Perkins & Co. v. Diking District No. 3, 162 Wash. 227, 298 Pac.

 228    PERKINS & CO. v. DIKING DISTRICT NO. 3.
                Opinion Per HOLCOMB, J.           162 Wash.

Appeal from a judgment of the superior court for
Island county, Bell, J., entered July 15, 1930, in favor
of the defendants, upon stipulated facts, in an action
for injunctive relief, tried to the court. Reversed.

Kerr & McCord, for appellant.

James Zylstra, for respondents.

      PERKINS & CO. v. DIKING DISTRICT NO. 3.          229
 Apr. 1931          Opinion Per HOLCOMB, J.

concerned with the non-payment of bonds numbered 164
to 166, inclusive, because its bonds would be paid before
those bonds, at all events. It may be determined
here at the outset that Rem. Comp. Stat., § 190,
authorizes actions to be brought by one of many persons
interested in a question of common or general interest to
them and it is impracticable to bring them all before
the court. Such practice was also upheld in Clay v.
Selah Valley Irrigation Co., 14 Wash. 543, 45 Pac. 141.

There were, at the time of the commencement of this
action, outstanding and delinquent assessments against
a portion of the lands contained within the diking
district aggregating $10,772.76. There was also delinquent
and accrued interest on those assessments as of
January 1, 1929, amounting to $6,211.92. Those delinquent
assessments had been levied during the years
1919 to 1925, inclusive, but the treasurer of Island
county had failed to collect the same, although demand
had been made that she do so.

Upon the organization of the diking district, and as
a part of the proceedings therein; in a certain action
numbered 1233 in the superior court for Island county,
wherein Diking District No. 3 of Island county was
plaintiff and Wellman Bruner et al., were defendants,
the amount of benefits accruing to each parcel of land
in the diking district by virtue of the establishment of
the diking .district was fixed and determined as provided
by law. The total benefits accruing to the lands
within the diking district, as determined by the jury in
that cause against forty separate parcels, amounted to
$44,752.20. The total assessments for bond redemption
levied against the lands within the diking district
amount to $26,821.72. Of this amount, the sum of
$950 was levied in 1915 for the payment of warrants,
and was never intended to be, nor used, for the purpose
of bond redemption. Hence, the net total of assessments

 230    PERKINS & CO. v. DIKING DISTRICT NO. 3.
                Opinion Per HOLCOMB, J.           162 Wash.

that have been levied for bond redemption purposes
amounts to $25,871.72. In other words, the total
benefits accruing to the lands within the diking district,
by virtue of the improvement, exceeds the total
assessments levied to pay for the same by $18,880.48. In
addition, the treasurer of Island county has sold two
parcels of land within the diking district for general taxes
without including the diking district assessments
against them, which assessments amounted to $3,635.67.

After a hearing in which all parties were represented,
the court entered an interlocutory order requiring
respondent, the treasurer of Island county, to
foreclose and collect the delinquent assessments
theretofore levied against the lands in the diking district,
and, after doing so, to report back to the court, the
court specifically retaining jurisdiction of the cause.
In accordance with this interlocutory order, the
treasurer caused the delinquent assessments to be foreclosed
and the lands against which they were levied, sold.

A return was thereafter made by the treasurer in
accordance with the directions of the court's
interlocutory order, which showed that no funds whatever were
realized by the diking district from such foreclosure
and sale, inasmuch as all the properties were struck off
to Island county, it being the sole bidder at such sale.
Thereafter, another hearing was held in the cause pursuant
to the interlocutory order, and the court refused
to grant any further relief to appellant and entered its
decree accordingly. This appeal results.

[2] All the material facts are stipulated.

This diking district was organized under the provisions
of Rem. Comp. Stat., § 4236 to 4297, inclusive.
Some amendments have been made and codified in
Rem. 1927 Sup., §§ 4236 to 4292-5, inclusive, and by
chapter 111, Laws of 1929, p. 214. The district was not
organized as a drainage and diking improvement

          PERKINS & CO. v. DIKING DISTRICT N0. 3.           231
 Apr. 1931          Opinion Per HOLCOMB, J.

district under Rem. Comp. Stat., § 4405 to 4459, inclusive.

Consequently, the matter before us is not governed
by the same statutory provisions as were before the
court in Kadow v. Paul, 134 Wash. 539, 236 Pac. 90,
which, among others, involved a statute providing that

". . . all the lands included within the boundaries of the
district and assessed for the improvement shall be and remain
liable for the costs of the improvement until the same are fully
paid."

The statutes governing the matter in suit are quite
lengthy, and we can only make brief references to what
we consider the controlling provisions thereof.

Rem. Comp. Stat., SS 4265, prescribes that, after the
entry of the judgment upon the verdict of the jury, the
clerk shall prepare a transcript containing a list of the
names of all persons and corporations benefited by the
improvement and the amount of the benefit derived by
each, respectively, and duly certify the same, together
with a list of the lands benefited by the improvements
belonging to each person or corporation, and file the
same with the auditor of the county, who shall immediately
enter the same upon the tax rolls of his office, as
provided by law for the entry of other taxes, against
the land of each of the persons named in the list, together
with the amounts thereof, and the same shall be
subject to the same interest and penalties in case of
delinquency as in case of general taxes, and shall be
collected in the same manner as other taxes, and subject
to the same right of redemption, etc.

