In Re the Dissolution & Disorganization of Horse Heaven Irrigation District

I am unable to agree with the majority in holding that under the statute the "property holders" of the district, rather than the "assessment payers," are entitled to distribution of the assets remaining in the hands of the trustees. This question is, of course, controlled by the statute, with particular reference to Rem. Rev. Stat., § 7530, the pertinent portion of which reads as follows:

"Upon the disorganization of any irrigation district under the provisions of this chapter, the board of directors at the time of the disorganization shall be trustees of the creditors and of the property holders of said district for the purpose of collecting and paying all indebtedness of said district, in which actual construction work has been done, and shall have the power to sue and be sued. It shall be the duty of said board of directors, and they shall have the power and authority, to levy and collect a tax sufficient to pay all such indebtedness, which tax shall be levied and collected in the manner prescribed by law for the levying and collection of taxes of irrigation districts. Any balance of moneys of said district remaining over after all outstanding indebtedness and the cost of the proceedings under this act have been paid shall be divided and refunded to the assessment payers in said irrigation district, to each in proportion to the amount contributed by him to the total amount of assessments collected by said district."

In this case, we are required to construe this statute, determine the legislative intent, and apply the legislative plan of distribution as contained in the portion of the section above quoted. If the statute provides for a definite plan of distribution, the courts are not concerned with the reasons which actuated the legislature in selecting this particular method; nor are we at liberty to direct a disposition of the assets of the district in accordance with the general principles of equity or of the law applicable to private corporations. The method of distributing the assets must be determined from the provisions of the statute, if any such method can be found outlined therein.

The statute makes the directors of the district "trustees of the creditors and of the property holders of said district for the purpose of collecting and paying all indebtedness of said district." In other words, under the statute the directors are trustees both for the creditors and the property holders, for the limited purpose of collecting sums due to the district and paying its debts. This portion of the statute does not purport to make the directors trustees, as the majority opinion assumes, for the purpose of distributing to the property holders or to anyone else any assets remaining after the payment of the debts and expenses. And providing for the levy of a tax if necessary, the statute continues by providing for the distribution of any balance of moneys remaining after payment of the debts and the costs of the proceeding for dissolution. No express statutory duties devolve upon the trustees under this portion of the act. The trust, of course, continues, if assets belonging to the district remain after the payment of debts and expenses, for the purpose of distributing such assets to the persons who under the statute are entitled to receive the same.State ex rel. Pryor v. Paul, 5 Wash. 2d 90, 104 P.2d 745.

The only direct reference in the statute to the matter of the class or classes of persons who should share in the distribution of the balance of moneys remaining in the hands of the trustees after the payment of debts and expenses, is contained in the last sentence above quoted. This provision of the act is, possibly, not as definite as it might be, but it clearly defines the outer limits of the class to whom the balance shall be distributed. Any such balance of moneys "shall be divided and refunded to the assessment payers in said irrigation district." In this connection, the use of the word "refunded" is significant. The word refund is defined by Standard Dictionary as follows: "To pay back; . . . restore; repay." Black's Law Dictionary defines the word as "to repay or restore; to return money had by one party of another." Money can be "refunded" only to one who has paid money on some prior occasion. By this provision of the act, the legislature manifestly intended that, upon dissolution of the district, the "balance of moneys" to which the legislature referred shall be refunded only to persons who have paid assessments during the life of the district. The statutory plan of distribution mentions only assessment payers, placing the statutory emphasis upon that class and no other.

It is argued that the "balance of moneys," which must be construed to refer to other assets as well as cash, to be divided and refunded pursuant to § 7530, is limited by the context of that section to moneys remaining in the fund raised by a tax levied by the directors in their capacity as trustees, pursuant to the statute, after paying creditors and the costs of the proceeding, and that the phrase "assessment payers" refers only to persons who paid this final tax levied by the trustees for the purpose of clearing the district from indebtedness and paying the costs of the proceeding by which the district is dissolved.

No such limited construction can be placed upon the last sentence of § 7530. For convenience we again quote this sentence:

"Any balance of moneys of said district remaining over after all outstanding indebtedness and the cost of the proceedings under this act have been paid shall be divided and refunded to the assessment payers in said irrigation district, to each in proportion to the amount contributed by him to the total amount of assessments collected by said district."

The balance of moneys is referred to as "of said district." The proceeds of any tax levied by the directors as trustees, as provided for in the section above referred to, would be moneys in the hands of the trustees, having been collected by them as liquidators, and would not be properly referred to as moneys "of said district."

