Ferguson v. City of Snohomish

• Decision Date: 17 May 1894
• Court: Washington Supreme Court
• Parties: FERGUSON v. CITY OF SNOHOMISH.

36 P. 969

8 Wash. 668

FERGUSON v. CITY OF SNOHOMISH.

Supreme Court of Washington

May 17, 1894

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Action by Clark Ferguson against the city of Snohomish to have the proceedings of the county commissioners of Snohomish county Wash., by which plaintiff's land was included within the defendant city, declared null and void, to remove the cloud on his title to such land by reason of sales thereof for city taxes, and to enjoin defendant and its officers from assessing or selling the land. From a judgment for defendant plaintiff appeals. Affirmed.

W. R Andrews, for appellant.

L. H Coon, for respondent.

ANDERS J.

It is provided, among other things, in section 10, art. 11, of the state constitution, that "corporations for municipal purposes shall not be created by special laws; but the legislature, by general laws, shall provide for the incorporation, organization and classification, in proportion to population, of cities and towns, which laws may be altered, amended or repealed. Cities and towns heretofore organized or incorporated may become organized under such general laws whenever a majority of the electors voting at a general election shall so determine, and shall organize in conformity therewith." By virtue of the authority conferred by this section, the legislature of the state passed an act, approved March 27, 1890, entitled "An act providing for the organization, classification, incorporation and government of municipal corporations, and declaring an emergency." Section 1 of this act declares that "any portion of a county containing not less than three hundred inhabitants, and not incorporated as a municipal corporation, may become incorporated under the provisions of this act, and when so incorporated, shall have the powers conferred, or that may hereafter be conferred, by law upon municipal corporations of the class to which the same may belong." Some time in the year 1888, the inhabitants of the village of Snohomish attempted to incorporate, under the act of February 2, 1888, but as that act was declared void by this court in Territory v. Stewart, 1 Wash. 98, 23 P. 405, such village never had a legal corporate existence. On May 19, 1890, a petition, signed by the requisite number of persons residing within the boundaries therein prescribed, was presented to the county commissioners of Snohomish county, praying for the incorporation of a city of the third class, under the provisions of said act of March 27, 1890. The boundaries of the proposed city, as described in the petition, included the former village of Snohomish, and, in addition thereto, some 240 acres of land belonging to appellant, which was contiguous to said village, but only 40 acres of which was included therein under the attempted incorporation, by virtue of said act of February 2, 1888. At the time of the presentation of the petition, these lands were occupied by appellant and his family only, were not laid out into town lots or blocks, but were used by him as a dairy farm exclusively; but a portion of appellant's lands abutted on the block of land upon which was situate the county courthouse, and on the west and north of said premises were several additions to the town, containing altogether about 60 inhabitants. Upon the hearing of the petition, the appellant appeared before the commissioners, and objected to their including his lands within the boundaries of the proposed corporation, but offered to be satisfied if they would include the 40 acres formerly included in the original village, and allow the balance to remain outside. The commissioners, however, did not see fit to change the boundaries as prayed for; and an election was ordered and held, the votes canvassed, and the incorporation was thereupon declared complete. No legal proceeding, however, was instituted by appellant to correct any supposed error on the part of the board of commissioners, or to prevent them from submitting the question of incorporation to the vote of the people, in accordance with the provisions of the statute. But after the formation of the corporation, and after his land had been sold for city taxes, which he neglected to pay, he brought this action to have the proceedings of the county commissioners by which his lands were included within the city of Snohomish declared null and void, to remove the cloud cast upon his title to said land by said tax sale, and to enjoin said city, its officers and agents, from further assessing, or attempting to assess, or selling, or attempting to sell, his said lands and premises, or any part thereof.

The first contention of the learned counsel for the appellant is that the board of county commissioners of a given county have no right, under the constitution and laws of this state, to include, within the boundaries of a municipal corporation, lands which are used purely for agricultural purposes. But we are of the opinion that the appellant is not in a situation to question the validity of the incorporation of the city of Snohomish, for the reason that he has brought his action against it as a municipal corporation, and alleged it to be such in his complaint; and, even if he had not done so, he could not, according to the weight of authority, attack the corporate existence of the city in a collateral action like this. 1 Dill. Mun. Corp. (4th Ed.) § 43a, and cases cited; Cooley, Const. Lim. (5th Ed.) p. 311.

But irrespective of the foregoing considerations, we think the appellant's...