Paine v. State, 21965.

• Decision Date: 17 March 1930
• Docket Number: 21965.
• Citation: 156 Wash. 31,286 P. 89
• Parties: PAINE et al. v. STATE et al.
• Court: Washington Supreme Court

286 P. 89

156 Wash. 31

PAINE et al. v. STATE et al.

No. 21965.

Supreme Court of Washington

March 17, 1930

Department 1.

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Action by Frank C. Paine and another against the State, the County of Spokane, and another. From an adverse judgment the plaintiffs and the County of Spokane appeal.

Affirmed.

Chas W. Greenough, A. O. Colburn, and Del Cary Smith, Jr., all of Spokane, for appellant County of Spokane.

Tustin & Chandler, of Spokane, for appellants Paine and Malott.

John H Dunbar, B. B. Adams, and E. W. Anderson, all of Olympia, for respondents.

MILLARD J.

This action was instituted to establish as a lien against certain state land a certificate of delinquency issued by the county of Spokane for drainage district assessments. By their amended complaint the plaintiffs prayed, if enforcement otherwise could not be had, that the state land commissioner be required to certify the assessments to the state auditor for certification to the state Legislature; and, in the alternative, if the delinquency certificate was invalid recovery thereon from the county of Spokane. The joint demurrer of the state and of the state land commissioner to the complaint was sustained. The demurrer of the county was overruled. The plaintiffs electing to stand upon their complaint and the defendant county refusing to further plead, judgment was entered dismissing the action as to the state and the state land commissioner and awarding recovery to the plaintiffs against the county of Spokane. Defendant county and the plaintiffs appeal from that part of the judgment denying relief against the state and against the state land commissioner. The county also appeals from the judgment against it in favor of the plaintiffs.

Under the provisions of chapter 115, Laws of 1895, reorganized drainage district No. 1, in Spokane county, was formed December, 1913. Within the boundaries of the district is a quarter section of land owned by the state. At that time no contract for sale of its tract of land had been made by the state. Notice of the making of the proposed drainage improvement and the fixing of the time of the hearing and the confirming of same by the district was served upon the auditor of Spokane county, as prescribed by section 11, c. 115, Laws of 1895, but notice was not served upon the land commissioner, as required by section 6, c. 154, Laws of 1909.

On June 9, 1914, subsequent to the formation of the district, proceedings were instituted in the superior court for Spokane county for the assessment of damages and benefits to accrue by reason of the proposed improvement. Pursuant to section 11, c. 115, Laws of 1895, reading as follows: 'In case the land * * * sought to be appropriated, or which it is claimed will be benefited by such improvement, is state, tide, school or county land, the summons shall be served on the auditor of the county in which the land * * * sought to be appropriated, or which it is claimed will be benefited, is situated,' the state was made a party defendant in that proceeding by the service of summons and complaint upon the auditor of Spokane county. The jury found that by reason of the improvement the maximum benefits accruing to the state's land would be $1,153.28. The state was at the same time awarded $712.41 as damages for a right of way for a ditch through the quarter section in question, and through an adjacent quarter section owned by the state. Judgment was entered on the verdict May 28, 1915. Transcript of the proceedings and judgment was filed with the auditor of Spokane county, as required by section 1, c. 242, Laws of 1907, and entry was made upon the tax rolls of the assessments against the lands benefited. The drainage commissioners thereafter entered an order designating the times when and the amounts in which the assessments were payable.

