Bowes v. City of Aberdeen

109 P. 369, 58 Wash. 535, 1910 Wash. LEXIS 967

• Court: Washington Supreme Court
• Decided: May 31, 1910
• Docket: No. 8580
• Status: Published

Opinions

Chadwick, J.

The city of Aberdeen, a rapidly growing city of approximately twenty thousand inhabitants, is situated on the Chehalis river at or near its junction with Grays Harbor, an inlet of the sea. Bordering the stream there is a wide flat or tidal marsh, intersected by sloughs, through which the tide and flood waters and storm drainage from the hills have been accustomed to flow. At certain times of the year and upon certain tides, the water stands over the whole flat to a depth of from three to four feet, while at all times the ground water stands a few inches beneath the surface of the sloughs. The business part of the city, as well as a part of the residence district, is built upon these tide flats. The business of the city and the comfort and convenience of the citizens demand that the grade of the streets be raised so as to bring them above .the level of the high tides. Up to this time is has been possible, as well as feasible, to make elevated plank streets or roadways and sidewalks, but the increasing price of lumber, its lack of durability, and other reasons make it necessary to improve the streets in some permanent manner. It is possible to do this in one of two ways; to grade or fill the streets and alleys up to the required level, or fill the whole district, including the lots and blocks. To accomplish- the first plan would require the erection of banks or retaining walls along the street lines, with openings left thereunder for drainage. To carry out this plan would cost approximately fifty cents a cubic yard. The other plan, being the one adopted by the city council, could be accomplished by hydraulicing the mud and silt from the harbor or river channels, or dirt from the adjacent hills, and would cost approximately eighteen cents per cubic yard. The answer of the city to the petition of the appellants recites the further condition as warranting the improvement in the manner contemplated :

“That the lands within the said improvement district have become and now are an important part of the city of Aberdeen, and is fast becoming of more importance as a part of the said city; that many houses, barns, out-buildings and other structures have been built upon the private property within the said district and many other like structures are being built thereon, and many more will be built thereon; that because of the low and swampy condition of said lands and because of the inability to drain the same and because of the stagnant waters standing thereupon, and because of the many dwellings, barns, stores and other structures located upon said lands, the said lands have become and are greatly detrimental to the public health and to the public welfare of the persons residing within the said district, and the city of Aberdeen generally, and that said condition is an unsanitary one and dangerous to the public health and welfare of the citizens of the said district and of all of the citizens of the said city of Aberdeen; . . . that to fill the said streets and alleys as aforesaid without filling the said private property would leave all of the said private property low, wet and marshy ground, and would cause the same to be more unsanitary than the same now is without said streets and alleys being filled, and would cause the water to stand upon the said private lands throughout the year, even to a greater extent than the same now stands thereupon, and would cause the same to be very unsanitary and detrimental and dangerous to the public health and welfare of the said citizens; that it is necessary, for the purposes aforesaid, to fill the said streets and alleys and to fill the private property to the grade aforesaid; and that the public health and public welfare óf the said citizens of the said district and of the said city of Aberdeen require that such filling be done; that the said public health and public welfare of the said citizens required the said grades to be re-established and raised because the old grade of the said streets and alleys was too low and did not, in any manner, provide for the drainage of the said district, the said grade as formerly established being a level one throughout the said district, and that for sanitary reasons and in order to keep the water from standing upon the said streets and private property, and in order that the same might be drained, it was necessary that the said grade of the said streets and alleys be raised as described in the complaint herein ; that the public health and public welfare required and requires the raising of the grade of the said streets and alleys aforesaid and the filling of the said streets and alleys as aforesaid, and the filling of the said lots as described in the petition herein.”

While it is provided, in section 5 of the act of 1909, chapter 147, page 572 (Rem. & Bal. Code, § 7975), under which the city is probably proceeding, that the filling of unimproved and uncultivated low lands of the character described in the answer and in the ordinance declaring the intention of the city shall not be considered a taking or damaging within the constitutional meaning of these terms, the city in its answer disclaims any intention or purpose to condemn the right to fill the lots and blocks belonging to private owners. We are of the opinion that the constitutional question thus raised may be safely disregarded, for if the city can fill the property of a private owner under the act of 1909 or the act of 1907, Laws 1907, §§ 53-56, page 657 (Rem. & Bal. Code, §§ 7636-7639), in the manner contemplated, it must be done under the exercise of its police power, and not because the legislature has undertaken to say what shall be, or rather what shall not be, a taking or damaging of property. This is a judicial question, and were we inclined to pursue it further, we would not, as at present advised, feel bound by the declaration of the legislature. The regularity of all antecedent proceedings on the part of the council is not challenged by plaintiffs, so that the case is squarely before the court upon the question whether, under the facts as we have outlined them, a city can, in the exercise of its police power, fill the property of a protesting landowner so as to make a present condition sanitary, or anticipate a condition which is reasonably certain to follow the ordinary growth of a thrifty city.