The sentence above quoted provides for a distribution to "assessment payers," while if the legislature had intended to distribute the fund to those who had paid any tax levied after the disorganization of the district, it would seem probable that the legislature would have provided for a refund to taxpayers, the legislature having referred to the levy as a tax rather than as an assessment.

It is also signficant that the fund is allocated with reference "to the total amount of assessments collected by said district." This language is plain, and it is difficult to understand how it could be construed to refer to anything other than the total sum of assessments which the district has collected.

It is apparent that the portion of the statute last above quoted is not limited in its scope to the provision allowing the levy of a liquidating tax. I shall later state my reasons for doubting that the provision was intended to apply to the distribution of any residue of the proceeds of such a tax.

Careful consideration of the language above quoted from § 7530, with particular reference to the last sentence above requoted, convinces me that the section should not be construed so as to limit the distribution to persons paying the tax levied by the directors as trustees after the disorganization of the district. Such a construction of the statute, while providing for the disposal of any residue of the taxes paid, would leave the disposition of such assets as are here to be allocated, a matter of considerable difficulty. Of course, no question is here presented as to the distribution of any fund remaining out of the proceeds of a tax imposed by the trustees in the course of the disorganization of a district after the payment of the indebtedness of the district and the expenses of the proceeding.

I am convinced that the statute covers the matter of the distribution of any assets of the district such as those which are the subject matter of this litigation, remaining in the custody of the trustees after the disorganization of the district and the payment of debts and expenses, and that the statute applies to the situation presented in the case at bar. The legislative intention that the assessment payers shall receive such assets clearly appears from the statute, and it would seem that the provision that those who have paid the assessments levied by the district shall receive the benefit of any balance remaining after the payment of the indebtedness of the district and the expenses referred to in the statute, is entirely reasonable and not inconsistent with equitable principles.

For the purposes of this portion of the statute, it would seem that one who paid an assessment by contributing his land within the district to the payment thereof has established his right to share in the distribution of the fund to the same extent as one who paid his assessment in money. It follows, then, that the phrase "assessment payers" should include not only those who paid their assessments in cash, but also those who discharged their assessments by suffering foreclosure of their land for failing to pay the same. Such persons should share in the fund only to the extent of assessments which they paid in cash and the amount of the assessments for nonpayment of which their land was foreclosed.

The act places no direct or implied limitation as to the time when the assessments referred to must have been paid, and all persons who have paid assessments levied by the district, whether with land or with money, at any time during the existence of the district, and persons who claim by, through, or under such assessment payers, whether by virtue of assignment, personal representation, or heirship, should be entitled to share in the balance of moneys above referred to. The right would not pass by sale of the land upon which assessments were paid, unless the contract so provides, the right to share being a separate and independent right of the assessment payer.

It is, of course, true, as stated by the majority, that, if the owner of land within the district fails to pay an assessment levied against his property, the other land within the district may be required to make up all or a portion of the unpaid assessment, but the district then takes over the land against which the assessment was not paid, and that property constitutes assets of the district, and the proceeds will be applied to the payment of the district's obligations. In the case at bar, through foreclosure of unpaid assessment liens against property within its boundaries, the district now finds itself possessed of assets of the value of over $300,000 available for distribution to the persons who, under the statute, are entitled to receive the same.

The majority stress this "last faithful acre" doctrine, as supporting the conclusion that the remaining property holders own the foreclosed lands and the proceeds thereof, upon dissolution of the district. The doctrine would be persuasive in the absence of the statutory provisions of § 7530, but, in my opinion, that section definitely and positively provides for a continuing contingent interest in the residue of foreclosed lands in favor of those who have paid assessments levied by the district. The right is personal to the assessment payer, and does not run with the land. This interest becomes fixed and effective upon dissolution of an irrigation district, under the provisions of Rem. Rev. Stat., §§ 7526-7530 [P.C. §§ 3354-3358]. At that time the owner of the last faithful acre, as well as the owners of other acres, who paid assessments levied by the district, but who for some reason did not continue faithful to the end, are, under the statute, accorded their just prorata share of the assets of the district. Those who have maintained their land ownership and have paid greater sums by way of assessments receive a larger proportion of the assets, but are not entitled to an exclusive interest therein, and the distribution is determined, not by land ownership, but by payment of assessments.

It is apparently the view of the majority that the legislative plan for distribution of the assets of the district remaining after the payment of the debts and expenses was intended primarily to allocate any excess of funds which might have been accumulated as the proceeds of a tax levied by the trustees pursuant to § 7530, supra. It seems that the assumption that there might be a residue remaining of funds raised by such a tax levy after the payment of the debts and expenses underlies, to a considerable extent, the reasoning of the majority in construing the act so as to limit participation in the fund now under consideration, to the current property holders.

