Skagit County v. Stiles

• Decision Date: 26 December 1894
• Citation: 39 P. 116,10 Wash. 388
• Court: Washington Supreme Court
• Parties: SKAGIT COUNTY v. STILES.

39 P. 116

10 Wash. 388

SKAGIT COUNTY v. STILES.

Supreme Court of Washington

December 26, 1894

Appeal from superior court, Skagit county; Henry McBride, Judge.

Action by Skagit county against Fletcher Stiles. From a judgment for plaintiff, defendant appeals. Reversed.

Million & Houser, for appellant.

Geo. A Joiner, for respondent.

SCOTT J.

This was an application in the court below on the part of Skagit county, by its county treasurer, for a judgment against the defendant for a delinquent ditch assessment of the year 1891 together with the penalty, interest, and costs, and for an order of sale thereon. The assessment was sustained, and judgment rendered as prayed for, and the defendant appeals.

One of the questions raised is as to the constitutionality of the law under which the proceedings were had. This law was before this court for consideration in Askam v. King Co., 9 Wash. 1, 36 P. 1097, which case involved the right of the county to condemn lands for a right of way for a ditch; and it was held that the provisions of the act in that respect were unconstitutional, and that no such power was conferred. It is contended by respondent, however, that the remaining portions of the act are not affected by that decision; that the act has three distinct features: First, the securing of the right of way, which the decision aforesaid held void second, the construction of the improvement; and, third, the apportionment of benefits and assessment of the cost of construction, which were not involved in the case aforesaid and which, it is contended, should stand independent of the first proposition, as that only affected the securing of the right of way under the power of eminent domain; and that the right of way may still be obtained by purchase, in which case the provisions of the act are sufficient for the enforcement of such undertakings. In determining whether a part of an act can stand where another part has been held unconstitutional, a different rule as to presumptions is recognized from that which obtains where the whole act is being considered. The general rule that legislative acts are primarily presumed to be constitutional, and that all intendments are to be made in favor of the act to give it effect according to the intent of the lawmaking power, does not apply in such cases, as the upholding of a part of an act is not favored; and where a part has been held unconstitutional, and the remaining portion comes up for consideration as to whether it can stand as an independent proposition, the presumptions are generally against it, and it will not be sustained, unless "that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected." Cooley, Const Lim. (5th Ed.) p. 212. When so construed, can the remaining portions of this act stand? It is plain from a reading of the act (Sess. Laws 1889-90, p. 652) that the only way provided for obtaining a right of way thereunder was by condemnation proceedings. Undoubtedly, however, a person could donate a right of way for such a ditch; but it is an entirely different question whether the commissioners have authority to acquire a right of way by negotiating a purchase. Under the provisions of this act, a petition must be presented asking for the improvement, and giving a general description of the proposed route. A bond conditioned for the payment of all costs if the prayer of the petition is not granted, or in case it is dismissed for any cause, must be filed therewith; whereupon there must be a view of the line of the proposed ditch, and a report thereon, and, if a finding is made in favor of the improvement, there must be a survey and definite location of...