While the evidence is conflicting, in the sense that a witness testified that present conditions were not unsanitary, the weight of the evidence is overwhelmingly in favor of the city’s contention. Mr. Benn, the mayor, who has been a resident of the city since the first house was erected, says the conditions are unsanitary, and attributes present and possible conditions to the natural growth of the city and the stoppage of the natural ditches and drains, resulting from ordinary use. The health officer of the city testifies that there has been a greater mortality, especially among children living upon or over the tidal marshes, than upon the hill districts, and attributes the fact to the pollution of the soil consequent upon human habitation without proper drainage. Mr. Ewart, the city engineer, whose description of the physical conditions is accepted by the petitioners, and whom we therefore conclude to be skilled in his profession, says:

“Q. What effect does the levelness of this land have upon the drainage and sewerage? A. To put a sewer system on the level of this ground is impracticable. They are too flat. The sewer pipe would have to be laid on a gradual slope of the river, and it would make them above the level of the lots in the district proposed to be filled. Q. In the proposed fill, Mr. Ewart, are these lands to be leveled more on the back side? A. They will have an incline of six inches to the block from the hill to the river; that is the least practical fall you can make on the streets. . . . Q. Do you consider, Mr. Ewart, you have heard the testimony as to the °anitary conditions in this district, do you consider that the land within this district or that this- district as it stands is unsanitary? A. Very. Q. Will you give your reasons why? A. The presence of human beings tends to make it unsanitary. The offal from the table, from the animal excrement, is bound to accumulate more or less in this soggy ground, and makes it unsanitary. Q. Your* idea then would be that the more people live in that district, the more unsanitary it would be? A. Yes, sir. Q. Do you consider this property was unsanitary in its original condition? A. It was by itself. Of course, if there was nobody there, no one would be likely to get sick. Q. To make as favorable illustration as you can, suppose there was no one living but one man in that district? A. Outside the dampness it would not be unsanitary. Q. Would the dampness be unsanitary? A. It is, yes. A great many people suffer from cold and on account of dampness. Q. You have never known of any plague or great amount of sickness on account of this condition, have you, in the city of Aberdeen or Hoquiam and'that neighborhood? A. Yes. Q. You think that there is more sickness from the people living on the more level ground than on the high ground or hill district? A. This particular place has not been settled thick enough to cause that condition yet, but where it is more thickly settled, it is, yes. Q. Then your idea boiled down amounts to this, that in its original condition, when the tide came and went, and the sloughs were not interfered with, it was simply unsanitary, but that it would become more unsanitary as the district became more populated? A. Yes, sir. Q. And that it would become more unsanitary than it is now? A. Yes, sir. . . . Q. I want to get at your idea as to the necessity of filling this property, because of sanitary conditions; as I understand you, you think it is necessary? A. I do. If you confine a few people in that district, and dike the district, and you allow no more people to go in there, and keep them absolutely clean, make them keep their houses clean and their sewerage and garbage out of the way, you might have a sanitary district; but it is not practicable to do that. For instance, the district immediately west of this it is planned to dike, and the people living there are widely separated, and for the present that would answer, but if heavily populated, it would not be practicable or sanitary. Q. Is there not some way of making this land sanitary without so much expense and without filling it? A. I do not think so. You could make it more nearly sanitary by diking it, but we have the tide water from the river; and whenever you dam that out you also dam in the storm water, and all your water will be dammed in at the same time that your tide water is dammed out.”

Plaintiffs asked for an order restraining the city from further prosecuting its design. After a trial upon the merits, the complaint was dismissed, and the plaintiffs have appealed.

But one assignment of error it made; that is, that the court erred in dismissing plaintiffs’ complaint with prejudice. This is argued under two subdivisions, (1) that the ordinance is void, inasmuch as it takes and damages appellants’ property without due process of law; (2) because the ordinance, as shown upon its face and by the testimony, is unreasonable and arbitrary. It is admitted that “the property owner has not an absolute control over his property, but that he holds it subject to the rights of the community at large, and that it is one of the conditions of his tenure that he hold or use his property so as not to injure others.” But it is said that “the police power, except in cases of extreme emergencies or of imminent danger, cannot take from the property owner his property without paying full compensation therefor and without proving a public necessity for such taking.” Just what the police power of a state or city may be is, as all of the authorities agree, or, at least, those following the Slaughter-House Cases, 83 U. S. 36, incapable of exact definition or limitation; for, as was most pertinently said in Stone v. Mississippi, 101 U. S. 814, “it is always easier to determine whether a particular case comes within the general scope of the power, than to give an abstract definition of the power itself which will be in all respects accurate.”

