Poolman v. Langdon

• Decision Date: 01 February 1917
• Docket Number: 13670.
• Citation: 94 Wash. 448,162 P. 578
• Court: Washington Supreme Court
• Parties: POOLMAN et al., Board of Com'rs of Drainage Dist. No. 11 of Pierce County, v. LANGDON et al.

162 P. 578

94 Wash. 448

POOLMAN et al., Board of Com'rs of Drainage Dist. No. 11 of Pierce County, v. LANGDON et al.

No. 13670.

Supreme Court of Washington

February 1, 1917

Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Proceeding by S. A. Poolman and others, as the Board of Commissioners of Drainage District No. 11 of Pierce County, Wash., against W J. Langdon and others. From an order and judgment sustaining a demurrer to the petition, and dismissing it, plaintiffs appeal. Judgment reversed, and cause remanded for proceedings consistent with the opinion.

R. J Burglehaus, of Sumner, and Bates, Peer & Peterson, of Tacoma for appellants.

F. G. Remann, Harry Phelps, and Gordon & Easterday, all of Tacoma, for respondents.

WEBSTER J.

Appellants, as the board of commissioners of drainage district No. 11 in Pierce county, instituted this proceeding in the superior court for the purpose of levying a supplemental special assessment upon the lands embraced within the district, to cover a portion of the cost of a system of drainage which theretofore had been constructed in the district. After alleging the organization of the district and the election and qualification of appellants as the board of commissioners thereof, the petition sets forth that, on the 18th day of September, 1913, a jury was impaneled in the superior court of Pierce county for the purpose of assessing benefits and damages to lands benefited and damaged within the district by reason of the construction of a proposed drainage improvement; that thereafter the jury returned its verdict, finding that the aggregate amount of benefits to the lands in the district arising by virgue of the improvement would be $18,175.75, and this verdict was thereafter approved and confirmed by the court, and a decree in accordance therewith was duly entered; that in pursuance thereof the work of constructing the improvement was begun in accordance with the original plans and specifications therefor, and the same had been completed in strict accordance therewith; that during the progress of construction, and when the improvement was about one-half completed, the amount of the original assessment and levy for the construction thereof, to wit, $16,614, became exhausted, and no funds remained with which to pay for completing the work. Whereupon appellants, as the board of commissioners aforesaid, issued warrants to cover the deficiency amounting to the sum of $16,198.29, and to provide for the payment of these warrants apportioned the amount thereof to the lands in the district upon the basis of the original assessment, and certified these assessments to the auditor and assessor of Pierce county, who caused the same to be spread upon the tax rolls in addition to the original assessments against the lands; that, instead of the improvement costing the sum of $16,614, the amount of the original estimate and assessment, it in fact cost the sum of $32,812.29, and therefore it became necessary to levy a supplemental assessment against the lands in order to provide funds with which to retire the warrants which had been issued for the deficiency; that the maximum amount of benefits accruing to the lands embraced within the district by virtue of the improvement, as found by the jury and confirmed by the court, was the sum of $18,175.75, but that the actual maximum benefits to the lands in truth and in fact aggregated the sum of $103,843.50; and to the end that the fair and just cost of the completed improvement might be proportionately levied and assessed against the lands in the district in proportion to the benefits received from the improvement, a supplemental assessment was required; that appellants had caused a reestimate of the benefits to be made, together with a proposed supplemental assessment against the lands; and then sets forth a list of owners, together with a description of their lands and the respective amounts theretofore levied against the same, and the additional amounts which it is proposed to assess each tract thereof in this supplemental proceeding, and prays that a jury be impaneled to again assess the benefits to the lands arising from the construction of the drainage improvement and to apportion the amount of the deficit to the lands within the district. To this petition respondents interposed a demurrer upon the ground that the petition failed to state facts sufficient to constitute a cause of action. The demurrer was sustained, and appellants declined to plead further, whereupon the petition was dismissed. From the order and judgment sustaining the demurrer and dismissing the petition, this appeal is prosecuted.

Respondents, in support of the action of the lower court, contend that there is no authority under the statutes of this state for this supplemental assessment; that the maximum amount of benefits per acre to be derived by each landowner within the district from the construction of the improvement having been ascertained by the jury, and confirmed by the decree of the court in the original proceeding, that question is res adjudicata and cannot again be inquired into. The original act providing for the establishment and organization of drainage districts (Laws 1895, p. 271; Rem. Code, § 4137 et seq.), after providing for the organization of such districts and for the election of three commissioners, who shall be the district authorities, provides that, when it is desired to prosecute the construction of a system of drainage, the district, by and through its board of commissioners, shall file a petition in the superior court of the county in which the district is located, setting forth therein the route and termini of the system, with a complete description thereof, together with specifications for its construction, with all necessary plats and plans thereof, together with the estimated cost thereof, the names of the landowners whose lands are to be benefited by the improvement, the number of acres owned by each landowner, and the maximum amount of benefits to be derived by each from the construction of the proposed improvement, and that the same will be conducive to the public health, convenience, and welfare, and will increase the value of all the property affected for the purposes of public revenue. It then provides for a preliminary determination by the court of certain questions, and, if this determination is favorable to the petitioners, it provides that a jury shall be impaneled to ascertain, among other things, the maximum amount of benefits arising to the property of the district by virtue of the contemplated improvement. Upon a return of the verdict of the jury, the same shall be recorded as in other cases, and a decree shall be entered in accordance therewith. The petition in this case sets forth that this statutory procedure was adopted and pursued in the original proceeding, and that the jury found that the maximum amount of benefits accruing to the lands embraced within the district by virtue of the improvement would be $18,175.75, and that a decree of the court was entered in accordance therewith. It is now sought to reopen the question of the maximum amount of benefits accruing to the lands in the district by virtue of the construction of the drainage system, and to have another jury impaneled for the purpose of determining that question as the basis for the proposed supplemental assessment.

Appellants rely upon the amending act of 1907 relating to taxation of property benefited by systems of drainage (Session Laws 1907, p. 669; Rem. & Bal. Code, § 4155, as authorizing the supplemental assessment, and they rely particularly upon that portion thereof which reads as follows:

'Provided further, that where the amount realized from the original assessment and tax shall not prove sufficient to

...