Desimone v. Shields , 152 Wash. 353 ( 1929 )

I am unable to concur in the foregoing opinion, if it is to be rested on the ground on which it is rested by the majority. It is held, as I understand the holding, that, conceding the water district act under which the proceedings which give rise to the controversy were had is unconstitutional, nevertheless the appellants are estopped by their conduct from asserting the invalidity of levies charged against their lands thereunder, and it is with this that I am unable to agree.

It is almost trite to say that an unconstitutional law is no law; that no rights can be built upon it, and none can be destroyed by it; and that it is not to be taken into consideration for any purpose, but must be ignored entirely. That the water district act is unconstitutional, was held by this court in Drum v. University Place Water Dist., 144 Wash. 585,258 P. 505. This holding left the organization here in question without legal status, except such as it may have as a voluntary association. But that it was in any sense a voluntary association, seems to me worse than idle to assert. The district was organized strictly in pursuance of the water district act. All of the parties involved, the promoters of the scheme as well as the appellants, believed it to be a valid organization under that act, and none of them ever contended, or even supposed, that it was in any sense a voluntary association. The conduct of the appellants now thought to work an estoppel, was, in a degree, coerced; they believed that the validity of the proceeding was unquestionable, and that opposition thereto was useless.

The doctrine of estoppel has for its purpose the preventing of inconsistent and fraudulent acts resulting in injustice. The branch of the doctrine most nearly applicable to the situation here is what is known as estoppel by conduct. But to be estopped by conduct, the party charged must have been guilty of some inconsistency or fraud which has led another to believe in the existence of a particular state of facts, and which has caused that other to act thereon to his prejudice. Manifestly, no such situation is here presented. The appellants have been guilty of no misrepresentations, either inconsistent or fraudulent. Nor did the parties now adversely affected by the unfortunate situation assume that situation because of any act of the appellants. They acted under the statute, without concern as to the conduct or acts of the appellants. Acting under the assumed validity of the act, they placed large assessments on the property of the appellants, the time of payment of which extends over a period of years. With this, the appellants had nothing to do. They were in no sense the promoters of the enterprise, and to say that by any of the recited acts and conduct, they are estopped from questioning the assessments, seems to me to violate every principle upon which the doctrine of estoppel by conduct is founded.

I did not concur in the opinion in the case of Drum v.University Place Water District, supra. It was my opinion then, and is now, that the act there in question violated no provision of the constitution. If the court now would reverse that decision, I would gladly concur in affirming this one. But to say that, notwithstanding the invalidity of the act, the proceedings had under it are valid, is not to state a principle in which I can concur.

FRENCH, J., dissents.