Incapability of definition, however, does not destroy the right of the public to safeguard property, insure the general health, protect the morals, preserve the peace, or compel the use of property consistent with surrounding conditions by the exercise of arbitrary power and in disregard of the primary right of the individual. A subject when measured by other conditions may warrant its exercise; whereas, if the relative condition be lacking, the power will be denied. Its exercise in proper cases marks the growth and development of the law rather than, as some assert, a tyrannical assertion of governmental powers denied by our written constitutions. Although the fundamental truths must from their very nature remain unchanged, the right of property is a legal right and not a natural right, and it must be measured always by reference to the rights of others and of the public. Neither an individual nor the public has the right to take the property of another and put it to a private use. But it would be manifestly destructive to the advancement or development of organized communities to put the public to the burden of rendering compensation to one, or to many, when the individual use is, or might be, a menace to the health, morals, or peace of the whole community. These are the principal grounds upon which the right to exercise the police power rests, and the only question confronting us is whether the present attempt comes within these recognized principles. Freund, in his work on Police Power, § 143, says:

“The questions which present themselves in the examination of a safety or health measure are: does a danger exist ? is it of sufficient magnitude? does it concern the public? does the proposed measure tend to remove it? is the restraint or requirement in proportion to the danger? it is possible to secure the object sought without impairing essential rights and principles? does the choice of a particular measure show that some other interest than safety or health was the actual motive of the legislature?”

The first test proposed—does the danger exist—may be almost summarily disposed of. Although we are not prepared to indorse the rule, asserted by some case writers, that a court will be bound by a legislative direction to that effect, we are not put to a consideration of that question in this case. The evidence, as we have shown, abundantly sustains the declaration of the city council that the land proposed to be filled is unsanitary, and is or may become a menace to the public health. That it is of sufficient magnitude and concerns the whole public in so far as the municipality is concerned, is likewise shown. The area to be filled covers approximately one thousand city lots, with adjoining streets and alleys. These are located partly within and partly adjoining the business portion of the city, where permanent streets are necessary and where undrained land would jeopardize health and retard the growth of the city. So, too, the proposed improvement will remove the danger, leaving the area affected above the higher waters at flood tides or storm periods, and insure perfect drainage as well as an entire absence of stagnant water. The proposed improvement is not disproportionate to the danger, for it is shown that, if the danger is removed at all, it cannot be done in any other practical or economical way.

The remaining tests require more extended argument, and may be discussed-together. They are covered by the appellants’ objection that the exercise of the power asserted in this case is unjust and arbitrary. Appellants base their contentions primarily upon the statement in Lewis on Eminent Domain (2d ed.), vol. 1, page 473:

“The police power, so far as it relates to property, is a power to regulate its use, and is negative or inhibitory in its character. A man cannot be compelled, under the police power, to devote his property to any particular use, however advantageous to himself or beneficial to the public; but he may be compelled to refrain from any use which is detrimental to the public. This is the beginning and the end of the police power over private property. No instance can be cited, outside of the mill and drainage acts (which are in controversy), in which the owner of private property has been compelled to devote it, or submit to its devotion, to a particular use, by virtue of the police power, or of any other power except that of eminent domain.”

The true rule is also found in 10 Am. & Eng. Ency. Law (2d ed.), page 223:

“To effect the drainage of large tracts of land and thereby make them fit for habitation and use is a purpose sufficiently public to justify the exercise of the right of eminent domain.”

To say that the police power can only be exercised in given cases, and then call a halt, would be to fix a limitation which, from the very nature of the power itself, cannot be done.

It is asserted, however, that, if the case falls within the drainage cases, this court has expressly held that the' right to proceed thereunder cannot be sustained by reference to the police power, but must be carried out under the law of eminent domain, and the following decisions of this court are cited and relied upon: Askam v. King County, 9 Wash. 1, 36 Pac. 1097; Skagit County v. Stiles, 10 Wash. 388, 39 Pac. 116; Snohomish County v. Hayward, 11 Wash. 429, 39 Pac. 652. The Askam case was properly decided. In that case suit was prosecuted by one over whose land it was proposed to run a ditch for the purpose of draining the lands of others. He was not in fault, nor was he using his property to the detriment of the public. As was said by the writer of the opinion:

“Even if we concede that the requirements of the law are such that the board of county commissioners must decide that the swamps to be drained are a nuisance, before they will' proceed in the matter, yet the intention does not appear in the-act to declare the nuisance to be of such imminent danger to the public welfare as to require private property of others than those maintaining the nuisance to be taken without compensation.”

