15 Wash. 315 | Wash. | 1896
This case involves the constitutionality of the act providing for the establishment of diking districts. (Laws 1895, p. 304.) The lower court sustained the act, and this appeal was taken.
It is first contended that the act is in violation of § 9, art. 7, of the constitution, which reads as follows :
“ The legislature may vest the corporate authorities of cities, towns, and villages with power to make local improvements by special assessment, or by special taxation of property benefited. For all corporate purposes, all municipal corporations may be vested' with authority to assess and collect taxes, and such taxes shall be uniform in respect to persons and property within the jurisdiction of the body levying the same.”
It is urged with much force that as the constitution authorizes the legislature to vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment or taxation of property benefited, it in effect prohibits the granting of such power to any other corporation. As the effect of sustaining this contention would be to prohibit all similar legislation and to prevent the construction of such improvements by assessments upon the property benefited except in cities, towns and villages, without an amendment to the constitution, it will be seen that the question presented is a most important one.
Counsel have called our attention to two decisions construing somewhat similar constitutional provisions in other states. One of these is Updike v. Wright, 81 Ill. 49, where it was held that such a provision in relation to cities, towns and villages prohibited the granting such power to any other corporation. The other case is that of State v. Dodge County, 8 Neb. 124
Several cases, upon which this provision would have a direct bearing, have heretofore been decided by this court, but in none of them was it called to' our attention. These cases are Board of Directors v. Peterson, 4 Wash. 147 (29 Pac. 995), where the court held that an irrigation district, formed under the act there in question, was not a municipal corporation within the meaning of § 6, art. 8, of the constitution; Seanor v. County Commissioners, 13 Wash. 48 (42 Pac. 552), where, in considering the act relating to an improved system of roads, etc., the court also held that an assessment, levied upon the property benefited, was not a tax within the meaning of § 12, art. 11, of the constitution; and Cass v. Dicks, 14 Wash. 75 (44 Pac. 113), which was an injunction suit to restrain the building of a dike under the present law. Legislation involving the same principle was sus
The respondents practically concede that the provision in question would amount to a prohibition on the legislature to confer like powers upon other municipal corporations than cities, towns and villages, and that it would apply to counties, they being municipal corporations under our constitution. But it is con
It is next urged that the act is in derogation of § 16,. art. 1, of the constitution, in that it permits the taking of private property for the right of way without full compensation therefore being first made in money or ascertained and paid into court for the owner. But no such taking is complained of in this case, and from the examination we have given the act, we do not think that it would necessarily result, and, as the case is presented, we are not disposed to.hold the act unconstitutional at this time on that ground. While the
The next objection is answered by saying that the taking is for a public purpose.
It is further contended that the act is unconstitutional because it permits the taking of private property without due process of law, but as to the objections urged in this respect, we do not think it is necessary that there should be personal service, on every person within the district, of notice of the petition to organize the district. And when it comes to obtain
Affirmed.
Dunbar, Anders and Gordon, JJ., concur.
Hoyt, C. J., dissents.