Wm. D. Perkins & Co. v. Diking Dist. No. 3 of Island County

• Decision Date: 24 April 1931
• Docket Number: 22863.
• Citation: 298 P. 462,162 Wash. 227
• Court: Washington Supreme Court
• Parties: WM. D. PERKINS & CO. v. DIKING DIST. NO. 3 OF ISLAND COUNTY et al.

298 P. 462

162 Wash. 227

WM. D. PERKINS & CO. v. DIKING DIST. NO. 3 OF ISLAND COUNTY et al.

No. 22863.

Supreme Court of Washington

April 24, 1931

Department 1.

Appeal from Superior Court, Island County; Ralph C. Bell, Judge.

Suit by the Wm. D. Perkins & Co., bankers, against the Diking District No. 3 of Island County and others. Judgment for defendants, and plaintiff appeals.

Reversed with instructions.

Kerr & McCord, of Seattle, for appellant.

James Zylstra, of Coupeville, for respondents.

HOLCOMB J.

This is a suit in equity, instituted by appellant for a mandatory injunction to compel respondents the diking commissioners, to make further levies and to compel respondent the county treasurer to collect unpaid taxes in order to raise funds with which to pay outstanding unpaid bonds of the diking district held by appellant and others. Diking district No. 3 of Island county is a municipal corporation organized for the purpose of constructing and maintaining a dike, and, in order to pay for the construction of the dike, it duly issued, on May 22, 1916, 166 negotiable coupon bonds in the principal sum of $100 each, aggregating $16,600, bearing interest at 6 per cent. per annum from date of issue; annual interest being represented by interest coupons. Bonds numbered from 1 to 45, inclusive, have been paid. Appellant is the owner of bonds numbered 46 to 163 inclusive, which have not been paid. Appellant alleged in its complaint that its action was brought in its own behalf and in behalf of the other unpaid bondholders of the diking district, and that the question involved in the action is of common or general interest to all such bondholders, that they are numerous, and it is impracticable to bring them all before the court.

The bonds are payable in numerical order, and respondents contend that appellant cannot be concerned with the nonpayment of bonds numbered 164 to 166, inclusive, because its bonds would be paid before those bonds at all events. It may be determined here at the outset that Rem. Comp. Stat. § 190, authorizes actions to be brought by one of many persons interested in a question of common or general interest to them and it is impracticable to bring them all before the court. Such practice was also upheld in Clay v. Selah Valley Irrigation Co., 14 Wash. 543, 45 P. 141.

There were at the time of the commencement of this action outstanding and delinquent assessments against a portion of the lands contained within the diking district aggregating $10,772.76. There was also delinquent and accrued interest on those assessments as of January 1, 1929, amounting to $6,211.92. Those delinquent assessments had been levied during the years 1919 to 1925, inclusive, but the treasurer of Island county had failed to collect the same, although demand had been made that she do so.

Upon the organization of the diking district, and as a part of the proceedings therein, in a certain action numbered 1233 in the superior court for Island county, wherein diking district No 3 of Island county was plaintiff and Wellman Bruner et al. were defendants, the amount of benefits accruing to each parcel of land in the diking district by virtue of the establishment of the diking district was fixed and determined as provided by law. The total benefits accruing to the lands within the diking district, as determined by the jury in that cause against forty separate parcels, amounted to $44,752.20. The total assessments for bond redemption levied against the lands within the diking district amount to $26,821.72. Of this amount the sum of $950 was levied in 1915 for the payment of warrants and was never intended to be, nor used, for the purpose of bond redemption. Hence the net total of assessments that have been levied for bond redemption purposes amounts to $25,871.72. In other words, the total benefits accruing to the lands within the diking district, by virtue of the improvement, exceeds the total assessments levied to pay for the same by $18,880.48. In addition the treasurer of Island county has sold two parcels of land within the diking district for general taxes without including the diking district assessments against them, which assessments amounted to $3,635.67.

After a hearing in which all parties were represented, the court entered an interlocutory order requiring respondent, the treasurer of Island county, to foreclose and collect the delinquent assessments theretofore levied against the lands in the diking district and, after doing so, to report back to the court, the court specifically retaining jurisdiction of the cause. In accordance with this interlocutory order the treasurer caused the delinquent assessments to be foreclosed and the lands, against which they were levied, sold. A return was thereafter made by the treasurer in accordance with the directions of the court's interlocutory order, which showed that no funds whatever were realized by the diking district from such foreclosure and sale, inasmuch as all the properties were struck off to Island county; it being the sole bidder at such sale. Thereafter another hearing was held in the cause pursuant to the interlocutory order, and the court refused to grant any further relief to appellant and entered its decree accordingly. This appeal results. All the material facts are stipulated.

This diking district was organized under the provisions of Rem. Comp. Stat. §§ 4236 to 4297, inclusive. Some amendments have been made and codified in Rem. 1927 Sup. §§ 4292-1 to 4292-5, inclusive, and by chapter 111, page 214, Laws of 1929. The district was not organized as a drainage and diking improvement district under Rem. Comp. Stat. §§ 4405 to 4459, inclusive.

Consequently, the matter before us is not governed by the same statutory provisions as were before the court in Kadow v. Paul, 134 Wash. 539, 236 P. 90, 95, which, among others, involved a statute providing that 'all the lands included within the boundaries of the district and assessed for the improvement shall be and remain liable for the costs of the improvement until the same are fully paid.'

The statutes governing the matter in suit are quite lengthy, and we can only make brief references to what we consider the controlling provisions thereof.

Rem. Comp. Stat. § 4265, prescribes that, after the entry of the judgment upon the verdict of...