate cost of the ditch and
apportion the same to each lot, tract of land, etc., according to
benefits resulting from the improvements, not exceeding the
amount of said benefits. Under this provision the cost may be
less or equal to the benefits. For all portions of the cost
exceeding the benefits, no assessment can be made on the property
benefited. The act provides for notice to land owners of the
apportionment of such assessments, provides for an opportunity to
be heard before the board of commissioners, and provides that if,
on such hearing, the commissioners find that the apportionment is
unfair and unjust and ought not to be confirmed, they shall so
order and amend it as to make it fair and just in proportion to
the benefits. The only objection made to the assessment was that
set forth in the answer. No complaint is made as to the fairness
of the apportionment. That question is not now before us. It is
nowhere suggested in the answer that the proposed improvement is
not of a public nature. The affidavit for the writ distinctly
{*49} alleges that legal proceedings for the purpose of acquiring
title to the lands occupied by and necessary to the construction
and maintenance of the ditch, by proceedings in eminent domain,
were instituted and maintained for the condemnation of a right of
way for said ditch in the superior court of Skagit county in the
case of Skagit County v. McLean, 20 Wash. 92 (54 P. 781), and the
right of way necessary for the construction of said ditch was
condemned, etc. From this we must presume that there was an
adjudication by the court that the improvement was for a public
use, and that all persons interested in this question had an
opportunity to be heard, or can be heard, in the manner
hereinafter indicated. That question is not now before us.
But it is claimed that the act violates the fourteenth amendment
to the constitution of the United States, inasmuch as it deprives
the owners of the land benefited of their property without due
process of law. The supreme court of the United States, in
passing upon this question, says:
"We reiterate the statement made in Davidson v. New Orleans,
supra, that, 'whenever by the laws of the state or by state
authority a tax, assessment, servitude or other burden is imposed
upon property for the public use, whether it be for the whole
state or of some more limited portion of the community, and those
laws provide for a mode of confirming or contesting the charge
thus imposed in the ordinary courts of justice, with such notice
to the person or such proceeding in regard to the property as is
appropriate to the nature of the case, the judgment in such
proceedings cannot be said to deprive the owner of his property
without due process of law, however obnoxious it may be to other
objections.'" Fallbrook Irrigation District v. Bradley, 164 U.S.
112 (17 Sup. Ct. 56); Davidson v. New Orleans, 96 U.S. 97.
{*50} It is true that in the act in question no provision is made
in positive terms for confirming or contesting, in the ordinary
courts of justice, the charge imposed. Under the act, when the
assessment is made it is placed upon a tax roll. It may be paid
in installments as provided in the act. The act further provides,
if any installment is not paid, the county attorney must proceed
at once by a civil action to collect such charges and foreclose
the lien therefor. In the case of Garvin v. Daussman, 114 Ind.
429 (5 Am. St. Rep. 637, 16 N.E. 826), which was a proceeding to
foreclose a lien for a street improvement where no provision was
made for notice and hearing, the court said:
"To give each property owner the right to contest every step in
such an undertaking, would be, in effect, to prohibit the
improvement, or render its execution practically impossible in
many instances. If, therefore, the law provides for giving notice
and for a method whereby the property owner may ultimately
challenge the correctness of the assessment made against his
property, in respect to whether it was made in good faith,
without intervening mistake or error, and according to the method
and under the safeguards provided by the law, -- the
constitutional provision is to be deemed satisfied. These ends
seem to have been adequately provided for by the ordinance under
which the improvement involved in the present case was made. It
is conceded that, under the ordinance, the assessment against the
appellant's property could only be enforced by legal proceedings
in a court having jurisdiction to foreclose mortgages. Such
proceedings could only be taken in pursuance of notice, and in a
court in which ample opportunity would be afforded for
questioning the validity of the proceedings for the improvement
of the street, and of all other matters respecting the legality
and amount of the assessment, or which might constitute a
legitimate cause of grievance to the property holder."
{*51} In the suit, then, to enforce the lien, the property owner
might set up any matter respecting the amount or legality of the
assessment. But if this remedy was not sufficient, under the
general laws of the state, at the time the act was passed, it was
provided that the superior court should have jurisdiction in
special cases and proceedings not otherwise provided for, with
power to issue writs of review and certiorari. Where no appeal is
given, certiorari will lie, and many cases hold that, where there
is no remedy by appeal, all questions may be reviewed under the
writ of certiorari. Elliott, Roads & Streets (2d ed.), § 372.
At the same session of the legislature at which the act in
question was passed, the legislature enlarged the functions of
the writ of certiorari, and when this action was brought under §§
5740 to 5757, Bal. Code, a full and ample remedy for reviewing
the proceedings of the board of county commissioners, even to a
review of the evidence, was provided by law. Browne v. Gear, 21
Wash. 147 (57 P. 359).
We conclude, therefore, that the act of 1895 does not seek to
deprive the owner of property of the same without due process of
law.
The last point urged by the appellants is well taken. For the
reasons already given, -- that the state by appropriate
legislation may provide for the payment of the assessment on
school lands, -- we think such lands should not be excluded from
the assessment for the cost of the improvements. The judgment of
the court is therefore so far modified as to require the
assessment of the cost of the improvements to each lot, tract of
land, etc., in the district, including the school land mentioned
in the answer, and the court below is directed to enter judgment
{*52} accordingly, and, as so modified, the judgment of the court
is affirmed, with costs to the appellants.
DISPOSITION
Modified.
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