Section 4278 provides that, after the establishment
of any district under the provisions of the act, and the
establishment of a system of diking therein as
provided for, the board of commissioners of the diking
district was authorized, upon the petition of land
owners owning a majority of all the lands within such
district to be benefited thereby, to issue bonds for the total

 232    PERKINS & CO. v. DIKING DISTRICT NO. 3.
                Opinion Per HOLCOMB, J.           162 Wash.

amount of the cost of the construction for such improvements,
together with the costs of establishment
thereof, including damages assessed and compensation
made to land owners for rights of way, and the expenses
and costs of the entire proceeding, payable at
a time not less than five years nor longer than ten years
from the date thereof; provisions were then made for
the issuance of other bonds by the commissioners for
certain purposes, with the same limitations as to time
of payment.

Section 4279 prescribes that the bonds be numbered
consecutively from one upwards, and be in
denominations of not less than one hundred dollars nor more
than one thousand dollars, and bear the date of issue,
etc.

Section 4281 reads:

"Five years before said bonds shall become due the
diking commissioners of such district issuing them are
hereby authorized and .required, annually, to levy an
assessment sufficient to liquidate said bonds at
maturity. Such assessment shall be collected by the county
treasurer and kept as a separate fund for the sole
purpose of liquidating said bonds in accordance with the
provisions of the following section."

Section 4283 requires the calling of bonds by the
county treasurer when he has on hand two thousand
dollars of the special fund for the payment of bonds.

Section 4284, so far as is pertinent here, reads:

"It shall be the duty of such diking commissioners,
annually, to levy an assessment sufficient for the
payment of the coupons hereinbefore mentioned as they
fall due."

Then follow provisions governing the issuance, presentation,
payment or endorsement of such warrants.

Appellant chiefly relies upon the decision in State
ex rel. Clancy v. Columbia Irrigation District,
121 Wash. 79, 208 Pac. 27. The statutes involved in

      PERKINS & CO. v. DIKING DISTRICT NO. 3.      233
 Apr. 1931          Opinion Per HOLCOMB, J.

that case were, as stated in the opinion, statutory
provisions relating to irrigation district assessments. It
was there observed that irrigation districts, their
organization and obligations, differ from most other
taxing districts. For example, in irrigation districts, under
and by virtue of Rem. Comp. Stat., SS SS 7434 and 7440,
all property in the district remained liable to be assessed
for the payment of bonds and interest until fully
paid, and the governing boards of irrigation districts
were required to make assessments for probable deficiency
sufficient to cover any deficit that might result
from delinquent assessments for preceding years.

While SS 4281, supra, is not as expansive and specific
as the statutes referred to in the irrigation district
case, and in the diking improvement company case,
heretofore mentioned, we consider it terse and concise
in requiring the diking commissioners to levy an assessment
sufficient to liquidate all bonds at maturity.
In this respect, there is a duty to make assessments
sufficient to liquidate all bonds at maturity, which is
limited only by the amount of benefits to the property
within the diking district.

It is certainly true that the tax assessed under
this law is assessed according to benefit, only (State
rel. Conner v. Superior Court, 81 Wash. 480, 143 Pac.
112), and that the diking commissioners have no power
to assess in excess of the benefits. Espy Estate Co. v.
Pacific County, 40 Wash. 67, 82 Pac. 129; State ex rel.
Espy Estate Co. v. Board of Com'rs, 48 Wash. 230, 93
Pac. 326.

It is fundamental that no greater exaction can be
made than a sum equal to the benefits received; for, if
a charge be made over and above the benefits to the
property, it is the taking of property without just
compensation and violates Article I, § 15, Washington

 234    PERKINS & CO. v. DIKING DISTRICT N0. 3.
                Opinion Per HOLCOMB, J.           162 Wash.

Constitution; Behrens v. Commercial Waterway District
No. 1, 107 Wash. 155, 181 Pac. 892, 185 Pac. 628.

Respondents especially emphasize the requirement
of § 4265, supra, requiring assessments to be in
proportion to benefits.

While it always will bear unequally upon those who
have paid their assessments when required to respond
for defaults and delinquencies of other beneficiaries
who fail to pay their assessments, and is a regrettable
situation, nevertheless, so long as the assessments are
not in excess of the benefits, and therefore not
confiscatory under our constitution, they are still valid.

The waterway district act involved in the Behrens
case, supra, was no broader than the act under which
this diking district was organized and operates.

The conclusive presumption is that the adjudication
of the lands to be benefited, the total benefits thereto,
and the amount of bonds to be issued and the interest
thereon, by the jury in cause No. 1233 in the Island
county superior court, is final. State ex rel. Wells v.
Hartung, 150 Wash. 590, 274 Pac. 181. Although the
cited case involved irrigation district obligations and
assessments, the legal presumption there stated is as
effective and controlling here.

Under the statute governing the matter in suit, we
conclude that appellant is entitled to the relief prayed,
that assessments be ordered by the court below against
all the lands in the diking district, not in excess of the
amount of benefits to any separate tract assessed
within the diking district, sufficient to pay all outstanding
bonds of the diking district and interest.

The decree is reversed, with instructions to proceed
accordingly.

TOLMAN, C. J., MITCHELL, PARKER, and MAIN, JJ.,
concur.