20 Wash. 272 | Wash. | 1898
The opinion of the court was delivered by
This action was brought to foreclose a lien on certain tide lands in the city of Seattle, arising under the provisions of ch. 99 of the Laws of 1893, p. 241 (Bal. Code, §§ 4080-4089), “An act prescribing the ways-in which waterways for the uses of navigation may be excavated by private contract, providing for liens upon tide and shore lands belonging to the state, granting rights-of way across lands belonging to.the state.” The complaint sets forth two causes of action, stating fully the-facts under which the liens arise; the difference in the causes of action being simply in the description of the-tracts of tide lands against which the lien is sought to be-enforced. It appears by the complaint that on October 27, 1894, the state of Washington, by its duly authorized commissioner of public lands, entered into a written contract with Eugene Semple, said contract consisting of two parts,.
The questions to be considered here are purely of law. The defendant’s contention is that the judgment and decision of the lower court was erroneous for the following reasons: (1) That the partial certificates mentioned in plaintiff’s complaint were not, and could not be, lawfully issued, for the reason that the contract made with Semple did not contain any provision or provisions regulating what should be such partial completion of the contract as •would render such work capable of separate use for the purpose of navigation, or contain any standard or data from which such determination could be made, as provided by § 4 of said act of 1893 (Bal. Code, § 4083). (2) Said act of March 9, 1893, is null and void and is in
We think, under the statute, the partial certificates were lawfully issued; that the contracts were drawn in substantial accord with the act; and that the act does not require the contracts to set forth what shall constitute a separate use for the purpose of navigation. This is a fact which we think, under the terms of the whole act, was intended to be left to the determination of the commissioner of public lands. The preceding §§ 1, 2 and 3, fully set forth what is essential to the contract, and § 4 simply sets forth what must be done to evidence the carrying out of the contract. It would be impracticable for the contract to contain all the provisions of the act. Again, this is a construction which the commissioner of public lands placed upon the act, and, under universal authority, such construction will receive the very highest consideration from the courts. Then, too, the filling and raising of the lots described in the complaint was completed and the certificates issued, prior to the purchase by the defendant’s grantor, and the contract of purchase under which the defendant holds expressly provides that the purchase shall be subject to the lien. He assumed under that contract the obligation to pay this lien, and he cannot now be heard to deny its validity. Brown v. Elwell, 17 Wash. 442 (49 Pac. 1068).
We do not think there is anything in the second proposition, that the act of 1893 is unconstitutional; for at the time these waterway contracts were made the state was
Nor do we think, under modern authorities, that the third objection can be sustained, viz., that the court erred in allowing interest at seven per cent, per annum upon the installment of interest which fell due February 8, 1898. Under the statute, the interest would become a distinct obligation, the time for payment being fixed by the statute. This being true, the money which was due at that date was unpaid, the state had the benefit of it, and the law will allow legal interest as a measure of damages.
The plaintiffs have also appealed from the judgment of the court, and allege two errors: (1) That the court, instead of allowing the first installment of principal and interest on the whole principal up to the time that the first installment inured, simply allowed the installment of one-tenth of the principal and interest on that installment only; and (2) that the court decreed a right of redemption, and it is argued that redemption is a strictly statutory right and that the statute in this case does not confer it in the case of sales to enforce liens. But we do not think that we can sustain this objection. The language of the act is, “that such lien may be foreclosed in the manner provided by law for the foreclosure of other liens on real estate.” While it may not be exactly a technical construction, we are satisfied that the intention of the legislature was, by the use of the words above quoted, that the foreclosure mentioned included the redemption which then existed in cases of foreclosure of real estate sold under exe
“upon the filing in the office of the county auditor of the county or counties in which such lands are situated, of such certificate of the commissioner of public lands, said contracting parties shall acquire a lien, and the same shall thereupon attach, for the amount specified in such certificate, with fifteen per cent, additional thereon, and interest on such amount and additional percentage from the date of such certificate at the rate of eight per cent, per annum until payment.”
Further along in the same section is the following provision :
“ The amount due on such lien, or any proportionate part thereof separately payable as above provided, shall be payable by any owner of said lands, or any part thereof separately owned, as the case may be, other than the state, in ten equal annual installments, the first installment at the end of the first year after the sale of such lands, or of such separate portion thereof, by the state; and the remaining installments, one at the end of each year thereafter, with accompanying interest on each of such installments, as hereinbefore provided,” etc.
It will be seen that either construction might plausibly be placed upon this provision of the statute; that the words, “with accompanying interest on each of such installments,” might mean interest on the installment which was paid or interest on all of the installments at the time of the payment of each installment. It is insisted by the plaintiffs that the court should take into consideration extraneous facts in aid of the construction of this statute, and, with some plausibility, it is urged that the legislature must have been aware of the customs governing the investment of large sums of money and of capitalists who furnish money for enterprises of this kind; that it is common
“ The amounts secured by this certificate and lien or any proportionate part thereof,' separately payable as provided by the contract and act of the legislature above referred to and made a part thereof, shall be payable by any owner or owners of said above described lands, or any part thereof, separately owned, as the case may be, in ten equal installments, the first installment together with interest on the gross amount secured by this certificate from the date of this certificate to the date of payment of such installment, at the rate of eight per cent, per annum, at the end of the first year after the sale of such lands, or any separate portion thereof by the state; and the remaining installments, one at the end of each year thereafter, with accompanying interest on the gross amount remaining unpaid to date of such payment, at the rate of eight per cent, per annum.”
This certificate places beyond question the fact that the
The judgment will be reversed, and the cause remanded with instructions to enter the judgment in conformity with this opinion.
Scott, O. J., and Gordon, Anders and Reavis, JJ., concur.