That the last sentence of the paragraph of the statute above quoted might present some difficulties of construction, if at some future time the court should be called upon to distribute the residue of a fund raised by a tax levied by the trustees, is not a sufficient reason for reading the words "assessment payers" out of the act. It might well be held that the statutory provision does not apply to such a fund, which was raised by the trustees in the course of the administration of the trust under direction of the court, and that in case such a fund should ever be available for distribution, the court, and not the statute, should control its allocation.

If the majority are of the view that the distribution feature of the statute above quoted applies only to the allocation of the balance of a fund raised by a liquidation tax levy, then, in considering such a question as is here presented, it should be held that the act does not apply, and that there is no statutory method for allocating such a fund as this.

It seems clear, however, from a study of the act, that it does embrace within its scope such a fund as is now being considered. As applying to such a fund as this, the statute is plain, and its application to such assets as are present in the case at bar is free from difficulty.

The act makes no provision for the creation of any excess funds as the result of the levy of a liquidation tax. The statute vests the trustees with authority "to levy and collect a taxsufficient to pay all such indebtedness." (Italics mine.) The trustees have no power to levy any tax in excess of the amount required to meet the indebtedness, as expressly provided by the statute. A larger levy would be enjoined at the suit of any tax-payer. The legislature having given the trustees no power to raise any excess funds, how can it be said that the legislature contemplated that such funds could be the principal subject matter available for distribution? If any residue should remain in the hands of the trustees as the proceeds of such a tax, the amount of such residue would necessarily be so inconsiderable in amount as to be of little or no consequence.

On the other hand, the situation here presented is one which would naturally be within the contemplation of the legislature, as it might well be that a district which for a while had conducted its irrigation plant successfully, might for some reason desire to dissolve, in which event some fund might be raised from the sale of the assets of the district, and must be allocated to someone. In any event, such a situation has arisen and is here presented, and in my opinion, the statute in plain language provides for the allocation of the assets of the district with which we are here concerned.

In the majority opinion, it is suggested that to accord a share in the distribution of these assets to a property holder who has paid one or two assessments and then forfeited his land to the district, would be to ascribe to the legislature the intent to commit a gross injustice. It may be that one in such a position would have difficulty in stating any particular equitable principle which would entitle him to share in the assets of the district after its dissolution, but granting that, the claim of such a one-time property holder, who actually paid assessments to and for the benefit of the district, to me seems more meritorious than a claim advanced by one who acquired land in the district long after the last assessment was levied, and who has made no contribution whatever to the welfare of the district, or to the fund now being distributed. I find it difficult to understand how a person who acquired title to land within the district only a very short time before its dissolution, can advance any equitable claim to the assets of the district, as opposed to the claim of one who paid assessments levied by the district, thereby contributing pro tanto to its maintenance. From the record, it appears that a number of respondents have never paid a dollar of assessments, but under the majority opinion, they will receive a considerable share of the assets of the district. Recognizing that a choice must be made between "property holders" and "assessment payers," it seems to me far more inequitable to allow such property holders to participate in the distribution of the assets, than to allow assessment payers, the forfeiture of whose lands created the very assets now being distributed, to share therein.

Supposed equities, however, should not prevail over clear statutory provisions. In the first part of the portion of § 7530 above quoted, the legislature referred to property holders. The meaning of that term is clear. In the last portion of the paragraph, and in that portion thereof referring to a new matter not previously discussed, to wit, the distribution of the assets of the district remaining after the payment of debts, etc., the legislature introduced a new class, "the assessment payers," and made the legislative intent clearer by providing for distribution of the assets

". . . to the assessment payers in said irrigation district, to each in proportion to the amount contributed by him to the total amount of assessments collected by said district."

Language cannot be plainer. If the legislature had intended a distribution to the property holders as such, the distribution would probably have been by acreage owned, but by the statute the distribution is ordered in proportion to the amount contributed by way of assessments. The construction placed upon the act by the majority completely reads out of the statute the last sentence of the paragraph quoted.

Nor does it appear that any particular difficulty would be met in distributing the assets to assessment payers. The statute establishes the right of the assessment payers to share in the assets, but it does not impose upon the trustees any duty to locate and notify each assessment payer of his right. A published notice requiring all assessment payers to present their claims within a specified time would afford a sufficient basis for holding that those who did not so present their claims would be foreclosed from thereafter claiming the right to share in the assets.

For the reasons assigned, I dissent from the conclusion reached by the majority.

MAIN, SIMPSON, and DRIVER, JJ., concur with BEALS, J.