Vancouver v. Corp. of Catholic Bishop Etc., 90 Wash. 319, 156

 320    VANCOUVER v. CORP. OF CATHOLIC BISHOP ETC.
                Opinion Per MORRIS, C.J.           90 Wash.

M. M. Connor and Geo. O. Davis, for appellant.

Geo. B. Simpson, for respondent.

MORRIS, C.J. - This is one of those cases, oft before the
courts, wherein the property owner is seeking relief from
an assessment made by a board of eminent domain
commissioners in local improvement districts, upon the contention
that such assessment is in excess of benefits, arbitrary and
inequitable. The appeal is taken from the order
confirming the assessment roll. As is usual in these cases, there
is a difference of opinion as to the amount of benefit
conferred by the local improvement, but courts will not
concern themselves with differences of opinion as to the actual
benefit. The final decision of such questions must rest
somewhere, and it is the settled policy of the courts to rest it
with that body upon which the law has conferred the
determination, save in those cases where the record discloses that
such body bas acted arbitrarily or upon a fundamentally
wrong basis. Viegle v. Spokane, 78 Wash. 359, 139 Pac.
33; In re Boyer Avenue, 79 Wash. 664, 141 Pac. 58.

Appellant's property, of an approximate area of two
city blocks, was used for church purposes, and the improvement
consisted of extending a street north and south through
its center. The assessment was levied upon the appellant's
property and upon the blocks to the north and south. An
illustration front the record will indicate the basis upon
which appellant supports its contention that the assessment
upon its property was arbitrary and fundamentally wrong.
One of appellant's lots cornering on the extended street was
assessed at $312.50, while the lot opposite appellant's lot
and somewhat larger was assessed at only $103. Looking
at the plat, a reason suggests itself for this difference which
may or may not have been the one moving the commissioners
to fix the assessment at these sums. The lot opposite, on
the northeast corner of Columbia and Thirteenth streets,

           VANCOUVER v. CORP. OF CATHOLIC BISHOP ETC.          321
 Mar. 1916              Opinion Per MORRIS, C.J.

was benefited only to the extent of extending Columbia street
south through appellant's property; it already was a corner
lot having north, east and west approaches. Its frontage
was in no manner changed or interfered with. It was given
only an additional approach from the south, while
appellant's lot, prior to the improvement, had a street frontage
of sixty-six feet on Thirteenth street, and was located in
the center of the block facing Columbia street to the north.
By extending Columbia street to the south, it was made a
corner lot, its north frontage being reduced to thirty-three
feet, and it was given an added west frontage of one
hundred feet. We assume it has received full compensation for
the thirty-three feet taken, and the only question before the
commissioners was the benefit to the remainder. This change
from a lot in the center of a two-block area to a corner lot
with a frontage of one hundred feet on the street extension
was a factor to take into consideration in determining the
benefit.

Had the entire assessment been levied upon appellant's
property, then the case would be similar to In re Eighth
Avenue Northwest, 77 Wash. 570, 138 Pac. 10, but such
is not the fact. Neither does it appear that the
commissioners charged back against the remainder of appellant's
property the amount of the condemnation award made for
the property taken and then assessed the remainder for the
full benefits in addition, as was done in In re Ninth Avenue
West, 76 Wash. 401, 136 Pac. 488. The assessment was
distributed over appellant's property and upon the blocks
to the north and south, and we can gather from the record
nothing, save that there was a sharp difference of opinion
as to the extent of the benefit. It must be borne in mind
that it is not the amount of the assessment that should
influence either the lower court or this court in disturbing it.
The test is the benefit conferred. In determining the
extent of the benefit to a given property by a municipal

 322    VANCOUVER v. CORP. OF CATHOLIC BISHOP ETC.
           Dissenting Opinion Per CHADWICK, J.      90 Wash.

improvement, it is not unusual to find wide difference of opinion;
but mere difference of opinion between witnesses as to the
amount of benefits conferred does not of itself establish such
a case as calls for the interference of the court. It must,
in addition, be shown that the rule by which the benefits were
measured was fundamentally wrong and so arbitrary and
unjust, as affecting the property owner, as to evidence
"fraud, mistake (of fact or law, but not matters of opinion),
or arbitrary action amounting to a manifest abuse of
discretion." In re Westlake Avenue, 40 Wash. 144, 82 Pac.
279; In re Fifth Avenue etc., 66 Wash. 327, 119 Pac. 852.

