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ments situated on said land were at the this is done, and the details required by s..? time of such appraisement also duly ap act carried out, all persoas interested, so! praised by said board of county commission the public generally, will have full oppaers, entitled to have a new appraisement of tunity to acquaint themselves with sil the such improvements as of the date of such facts necessary to an intelligent competits sale? Appellant contends that, by virtue of among the bidders at the sale of the lol the express provisions of section 7 of said The protection of the improvers at all 499 act, he is entitled to have the value of his probably a pure act of grace on the part a improvements appraised as of the date of the the legislature; and it any occupiers sale, and that no prior appraisement could af- school lands have, since the date of sad fect his rights. The language of said sec act, made improvements thereon, they mas tion 7, upon which he relies, is as follows: be deemed to have done so in the light "Provided further, if the purchaser be not the law upon the subject, and at their perl the owner of the improvements, he shall pay as to any compensation being awarded tben to the said owner in cash the appraised value therefor by the lawmaking power. It tol thereof at the time of sale, within thirty lows from what we have said that the ap days from the day of sale.” And if this pro- | pellant was not entitled to have any furtbe vision was to be construed alone, without appraisement of his improvements than that reference to the evident intent of the legis which had already been made, and, as this lature, as embodied in the whole act, there contention was the only one upon which be would be much force in the contention of relied for a reversal of the judgment ap the appellant. But, when we construe the pealed from, it must be affirmed. whole act together, we think it is evident therefrom that it was the intent of the leg. DUNBAR, C. J., and STILES, SCOTT, islature that the board of county commis- and ANDERS, JJ., concur. sioners should, at the time when, under the law, they are required to appraise the value of the land, also appraise the value of the improvements, and that such appraised value GEORGE D. BARNARD & CO. V. WAHKIshould remain in force, and constitute the

AKUM COUNTY. appraised value of such improvements, at

(Supreme Court of Washington. Oct. 25, 1981 the time of the sale, within the meaning of the provision above quoted, so long as the


MEASURES. appraisement of the value of the land re

Under Gen. St. § 3136, which requires mains in force as a foundation for a sale un the county auditor, at the county's expense :: der said act; and it seems clear from the pro procure a full set of weights and measures for visions of section 3 that an appraisement his county, it is not necessary that the cours

commissioners authorize the purchase by the once made shall form the basis of any sale

county auditor, or subsequently ratify it, to made within five years thereafter. This make it binding on the county. construction not only seems to us to be war

Appeal from superior court, Wahkiakım ranted by the terms of the act, taken as a

county; W. W. Langhorne, Judge. whole, but any other construction would so

Action by George D. Barnard & Co., & corembarrass the action of the commissioners

poration, against the county of Wahkiakum, in making such sales, and place the bidding

to recover from defendant $311.65, alleged thereat on such an uncertain basis as to

to be due for scales, weights, and measures very much interfere with the efficiency of sold and delivered. From a judgment sus the act. If the owner of the improve taining a demurrer to the complaint, plainments is entitled to have them appraised as

tiff appeals. Reversed. of the date of the sale, the details as to such appraisal could in no proper manner become

Reynolds & Stewart, for appellant. J. known to the bidders at such sale, and they

Bruce Polwarth, Co. Atty., and Jobo E would, therefore, if they made any bids at

Smith, for respondent. all, have to make them in the dark, as to the amount which they might have to pay STILES, J. The only point for decision in for the improvements on the lands struck this case is as to what effect is to be given off to them. The evident intent of the leg. to Gen. St. $ 3136, which requires the cousislature in the enactment of said law was ty auditor to procure a full set of weights not to provide a means by which those mak- and measures for his county, at the expense ing improvements after the date thereof of the county, when such weigbts and measshould be compensated therefor, so much ures have not already been provided. The as it was to protect those who, during our auditor of Wahkiakum county, it is alleged territorial period, and up to the date of the in the complaint, procured a set of weights passage of said act, had in good faith made and measures from appellant, of the value improvements. Under our construction as of $311.65; the county, at the time of the above stated, the commissioners should, as auditor's order, not being provided with such a part of the report of their appraisal of the instruments. The commissioners refused to land, include also a report of their appraise allow the appellant's claim, and hence this ment of the improvements thereon; and if I suit. The court below held & general de

murrer well taken on the ground that it was may be assessed and the collection of city not alleged that the commissioners had au taxes shall be made in the manner prescribed thorized the purchase, or subsequently rati- | by existing law for the assessment and colfied it. The argument of the respondent is lection of territorial and county taxes," etc. that the general scheme of county govern