While the other cases relied upon affirm correct principles of the law, they were, in the opinion of the writer, considering the facts of each particular case, improperly decided. At any rate, in the light of subsequent decisions of this court, they should not be considered authority in this case. The difference between one whose land is taken or damaged in the aid of a public improvement and one whose land is actually improved was noticed in Lewis County v. Gordon, 20 Wash. 80, 54 Pac. 779. In Wurts v. Hoagland, 114 U. S. 606, the reasoning of Chancellor Zabriskie, in Coster v. Tide Water Co. (18 N. J. Eq. 54, 68), is adopted as a correct statement of the law:

“The principle of them all is, to make an improvement common to all concerned, at the common expense of all. And to effect this object, the acts provide that the works to effect the drainage may be located on any part of the lands drained, paying the owner of the land thus occupied compensation for the damage by such use. So far private property is taken by them, farther it is not. In none of them is the owner divested of his fee, and in most there is no corporation in which it could be vested, and for all other purposes the title of the land remained in the owner. To effect such common drainage, power was in some cases given to continue these drains through adjacent lands not drained, upon compensation. All this was an ancient and well-known exercise of legislative power, and may well be considered as included in the grant of legislative power in the constitution.55

That the legislature has the right to assert its police power in this regard cannot now be questioned. Cooley, Constitutional Limitations (7th ed.), page 868; Cooley, Taxation (2d ed.), 617; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112; Hagar v. Reclamation District, 111 U. S. 701; Head v. Amoskeag Mfg. Co., 113 U. S. 9. It would unnecessarily and unreasonably extend the limit of this opinion to notice the long line of cases where the state courts have construed this power. But whether the facts of the particular case warrant the assertion of the power is a judicial question, to be resolved by the courts. Freund, Police Power, § 142.

“It is sometimes difficult to draw a precise line of distinction between the public and private objects of improvements of the nature under consideration here. It is true, the owner of land may use it and cultivate it as he desires, so long as he does not injuriously affect the rights of others. But the public also has an interest beyond that of the mere sanitary condition of the land, and founded upon other and different principles than the controlling or abatement of nuisances, where any considerable number of persons are concerned, or tract of land is useless, and improvements may be made commensurate to the benefits received, and the land itself may be taxed for said benefits. The principle requires careful application, but many illustrations of its existence can be found sustained by the highest authority.” Lewis County v. Gordon, supra, page 90.

It will thus be seen that the conflict of authority upon the right to exercise the police power or to proceed by eminent domain is apparent rather than real. Both rules exist, but their application, as Judge Reavis has said in the Lewis County case, requires careful application, and must be made to depend in every case upon the subject of the particular action when measured by the public interest. Resting upon the principle that it is the duty of a landowner to so keep his property that no menace to the public health shall come therefrom, courts have held that a city could, under its police power, fill up low lying lands and recover the cost thereof. Charleston v. Werner, 38 S. C. 488, 17 S. E. 33, 37 Am. St. 776; Rochester v. Simpson, 134 N. Y. 414, 31 N. E. 871; Nickerson v. Boston, 131 Mass. 306.

It is also urged that the title of the act of 1909—“An act empowering cities of the second and third class to fill low lands within their borders and for that purpose to exercise the right of eminent domain for the taking and damaging of property and providing a melhod for making compensation therefor and providing for levying and collection of special assessments on the property benefited and declaring an emergency”—is insufficient to warrant an exercise of the police power. Although the city probably has the right to exercise its police power in all proper cases as an incident to its general governmental powers, or under the general welfare clause of its charter, we. nevertheless believe the title to be sufficient. The employment of the words “to exercise the right of eminent domain” can be held to apply only to such property or improvements as may be actually taken or destroyed, and not to the filling of the land itself, which is in no sense taken, but is left to the free use of the owner. Section 3 of the act makes this plain. The purpose need not be expressed in words; the power to fill is sufficiently broad to include any reason recognized by the law for the exercise of the power. It was said in In re Morgan. 26 Colo. 415, 58 Pac. 1071, 77 Am. St. 269, 47 L. R. A. 52, with some hesitation, though why is not made clear to us, that:

“When it is clearly perceived from the terms of an act that the thing prohibited necessarily affects the public health, it may not be necessary expressly to declare therein what the object of the act is; . . .”

