State ex rel. Showalter v. Goodyear
| Citation | 194 P.2d 389,30 Wn.2d 834 |
| Decision Date | 01 June 1948 |
| Docket Number | 30351. |
| Parties | STATE ex rel. SHOWALTER et al. v. GOODYEAR et al. |
| Court | United States State Supreme Court of Washington |
Department 1
Proceeding by the State on the relation of G. W. Showalter and others against T. S. Goodyear, State Supervisor of Forestry of the State of Washington, Art Garton, Director of Conservation and Development of the State of Washington, and Frank Glover Treasurer of County of Spokane, State of Washington, for a writ of mandamus directing named state officials to strike orders directing treasurer of Spokane County to extend on tax rolls of Spokane County, as a lien against relators' lands, a tax of 3 1/2 cents per acre for protecting such lands against fire, and to direct treasurer of Spokane County to cancel on the tax rolls in his office any and all unpaid fire taxes against relator's land. From judgment granting writ, the defendants appeal.
Reversed.
Appeal from Superior Court, Spokane County; Ralph E. Foley, judge.
Smith Troy and John Spiller, both of Olympia, and Leslie M. Carroll, Pros. Atty., and Hugh H. Evans, both of Spokane, for appellants.
W. C. Losey, of Spokane, for respondents.
This is an appeal from a judgment decreeing that certain lands described therein are not 'forest lands' within contemplation, and under the provisions of chapter 105 of the Laws of 1917, Rem.Rev.Stat. § 5804 et seq., and chapter 184 of the Laws of 1923, Rem.Rev.Stat. § 5785, of the State of Washington; that the action of the Supervisor of Forestry and the Director of the Department of Conservation and Development, classifying said lands as forest lands, and ordering the Treasurer of Spokane to extend on the tax rolls of Spokane County, as a lien against said lands, a tax of three and one-half cents per acre for patrolling and protecting said lands against fire, was arbitrary, capricious and unlawful; that the action of the Treasurer of Spokane County in attempting to collect such tax was arbitrary, capricious and unlawful, and ordering him to cease and desist from attempting to collect such tax; that a writ of mandate issue directing the state officials above mentioned to strike from orders made, the lands of the relators, and to cancel and annul such orders, in so far as they related to lands of relators; that a writ of mandate issue directing the Treasurer of Spokane County to cancel on the tax rolls in his office any and all unpaid fire taxes against the lands found in the judgment not to be 'forest lands.'
The above judgment was rendered following a hearing in a mandamus action commenced by G. W. Showalter and twenty-six or twenty-seven others, as relators, against the appellants, because of their alleged arbitrary, capricious, illegal, and fraudulent actions.
December 11, 1944, T. S. Goodyear, as Supervisor of Forestry, and Ed Davis, as Director of Conservation and Development, caused the following order to be delivered to the Assessor of Spokane County:
'State of Washington, Department of Conservation & Development, Division of Forestry
To the Assessor of Spokane County:
An identical order was delivered October 21, 1946, with the single execption that the name of Art Garton appeared thereon as Director of Conservation and Development.
The area involved comprises approximately 10,000 acres and is located in the vicinity of Tyler in Spokane County.
The testimony is in conflict. Respondents testified that, although some of the land is under cultivation, most of it is scab land and is used for pasture. Around the potholes there are some quaking asp, about twenty feet high; also some willows. There are some pine trees, scattered over the area, some quite close together, and others up to five hundred or six hundred feet apart. They are knotty, scrub pine, of no commercial value. Practically all of the fires occurring in the area have been grass fires, started by the railroads, and not fires that went from one tree to another. One witness, shown a picture which in the distance appeared to be rather dense forest, testified that he could ride through there on a horse, after a stray cow, and not get his hat knocked off.
On the other hand, T. S. Goodyear, State Supervisor of Forestry, testified that the land involved was forest land. John E. Link, District Fire Warden for northeastern Washington, testified that they took aerial photographs of the lands involved, examined these photographs minutely with a magnifying glass, then went over the area to check their observations, and satisfied themselves that it was forest land. This finding was substantiated by E. H. Steffen, Special Forester at Washington State College, Gordon D. Markworth, Dean of the College of Forestry at the University of Washington, and various representatives of the United States Forest Service, who all testified that, in their opinion, this was forest land. They also noticed, in the area involved, inflammable debris, consisting of tops of trees from logging operations, material which had been killed by fire, and dead trees which had blown over.
At the close of the testimony the trial court, upon stipulation of all parties, viewed the area. He found that the land with the exception of a small portion, did not constitute forest land.
In 1943 the people of this area, in conjunction with the people in adjoining rural areas in Spokane County, organized Spokane County Fire District No. 3, under the provisions of Rem.Rev.Stat. § 5654-101 et seq. Taxes and assessments were regularly laid against the lands within the district. Fire District No. 3 has eleven fire fighting trucks, equipped with hose, located at strategic points in the district. In each place where a truck is situated, there are from three to nine men signed up to man the truck. The chief is located at Cheney. When a fire occurs in the district, the chief is notified by telephone and he contacts other crews, who come to the aid of the fire fighters, in the event such action is necessary. The pprocedure is similar to that of a volunteer fire department in a small community, only on a larger scale. One truck is located in the area comprising the lands in question. However, the State Forestry Department has but one truck in the area also.
The trial court found that Fire Protection District No. 3 is fully equipped with all necessary modern fire-fighting apparatus for the protection of the lands involved, and that it has at its command adequate man-power to operate the apparatus; that the owners of the lands involved in the litigation have amply complied with the requirements of chapter 105 of the Laws of 1917, as amended, by furnishing all the necessary protection contemplated under the statute, for any and all 'forest lands', belonging to respondents, and that T. S. Goodyear, as Supervisor of Forestry, and Art Garton, as Director of Conservation and Development in issuing the order above described for the year 1946, did arbitrarily, unlawfully and capriciously, assess said lands.
Chapter 105, Laws of 1917, was:
'AN ACT relating to the forests of the state; requiring owners of forest land to provide patrol therefor, declaring certain dangerous forest conditions to be public nuisances and providing for their abatement, providing for the creation of official fire districts and for the co-operation of the state with other agencies in protecting such districts, prescribing methods for assessing and collecting the costs incurred in carrying out the provisions thereof, and prescribing the procedure for serving notices required thereby and by other forests laws of the state.'
Section 1, Rem.Rev.Stat. § 5804, provides:
'Every owner of forest land in the state of Washington shall furnish or provide therefor, during the season of the year when there is danger of forest fires, adequate protection against the spread of fire thereon or therefrom which shall meet with the approval of the state board of forest commissioners: Provided, however, That for the purposes of this section forest land shall be deemed to be adequately protected if within one mile of the owner's permanent residence or if the owner shall furnish patrol and protection therefor equal in standard, efficiency and seasonal duration to that of those who are in good faith maintaining organized patrol and protection of their lands against fire with the aproval of the state board of forest commissioners: Provided further, That for the purposes of this section forest lands, lying in counties east of the summit of the Cascade Mountains, shall be deemed to be adequately protected where patrol is furnished by the United States forest service of a standard and efficiency and seasonal duration, deemed by the state board of forest commissioners to be sufficient for the proper protection of forest land of such counties.'
Section 2, chapter 184, § 10, Laws of 1923, and by section 6, chapter 43, Laws of Ex.Sess.1925, Rem.Rev.Stat. § 5805, provides:
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