MacKinnon & Murane, for appellants. ment which prevails in this state contem

Frank H. Rudkin and Jones & Newman, plates that the board of commissioners shal!

for respondents. be the business and financial agent of each county, and that to uphold the auditor in any independent action of this kind would

HOYT, J. This appeal presents but a be to trench unlawfully upon the general

single question: Were the provisions of the plan and spirit of the statutes. But we

general law as to the assessment and colthink tbat, inasmuch as the legislature is

lection of taxes, in force at the time of the the author of the general plan, its unmis

passage of the act incorporating the appel-takable intention to make an exception in

lant the city of North Yakima, so referred the case of the purchase of weights and

to in said act as to make them a part theremeasures must be respected. The judgment of, so that a subsequent repeal of such prois therefore reversed, and the cause remand

visions by a general law would not affect ed, with directions to the superior court to

the same, so far as their relations to such overrule the demurrer.

act of incorporation were concerned? In

other words, did such act of incorporation DUNBAR, O. J., and HOYT, SCOTT, and

have such specific reference to such general ANDERS, JJ., concur.

provisions as to make them a part thereof? It is contended on the part of the appellants that such force must be given to the

language of said act of incorporation. ApNEWMAN et al. v. CITY OF NORTH YA pellants cite in support of their contention KIMA et al.

two California cases, in each of which it (Supreme Court of Washington. Oct. 31, 1893.) was held that, where it was provided in a STATUTES-REPEAL-CONSTRUCTION-MUNICIPAL

special act of incorporation that anything in Taxes..

connection therewith should be done in ac1. The rule that a special act, into which cordance with the provisions of an act or any part of an existing general law has been in

section, such act or section became, to all corporated, is not affected by the repeal of the general law unless the repealing act refers in

intents and purposes, a part of the special express terms to the special act, applies only act, and, so far as it relates to such special where some particular general law, or a section act, would not be repealed by any subsethereof, is referred to in the special act, and not

quent act which did not in express terms to cases where the special act makes no such particular reference, but merely to the "exist refer to it as a part of the special act into ing general law," or to the "general law now which it was incorporated. The principle in force."

established by these cases is undoubtedly 2. A provision in a city charter that the levy and collection of taxes shall be made in ac

sound, and we know of no authority to the cordance with the requirements of the "exist. contrary, but in our opinion it is not decisive ing general law,” or of the “general law now in of the question raised by this appeal, as . force," means the general law in force when the tax is levied or collected, and not the gen

above suggested. In those cases the act or eral law in force at the time of the city's in

sections of the general law were expressly corporation.

referred to as such, while in the case at bar Appeal from superior court, Yakima coun

there is no such express reference to any ty; Carroll B. Graves, Judge.

particular act or section. By this act of inAction by J. M. Newman and W. L. Jones

corporation, it was provided only that ceragainst the city of North Yakima and D. H.

tain things in connection with the levy and Cook, city marshal, to restrain a sale of

collection of taxes should be done in accord. plaintiff's property for taxes alleged to be

ance with the provisions of the existing law, delinquent. From a judgment for plaintiffs,

and in some places the term used was that defendants appeal. Affirmed.

the act should be done in accordance with The city charter of North Yakima was en

the provisions of the law now in force, or acted by the legislature January 27, 1886.

words to that effect. But in none of the Section 63 requires the city assessor to "per

references thus made was there any special form the same duties as to city assessments

act, section, or provision of the general law as are now prescribed by law for the coun

set out or indicated; and taking all of such ty auditor in the matter of county assess

references, and construing them together, we ments," etc. Section 64 requires the city

feel compelled to hold that the legislature treasurer to perform the duties as to city

thereby intended simply to provide that such taxes prescribed by existing law for the

acts should be done in accordance with the government of the county treasurer as to

provisions of the general law in force at county taxes." Section 89 provides that “the

the time of the doing thereof. In fact, if assessment of property, the form of the as

· People v. Clunie, 70 Cal. 504, 11 Pac. 775; sessment roll, the rule for ascertaining the Spring Valley Waterworks v. San Francisco, ownersbip of property and in whose name it 22 Cal. 434.

