State v. Abraham

• Decision Date: 19 August 1911
• Citation: 64 Wash. 621,117 P. 501
• Court: Washington Supreme Court
• Parties: STATE ex rel. BUSSELL et al. v. ABRAHAM et al., Com'rs of King County.

117 P. 501

64 Wash. 621

STATE ex rel. BUSSELL et al. v. ABRAHAM et al., Com'rs of King County.

Supreme Court of Washington, En Banc.

August 19, 1911

On rehearing. Former opinion reversed and judgment below affirmed.

For former opinion, see 112 P. 671.

Robert A. Devers, for appellants.

Shorett McLaren & Shorett and Bausman & Kelleher, for respondents.

CROW J.

On January 12, 1911, we filed an opinion in this action (112 P 671) by which we ordered a reversal of the judgment of the superior court in and for King county. In stating the case we then said: 'The Legislature of the state of Washington at the specially convened session of 1909 passed an act intended to provide for the construction and maintenance of commercial waterways. Laws Sp. Sess. 1909, p. 8. Acting in accordance with the provisions of the act, certain citizens of the county of King petitioned the board of county commissioners of that county to establish a commercial waterway district comprised of territory specifically described in the petition. The board of county commissioners assumed jurisdiction of the petition, and thereafter, upon due procedure being had as contemplated by the statute, entered an order purporting to create a commercial waterway district. The relators own property included within the boundaries of the proposed district, and appeared before the board of county commissioners and opposed the creation of the district, alleging as grounds therefor, among others, that the act under which the proceedings were being had was in violation of both the state and federal Constitutions. Their objections were overruled, whereupon, after the establishment of the district, they sued out a writ of review from the superior court of King county seeking to review the order of the board. The superior court on a hearing had thereon affirmed the order creating the district and dismissed the writ. This appeal was taken therefrom.' The question before us was the validity of the proceedings of the board of county commissioners, the organization of the commercial waterway district, and the constitutionality of the act of 1909, under which the district had been created. Many objections were presented and argued in the briefs, but on consideration of the entire act and the proceedings had thereunder we found but one reason for declaring the act invalid. We further said 'While many objections are urged in this court against the statute and the proceedings had thereunder, we have found it necessary to consider only the constitutional question suggested, as we deem it fatal to the proceedings. The law plainly contemplates that the expense of constructing the commercial waterway for which the district is organized shall be provided for by an assessment upon the real property situated in the waterway district benefited by the improvement, yet no person, board, or other authority is authorized by the act to make the assessment. Nor does the act contain any direct provision for making an assessment roll, nor any provision for its equalization when made at which the property holder may be heard as to the amount that may be charged against his property. Since no other means of raising the necessary cost of making the improvement is contemplated than by an assessment, we think that the assessment is so far an integral part of the act that the omission to make it effective renders the whole act void. Skagit County v. Stiles, 10 Wash. 388, 39 P. 116; Snohomish County v. Hayward, 11 Wash. 429, 39 P. 652; Franklin Savings Bank v. Moran, 19 Wash. 200, 52 P. 858.' Before the 30-day period had expired within which a petition for rehearing might be filed and while the cause was still pending in this court, the Legislature passed two acts (chapters 10, 11, Sess. Laws 1911), affecting the subject-matter here involved. Chapter 10, p. 10, Session Laws, 1911, a curative and validating act, contained an emergency clause, and was approved by the Governor February 8, 1911. Section 1 reads as follows: 'The organization, establishment and creation of all commercial waterway districts in this state heretofore had, or made, or attempted under the provisions of chapter 8 of the Laws of the Extraordinary Session of 1909, approved August 17, 1909, entitled * * * under which attempted organization, establishment or creation, an organized district has been maintained since the date of such attempted organization, establishment or creation is hereby for all purposes declared legal and valid, and such commercial waterway districts are hereby declared duly organized, established and created. And all debts, contracts and obligations heretofore made or incurred by or in favor of any such commercial waterway district so attempted to be organized, established and created, and all official bonds or other obligations executed in connection with or in pursuance of such attempted organization, are hereby declared legal and valid and of full force and effect: Provided, That nothing herein shall be construed to legalize or validate any attempted assessment or condemnation which may have been had or initiated by such district prior to the passage of this act.' Chapter 11, pp. 10-46, inclusive, Sess. Laws 1911, having an emergency clause, was approved February 9, 1911, and is an extensive statute which reenacts the old law of 1909, with added provisions sufficient to cure the defects found by this court, and mentioned in our former opinion. Section 49 of this act also provides for the validation of existing commercial waterway districts organized or attempted to be organized under the act of 1909. These curative and validating statutes were in effect before the 30-day period had expired within which a petition for rehearing could be filed. Such a petition was filed, calling our attention to them, and a rehearing was granted. Upon the reargument additional briefs and argument have been presented. Appellants in substance contend that no original question is before us for rehearing; that respondents in effect present only the new questions, whether the commercial waterway district has been validated, whether it is now a legal organization, and whether for that reason the judgment of the superior court should be affirmed. Although appellants raise some constitutional questions as to the validity of the acts of 1911, we find their objections to be without merit, and conclude that the controlling question before is whether we can on this rehearing consider the acts of 1911, and whether they have validated the attempted organization of the commercial waterway district here involved.

Appellants contend the only purpose of a rehearing is to correct a decision erroneous in regard to matters theretofore considered, and not to raise new issues under new pleadings. New pleadings are not presented on this rehearing. The identical proceedings and records considered on the original hearing are still before us without modification or change. Before final judgment has been entered in this court, the cause not having passed from our jurisdiction, we are called upon to consider the effect of new statutes, which the respondents contend are applicable and now require an affirmance of the judgment of the superior court. Counsel for appellants, citing State ex rel. Burke v. Board of County Com'rs, 112 P. 929, contend this court will not consider a statute passed subsequent to the date of the filing of the original opinion. In the case cited we refused to consider the act of Congress mentioned, for the reasons that final judgment had been entered by this court, that the cause had been remitted to the superior court, and that we had lost our appellate jurisdiction, which could not be restored on the same appeal by stipulation. This cause is still before us on the original appeal, for consideration on the rehearing granted upon a petition seasonably filed. Our appellate jurisdiction has at no time ceased or been disturbed. The original question whether the judgment of the superior court shall be affirmed is...