Behrens v. Commercial Waterway Dist. No. 1, of King County

• Decision Date: 24 May 1919
• Docket Number: 15376.
• Court: Washington Supreme Court
• Parties: BEHRENS v. COMMERCIAL WATERWAY DIST. NO. 1, OF KING COUNTY.

181 P. 892

107 Wash. 155

BEHRENS v. COMMERCIAL WATERWAY DIST. NO. 1, OF KING COUNTY.

No. 15376.

Supreme Court of Washington

May 24, 1919

Department 1.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Action by Adolph Behrens against the Commercial Waterway District No. 1 of King County. Judgment of dismissal, and plaintiff appeals. Reversed.

Donworth, Todd & Higgins, of Seattle, for appellant.

Shorett McLaren & Shorett, of Seattle, for respondent.

CHADWICK C.J.

The purpose of this proceeding is to test the validity of certain bonds which the respondent waterway district intends to issue.

The bonds are a general issue to be used in part for the refunding of an outstanding issue of approximately $500,000 and to meet the future needs of the respondent as occasion may require. The total present bonded indebtedness of the district is $1,121,500.

The present plan is pursued in virtue of the authority vested in waterway districts and, if accomplished, will result in the issue of bonds in such amount that the total principal of all bonds then to be outstanding, while less in total amount than the total amount of maximum benefits, will, if account be taken of the interest now accrued and to accrue on the outstanding bonds, greatly exceed the amount of total maximum benefits.

It is confessed that the property cannot be charged in a principal sum greater than the total amount of the maximum benefits but it is contended that the interest accrued and to accrue which is depended upon by the respondent to swell the total indebtedness to an amount in excess of the maximum benefits is no part of the cost and expense of the improvement; that the collection of interest, while incidental to the financial plan of the district, is not a thing to be considered as an item to be balanced as cost or expense against the total of maximum benefits.

The question submitted by counsel requires a construction of section 8192a, Rem. Code.

Since the authority of respondent rests in the statute, and that alone, we are not called upon to go beyond it or search for authority to sustain general principles, except to say:

'It is the basic principle and the very life of the doctrine of special assessments that there can be no special assessment to pay for a thing which has conferred no special benefit upon the property assessed. To assess property for a thing which did not benefit it would be pro tanto the taking of private property for a public use without compensation, hence unconstitutional. Though the right to levy special assessments for local improvements is referable solely to the sovereign power of taxation, our state Constitution, art. 7, § 9, expressly limits its exercise to assessments of property benefited.' In re Shilshole Avenue, 85 Wash. 522, 537, 148 P. 781, 787.

And:

'Where no authority is given by statute, interest on the assessment cannot be collected. The taxing power must be strictly exercised and the particular sum only assessed.' Hamilton, Law of Special Assessments, § 721.

Under a like statute, the Supreme Court of New Jersey held: 'The commissioners are to determine what proportion of the costs and expenses of the improvement shall be paid by the county, and the statute directs that amount to be raised by taxation. In the exercise of the taxing power, the board of freeholders is limited, by the terms of the statute, to the imposition of the sum assessed. No authority is given to increase the burden by adding interest. The taxing power must be strictly exercised.' Paterson Ave., etc., v. Board of Freeholders, etc., 44 N. J. Law, 570.

Keeping in mind, then, that the expense and cost of all public works may be charged to property benefited, it is fundamental that no greater charge can be made than a sum equal to the benefits received; for, if a charge be made over and above the benefit ot the property, it is a taking of property without just compensation and violates article 1, section 16, of the Bill of Rights.

One of the first considerations of a court, when called upon to construe a statute, is to gather the true intent and meaning of the legislative body, and the first resort in such cases is the context and subject-matter of the statute. Taking the act by its four corners, it, as all acts of the legislative body which assume to put an involuntary charge upon private property for the public good, should be treated as a covenant between the state and the property owner. With this view we are convinced that the waterway commission has no power to make a charge for interest unless it be within the limit of maximum benefits.

Referring now to the original authority of the waterway commission and the constitutional right of the property owner, and which may be said to be emphasized in the act, it seems plain that it was not the intention of the Legislature to charge the property benefited beyond the maximum benefits to be obtained.

It is provided that----

After the entry of a judgment of the court fixing the amount of the benefits, '* * * all the lands included in the list of lands benefited by such improvement shall stand charged with the entire cost and expense of said improvement and the other costs, expenses and charges provided for by this act, not exceeding with respect to any lot or tract of land (so far as concerns the original cost) the maximum amount stated or declared in such judgment to be the maximum amount of benefits to be derived by such lot or tract of land or the owners thereof, and all such lands shall thereafter be subject to the assessments to be levied by the board of commissioners for said purposes, which assessments shall be levied pro rata in proportion to the maximum amount of benefits as to each lot or tract of land as stated or declared in such judgment.'

We find no provision for the payment of interest. There is a charge put upon the property to the extent, and to the extent only, of the maximum benefits to pay the costs and expenses of construction. There is nothing to suggest that the Legislature intended that the property of an individual owner might be subjected to a lien upon his property equal in amount to the maximum benefits and be thereafter called upon to pay anything in addition thereto, whether it be in the nature of an interest charge or otherwise. This conclusion is sustained, as we believe, by the further provisions of the section that----

'All assessments shall be levied from time to time by the board of commissioners by written notice to be addressed to and served on the county assessor of the county. * * *'

The act then provides for the collection of the assessment, and it is further provided:

'The amount of the assessment levied by the commissioners during any one year shall not exceed twenty-five per cent. of the amount estimated by the board of commissioners to be necessary to pay the costs of the proceedings and the establishment of said district and waterway system, and the cost of construction of said work. * * *'

It will be observed that the commissioners are denied the power to levy an assessment for more than 25 per cent. of the cost and expense of construction, in any one year, although they are not required to levy such assessments; the Legislature evidently having it in mind that, when work such as the act contemplates had been undertaken, it would extend over a period of time, and that a charge of 25 per cent. of the amount of the benefits in any one year until the whole sum was collected would provide ample funds for the prosecution of the work. Or, to state our conclusion in a different way,...