we take into consideration all of the ex Spokane county to entertain jurisdiction de pressions bearing upon the subject, it seems an appeal from a justice's court. The Do to us that such an intention on the part of tice of appeal was as follows: "State of the legislature sufficiently appears;

and Washington, county of Spokane ss.: Before when we further take into consideration T. J. Cartwright, justice of the peace & the fact that one of the main objects of pro F. Fifer, plaintiff, vs. William Maltby, de viding that these acts should be done in ac fendant. To the above-named plaintiff, adi cordance with the provisions of the general his attorneys: You will please take note law, excepting so far as modified by the ex that the above-named defendant appeals to press provisions of the act of incorporation, the superior court from a judgment heretowas, so far as possible, to procure a uniform fore rendered by said justice of the peace system applicable to all of the cities thus against him in the above-entitled cause specially incorporated, such intention be (Signed.]" The objection that this Dood coines so manifest that there is no escape was not entitled in a court is not well take therefrom. Any other construction would There is no court apart from the officer ube destroy such uniformity, as between the is, by the constitution, designated as a fosdifferent cities of the state, without any rea tice of the peace. Article 4, & 1. A caus son whatever. If the provisions of any is entitled in the superior court of Spokane general law could properly be made appli- county, without regard to the persoanei de cable to one city, they could probably as well the judge; but it would not be sufficient to be made applicable to all cities similarly entitle a cause in the justice's court of pre situated; and, if the general law in force cinct No. 1 of Spokane county, without dsb at the time of the passage of the special act ing the particular officer. The body of the was of such a nature that the acts of the notice is sufficient, since it amply notiðe city could properly be governed thereby, it the opposite party that an appeal is taken is would follow, almost as a matter of course, the particular case. Lancaster V. Melo that another general act upon the same sub ald, 14 Or. 264, 12 Pac. 374. The practice in ject-matter, and relating to the perform cases of this kind was settled in State T. ance of the same duties, could as well be Hunter, 3 Wash. 92, 27 Pac. 1076, in se made applicable thereto. In our opinion, cordance with the very highest authority, then, the references contained in the act of and we see no reason to change that ruling incorporation of said appellant must be Let the alternative writ be made peremptaken to be to the general law in force at tory. the time the tax was levied, instead of to that in force at the time of incorporation; ANDERS, SCOTT, and HOYT, JJ., CODETI. and, such being the conclusion of the lower court, the judgment rendered thereon must DUNBAR, C. J., (dissenting.) I think the be affirmed.

notice is too indefinite to convey any infor:

mation to the plaintiff. Neither the date of DUNBAR, C. J., and SCOTT, ANDERS, the judgment, nor the judgment itselt, is and STILES, JJ., concur.

described. It is not uncommon for different judgments to be rendered in the same court concerning the same parties, and it is in

excusable carelessness not to describe the STATE ex rel. MALTBY V. SUPERIOR judgment appealed from in some way. Tbe

COURT OF SPOKANE COUNTY et al. writ should not issue. (Supreme Court of Washington. Oct. 31, 1893.) APPEALS FROM JUSTICES-NOTICE OF APPEAL.

1. A notice of appeal from a justice, entitled “State of Washington, county of Spokane

HAYNES ». TACOMA, O. & G. H. R. CO. -ss.: Before C., justice of the peace," is not objectionable as not entitled in a court.

(Supreme Court of Washington. Oct. 31, 1893 2. A notice of appeal from a justice, ad ATTORNEY'S AUTHORITY-RATIFICATION-PLEADdressed to above-named plaintiff and his attor

ING AND PROOF. neys, “that the above-named defendant appeals

1. An attorney, employed by a railroad to the superior court from a judgment heretofore rendered by said justice of the peace

company to represent it on the trial of a partir

ular cause for the condemnation of a ristit of against him in the above-entitled action," is not

way, has no authority to enter into any contract bad for failure to more particularly describe

with a third person, not a party to the action, the judgment. Dunbar, C. J., dissenting. as to the terms under which he will surrender Mandamus on relation of William Maltby

his interest in the land to the railroad company

for its right of way. to the superior court of Spokane county to

2. An unauthorized contract entered into take jurisdiction of an appeal from a jus. between the agent of a railroad company and tice of the peace. Writ granted.

the owner of a logging road crossed by the

company's tracks, whereby it agrees to raise Prather & Danson, for the State. Watkins the logging road, and put in a crossing and pey & Warren, for respondents.

the owner as damages $50 per day for each day his road is blocked, is not ratified by the per

formance of the work by the railroad company, STILES, J. This is an application for a unless it has knowledge of the proposition as to mandamus to require the superior court of the damages.