If the title advises the citizen that the subject of the act is to fill low lands, and gives notice of a procedure, it is enough, and will be sustained so long as the right can be rested on any recognized principle, although the “purposes” be not stated in terms. Lien v. Board of Comr’s of Norman County, 80 Minn. 58, 82 N. W. 1094.

Finally, it is urged that the plan of assessment—that is that “the several parcels of land located in the improvement district to be assessed for such improvement shall be assessed according to and in proportion to the surface area, one square foot of surface to be the unit of assessment” (Laws 1909, page 572, §5; Rem. & Bal. Code, §7975), would deprive the owner of his property without due process of law. It is said that it would be manifestly unreasonable and arbitrary to assess the property of one who may have a lot worth only $750 the same amount as one whose lot is worth $5,000, or one whose lot is filled only three feet deep the same as one whose lot is filled five or six feet. No system of taxation or assessment is fair and equal in the abstract. We can only approximate equality. The right to assess the cost of improvements by area in this class of cases has been sustained by the highest authority. Parsons v. District of Columbia, 170 U. S. 45; Bauman v. Ross, 167 U. S. 548; French v. Barber Asphalt Co., 181 U. S. 324. The right to assess by area has been most frequently upheld in the drainage and levee cases coming out of the southern states, although it is affirmed in most all of the states, the courts holding that the provision of the constitution which requires all property to be taxed according to its value is applicable only to taxation in its ordinary and received sense, and not to local assessments where money is raised to be expended on the property taxed. In Egyptian Levee Co. v. Hardin, 27 Mo. 495, 72 Am. Dec. 276, a tax not exceeding fifty cents per acre was upheld. The court said:

“The present case may be taken as an illustration, and will show the folly of judicial interference. The charter of the Levee Company requires the tax to be regulated by the number of acres and not their value. This, upon first impressions, might carry an appearance of injustice; but it is not very easy, from all the facts disclosed in the record of this case, to infer that any practical injustice whatever has been done. Lands in the neighborhood of Alexandria are rated at seventy-five dollars an acre, and, for aught that appears, were so rated before the company was organized. The lands of the complainants are only estimated at twenty dollars per acre. . If the improvement increases the value of each class of lands pari passu, there is no injustice. If the levee or embankment and canals raise the price of Alexandria lands to seventy-five dollars per acre, and increase the value of the complainant’s land, distant perhaps fifteen miles from Alexandria, to twenty-five'dollars an acre, where is the hardship complained of? Where lands were unequal in value before the proposed adventure or improvement, it was surely not the purpose of the company to bring these lands to an equality of valuation. It was not contemplated that land worth twenty dollars an acre should be brought up to a hundred, at the same time that land worth previously seventy-five dollars an acre should be raised to one hundred dollars per acre. This difference in value, if it arose from causes entirely independent of the overflow or its prevention, must of course still continue after the completion of' the works. Neither party has a right to complain if the increase of value in each has been in the same proportion to the original value in both cases. Indeed it is quite apparent that a taxation upon value and not quantity would in the hypothesis stated produce great inequality. The burden would not be distributed in proportion to the benefit. How this may be in point of fact, we of course do not pretend to know; but there is nothing in the record to show that the facts may not be exactly as we have supposed.”

To the same effect is Austin v. Seattle, 2 Wash. 667, 27 Pac. 557. The cases will be found in Cooley, Const. Lim. (7th ed.), p. 735; 25 Cyc. 201, and 25 Am. & Eng. Ency. Law (2d ed.), p. 1201.

Nor do we believe that appellants are in any way deprived of their property without due process of law, within the rule of Davidson v. New Orleans, 96 U. S. 97, and Hagar v. Reclamation District, 111 U. S. 701. If it be conceded that the legislative department has not the right to arbitrarily fix the amount of the tax, the act of 1909 is within that line of cases holding that, if the citizen be given an opportunity to be heard, either before the assessing body or in the courts, then the levy of such special assessments will not operate as a deprivation of rights of property without due process of law. The act in question provides for a hearing upon the assessments levied, and that at such time the board may hear, consider and determine objections and protests, and make “such alterations and modifications in the assessment roll as justice and equity may require.”

It may .be understood that we have not overlooked the point made by appellants that, but for an embankment made by a railroad operated along the water front under a franchise granted by the city council, the present improvement would not be necessary. There is evidence tending to show that the railroad grade is not responsible for present conditions ; but, whether it is so or not, its removal would operate to restore original conditions which are shown to be equally inconsistent with the present necessities of the public.

The judgment of the lower court is affirmed.

Rudkin, C. J., Gose, and Morris, JJ., concur.