McKenzie v. Mukilteo Water Dist.

• Decision Date: 10 May 1940
• Docket Number: 27804.
• Citation: 4 Wn.2d 103,102 P.2d 251
• Parties: McKENZIE v. MUKILTEO WATER DIST. et al.
• Court: Washington Supreme Court

102 P.2d 251

4 Wn.2d 103

McKENZIE v. MUKILTEO WATER DIST. et al.

No. 27804.

Supreme Court of Washington

May 10, 1940

Department 2.

Action by Emma McKenzie against the Mukilteo Water District and another to restrain defendants from attempting to collect a local improvement assessment in local improvement district No. 8, created in and by the Mukilteo Water District, and to have plaintiff's land declared to be free and clear from the lien of such assessment, and to have her land stricken from the assessment roll. From an adverse judgment, the defendants appeal.

Reversed with instructions to dismiss the action.

Where comprehensive plan for installation of water system by water district which was organized under unconstitutional statute provided for supply and distribution systems as they might become necessary, and provided that water was to be purchased from city and conveyed to reservoirs, that payment for supply system was to be made by district as a whole with funds provided from general bond issue, payable by direct taxes upon the property therein, and that distribution systems were to be paid for as local improvements, in districts to be created as and when settlement of the territory required their creation, the plan was legally sufficient and was binding upon subsequent statutory validation and ratification of the organization of the district. Laws 1913, p. 533; Laws 1931, p. 222.

Appeal from Superior Court, Snohomish County Ralph C. Bell, judge.

J. W Dootson and Wm. A. Johnson, both of Everett, for appellants.

A. E. Jonson, of Seattle, for respondent.

JEFFERS Justice.

Plaintiff, Emma McKenzie, instituted this action against Mukilteo Water District, and Sylvester Stumfall, as treasurer of Snohomish county, to restrain defendants from in any manner attempting to collect a local improvement assessment, in local improvement district No. 8, created in and by the Mukilteo water district, and further asked to have her land declared free and clear from the lien of such assessment, and to have her land stricken from the assessment roll.

After a hearing, the court, on July 22, 1939, entered judgment awarding to plaintiff the relief prayed for. A motion for new trial was made by defendants, and denied. This appeal by defendants followed.

In 1920, the residents of a large tract of land south and southwest of Everett, desiring to obtain water for domestic purposes, proceeded to organize a water district, under the provisions of Laws of 1913, chapter 161, page 533. Pursuant to the provisions of chapter 161, the Mukilteo water district was formed, and commissioners elected, in 1920, by practically the unanimous vote of the people residing within the proposed boundaries of the district.

After the creation of the district, the commissioners elected formulated a comprehensive plan for the installation of a water system. This plan was, at a special election held March 23, 1922, submitted to the voters of the district, and carried by a large majority. The scheme provided for a supply system and distribution systems, as and when they became necessary. The water for the system was to be purchased from the city of Everett, and conveyed to certain reservoirs in the district. Payment for this supply system was to be made by the district as a whole, with funds provided from a general bond issue, payable by direct taxes upon the property therein. Distribution systems, as distinguished from the supply system, were to be paid for as local improvements, in districts to be created, as and when settlement of the territory required their creation.

The supply system was immediately installed, and within two years the district had expended about $70,000. Local improvement districts have been formed, and distribution systems have been constructed, in accordance with the plan approved in 1922, and the district has been supplying water to the various local improvement districts at all times since 1922, up to the present time, with no complaint being made, up to the time this action was instituted.

It is conceded that all of the proceedings had relative to the creation and operation of appellant district were in conformity with Laws of 1913, chapter 161, with the exception of the comprehensive plan, which it is contended was not legally sufficient.

In 1927, chapter 161, Laws of 1913, was, in the case of Drum v. University Place Water District, 144 Wash. 585, 258 P. 505, held to be unconstitutional, for the reason that it violated the due process clause of the fourteenth amendment to the Federal constitution, in that the act made no provision for a hearing on the question of the property to be included within the limits of the proposed district, and no provision for a hearing on the question of benefits.

The effect of this decision was to leave the appellant district, and other water districts similarly situated, without any legal existence. Undoubtedly having in mind the situation in which certain water districts were left by the decision in the Drum case, the legislature, at its next session (1929) passed chapter 114, page 218, the title of which is as follows: 'An Act creating and validating the organization, establishment and existence of water districts heretofore organized or established, or attempted to be organized or established, under Chapter 161 of the Laws of 1913 and amendments thereto; validating and confirming all bonds, obligations, contracts, assessments, levies and all other acts, proceedings and things heretofore executed, issued or done by such districts or their officers; * * *.' continuing that the act was for the purpose of the establishment of water districts and the acquisition and construction of a water supply for all uses and purposes other than irrigation, and declaring an emergency.

Chapter 114 was substantially a reenactment of chapter 161, Laws of 1913, and was undoubtedly intended to provide a complete code for the organization and operation of water districts. However, the 1929 act corrected the evil in the 1913 act, pointed out in the Drum case, by providing for hearings Before the county commissioners relative to the question of the property to be included within the territorial limits of the proposed corporation, and the question of benefits.

The 1929 act contained three additional sections, namely, §§ 27, 28 and 29. Section 27 provided that 'any water district now organized under any previous act may use this act as if organized under this act.' Section 28 provided: 'That each and all of the respective areas of land heretofore attempted to be organized into water districts under the provisions of the statutes referred to in the title hereof relating to such organization of water districts, are each hereby validated and declared to be duly existing water districts having the respective boundaries set forth in their respective organization proceedings as shown by the files in the office of the board of county commissioners of the county in question.'

Section 29 provided in part: 'All debts, contracts and obligations heretofore made or incurred by or in favor of any such water district, and all bonds or other obligations executed by such districts in connection with or in pursuance of such attempted organization, and any and all assessments or levies and all other things and proceedings done or taken by such water districts or by their respective officers acting under such attempted organization, are hereby declared legal and valid and of full force and effect. * * *'

Sections 27, 28 and 29 were vetoed by the governor, as well as § 11, which provided for the issuance of general water bonds.

It is apparent that the result of the veto of §§ 27, 28 and 29 was to deny a large part of the relief sought to be accomplished by the act of 1929, in that it left without legal existence many districts organized under the 1913 act.

In 1931, the legislature passed chapter 71, page 222, which act is entitled: 'An Act creating and ratifying the organization, establishment and existence of water districts heretofore organized or established, or attempted to be organized or established.'

In view of the fact that we believe a proper determination of this case rests upon the interpretation of chapter 71, Laws of 1931, we will set out this act in full: 'Section 1. That each and all of the respective areas of land heretofore organized or attempted to be organized or incorporated under chapter 161 of the Laws of 1913, and amendments thereto, are each hereby declared to be and created into duly existing water districts having the respective boundaries set forth in their respective organization proceedings as shown in the files and records of the office of the board of county commissioners of the county in which said organization, or attempted organization is located. The water districts validated or created by this act shall have the same rights, liabilities, duties and obligations as water districts created under chapter 114 of the Laws of 1929, and amendments thereto: Provided, That the provisions of this act shall apply only to those water districts which have maintained their organization as water districts since the date of their attempted incorporation or establishment: Provided, however, That nothing herein contained shall be deemed to validate the debts, contracts, bonds or other obligations executed prior to this act in connection with or in pursuance of such attempted organization, and all taxes or assessments shall hereafter be levied in accordance with the act of 1929, chapter 114, approved March 13, 1929.'

It is the contention of appellants that chapter 71, supra, operated to validate the organization of the water district, as of the date of its organization in 1921, and that...