3. Where a complaint alleges an express feet of the logs. While the condemnation ontract between plaintiff and defendant, there

case was in process of trial, Weatherwax an be no recovery on proof of a contract beween defendant and a third person for plain

made it known to his attorney and the atiff's benefit.

torney for respondent that all that he deAppeal from superior court, Chehalis coun

sired was to have the logging road put in y; M. J. Gordon, Judge.

good order for continued use by means of Action by James B. Haynes against the

a proper crossing at respondent's track, and Tacoma, Olympia & Gray's Harbor Railroad

compensation for appellant during such time

as he should be deprived of the use of the Company on contract. The court directed a nonsuit at the close of plaintiff's case, and

road; and this disposition of the case as be appeals. Affirmed.

against Weatherwax was agreed to, the sum

of $50 per day being named as the compensaM. J. Cochran and D. Allen, for appellant.

tion for the temporary stoppage of appelAshton & Chapman and A. E. Griffiths, for

lant's use of the logging road. Upon that respondent.

understanding the case proceeded, and ter

minated in a decree of appropriation, in STILES, J. Plaintiff sued upon an al

which the rights of Weatherwax were inleged express contract, whereby defendant

cluded, but in which no mention was made agreed to pay him $50 per day for every day

of any of the matters said to have been during which he should be hindered in the

stipulated with reference to the logging use of a certain logging railroad which the

road. Not having been included in the de defendant sought to cross with its track,

cree, or made of record, as required by Code and the trial of the case resulted in a non

Proc. $ 95, the respondent could not be bound suit, from which he appeals. The only error by the stipulation. But the appellant mainassigned is the granting of the nonsuit. The

tains that, as he was not a party to the conappellant maintains that he produced some demnation suit, and as the only benefit to be evidence tending to show a contract made derived from the arrangement made in the by agents of the respondent with one Weath

courthouse was to inure to him, there was erwax for his benefit, and that, if he failed an independent contract upon which he in showing the agency of the persons who could sue; and to reinforce his position he represented the respondent, then there was shows that during the recess of the court he some evidence of a ratification of their acts had some talk with Goodell, the right of way by respondent. It might, perhaps, be suffi.

agent, which was the same in substance as cient to say that the suit was not brought that which subsequently occurred in the upon the theory of a contract made by a courthouse, except that it was more pointedthird party for appellant's benefit, but of an ly understood that the contract was to be express contract with appellant himself. with him, and not with Weatherwax. BearBut we shall go a little further into the mer ing in mind, however, that Griffiths was its of the case. The trial developed that the merely the attorney of respondent for the suit was based upon the following state of trial of the case of Railroad Co. v. Hoffelt facts: One Hoffelt was the owner of cer and Weatberwåx, and was not endowed tain lands over which the respondent sought with any general authority by respondent, to construct its railroad; and one J. M. it cannot be admitted that any contract he Weatherwax held a lease of the land. One might make, either with Weatherwax for Goodell was the right of way agent of the appellant's benefit or with appellant himself,' respondent, with authority to negotiate for could bind respondent; and, as to Goodell, rights of way, subject to the approval of su It is enough to say that it did not appear perior officers of respondent. His negotia- that even in the most insignificant right of tions for a right of way over the land in way matter his authority went any further question failed, and the law officers of the than the reception of proposals, all final acrespondent instituted a condemnation suit tion being reserved for his superiors. The in the superior court of the county, to which most strenuous efforts of counsel, aided by Weatherwax was a party. Mr. Griffiths, an liberal rulings on the part of the court as attorney at law, residing in the county, was to admission of evidence, accomplished no the local attorney for respondent in the pros more than this. ecution of the condemnation suit, and tried On the point of ratification there was no the case in its behalf. Weatherwax was rep- direct evidence. Among the engineers and resented by his attorneys, and his principal contractors of respondent there seemed to claim for an allowance of damages appears be a general understanding that the logging to have been, not so much his leasehold as road was to be put in good working order, the protection of a logging railroad which he and they raised the roadbed, and put in a had built across the proposed line of re crossing. Appellant says that as thus arspondent's road. This logging road was in ranged it was a very bad and dangerous the qualified possession of appellant under crossing, and that for a number of days his an employment by Weatherwax, whereby he road was blocked so that he could not use it was to log the timber off certain lands, and, at all, and afterwards the operation of it by means of the railroad, deposit them in a was necessarily so slow that he had to give certain slough, for the price of $4 per 1,000 it up, so that his damage at the rate of $50

been paid in good faith, may be confirmed

H. Brents and Wellington Clark, for respond

a day was $17,200. These acts of raising 4. No costs are taxable against the states the track of the logging road and putting in

an action which it has permitted to be brocaba a crossing, it is claimed, ought to have gone

against itself to enable plaintiff to quiet te

to certain land, but when it appeals from to the jury as tending to show ratification of cision in plaintiff's favor, and thereby pets t: the agreement made by Griffiths and Goodell. self in the wrong, the costs of appeal are 11 But admitting, for the sake of the argu

able against it.