A copy of the decree was filed in the office of the state land commissioner, who, on May 12, 1916, issued his certificate acknowledging the filing of the same and the receipt by him of the damage award of $712.41. While not alleged in the complaint, the procedure was in compliance with the provisions of section 1, c. 165, Laws of 1909, section 928, Rem. Comp. Stats., § 7695, P. C., reading as follows: 'When a decree is entered appropriating lands owned by the State, or in which the State has an interest, before any such decree shall be effective, the plaintiff shall cause to be filed in the office of the Commissioner of Public Lands a certified copy of such decree, together with a plat of the lands appropriated and contiguous thereto, in form and substance as prescribed and required by the Board of State Land Commissioners, showing in detail the lands appropriated, together with the amount of damages fixed and awarded in the decree. Upon receipt of such decree, plat and damages, the Commissioner of Public Lands shall examine the same, and if he shall find that the final decree and proceedings comply with the original petition and notice and any amendment duly authorized, and that no additional interest of the state has been taken or appropriated through error or mistake, he shall cause notations thereof to be made upon the abstracts, records and tract books of his office, and shall issue to the plaintiff his certificate, reciting compliance, in substance, with the requirements of this act, particularly describing the lands appropriated, and thereupon the appropriation shall become effective and the Commissioner of Public Lands shall forthwith transmit the amount received as damages to the State Treasurer, as in case of the sale of land, and the subdivision of land through which such right-of-way is appropriated shall thereafter be sold, or leased subject to the right-of-way.'

The $712.41 was paid from the proceeds of bonds issued by the drainage district, and the state has ever since retained the money.

The state entered into a contract January 7, 1919, to sell the quarter section in question to Charles Tritt, who had not at the time of the trial of this cause paid in full the purchase price and to whom a deed had not issued. The assessments, which were payable in ten annual installments extending from 1915 to 1924, inclusive, were not added to the purchase price of the land.

On January 6, 1927, the assessments not having been paid, the county treasurer's certificate of delinquency therefor was issued to appellants Paine and Malott, for which they paid to the county $3,002.55 principal and interest. Under the terms of the certificate the county guaranteed the refund to the purchasers of the amount paid, with interest, if the certificate should be declared void. The land commissioner refused to recognize the assessments as a charge against the state's land or as an obligation of the state and refused to certify any of the assessments to the state auditor for certification to the state Legislature. Purchaser Tritt also refused to pay any of the assessments. Paine and Malott thereupon brought this action against the state, the land commissioner, and Spokane county, which resulted as above stated.

The title to the state's land within the drainage district was in the state at the time of the assessment for the improvement. No question is presented by this appeal as to the liability of Tritt (who contracted with the state in 1919 for the purchase of the land) for payment of the assessments.

Counsel for appellants contend that section 6, c. 154, Laws of 1909, does not apply to assessments imposed under the procedure prescribed by chapter 115, Laws of 1895; that chapter 115, Laws of 1895, is a special act under the provisions of which the drainage district, by service of notice upon the county auditor, acquired jurisdiction to assess the state's land; and that chapter 154, Laws of 1909, is general in its nature, and to hold section 6 thereof applicable would be to repeal by implication a portion of a special statute by a subsequent general statute.

The rule is fundamental, and so uniformly recognized that we refrain from citation of supporting authorities, that statutory authority to make the assessment is essential to the validity of a drainage or other local improvement assessments against lands of the state. It follows that the assessment would be invalid if the assessing district did not strictly comply with the conditions prerequisite to jurisdiction to impose the assessment. By chapter 115, Laws of 1895, entitled 'Establishment and Organization of Drainage Districts,' the Legislature expressly granted to drainage districts the power to assess state lands for drainage improvements. The pertinent sections of that statute read as follows:

'All state, county, school district or other lands belonging to other public corporations requiring drainage shall be subject to the provisions of this act, and such corporations, by and through the proper authorities, shall be made parties in all proceedings herein affecting said lands, and shall have the same rights as private persons, and their lands shall be subject to the right of eminent domain the same as the lands of private persons or corporations.' Section 35, c. 115, Laws of 1895, section 4335, Rem. Comp. Stat.

'In case lands belonging to the state, county, school district or other public corporations are benefited by any improvement instituted under the provisions of this act, all benefits shall be assessed against such lands, and the same shall be paid by the proper authorities of such public corporation at the times and in the same manner as assessments are called and paid in case of private persons, out of any general fund of such corporation.' Section 36, c. 115, Laws of 1895, section 4336 Rem. Comp. Stat.

'* * * In case the

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