The main objection here seems to be that the property of
appellant is used for church purposes, and that the
improvement is not beneficial for such purposes to the extent of
the assessment. The use to which the property is put cannot
of itself determine the question of benefits, but the usual
test is the increase of value for any use to which the land
might be adapted. Northern Pac. R. Co. v. Seattle,
46 Wash. 674, 91 Pac. 244, 123 Am. St. 955, 12 L. R. A.
(N. S.) 121; Newell v. Loeb, 77 Wash. 182, 137 Pac. 811.
In the first of these cases, it was said:

"The particular use of the land cannot affect its liability
to assessment; abutting property cannot be relieved from
the burden of a street assessment simply because its owner
has seen fit to devote it to a use which may not be specially
benefited by the local improvement. The benefit is
presumed to inure, not to such present use, but to the property
itself, affecting its value."

The record in this case does not show any fact which
should lead us to disturb the judgment, and it is affirmed.

MOUNT, MAIN, PARKER, and ELLIS, JJ., concur.

CHADWICK, J. (dissenting) - This is an eminent domain
proceeding. I have prepared a plat to illustrate my
argument.

           VANCOUVER v. CORP. OF CATHOLIC BISHOP ETC.          323
 Mar. 1916          Dissenting Opinion Per CHADWICK, J.

                               MAP
If it is apparent from the record that the eminent domain
commission has not made a fair assessment, we have always
set aside the assessment roll. The test usually employed is
to compare the assessment upon the property of the
protesting owners with the assessment put upon the property
relatively situated. The appellant is the owner of
property

 324    VANCOUVER v. CORP. OF CATHOLIC BISHOP ETC.
           Dissenting Opinion Per CHADWICK, J.      90 Wash.

equal in extent to two blocks, bounded by Thirteenth
and Twelfth streets on the north and south, and
Washington and Daniels streets on the east and west. Columbia
street, which runs north and south between Washington and
Daniels street, was unopened through the property of the
appellant. The city brought a proceeding to condemn a
strip of land sixty feet wide and conforming to the
boundaries of Columbia street if it extended through the
properly. There were two or three assessment rolls made up,
hut we shall deal only with the one now before us. The last
roll assessed the property of appellant from one hundred
to one hundred and fifty per cent higher than did the first
roll. The disposition of the board of eminent domain to
assess back upon the property of appellant as much as it
thought it could is not concealed. One member of the board
testifies that it was the intention of the board to *raise a
sufficient amount of money irrespective of benefits. Another
member testified that it was his intention to assess a good
share of the amount necessary to be raised to pay the
judgment entered in the eminent domain proceedings upon the
property of appellant, and regardless of any increased
value*. In answer to the direct question: "*Then your idea
was to assess the entire proposition on the church
property?" he said: "Yes, float was my idea*."

Disregarding the opinion of many witnesses who testified
that the benefit to appellant's property was very much less
in all instances (more than one hundred per cent less) than
the amount fixed in the assessment roll, and taking the
testimony of the commission, and the assessment roll itself, the
case falls squarely within several of our own former
decisions. The roll shows upon its face a disposition to cancel
arbitrarily as much of the judgment entered in favor of
appellant for the taking of its property as the conscience
of the board would permit. Taking the same basis of
comparison that we have heretofore employed in similar cases,
we find that a lot 33x100 owned by appellant is assessed at

          VANCOUVER v. CORP. OF CATHOLIC BISHOP ETC.      325
 Mar. 1916         Dissenting Opinion Per CHADWICK, J.

$312.50, while diagonally across Thirteenth street a lot
42.61x101.25 is assessed at $70. A lot owned by appellant,
33x100, on the corner of Twelfth and Columbia streets
as extended, is assessed at $275. A lot diagonally across,
100x75 feet, is assessed at $75.

The opinion of the majority but skims the surface of
the case. They take into consideration only the one lot at
the northeast corner of Thirteenth and Columbia streets and
the lot opposite. Appellant's lot is fractional and assessed
at $312, while the whole lot directly opposite is assessed at
$103. The majority says that the plat suggests a reason
for the difference, and argues that, because the lot of
appellant is left as a corner lot, it is not injured but is
benefited.

The utter fallacy of this reasoning is apparent when it is
understood, and the record shows, that the object of cutting
through the property of appellant, which was devoted to a
particular use, was *to give the people living north of this
property a direct roadway into the business center of the
city of Vancouver*.

But the case cannot be decided by taking one lot alone
and comparing it with another and there closing the inquiry.
The majority assume that there may be a greater benefit
in a corner lot, although it is well known that this is not
so unless the property is to be business property.