5. The commissioner of public lands seat ment, that the engineers had full informa

not be joined as defendant with the state is a tion that the respondent was under obliga action brought against it to quiet plaiatii tion to put the logging road in good order, it

title to land acquired from the state. does not follow that any person authorized Appeal from superior court, Walla Wafa to represent and bind respondent knew any. county; William H. Upton, Judge. thing about the proposition to pay $50 per Action by Elizabeth Romine against the day, nor did the testimony tend to show any state of Washington and W. T. Forrest, s such knowledge. On the other hand, the commissioner of public lands of said suite testimony was exceedingly meager on the to compel a conveyance to plaintiff of t. point that what was done by the contractors tain lands claimed by her by virtue of a was in pursuance of any agreement. It purchase thereof from the territory of Was would have been very bad treatment of ap ington. From a judgment overruling a de pellant to cross and interrupt this railroad murrer to the complaint, defendants 15 without any attempt to repair it and leave peal. Affirmed. it in substantially as good condition as be Congress reserved sections numbered 1 fore; and upon their failure to do so the and 36 in each township in the territory of actual damages would have been recoverable Washington for the purpose of being appid in a proper action. But this was not a suit to the common schools in the future state to for actual damages, but for liquidated dam be created out of the territory. Section 3, ages under an express contract, and we Act March 2, 1853, (10 Stat. 179.) In the therefore find no error in the court's ruling. same act it is declared that the legislature Judgment affirmed.

of the territory of Washington shall pass DJ

laws interfering with the primary disposal DUNBAR, O. J., and HOYT, ANDERS, of the soil. Section 6, Act March 2, 1833, (10 and SCOTT, JJ., concur.

Stat. 175.) The act of the legislature of the territory of Washington approved Jantary 23, 1863, (Laws Wash. Ter. 1863, p. 478)

undertakes to dispose of the soil of the Uni ROMINE V. STATE et al.

ed States by directing county commissioners (Supreme Court of Washington. Oct. 31, 1893.)

to sell sections 16 and 36 in each township STATES-ENABLING ACT-MODIFICATION BY STATE

in the territory, when such sections had been CoxstITUTION-SALE OF SCHOOL LANDS-Costs.

reserved by act of congress approved March 1. An act of congress enabling a territory

2, 1853, to be applied to common schools to become a state has no binding force on the in the state which was to be erentually people of the territory until they have adopted created out of the territory created by à constitution, and the territory has been ad

that act. mitted into the Union; and then, if, by their

When congress created the state constitution, the people have expressed no dis

of Washington out of the territory of Washsent from any proposition contained in the en ington, it is granted to the state the seat abling, act, they are bound by its provisions. But if the constitution contains any modifica

tions it reserved for the state in 1863, with tion of any of the provisions of the enabling

the conditions that the granted sections act, and the state has been formally admitted

"should be disposed of,” by its grantee, only by the president and congress into the Union, at public sale and at a price not less than the modified provisions are to be taken as the existing contract between the state and the fed

$10 per acre, the proceeds to constitute & eral government.

permanent school fund, the interest of which 2. Act Cong. Feb. 22, 1889, enabling the only shall be expended in the support of said territory of Washington to come into the Union, schools.” Act Feb. 22, 1889, $$ 10, 11. The required (sections 10, 11) the public lands pre

state constitution adopted pursuant to the viously reserved by Act Cong. March 2. 1853, for school purposes to be disposed of by the enabling act provides, (article 16, $ 2:) "Pro state in a specified manner. The constitution vided, that the sale of all school and uniter adopted by the people pursuant to such act contained a provision (article 16, § 2) empowering

sity land heretofore made by the commis the state legislature to confirm all previous sales sioners of any county or the university comof school lands made in good faith. Held that,

missioners, when the purchase price bas whether or not it was the intention of congress, by the enabling act, to repudiate, as unauthorized, all sales of school land made by the terri

by the legislature." tory, the state of Washington could not question

W. C. Jones, Atty. Gen., and P. B. Johnthe title of such purchasers, subsequently confirmed by the state legislature, since the above

son, Asst. Atty. Gen., for appellants

. Thos constitutional provision, under which the state was admitted, modified the proposition in the ent. enabling act. 3. To warrant a state court in declaring

STILES, J. The respondent brought her void a provision of the state constitution as in conflict with the federal constitution, the con

action under the act of March 28, 1890, enflict must be very clear.

titled "An act for the relief of bona fide puta

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