Seattle v. Puget Sound Tr. L. & P. Co., 91 Wash. 567,

 568    SEATTLE v. PUGET SOUND TR., L. & P. CO.
                Opinion Per HOLCOMB, J.           91 Wash.

purposes against the remainder of the tract through which the
street was opened was arbitrary, where the object was to extend
an existing street in a settled district through the tract, so
as to connect with a paved boulevard which was of some special
benefit to the property owners of the district whose street was
thus extended.

Appeal from a judgment of the superior court for King
county, Tallman, J., entered March 9, 1915, confirming an
assessment roll in eminent domain proceedings by a city,
after a trial on the merits to the court. Reversed.

James B. Howe and Hugh A. Tait, for appellants.

Hugh M. Caldwell, Walter F. Meier, James E. Bradford,
and W. D. Covington, for respondent City of Seattle.

Wright & Huntoon, for respondent Rank et al.

          SEATTLE v. PUGET SOUND TR. L. & P. CO.      569
 June 1916          Opinion Per HOLCOMB, J.

condemned strip is taken, lying on the northwesterly side
of Green Lake, which is bounded on the west by Woodland
Park avenue, east and south by Green Lake boulevard and
Ashworth avenue, and north by North Dayton street. No
other land was assessed for benefits. The net result of the
proceeding was that appellants were allowed $8,250 as
compensation for the land appropriated, which was assessed back
to it with an addition of $729.70, the last mentioned sum
being the costs of the proceeding, and $538.54 accrued
interest on the award.

Appellants objected and excepted to the assessment roll,
on the ground that the assessment was arbitrary, inequitable,
in excess of benefits to appellants, and based upon a
fundamentally wrong basis.

The matter came on for hearing before Smith, J., who,
after hearing all the evidence offered by the city and the
appellants, directed and adjudged that the assessment against
the property of the appellants be reduced by the sum of
$2,000, and that such sum be spread upon the real estate to the
west of Woodland Park avenue to Dayton street and from
the alley next north of Seventy-fifth street to the alley next
north of Seventy-eighth street, and that the roll be
re-referred to the commissioners to be recast.

An amended roll was thereafter prepared and returned,
on which the assessment against the property of appellants
first included in the original district was reduced by the sum
of $1,700, hut some other property of appellants was
included which was not included in the original district and
assessed at a small sum. The new roll included the real
estate directed to be included in the order re-referring the
roll.

About ninety-four owners of the property so included in
the new roll objected thereto and to the assessment, and filed
an affidavit of prejudice against Smith, J., hearing the
matter of the amended roll, and it was assigned by the
presiding judge to Tallman, J., before whom it was heard.

 570    SEATTLE v. PUGET SOUND TR., L. & P. CO.
                Opinion Per HOLCOMB, J.           91 Wash.

After hearing the evidence offered by the city, the new
parties, and the appellants, Tallman, J., directed the
cancellation of the assessments against the new property named
in the amended roll, and that the entire amount of the original
assessment be levied back upon the two 100-foot strips of the
Traction Company. From this judgment, comes this appeal.

Respondent moves that so much of the abstract of record
as pertains to the hearing of the original roll and the order
thereon before Judge Smith be stricken. This cannot be
done. From the institution of the proceedings under the
statutes relating thereto, the superior court is given
jurisdiction of the entire matter until final judgment. Seattle v.
Sylvester-Cowen Inc,. Co., 55 Wash. 659, 104 Pac. 1121.
The superior court of King county is one court although
there are nine judges thereof. The proceeding to acquire
the land for the extension of the street and to assess the
property specially benefited for the cost of the improvement
was one proceeding. The statement of facts necessary to be
certified on appeal should contain all matters material to
the cause not already made a part of the record thereof. It
was necessary also to abstract the same. The proceedings
before Judge Smith were properly included in the statement
of facts and in the abstract. The motion is denied.

We do not think that the court had power under the
statute to direct the exact limits of territory that should be
included in any assessment district. This is a legislative power.

"The statute expressly enjoins upon the commissioners the
duty of apportioning the total cost between the city and the
district specially benefited in such proportion as shall be
relatively equitable. If, however, they fail to do this, the
power of the court to review their action is restricted." In
re Westlake Avenue, 40 Wash. 144, 82 Pac. 279.

"In this class of cases, opinions will differ widely as to the
proper boundaries for an assessment district, and as to the
benefits to accrue to the different properties within the
district; but this court cannot substitute its judgment for the
judgment of those whom the law has charged with the duty

      SEATTLE v. PUGET SOUND TR., L. & P. CO.      571
 June 1916          Opinion Per HOLCOMB, J.

of establishing the district and apportioning file cost,
whenever such difference of opinion may arise." In re Seattle,
50 Wash. 402, 97 Pac. 444.

The superior court can review, revise, modify, set aside,
or confirm an assessment roll in this sort of proceeding. In
so doing the court can assuredly order to be included
property arbitrarily omitted from assessment which is manifestly
within the area of benefits, and it can order that property
which is manifestly and arbitrarily included within the
district, which is not and cannot be specially benefited, omitted
and excluded therefrom. This is the exercise of the power of
the court to "revise, alter, or modify" the assessment. It is not
the substitution by the court of an entirely new district or area
of benefits. The court may, in refusing to approve and
confirm the assessment roll, indicate the judicial reason therefor,
that it is apparent that an entire area is either included or
excluded unjustly and arbitrarily. To readjust an
assessment district very generally and comprehensively, under
these statutes, the court must follow the statutes and refer
the entire matter back to the eminent domain commissioners,
or appoint new commissioners and order the benefits assessed
anew.