Accepting the theory of the majority and carrying it to
other lots similarly situated, that is, inside lots, we have
one of the lots of appellant in block three assessed at $171.88,
and one directly opposite at $52.50; another at $75, and
the one opposite at $30; another at $37.50, and one
opposite at $15. The lots on Thirteenth street and those
opposite are relatively disproportionate. The fractional half
block, or tract twenty, being 83x200 feet, belonging to
appellant, is assessed at $968.75. A full half block to the
north, to which the improvement is immediately beneficial,
is assessed at $272.10. It seems to me that the plat needs
no further discussion. It speaks for itself.

 326    VANCOUVER v. CORP. OF CATHOLIC BISHOP ETC.
           Dissenting Opinion Per CHADWICK, J.          90 Wash.

While it is true we have consistently held to the doctrine
that we will not hold an assessment to be arbitrary or
unjust where there is a mere difference of opinion, we have
also laid down the rule that an unjust or arbitrary
assessment will not be allowed to go unchallenged, and further,
that a manifest disposition on the part of an eminent domain
commission to make the remainder of a claimant's property
pay the cost of that which is taken will be held to be an
arbitrary exercise of power on the part of the city. It is
not a question of benefit alone. It may be that a particular
piece of property is benefited to the extent of the whole
improvement, but in eminent domain cases the real question is
one of relative benefit, and whether the assessment has been
"distributed with substantial equality over all property of
like kind and similarly situated with reference to the
subject-matter of the assessment." In re Eighth Avenue
Northwest, 77 Wash. 570, 138 Pac. 10. See, also, In re Ninth
Avenue West, 76 Wash. 401, 136 Pac. 488.

Upon a similar state of facts, the court said, in In re
Fifth Avenue West, 80 Wash. 464, 141 Pac. 1035:

"The courts will not concern themselves with mere
differences of opinion as to the actual benefits conferred, but
it must appear from the proceedings as a whole that the
authority levying the assessment has acted arbitrarily in
disregard of the actual benefits, or has proceeded upon a
fundamentally wrong basis. We have no hesitancy, however,
in saying that the record shows arbitrary action on the part
of the eminent domain commissioners in the present instance.
The very fact that they found so large a part of the benefits
to have been conferred upon the property of the persons who
received the award for the property taken is alone sufficient
to excite inquiry as to their good faith. It raises the
suspicion that they thought the jury's award excessive, and
sought to correct it. But the amount of the award made
by the jury was of no concern of the eminent domain
commissioners. If the award was in excess of the actual value
of the property taken and damaged, it should have been
corrected in the condemnation proceeding itself by some of the

           VANCOUVER v. CORP. OF CATHOLIC BISHOP ETC.      327
 Mar. 1916          Dissenting Opinion Per CHADWICK, J.

methods provided by law for the correction of excessive
verdicts. When the award has been allowed to become final in
its effect it must be accepted as a verity, and the subsequent
proceedings must be governed by the principle that it is
final and not subject to further inquiry or correction. But
whatever may have been the theory on which the eminent
domain commissioners acted, we think the evidence clearly
demonstrates that the appellants' property has not only
been assessed more than its proportionate share of the cost
of the improvement, but grossly in excess of the benefits
conferred upon it by the improvement."

So, also, in Spokane v. Kraft, 82 Wash. 238, 144 Pac. 286,
we said:

"In some of our cases where there was no question of
relative benefit, the court has said that a property owner could
not complain of the amount of the assessment, provided it
did not exceed the benefits. In those cases the questions of
relative value seem not to have been raised. It has never
been our purpose to hold, for it is not the law, that a
property owner can be compelled to give his property for a
public use without compensation; or, in meeting a burden
common to the public, pay more than his relative share. The
question here is, not whether the particular property is
benefited, but whether all property relatively benefited bears its
equable and equitable proportion of the costs of the
property or improvement. . . .

"But it is insisted that we have held, without qualification
and steadfastly, that this court will not disturb an assessment
unless it appears that it was made in fraud of the
right of a property owner, or that it was arbitrary, or captious,
or that the assessment was made upon a fundamentally wrong
basis, and that there is no evidence in this case that this
was So.

"It occurs to us that the record is pregnant with the
indicia of an arbitrary purpose to lay a heavy hand upon
appellants and to compel them, by a process of litigation and
bookkeeping, to practically donate the property taken from
them for street purposes.

"No better evidence could be offered than the fact that
the eminent domain commissioners disregarded the relative
situation and benefit to other property. . . .

