I find myself unable to concur in the majority opinion. It must be conceded, as the majority opinion states, that the solution of the question involved is not wholly free of difficulty.
Section 1 of the guaranty act, chapter 209, Laws of 1927, p. 308 (Rem. Rev. Stat., § 9351-1 [P.C. § 1071-1]), establishes for each city and town in the state a fund for the purpose of guaranteeing, to the extent of such fund and in the manner provided, the payment "of its local improvement bonds and warrants issued to pay for any local improvement ordered." Bonds and warrants issued under the eminent domain act and payable from special assessments on benefited property *Page 122 are unquestionably local improvement bonds in a proper sense. Indeed, special assessments for their payment can be levied on no other basis than that the improvement, for which they are issued, is local and special in character, rather than general.
As the majority opinion points out, we have to do with three laws: The eminent domain act; chapter 98, Laws of 1911, p. 441, as amended, generally referred to as the local improvement act; and the local improvement guaranty act.
The evil sought to be remedied by the enactment of the guaranty act was the fact that many of the cities of the state had outstanding local improvement bonds which were unpaid and practically valueless. The failure to meet these bonds at maturity was due to many causes, the chief of which was the lack of adequate restrictions against the pyramiding of assessments.Comfort v. Tacoma, 142 Wn. 249, 252 P. 929.
The local improvement code limited the amount that could be assessed for making a single local improvement to a prescribed percentage of the value of the property in the district to be assessed, but contained no restriction on the power of the city to pyramid assessments by ordering successive improvements chargeable to the same property and aggregating much more than the value of the property assessed.
To correct this practice, § 4, p. 311, of the guaranty law (Rem. Rev. Stat., § 9351-4 [P.C. § 1071-4]), provides:
"No city or town operating under the provisions of this act shall order any improvement to be paid for, in whole or in part, by local assessment where the estimated cost of such improvement, if such cost is all to be assessed to the property in the district, or that portion of the estimated cost to be assessed, if a portion only of said total cost is to be assessed, when added to *Page 123 all other outstanding and unpaid local improvement assessments against the property included in the district, excluding penalties and interest, shall exceed the actual value of the real property, exclusive of improvements thereon, within the district according to the valuation last placed upon it for the purposes of general taxation; . . .
"Before ordering any improvement hereunder the council or other legislative body of a city or town shall require and receive a report from the proper board, officer or authority designated by charter or ordinance, certifying in detail the local improvement assessments outstanding and unpaid against the property in the proposed district together with the aggregate of the actual value of the real property in the district, exclusive of improvements thereon, according to the valuation last placed upon it for the purpose of general taxation. . . ."
Now, it seems to me that § 4 indicates that the legislature had in mind only improvements ordered under the local improvement code, and was not intended to apply to condemnation assessments under the eminent domain act. The procedure outlined in the latter act cannot be made to integrate with the requirements of § 4 of the guaranty act. When the city council orders a condemnation under the eminent domain act, it can have in advance no definite estimate of what the award in condemnation will be. If the city is dissatisfied with the amount of the award, it may, within a specified time, discontinue the condemnation proceedings by paying, or depositing with the court, all taxable costs incurred by any of the parties up to the time of discontinuance; if it desires to complete the condemnation and levy assessments to pay the condemnation award, it may file a supplemental petition with the superior court asking that an assessment be made for the purpose of raising the amount necessary to pay the compensation and damages awarded for the property taken or damaged; thereupon the court refers the matter to *Page 124 the eminent domain commissioners appointed by it, and the procedure thereafter, in the levy of assessments, is wholly under control of the court.
By the statute, Rem. Rev. Stat., § 9237 [P.C. § 7567], it is made the duty of the eminent domain commissioners:
". . . to examine the locality where the improvement is proposed to be made and the property which will be especially benefited thereby, and to estimate what proportion, if any, of the total cost of such improvement will be a benefit to the public, and what proportion thereof will be a benefit to the property to be benefited, and apportion the same between the city and such property so that each shall bear its relative equitable proportion, and having found said amounts, to apportion and assess the amount so found to be a benefit to the property upon the several lots, blocks, tracts and parcels of land, or other property in the proportion in which they will be severally benefited by such improvement: . . ."
It will thus be seen that the city council cannot in advance know how much of the award will be assessed against the city and how much against benefited property, nor can it know what property will be assessed by the eminent domain commissioners unless it has defined the district in the ordinance directing the condemnation, as it has power to do; but, even where it has defined the district, it cannot know what portion of the cost will be assessed against the district so created. The eminent domain commissioners spread the assessment without reference to any outstanding assessments.
Another feature of the guaranty law seems to me to furnish a forceful argument in support of the view that the law was intended to apply only to bonds issued under the local improvement act. Rem. Rev. Stat., § 9405 [P.C. § 1040], being part of that code, provides that neither the holder nor owner of any bond issued under authority of the act shall have any claim therefor *Page 125 against the city, except from the special assessment; and a copy of this section is required to be plainly printed or engraved on each bond issued.
Rem. Rev. Stat., § 9268 [P.C. § 7597], found in the eminent domain act, in identical language limits the right of the holder of bonds issued under that act to the assessment, and provides for printing a copy of that section on each bond issued. Now, § 5, p. 312, of the guaranty law (Rem. Rev. Stat., § 9351-5 [P.C. § 1071-5]), provides that the remedy of the holder or owner of any bond guaranteed by the city, in case of nonpayment, shall be confined to the enforcement of the assessments and to the guaranty fund, and that
". . . A copy of the foregoing part of this section shall be plainly written, printed or engraved on each bond issued and guaranteed hereunder, and the writing, printing or engraving shall be deemed sufficient compliance with the requirements ofsection 9405 of Remington's Compiled Statutes." (Italics ours.)
It seems to me that the specific reference to § 9405, coupled with the failure to make reference to the corresponding section in the eminent domain act, compels the conclusion that the legislature intended the guaranty law to apply only to bonds issued under the local improvement act.
The majority opinion says that it is impossible to argue that the guaranty law is in any way definitely tied into either the eminent domain act or the local improvement act. Reference to §§ 4 and 5 of the guaranty act will show that it is very definitely tied into the local improvement act, § 4 by necessary implication and § 5 by specific reference.
For the reasons given, I dissent from the majority opinion.
BEALS and BLAKE, JJ., concur with GERAGHTY, J. *Page 126