the superior court from the action of the said property is assessed proportionately to Seattle city council in confirming an assess- other property throughout said local improvement upon leased tidelands. From a judgment district. It is not contended that the ment of the superior court for the city of proper proceedings relating to the reassessSeattle, Trimble and wife appeal. Affirmed. ment were not taken by the city of Seattle. Geo. McKay, for appellants. Scott Cal- Due notice of the hearing upon the reassesshoun and Howard A. Hanson, for respond- ment roll was given, as provided by the law and the charter and ordinances of the city of Seattle.

ent.

DUNBAR, J. This is an appeal from a judgment of the superior court of King county, confirming an assessment against certain leasehold interests in first-class tidelands. The leases were issued under the Acts of 1897 (Laws 1897, c. 89), as amended in 1899 (Laws 1899, cc. 86, 122). They were executed in 1899.

In the legislative act of 1905 it was provided that: "All leasehold, contractual or possessory interests in any tide lands owned by the state of Washington in fee simple (in trust or otherwise), situated within the limits of any incorporated city or town in this state, and which have been leased by the state, or which are held by any person, firm, association, private corporation or municipal corporation under a contract of purchase from the state, may be assessed and charged for the cost of all local improvements specially benefiting such leasehold, contractuary or possessory interest, which may be ordered by the proper authorities of such city or town," etc.

[1, 2] The findings of fact are not contested by the appellants, except as to one or two findings which it is contended by the appellants are more properly conclusions of law than findings of fact. But the principal contention is that, inasmuch as these leasehold interests had been acquired by the appellants prior to the passage of the laws providing for their assessment, which we have quoted above, the appellants' rights must be determined under the rule of the common law that, in the absence of a covenant or condition to the contrary, it is an implied covenant in every lease that the lessor shall pay all taxes and assessments levied on the leased land during the term, and that no statutory provision to the contrary had been passed at the time the leasehold interests were executed. Conceding this to be the established law in relation to private contracts or contracts between private individuals, it seems to us that a distinction must exist between a contract between private individuals, where the property leased or granted or sold is property which is already subject to taxation, and where the parties must necessarily enter into the contract hav

Section 1 of the act of 1907 is as follows: "Any city of the first class in the state of Washington is hereby authorized and empowered to include within any local improve-ing in mind the burden of taxation upon said ment district formed by it the whole or any part of any land in school sections or tide lands, title of which remains in the state of Washington; and said city is authorized and empowered to assess the cost of any local improvement against any such tide or school land in the same manner as if the same were private property: Provided, however, that the interest of the state in such property shall not be sold to satisfy the lien of such assessment, but only such interest, or contract, or other right therein as may be in private ownership, shall be subject to such sale."

property, and a contract entered into by a private individual and a sovereignty, where the property, by reason of its being the property of the sovereign, was not subject to taxation. It has been the universal announcement by courts and law writers that, inasmuch as taxation is necessary to the existence and perpetuation of government, there will be no implied exemptions from that burden. Chief Justice Marshall, in delivering the opinion of the court, in Providence Bank v. Billings, 4 Pet. 514, 7 L. Ed. 939, among other things, said: "That the These laws were in existence at the time taxing power is of vital importance; that it the city of Seattle passed an ordinance creat- is essential to the existence of government ing a local improvement district, and provid--are truths which it cannot be necessary to ing for an assessment to pay the costs and expenses of such improvements within the limits of said districts. The leasehold interests in question, it will be noticed, were executed prior to the passage of this ordinance, and also prior to the passage of the laws just quoted. The findings of the court, among other things, are to the effect that the property described, which property is the subject of this controversy, is subject to assessment for said improvement, and especially benefited by said improvement in an amount in excess of the sum assessed against

reaffirm. They are acknowledged and asserted by all. It would seem that the relinquishment of such a power is never to be assumed. We will not say that a state may not relinquish it; that a consideration sufficiently valuable to induce a partial release of it may not exist; but, as the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed, in a case in which the deliberate purpose of the state to abandon it does not appear."