Judge Smith proceeded from the premise that, "It is
neither usual nor fair to confine an assessment district
between file termini of the place that has been condemned. The
condemnation was not for the benefit of the tract of the
respondent wholly. If that was the intention of it, no doubt
the respondent itself would have dedicated the street before
this." this premise may not be correct as a general rule,
but we think it is certainly correct as applied to the
conditions here shown. This case is almost exactly parallel with
the case of Spokane v. Kraft, 67 Wash. 245, 121 Pac. 830,
and Id., 82 Wash. 238, 144 Pac. 286. As was said in
Spokane v. Miles, 72 Wash. 571, 131 Pac. 206:

"Assessment districts must have a point of beginning and
a point of termination. The fixing of these extremes often

 572    SEATTLE v. PUGET SOUND TR., L. & P. CO.
                Opinion Per HOLCOMB, J.           91 Wash.

presents many perplexing questions upon which there would
be a never ending variety of opinion. It is, therefore, of the
first importance that some definite rule be laid down for the
guidance of trial courts. The best rule that has been
announced, and the only practicable working rule is that the
courts should not change the district established by the
commissioners, except where the commissioners have acted
arbitrarily or fraudulently or have proceeded upon a
fundamentally wrong basis."

But in this case we observe that the object of the
appropriator was to open a street or public highway so as to
extend a street already existing through a platted and settled
portion of the city to connect with a paved highway or
boulevard, which must of necessity have been of general
benefit to the public or the city at large, and must in our
judgment have been of some special benefit to the property
owners and residents of the district from which this street would
be extended to the boulevard. It certainly was arbitrarily
determined that the Traction Company through whose land
the street was extended was the only owner generally and
specially benefited. Of course, this cannot be said in all
cases, for there may be exceptions to any rule. But it
certainly is so in this case, just as it was so in the case of
Spokane v. Kraft, supra. It was manifest that the eminent
domain commissioners set out to assess back the cost of the
appropriation to the remaining land of the condemnee. In the
hearing on the amended roll before Judge Tallman, the
commissioners, by their simple asseverations and bald conclusions,
endeavored to show the correctness of their original
assessment and declined to agree to any other basis of assessment.
There was testimony before the court in the hearing before
Judge Smith, by apparently competent, able, and fair-minded
men, such as Ex-Mayor Dilling of Seattle and others, to the
effect that the property of the Traction Company could not
possibly be benefited to the extent of more than forty or fifty
per cent of the cost of the extension. They gave their
reasons and deductions, which were very logical and plausible.

          SEATTLE v. PUGET SOUND TR., L. & P. CO.      573
 June 1916          Opinion Per HOLCOMB, J.

Of course, there were apparent differences of opinion between
them and the witnesses for respondent. Whether they were
honest differences depends upon whether their respective
opinions appear to have been well based or ill founded. Judge
Smith, however, taking into consideration all the conditions
and circumstances and endeavoring to reconcile and harmonize
the facts, thought that not more than twenty-five per cent
or $2,000 of the cost of the extension, should be spread upon
the property of other property owners, and that that should
be spread upon property which he determined and lying to the
west of the extension. In thus attempting to define the limits
of the assessment district, Judge Smith exceeded his
authority. And in finding that the Traction Company was benefited
to the extent of about seventy-five per cent of the cost of the
assessment, while within his authority, he was apparently
sufficiently considerate as to other property holders
specially benefited, and he was amply sustained by the evidence that
the assessment against the appellants' property was fully
$2,000 excessive, and arbitrary.

At all events, it seems to us that no argument is necessary
to show that the assessment in this case was arbitrary and
disproportionate to the benefits realized by the owners of the
property taken for street purposes, to the extent of $2,000
at least. Spokane v. Kraft, 852 Wash. 238, 144 Pac. 286.
See, also, In re Eighth Avenue Northwest, 77 Wash. 570,
138 Pac. 10; In re Ninth Avenue West, 76 Wash. 401, 136
Pac. 488; Norwood v. Baker, 172 U. S. 269.

In general, the power of the courts over such proceedings
is revisory under the statute, and if the statute and the
constitution were obeyed according to their letter and spirit, and
after the manner that has been so often pointed out by this
court, the duty and power of the courts would be simple. The
courts should not attempt to direct or control the discretion of
the legislative officers, but should curb and control their
indiscretion. We should not hold in this case that the finding
of Judge Smith on the original hearing was res judicata.

 574    SEATTLE v. PUGET SOUND TR., L. & P. CO.
                Opinion Per HOLCOMB, J.           91 Wash.

We can only hold that, until a proper assessment roll is
prepared equitably proportioning the cost of the improvement
upon all property benefited thereby, assessing the property
within a proper assessment area or district, it ought not to
be approved. It must be borne in mind that the statute
provides for reassessment, and when all these various sections
are considered, the costs of a reassessment as well as of the
original award and costs, must be laid against the property
benefited.

The judgment is reversed, and the cause remanded with
instructions to order a reassessment by the eminent domain
commissioners, and that the assessment be spread upon all
property specially and relatively benefited by the
improvement, in accordance with this opinion. Appellants will
recover costs.

MORRIS, C.J., PARKER, MOUNT, CHADWICK, and
FULLERTON, JJ., concur.

ELLIS, J., concurs in the result.