 328    VANCOUVER v. CORP. OF CATHOLIC BISHOP ETC.
           Dissenting Opinion Per CHADWICK, J.           90 Wash.

"While the temptation to put the burden of payment upon
the property owner in such cases may be strong, yet the law
is such that the board should disregard entirely the source
from whence the property comes, and treat the claimant in
a condemnation suit when his day for assessment comes as
it would one whose property had not been taken, and assess
benefits, if any, accordingly."

Furthermore, appellant rests its case upon our holding in
In re West Bertona Street, 81 Wash. 125, 142 Pac. 483,
where the city condemned property through a tract held
and used for school purposes. Forty per cent of the cost
in the West Bertona Street case was taxed back upon the
claimant's property. We there held that it would be
manifestly unjust to tax more than a relative proportion of the
cost of the improvement to the remaining property; that
the street would be of no greater benefit to the abutting
property than it would to other property which would have access
to a new street which was necessary for their convenience
and was not desired, nor would it add to the convenience of
the school property.

Counsel for respondent does not deny that the
assessments are greatly in excess of the assessment upon adjacent
property. He says:

"True, the assessments placed upon the appellant were
greatly in excess of the assessments placed upon adjacent
property, but the adjacent property did not have any
increased frontage by the improvement."

The law will not tolerate the presumption that the
increased frontage will be of greater benefit to the property
remaining than it is to other property. That question is
merged in the former judgment. Lincoln County v. Brock,
37 Wash. 14, 79 Pac. 477; Lewis v. Seattle, 5 Wash. 741,
32 Pac. 794; Kitsap County v. Melker, 50 Wash. 29, 96
Pac. 695; Hieber v. Spokane, 73 Wash. 122, 131 Pac. 478;
Pierce County v. Thompson, 82 Wash. 440, 144 Pac. 704.
The only ground for the increased assessment suggested

      VANCOUVER v. CORP. OF CATHOLIC BISHOP ETC.          329
 Mar. 1916     Dissenting Opinion Per CHADWICK, J.

by the commissioners and the only justification for their
action urged by counsel being that appellant is given an
increased frontage, it would seem that the assessment
cannot be sustained, under the West Bertona Street case, supra.
We there held, and rightly, too, that an assessment based
on benefits for an increased frontage to one whose property
had been taken was laid under a fundamentally wrong basis.
The eminent domain commissioners can do no more than to
assess an amount sufficient to pay the judgment in the
eminent domain proceeding and fairly distribute it over the
improvement district. This is not a street improvement
under the assessment district statute. It is an eminent domain
proceeding, and any plan that in its operation makes one
whose property is taken pay more than his share of the
judgment is arbitrary and unjust; especially so, where the
commissioners frankly admit a purpose which has received
the condemnation of this court whenever presented, and
have as frankly published their purpose in the assessment
roll. They have proceeded under a misconception of the
law and upon a fundamentally wrong basis.

But accepting the frontage theory, let me demonstrate
that its assertion is a subterfuge. Reject lot 5, in block 3,
as having new frontage. Then take of the remainder of
appellant's property in block 3, lots 4, 3, 2, and 1, on
Thirteenth street. These are assessed at $330.62, and the same
approximate area across Thirteenth street is assessed at
$61.05. Reject lot 6, and take lots 7, 8, 9 and 10. These
are assessed at $299.38, while the lots across Twelfth street
aggregating an area equal to four-fifths of lots 7, 8, 9,
and 10, are assessed at $107.50. Can it be said that
appellant's lots that do not touch the opened street are benefited
more than like property belonging to other people? None
of the lots mentioned have any more frontage than they had
before. They have the same benefit. Their relative
situation is the same, and, in the absence of some reason not
apparent in the record, should be assessed for about the same

 330    VANCOUVER v. CORP. OF CATHOLIC BISHOP ETC.
           Dissenting Opinion Per CHADWICK, J.      90 Wash.

amounts. When it is understood that the street is opened
to make an arterial way connecting Columbia street and for
the general convenience of all property in the district, it
will be readily seen that respondent has asserted a position
that is not only not good in law, but is contradicted by its
own figures.

Failing to distinguish between a case where an assessment
is laid to cover the cost of an improvement under a local
assessment statute, and an assessment made by an eminent
domain commission to cover the cost of taking property in
an eminent domain proceeding, the majority has gone astray.
In the first class of cases, there may be differences of opinion
as to benefits of which the courts will take no notice, for
assuredly, so long as a person is not called upon to pay a
sum in excess of benefits, he should not complain. But in
the second class of cases, the first inquiry is not one of
benefit, but whether the owner has received that
compensation for the property taken which the constitution, art.
1, SS 16, guarantees to him.