It is conceded that there is no expressed

able state fee, so far as the matter of taxation was concerned; stripped from the remaining fee interest as fully as if the state had sold one of two state tideland lots. The estate sold was public, is now private; was not taxable, is now taxable; and the question of when and to what extent the taxing power of the state shall be exercised upon the tideland lot sold or the tideland lease sold by the state in no wise enters into the consideration in the sale of the lot or the sale of the lease. After the tideland lot is sold, it becomes private property, and the entire private interest is taxable; after the tideland lease is sold, it becomes private property, and the entire private interest is taxable. True it must be taxed as separate entity from the public fee, but it is nevertheless subject to the common burden of tax

tracts under discussion to relinquish the | pletely severed from the remaining nontaxright to demand the payment of taxes upon the leasehold interest sold by the state. In Wells v. Savannah, 181 U. S. 531, 21 Sup. Ct. 697, 45 L. Ed. 986, Justice Peckham, speaking for the court, said: "The payment of taxes on account of property otherwise liable to taxation can only be avoided by clear proof of a valid contract of exemption from such payment, and the validity of such contract presupposes a consideration therefor. If the property be in its nature taxable, the contract exempting it from taxation must, as we have said, be clearly proved. It will not be inferred from facts which do not lead irresistibly and necessarily to the existence of the contract. The facts proved must show, either a contract express in terms, or else it must be implied from facts which leave no room for doubt that such was the intention of the parties, and that a validation." consideration existed for the contract. If But outside of general authority, we think there be any doubt on these matters, the contract has not been proven, and the exemption does not exist." It would seem that grave doubts would exist if we were to look to the contract only concerning this exemption, and it is not from the contract that the appellants claim the exemption, but from the general rule which obtains in private contracts where, as we have seen, the contract is with reference to property which is known to be taxable at the time the contract is made.

Appellants rely upon Charles River Bridge v. Warren Bridge, 11 Pet. 420, 9 L. Ed. 773. But that case, construed in connection with the general rule announced by the Supreme Court of the United States in the cases from which we have just quoted, and which fol. low the rule announced by all courts and text-writers, does not sustain appellants' contention, and is not applicable to the circumstances of this case. The learned attorneys for the respondent have expressed so clearly the status of the law of this case that we take pleasure in incorporating their language in this opinion and adopting it as a part of the opinion of the court. It is said: "There is a clear distinction to be noted between leases between private parties and leases granted by the state in respect to taxes and assessments. In leases between private parties the entire estate is, at the time of the execution of the lease, in private ownership, subject to taxation and assessment. Whether the land is used or not, leased or not, taxes are levied against the entire estate, and in leasing it the question of taxes and assessments against the land as a whole becomes one of the elements necessarily affecting the consideration of the lease. In a lease granted by the public,, however, the fee is not taxed, being public property, and the question of taxes does not enter into the consideration. After the state's lease is granted, the leasehold interest passes into the common mass of private property, com

this question has been put at rest by the decisions of this court. In Moeller v. Gormley, 44 Wash. 465, 87 Pac. 507, it was held that a leasehold interest in tidelands under leases from the state is subject to taxation. While it is true that the case was decided against the contention of the city in that case upon another proposition, nevertheless it was stated by the court in the discussion of the case that two questions were presented: (1) Is such leasehold interest taxable? and (2) if taxable, should it be assessed as realty or personal property? Noticing the contention that the leasehold interest was not taxable, we said: "But we think it cannot, under the general scheme and purpose of taxation, successfully bear the test of practical application, Doubtless a prospective lessee would bid more for a lease if he knew that his leasehold interest would not be taxed. But the same may be said of a prospective purchaser of state lands. would pay more for the fee if he knew it would remain exempt from taxation. The difference between the two is in degree only, and not in character. But it is the policy of our commonwealth that the fee in any real estate sold by the state shall thenceforth be assessable. As soon as title passes from the state, the land becomes private, and no longer public, property. When a lease is given by the state to an individual or private corporation, the lessee thereby obtains for his or its private use certain rights and privileges in, to, and upon, such real estate. These rights and privileges constitute private property over which the lessee has, and may exercise, absolute dominion and ownership within the limitations of his or its lease. Why, as such property, it should not be subject to the general rule of taxation, we conceive of no reason."

He

In Rabel v. Seattle, 44 Wash. 482, 87 Pac. 520, it was also held that a leasehold interest in state lands was subject to taxation, although it was not subject to an assessment

ELLIS, CROW, MORRIS, and CHAD- mentioned is to be included and above the WICK, JJ., concur.

[Ed. Note. For other cases, see Contracts, party. The appellant took the matter under Cent. Dig. § 159; Dec. Dig. § 32.*]

that the work shall be commenced and completed within a reasonable time after demand, shall be performed in an ordinarily skillful manner, and shall be paid for within a reasonable time after its completion, it is apparent that these conditions might not satisfy the appellant, He was a subcontractor of Thompson-Starrett Company, and bound to perform according to the stipulations of his written contract with them, which might vary materially from the stipulations implied by law. This being true, the appellant very naturally would want the contract under which the work was to be actually performed conditioned so as to accord with his contract with the original builder. The writing, in whatever aspect it is viewed, therefore, seems to us to point to the conclusion that it was not intended to be the final agreement between the parties.

