Abbott v. Gaches , 20 Wash. 517 ( 1899 )

The opinion of the court was delivered by

Dunbar, J.

This action was begun by respondents, as taxpayers, to enjoin the payment of certain warrants of diking district Ho. 12 of Skagit county. The warrants had theretofore been issued and presented to the county treasurer and registered by him and stamped “not paid for want of funds.” The complaint alleged want of legal consideration or authority for the issuance' of the warrants, for the reason that they were issued in payment of warrants which had been issued under the old diking law (which has since been declared unconstitutional) by diking district No. 12, as organized nnder the old law, and comprising the territory which is now organized nnder the laws of 1895 as diking district No. 12; one of the districts No. 12 being organized under the law of 1888 and acts amendatory thereto (Laws 1887-88, p. 90), and the other under the diking law of 1895 (Laws 1895, p. 304, Bal. Code, §§ 3673-3714). A demurrer was interposed to the complaint and overruled. The defendants then answered and, upon motion of the plaintiffs, judgment was granted on the pleadings.

The first contention of the appellants is that the demurrer to the complaint should have been sustained, for the reason that there was a defect of parties defendant, the contention being that the diking district ought to have been made a party to the action. We have examined the cases cited by the appellants on this proposition, hut believe them not to he in point. In § 576 of High on Injunctions (2d ed.)—which section is the .same in the 3d edition—• among other things it is stated, after arguing the question generally, that “the true test, however, in all cases would seem to be to make such parties defendant as are necessary to a proper solution of the questions at issue.” The question at issue here, certainly, is the validity of the warrants in question; and the making of the diking district a party defendant in this action could in no way aid in' determining that question, because their validity or invalidity depends entirely upon the construction of an act of the legislature. Again, the county treasurer, under the act of 1895, collects the dike taxes and has full power to disburse the same. The diking district, then, having nothing to do with the collecting or disbursing of the taxes and having no control over the treasurer in regard to their collection or disbursement, is not a necessary party to the action.

The next contention is that the complaint did not state facts sufficient to constitute a cause of action, for the reason that the allegation of the complaint, that the warrants, the payment of which is herein sought to be restrained, were issued without consideration, was overcome by the force and effect of the facts stated, and that if the facts as set out in the complaint show that there was a consideration, that is sufficient. This is no doubt a correct statement of the law, but we do not think that the facts set out in the complaint nullified or in any way contradicted the allegation of the complaint that the warrants were issued without consideration. It is alleged that the warrants in question were issued to purchase two other warrants of equal face value, which had been issued for the construction of the old dike, and were to be paid for out of the funds to be derived from an assessment levied on lands benefited by the old dike ;• and we think that it does follow that the old warrants were valueless, and this is about all that is raised in the answer to the complaint, viz., the value of these warrants. The warrants were issued under an act which had been pronounced by this court unconstitutional, and for which no method of payment has been provided; and while it might be that the legislature might make some provision by which the warrants might be paid, or at least by which the debts against the old diking district might be paid, it has not done so, and consequently no legal value now attaches to them.

It is also contended that the court erred in granting respondents’ judgment on the pleadings, for the reason that an issue was tendered on the allegation that the plaintiffs had no adequate remedy at law. This allegation amounts to nothing within itself, and the question of whether there was an adequate remedy at law must be determined by the facts stated, and not by the averment that there was no adequate remedy at law. We think that the facts stated showed that there was no adequate remedy at law, and that the warrants in question were issued without consideration, and that the denial of the allegation in relation to the remedy tendered no issne of fact.

It is again contended that, under the affirmative defenses, the question of estoppel was raised; hut this court passed upon that question in Skagit County v. Stiles, 10 Wash. 388 (39 Pac. 116); and, while that question was not discussed in the opinion, it was before the court and was decided adversely to appellants’ contention here, as shown hy the dissenting opinion of Judge Stiles in that case.

It seems to us that the questions involved in this case have been decided by this court in favor of the affirmance of this judgment in Snohomish County v. Hayward, 11 Wash. 429 (39 Pac. 652), and Pickering v. Ball, 19 Wash. 185 (52 Pac. 1022).

The judgment will he affirmed.

Gordon, O. J., and Anders and Reavis, JJ., concur.