The law is that all property benefited shall bear its just
proportion of the cost and that the owner shall not be
deprived of his compensation by resort to subterfuge. The
question of benefit is considered only as it relates to the
distribution of this cost, and we had so thoroughly established
the rule that the cost is to be distributed in proportion to
the relative benefit, that I had believed the question to be
forever foreclosed. Spokane v. Onstine, 86 Wash. 4, 149
Pac. 1.

If it is not so, a city, acting through an eminent domain
commission that is willing to boldly assert its purpose to
make the property taken bear a disproportionate part of
the cost, as was done in this case, can defeat one of the first
and most cherished declarations of the Bill of Rights. It
can punish a property holder if he is not willing to give
that which the constitution says shall not be taken without
just compensation first ascertained and paid.

          VANCOUVER v. CORP. OF CATHOLIC BISHOP ETC.      331
 Mar. 1916     Dissenting Opinion Per CHADWICK, J.

The plat speaks the utter disregard of appellant's rights
more eloquently than words, and gives emphasis to the fact
that this court is willing to sustain a city when it openly
declares that it did not, and does not, intend to respect the
rights of the appellant. If the argument of the majority
be sound, a city is not under compulsion to make even a
pretense of distributing the relative cost of taking
property, but may assess the whole of it to the unwilling
landowner.

The majority rests its decision upon Viegle v. Spokane,
78 Wash. 359, 139 Pac. 33; In re Boyer Avenue,
79 Wash. 664, 141 Pac. 58, and undertakes to distinguish In re
Eighth Avenue Northwest, and In re Ninth Avenue West, supra.
Viegle v. Spokane was a local improvement case, and the
law governing this proceeding had no application. In re
Boyer Avenue was an eminent domain case. The "difference
of opinion" in that case which the court refused to arbitrate
was a difference, not in the laying of the cost, but over the
boundaries of the district. Upon the question of assessment,
we held that the purpose being to make an arterial highway
(as in this case), part of the cost should be borne by the
city. In so far as the Boyer Avenue case touches this case,
it is an authority against the holding of the majority. In
In re Ninth Avenue, the court did not hold that the
assessment was bad because the whole cost was assessed back upon
the property, but specifically because all property relatively
benefited should bear a just proportion of the cost. The
principle is well stated in the concurring opinion written by
Judge Ellis. He said:

"I am not convinced that the assessment was made upon
a fundamentally wrong basis, nor that the appellants'
property was not benefited to a greater extent than the property
on the opposite side of the street. The disparity, however,
between the two amounts seems to me so great as to indicate
arbitrary action. It is difficult to see from the evidence
wherein the appellants' property was benefited in more than

 332    VANCOUVER v. CORP. OF CATHOLIC BISHOP ETC.
           Dissenting Opinion Per HOLCOMB, J.      90 Wash.

double the amount assessed against like property across the
street."

The same holding was made in the Eighth Avenue case.
The other cases relied upon state admitted propositions, but
they have no bearing upon the questions presented by the
record.

There is no question of difference of opinion in this case.
Opinion implies reason. An opinion that will not reason out
is no opinion. An arbitrary purpose to do that which the
law says shall not be done cannot be sustained under the
cloak of opinion. But, granting that there is a difference
of opinion between appellant and its witnesses and the
eminent domain commissioners, we may still look to the reason.
When we do so, we find, as the commissioners admit, an
arbitrary design to reduce appellant's award in the
condemnation suit to an amount which, in their judgment, is more
equitable than the sum found by the jury.

It seems to me that the majority, in holding that
appellant cannot complain if it is benefited in any degree, have
abandoned a most salutary rule; that is, that assessments
to cover the cost of taking property must be made upon the
basis of relative benefit, and if not so made, are laid upon
a fundamentally wrong basis. All, or the greater
proportion, of the expense of an improvement creating an arterial
highway for the greater, if not the sole benefit, of others,
should not, in justice and equity, be put on the property of
the one whose property has been taken. When it is done,
as in this case, it should not be countenanced.

For these reasons, I dissent from the opinion of the court.

FULLERTON, J., concurs with CHADWICK, J.

HOLCOMB, J. (dissenting) - I cannot escape the
conviction that the assessments levied back against appellants
property and the situation existing are extremely similar to
those shown in In re West Bertona Street, 81 Wash. 125,
142 Pac. 483. Upon the reasoning in that case, this case
should follow the same course. I therefore dissent.