1910. Mr. Phil E. Dunnavant, Portland, Ore- | such cases implies certain conditions, namely, gon-Dear Sir: In answer to yours of last week, will say that under the circumstances it will be impossible to do the work as we talked of in our talk when you were up here and will have to arrange with some other contractor to do the work at Spokane and Tacoma. Am sorry but cannot do anything else as it has turned out. Yours truly, W. H. Dennis & Son." To this letter the appellant replied: "Portland, Oregon. March 2, 1910. Mr. W. H. Dennis, Seattle, Wash.-Dear Sir: Your letter of the 28th ult. received and carefully noted, under existing circumstances I do not feel like letting the contracts for the Tacoma and Spokane jobs go as there is good prospects in them for me, if I can make no other arrangements with you I will have to carry them on as was first intended. I will probably be in Seattle some time in the near future and will talk the matter over with you but in the meantime would like to know just how the work stands on the two jobs as I have my men ready to go on short notice. Trusting that I will hear from you as soon as possible I beg to remain, Yours very truly, Phil E. Dunnavant."

The evidence also, we think, sustains this conclusion. The appellant testifies to the fact positively, and Dunnavant admits that such a thing was talked over between them, but that the purpose was to put the contract in more formal shape, rather than supply No formal contract was ever forwarded for any further details. Both parties were men execution by Dunnavant and none in fact of ability and experience, and it would hardwas entered into, and thereafter the appel-ly seem that if they intended this writing to lant prosecuted the work described in the be a complete contract between them they writing through other parties. After the would solemnly provide, both in writing and completion of the work, Dunnavant assigned orally, for a further agreement. his claim to the present respondent, who brought this action on the accepted writing to recover damages as for breach of contract. The cause was tried in the court below by the judge, sitting without a jury, and resulted in a judgment in favor of the respondent for the full amount claimed, namely, $1,700. To reverse the judgment, this appeal is prosecuted.

[1] The principal question suggested by the record is whether the writing containing the bid of Dunnavant and the acceptance thereof by the appellant constituted the completed contract between the parties, or was it an agreement settling some of the terms of a contract to be entered into later. The face of the writing, it is at once apparent, indicates that it was intended as the latter, rather than the former. After specifying certain particulars, it expressly provides that a formal contract is to follow. If the writing itself was intended as the completed contract, there would have been no need for this proviso. A contract complete in itself does not need the sanction of another contract.

[2] Again, the contract, when tested by the surrounding circumstances, seems incomplete. It refers to work of a particular character in a described building, yet it specifies no time when the work shall be begun, when it shall be completed, the character of the work that shall be performed, or when payment for the work shall be made. While the law in

By the conditions of the writing, it was Dunnavant's duty, after the acceptance by the appellant of the terms proposed, to prepare a formal contract embodying such terms and such further details as the character of the work required, and forward the same to the appellant for execution. Failing in this, he had no cause of action against the appellant, as the appellant could not otherwise be put in default, and of course no cause of action passed to his assignee by the assignment.

The judgment appealed from is reversed and the case remanded, with instructions to enter a judgment in favor of the appellant to the effect that the respondent take nothing by his action.

DUNBAR, C. J., and MOUNT, PARKER, and GOSE, JJ., concur.

(64 Wash. 69)

STATE ex rel. HUNT et al. v. TAUSICK. Mayor. (Supreme Court of Washington. July 7, 1911.) 1. STATUTES (§ 93*)-SPECIAL LAWS-INCORPORATION OF CITIES-NEW CLASSIFICATION. Though Laws 1911, c. 116, authorizing cities having a population of not less than 2,500 nor more than 20,000, at their option, to organize a commission form of government, creatsecond and part of third class cities, and thus new classification of cities, by including created a classification within a classification,

ed a

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

tion.

did not render the act unconstitutional, as vio-mine whether and when it shall go into operalative of Const. art. 2, § 28, subd. 8, prohibiting the Legislature from enacting any private or special laws to incorporate any town or village, or to amend the charter thereof.

