Adams County v. Scott

• Decision Date: 15 September 1921
• Docket Number: 16461.
• Citation: 200 P. 1112,117 Wash. 85
• Court: Washington Supreme Court
• Parties: ADAMS COUNTY et al. v. SCOTT.

200 P. 1112

117 Wash. 85

ADAMS COUNTY et al. v. SCOTT.

No. 16461.

Supreme Court of Washington

September 15, 1921

Department 1.

Appeal from Superior Court, Adams County; John Truax, Judge.

Proceedings by Adams County and its Board of Commissioners to assess benefits from a road improvement against D. A. Scott. From a judgment of the superior court reversing the action of the Board, it and the County appeal. Reversed, and cause ordered dismissed.

W. O. Miller, of Ritzville, for appellants.

C. W Rathbun, of Ritzville, for respondent.

BRIDGES J.

This case was concerning the improvement of a certain road in Adams county, under what is generally known as the Donahue Road Law. Section 5730 et seq., Rem. Code, as amended by Laws 1917, p. 238.

Certain owners of lands in Adams county petitioned the board of county commissioners to improve a road, to be known as the Donahue road No. 4. The commissioners, in due time, heard the petition, decided to make the improvement, let a contract and appointed a board of appraisers, as provided by the so-called Donahue Law. The appraisers, among other things assessed the property of Scott and others for benefits. The assessment so made was approved by the county commissioners over the objection and protest of Mr. Scott. Being dissatisfied with the assessments against his lands, he appealed to the superior court of Adams county. Thereupon the county auditor certified to that court the proceedings taken by the commissioners. Thereafter the court proceeded to hear the whole matter, took oral testimony, and ultimately made a judgment reversing the action of the board of county commissioners whereby they levied such assessments and remanded the whole matter to that board for further action and for reappraisement of damages and benefits to the property embraced within the district, comprising road district No. 4. From this judgment the county and its boards of commissioners have appealed to this court.

The appellants first contend that the superior court of Adams county did not get any jurisdiction of the matter, and that, consequently, this court can have no jurisdiction. Their argument is that the so-called Donahue Road Law does not make any provision for appeals from the board of county commissioners. Section 5744, Rem. Code, provides for an appeal to the superior court from certain acts of the county commissioners. However, the 1917 Legislature elaborately amended this road law, and section 9 thereof begins as follows: 'That section 5744 of Rem. & Bal. Code be amended to read as follows: Sec. 5744.' As amended, that section is concerning matters in no wise connected with appeals. If this amendment had the effect of repealing those provisions of section 5744 of the original act with reference to appeal, then this road law does not provide for any appeal from the board of county commissioners with respect to these matters.

At page 1083, vol. 36, Cyc. it is said:

'Generally speaking, where a statute is amended 'so as to read as follows,' the amendatory act becomes a substitute for the original, which then ceases to have the force and effect of an independent enactment. * * * On the contrary, the better and prevailing rule is that so much of the original as is repeated in the later statute without substantial change is affirmed and continued in force without interruption; that so much of the act as is omitted is repealed.'

[117 Wash. 88] At page 735, 26 Am. & Eng. Encyc. of Law, the rule is stated as follows:

'A statute providing that certain sections of the prior act shall be amended 'so as to read as follows' repeals all contained in the sections of the original act not re-enacted. * * *'

The same rule is laid down in 25 R. C. L. 923, as follows:

'Where a section expressly amendatory of another section of a statute purports to set out in full all it is intended to contain, any matter which was in the original section, but is not in the amendatory section, is repealed by the omission.'

See, also, State v. Benevolent, etc., 69 Miss. 895, 13 So. 255; Hawes, Petitioner, 22 R.I. 312, 47 A. 705; In re Wheelock, 51 Hun, 640, 3 N.Y.S. 890.

We therefore conclude that the original provision for appeals has been repealed, and that the so-called Donahue Road Law as it now exists does not make any provision for appeals from orders of the county commissioners. Indeed, the respondent does not here seem to seriously contest this question, but contends that he is entitled to appeal by virtue of the general appeal act concerning appeals from acts of the board of county commissioners. See section 3909, Rem. Code. That section provides:

'Any person may appeal from any decision or order of the board of county commissioners to the superior court of the proper county.'

The section then proceeds to point out minutely the way in which such appeals may be taken and how the matter shall be tried when it reaches the superior court. Appellant, however, contends that section is general in its nature and does not authorize appeals from the board of county commissioners when it is acting under a special law for special purposes. Following the spirit of our previous decisions, we feel compelled to uphold appellants' position on this contention.

In the case of Lawry v. Board of County Commissioners, 12 Wash. 446, 41 P. 190, the court stated the question involved to be as follows:

'As stated in the brief of appellant, the only question for discussion and determination in this case is: Will an appeal lie from a decision or order of the board of county commissioners with respect to the removal of the county seat?'

In holding that the general appeal statute did not authorize an appeal in the case, the court said:

'But in this case there are special reasons for holding that no appeal will lie from the order complained of. By the statute relating to the removal of county seats, duties are cast upon the board of county commissioners which are separate and distinct from their ordinary and usual duties. In discharging them, it acts as the representative or agent of the Legislature, by virtue of a special statute enacted for the sole purpose of clothing it with special powers, and which provides for no appeal. We think the general act refers only to the usual proceedings of the board and not to special proceedings under a special statute for a special purpose.'

In the case of Olympia Waterworks v. Thurston County, 14 Wash. 268, 44 P. 267, the question was whether the general appeal statute mentioned authorized an appeal from an order made by the board of county commissioners, sitting as a board of equalization. We said:

'It [the decision of the board of equalization] was made in pursuance of an act providing in detail for the assessment and collection of taxes, and in that act must be found the right of appeal, if it exists. And the fact that the right to appeal from any decision is given in the act providing for the general duties and powers of the board of county commissioners can have no effect upon the decision required of such board by the act upon this special subject. * * * Under well-settled general rules for the interpretation of statutes, the section authorizing appeals contained in the general act as to boards of county commissioners could have no effect upon decisions made by the board in performing duties required by the revenue act. This interpretation is required by the general rule that provisions in a general act do not affect those contained in a special one, unless the legislative intent to that effect is manifest.'

In the case of Selde v. Lincoln County, 25 Wash. 198, 65 P. 192, the question involved was whether, under the general statute with reference to appeals, an appeal could be taken from the act of the board of county commissioners in refusing to establish a certain road for which petition had been made. After discussing the question somewhat elaborately, this court said:

'What are the limitations upon appeals to the superior court from the decisions of the board of county commissioners? The superior court exercises only judicial power; hence appeals from the board of county commissioners to the superior court must be limited to such cases as require the exercise of purely judicial power, and therefore when the board of county commissioners exercise political power, or legislative power, or administrative power, or discretionary power, or purely ministerial power, no appeal involving a trial de novo will lie.'

To the same general effect see Lewis v. Bishop, 19 Wash. 312, 53 P. 165; State ex rel. Yeargin v. Maschke, 90 Wash. 249, 155 P. 1064.

The general appeal statute is a part of the compiled statutes with reference to the general...