Senor v. Board of Whatcom County Com'rs

• Decision Date: 14 November 1895
• Court: Washington Supreme Court
• Parties: SENOR ET AL. v. BOARD OF COM'RS OF WHATCOM COUNTY ET AL.

42 P. 552

13 Wash. 48

SENOR ET AL. v. BOARD OF COM'RS OF WHATCOM COUNTY ET AL.

Supreme Court of Washington

November 14, 1895

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Action by Lewis Senor and others against the board of commissioners and treasurer of Whatcom county to determine the validity of taxes. From a judgment for defendants, plaintiffs appeal. Affirmed.

Bruce, Brown & Cleveland, for appellants.

G. V Alexander, J. R. Crites, and Kerr & McCord, for respondents.

DUNBAR J.

This action is prosecuted by the plaintiffs, as taxpayers, in behalf of themselves and all other taxpayers of Whatcom county, to determine the validity of the taxes and special assessments levied for road purposes by the authorities of Whatcom county, acting under the provisions of the act of March 15, 1893, set out in the Laws of 1893, at page 301 et seq. The defendants demurred to the complaint on the grounds (1) Want of jurisdiction over the defendants or the subject-matter; (2) the plaintiffs have no legal capacity to sue; (3) defect of parties plaintiff; (4) defect of parties defendant; (5) misjoinder of causes of action; (6) that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and the plaintiffs elected to stand on their pleadings. Judgment of dismissal was awarded, and the case comes to this court upon the record.

We will first notice the contention that the act is in violation of section 16, art. 1, of the state constitution. This provision has been so often construed by this court in connection with kindred acts that the law, it seems to us ought to be pretty well settled, so far as a portion of this act is concerned, viz. the procuring a right of way. In Peterson v. Smith, 6 Wash. 163, 32 P. 1050, where the court had under consideration the law providing for a change of a county road under the provisions of chapter 19, Laws 1890, this court decided that the provision of section 16, art. 1, of the constitution, that "no private property shall be taken or damaged for public or private use without just compensation having been first made or paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in courts of record, in the manner prescribed by law," meant just what it said, and that under that guaranty the owner of the land appropriated by a county could not be compelled to present a claim for damages; that he could remain quiet, and be assured that before his property is condemned the county must ascertain his damage, and either pay it to him, or pay it into court for his benefit; and the amount of his damages must be ascertained in a court, in a proceeding instituted for that purpose, and in which the defendant can appear and make his showing, if he so desire,-following the doctrine laid down by the supreme court of California in Weber v. Board, 59 Cal. 265. The same doctrine was announced in Re Smith, 9 Wash. 85, 37 P. 311, 494, and in Askam v. King Co., 9 Wash. 1, 36 P. 1097, where it was held that the drainage law of this state was unconstitutional because it provided for the taking of private property without compensation, for the purpose of constructing ditches to drain swamps. It is true that in that case it was said by the writer of the opinion that "if the law had provided for even an ex parte assessment of damages, and that such assessment should be filed, and, unless objected to, confirmed, it might be possible to sustain it on the ground that such assessment of damages, and its filing in a proceeding to which the property owner had been made a party by proper notice, was in the nature of a proffer to him of just compensation, and, if he did not appear and object thereto, such failure on his part might be taken to be a waiver of the right to have his damages assessed by a jury." But the decision in that case was based upon the law as announced in Peterson v. Smith, supra, which provided, as we have before said, that the damages must be ascertained and paid into the court in the first instance for the benefit of the party whose land was sought to be subjugated. This same doctrine was announced in Hayward v. Snohomish Co. (Wash.) 39 P. 652, and the cases of Peterson v. Smith and Askam v. King Co., supra, were reviewed, and the doctrine therein announced reindorsed. The doctrine thus announced and followed uniformly by this court would not permit the constitutional right of a citizen to receive damages at the hands of the court to be submitted to appraisers appointed by the board of county commissioners; and, while courts should always hesitate to pronounce a law unconstitutional which is manifestly enacted for the best interests of the country, yet it is their bounden duty to see that the provisions of the constitution are maintained inviolate, and that the right of the citizen to implicitly rely upon its plain guaranties shall not be destroyed by construction; hence we are compelled to hold that that portion of the law under discussion which provides for appropriating the right of way for roads cannot be maintained, under the provisions of the constitution above referred to. But we are inclined to think that the contention of the respondents that this law, so far as it applies to improvements on roads which have already been located, can be maintained. Of course, it is a proposition of law too elementary to need discussion that the fact that a portion of an act is unconstitutional will not render the whole act unconstitutional, if the act, purged of such portion, is capable of being executed in conformity with the legislative intent; in other words, if the provisions of the act are not found to be interdependent, and so woven together that the abolition of one portion would destroy the general system which had been provided by the legislature. It is true that in Skagit Co. v. Stiles, 10 Wash. 388, 39 P. 116, this court held that the different portions of the act allowing the county to condemn lands for a right of way for a ditch, found in Sess. Laws 1889-90, p. 652, were so interdependent that those portions of the act which are not in conflict with the constitution had to fall with the portions that were so in conflict, but such does not seem to us to be the case in the law in question.

It is earnestly insisted by the appellants that a great majority of the sections in the act under consideration referred especially to the manner of obtaining the right of way; but the test of the independence of the portion of the act which is conceded to be constitutional cannot depend upon the number of sections which refer to it, compared with the number of sections which refer to the portion which is found to be unconstitutional, and, if but one section in an act comprising many indicates an independent theory for carrying out the provisions embodied in the section, it will be as forceful in sustaining the constitutional portion of the act as though a great majority of the sections in the act referred to it. In this act the legislature had the power to provide in manner and form as provided in the act, and independent of condemnation proceedings, for the improvement of existing highways; and, if that portion of the act referring to condemnation proceedings were stricken from the law, it would, it seems to us, present a complete law, with complete provisions for the improvement of existing highways, and, this being the case, it is sufficient to maintain the constitutionality of the law, so far as it prescribes a method for improving existing highways.

The constitutional question which was discussed upon the motion of the court at the second argument of this case will require some attention. Section 12 of article 11 of the constitution of the state of Washington provides that the legislature shall have no power to impose taxes upon counties, cities towns, or other municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes, but may by general laws vest in the corporate authorities thereof the power to assess and collect taxes for such purposes; and it is claimed that the law under consideration is obnoxious to this provision of the constitution, for the reason that the assessment levied upon the cities and towns provided for in this act was levied by the county commissioners, instead of by the corporate authorities of said cities. Section 1 of the act of March 15, 1893 (Sess. Laws 1893, p. 301), provides that "the commissioners of any county may, at any regular or called session, cause to be established, located and constructed, improved, straightened, widened, altered or re-located any public road or highway as herein provided, when the same is conducive to the public convenience or welfare." Section 3 of the same act provides that "no road improvement shall be located or commenced under this act unless the same has its beginning at the boundary limits of an incorporated city, or trade center located on a railroad or navigable body of water, or connect with a road or road system already improved under this act, or with a road which has been otherwise constructed of such a nature to permit of heavy freighting and rapid travel on the same at any time of year." Section 13 of the same act provides that the benefits assessed to the county for such improvement, shall be one-third of the whole estimated cost thereof; that the benefits assessed to all...