Outlook Irr. Dist. v. Fels

• Decision Date: 22 January 1934
• Docket Number: 24864.
• Citation: 28 P.2d 996,176 Wash. 211
• Court: Washington Supreme Court
• Parties: OUTLOOK IRR. DIST. v. FELS et al.

28 P.2d 996

176 Wash. 211

OUTLOOK IRR. DIST. v. FELS et al.

No. 24864.

Supreme Court of Washington, En Banc.

January 22, 1934

Appeal from Superior Court, Yakima County; A. W. Hawkins, Judge.

Action by the Outlook Irrigation District, a public corporation against Hans Fels, Sue M. Stewart, Hugh Thompson, Henry Resleff, and others. From a judgment for plaintiff, second third, and fourth named defendants appeal.

Affirmed.

E. N. Funk, of Sunnyside, for appellants.

Stephen E. Chaffee, of Sunnyside, for respondent.

Moulton & Powell, of Kennewick, amici curiae.

BLAKE Justice.

This appeal brings in question the constitutionality of chapter 194, p. 928, Laws of 1933. Before undertaking to state how the question is raised, it will be well to briefly summarize the act, section by section.

Section 1 authorizes an irrigation district which holds a county treasurer's irrigation assessment deed to bring an action to quiet title in cases where 'for any reason a defect in title exists or adverse claims against the same have not been legally determined.'

Section 2 defines the action as one in rem as against all claims of right whatsoever, except as to persons 'in the actual open and notorious possession' of the property. It then provides that possession 'shall be construed to be that by personal occupancy only.' It is further provided in this section that the district may include in one action all tracts of land in one county.

Section 3 provides for commencing the action by filing a 'summons and notice' in the office of the county clerk, and prescribes what the summons and notice shall contain. It also provides that service thereof 'shall be had by publication' upon 'every person or corporation except one who is in actual, open and notorious possession' of the property. The time for appearance upon summons by publication is fixed at sixty days from the date of the first publication. In cases where the property is 'in the actual, open and notorious possession' of any person or corporation, it is provided that the summons and notice shall be personally served and shall require such person or corporation to appear within twenty days from the date of service. This is the only instance in which personal service is required by the act.

Section 4 provides that any one who may have been entitled to redeem the property, prior to the issuance of the treasurer's deed, 'shall have the right, at any time after the commencement of, and prior to the judgment in the action authorized herein, and not thereafter, to redeem such property.'

Section 5 provides that, at any time after the return day named in the summons and notice, 'the court shall hear and determine the matter in a summary manner and shall enter judgment according to the rights of the parties and persons concerned in the action,' and that 'no order of sale shall be made nor shall any sale on execution be necessary to determine the title of the irrigation district to the real property involved in such action.'

Section 6 provides that the amount of the irrigation assessment, as stated in the summons and notice, shall be prima facie correct.

Section 7 provides the prerequisites for appearance by any person claiming rights in the property.

Section 8 provides for appeal to the Supreme Court.

Section 9 provides that the judgment entered in such action shall be conclusive against all persons upon whom service of summons and notice shall have been had in accordance with the provisions of the act.

Pursuant to the authority conferred by this act, plaintiff brought this action to quiet title to a number of tracts of land for which it held the county treasurer's irrigation assessment deeds. Summons and notice was served in the manner provided by the act. The defendants having failed to appear, and the time for appearance having expired, the court entered judgment, in conformity with section 5 of the act, quieting title to the property in the plaintiff. Thereafter Stewart and Thompson filed a petition, in which they alleged that Stewart was the owner of, and Thompson held a mortgage on, one of the tracts of land upon which the judgment operated. They further alleged that they had not been served with summons and notice, although at the time of the commencement of the action, and for a long time Before , they were residents of Yakima county. They also alleged that the fact of their residence in Yakima county was known, or could have been readily ascertained, by officers of the irrigation district, its counsel and servers of process. They prayed that the judgment be vacated and set aside. Resleff, the holder of a mortgage on another tract of land, filed a similar petition. The plaintiff interposed demurrers to these petitions. The court sustained the demurrers and entered an order dismissing the petitions. From the order so entered, Stewart, Thompson, and Resleff appeal.

It is not questioned that respondent complied with all the procedural requirements of chapter 194, p. 928, Laws of 1933, in obtaining judgment. The sole question is whether the act itself contravenes the 'due process' clauses of the federal and state Constitutions, in that it dispenses with personal service of summons and notice on owners and incumbrancers of the property. We say this is the sole question. It would be more accurate to say it is the principal one, because there are two minor questions raised, to which we shall advert later.

As we read the authorities, 'due process of law,' in relation to the levy and collection of taxes upon property and the enforcement of tax liens, is that method of procedure provided by the Legislature therefor. Cooley on Taxation (2d Ed.) p. 527. Speaking of summary process provided by legislative enactment for the enforcement of the collection of taxes, the Supreme Court of Nebraska, in the case of Trainor v. Maverick Loan & Trust Co., 80 Neb. 626, 114 N.W. 932, 933, said: 'While one is to be protected in his interests by the 'law of the land,' and to have the judgment of his peers in those cases in which it has immemorially existed, or in which it has been expressly given by law, there is no decision to be found that it is necessary for judicial action in every case for which the property of the citizen may be taken for the public use. On the contrary, a legislative act for that purpose, when clearly within the limits of legislative authority, is of itself of the law of the land.'

An act levying taxes and providing means for enforcing collection is undoubtedly within the power of the Legislature. Spencer v. Merchant, 125 U.S. 345, 8 S.Ct. 921, 31 L.Ed. 763. The only limitation appears to be that at some stage of the proceedings the owner shall have an opportunity to be heard. Spencer v. Merchant, supra; Davidson v. New Orleans, 96 U.S. 97, 24 L.Ed. 616; Long-year v. Toolan, 209 U.S. 414, 28 S.Ct. 506, 52 L.Ed. 859; Gautier v. Ditmar, 204 N.Y. 20, 97 N.E. 464, Ann. Cas. 1913C, 960; Ballard v. Hunter, 204 U.S. 241, 27 S.Ct. 261, 51 L.Ed. 461; French v. Taylor, 199 U.S. 274, 26 S.Ct. 76, 50 L.Ed. 189; Leigh v. Green, 193 U.S. 79, 24 S.Ct. 390, 394, 48 L.Ed. 623. In the case last cited the court said: 'Where the state seeks directly or by authorization to others to sell land for taxes upon proceedings to enforce a lien for the payment thereof, it may proceed directly against the land within the jurisdiction of the court, and a notice which permits all interested, who are 'so minded,' to ascertain that it is to be subjected to sale to answer for taxes, and to appear and be heard, whether to be found within the jurisdiction or not, is due process of law within the Fourteenth Amendment to the Constitution.'

(In passing, it is to be noted that the case from which we have just quoted is specifically applicable to the situation of Thompson and Resleff in the case at bar.)

It will be remembered that the act under consideration accords to all persons claiming an interest in the property the right not only to be heard, but the right to redeem Before judgment. See sections 3, 4 and 7.

Our own decisions are in harmony with the principles stated in the above-cited cases. Washington Timber & Loan Co. v. Smith, 34 Wash. 625, 76 P. 267, 271; Williams v. Pittock, 35 Wash. 271, 77 P. 385, 386. In the latter case, the court quoted extensively from Leigh v. Green, supra, and, speaking through Judge Hadley, said: 'The whole procedure, including the assessment, foreclosure, and sale, is for the purpose of establishing and enforcing a lien for public revenue, which, under the policy of the state, is chargeable to the property only, and not personally to the owner. It is the land itself with which the state is concerned, and its dominion over the land for revenue purposes exists without regard to who may be the owner. All owners know that such is the fact, and that the power of taxation will be exercised each year.'

And in the former case it was said: 'The difficulties attending the collection of public revenue are many at best, and the relation of the citizen to the subject is somewhat different from his relation to the ordinary contractual obligations. He must take notice that by law his property is assessed each year; that the tax is due and delinquent at a fixed time, is a lien upon his land, and, if not paid, that the lien shall be enforced by foreclosure proceedings and in the manner provided by statute. The...