[Ed. Note. For other cases, see Evidence, Cent. Dig. 88 31-33; Dec. Dig. § 25.*]

3. STATUTES (§ 93*)-SPECIAL LAWS-ORGANIZATION OF CITIES.

Laws 1911, c. 116, authorizing cities between 2,500 and 20,000 population to organize a commission form of government, does not select any particular city or special territory to which it shall exclusively apply, nor does it so limit the required population as to restrict its application to a single municipality, and is therefore not invalid as a special law providing for the incorporation of cities, in violation of Const. art. 2, § 28, subd. 8, which is directed against the enactment of statutes selecting a specified or limited locality and creating therein a particular municipal corporation, to which individual powers are exclusively granted. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 102; Dec. Dig. § 93.*] 4. STATUTES (§ 77*)- APPLICATION OPTION.

- LOCAL

Laws 1911, c. 116, authorizing certain cities, at their election, to adopt a commission form of government, was not objectionable as special legislation, in that its application was made subject to local option.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 80; Dec. Dig. § 77.*] 5. MUNICIPAL CORPORATIONS (§ 22*)-ORGANIZATION-CLASSIFICATION OF CITIES.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 116; Dec. Dig. § 65.*] 8. MUNICIPAL CORPORATIONS (§ 48*)—REOBGANIZATION - COMMISSION LAW-"SPECIAL ELECTION.'

Laws 1911, c. 116, authorizing certain cities to adopt a commission form of government, provides (section 2) that on a proper petition the mayor, by proclamation, shall submit the question of organizing as a city under the act to a "special" election, to be held at a time specified therein and within 60 days after the petitime for holding the election. Const. art. 11, § 10, provides that cities and towns previously organized and incorporated may become organized under such general laws whenever a majority of the voters voting at a "general" election shall so determine. Held that, since a "special election" is any election which is not regularly held for the election of officers, or for some other purpose which comes before the electors at regular fixed intervals, any election at which the organization of a city was submitted would be, as to such question, a special election, and that the word "special," as so used, is surplusage; and hence, where a petition for the organization of a city under such act was filed within 60 days prior to a general election, it was the duty of the mayor to call the election at such time as would comply with the constitutional requirements; the act being. therefore, not invalid as violating the constitutional pro

tion is filed. The act did not further fix the

vision as to the kind of election at which the
question was to be submitted.
[Ed. Note.-For other cases, see Municipal
Corporations, Cent. Dig. §§ 127-133; Dec. Dig.
§ 48.*

For other definitions, see Words and Phrases,
vol. 7, p. 6575.]
9. STATUTES (§§ 138, 16*) - PRE-EXISTING
LAWS AMENDMENT COMPLETE STATUTE.

Since Laws 1911, c. 116, providing for the reorganization of certain cities under a commission form of government, was an act complete in itself and did not attempt to amend, modify, or change any pre-existing law, but provided that all existing laws governing cities of the second Under Rem. & Bal. Code, $$ 7479, 7480, the provisions of the act, should apply to cities class or applicable thereto, not inconsistent to 7584-7670, 7671-7718, classifying cities according to population, where a city organized as organized thereunder, and that all elections in a city of one class attains a population sufficient such cities, etc., should be conducted as providto entitle it to government as a city of a high-ed by law for election of officers in such cities, er class, it does not ipso facto become a city consistent with the provisions of the act, it was so far as the same was applicable and not inof the higher class until by proper procedure and vote it decides to advance itself to the high- not violative of Const. art. 2, §§ 37, 38, providing that no act shall be revised or amended by er grade. mere reference to its title, and that no amendments to any bill shall be allowed which shall change the scope and object of the bill.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 9; Dec. Dig. § 22.*] 6. STATUTES ($ 93*)-CLASSIFICATION-LEGISLATIVE LIMITATIONS.

The fact that the Constitution requires classification of municipalities according to population does not further restrict the Legislature as to the manner in which municipalities so classified shall be created.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 102; Dec. Dig. § 93.*]

7. CONSTITUTIONAL LAW (§ 65*)-LEGISLATIVE POWER-DELEGATION.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 205, 206, 14-16; Dec. Dig. §§ 138, 16.*]

10. STATUTES (§ 51*)-REFERENCE TO OTHER LAWS.

It was no objection to Laws 1911, c. 116, providing for the reorganization of certain cities under a commission form of government, that in order to ascertain the powers granted to cities organized under it, it was necessary to refer to existing laws relative to cities of the second

class.

[Ed. Note. For other cases. see Statutes, Cent. Dig. § 48; Dec. Dig. § 51.*]

Laws 1911, c. 116, authorizing the government of certain cities by commission, at their option, was not violative of Const. art. 2, § 1, as an unwarranted delegation of legislative En Banc. Appeal from Superior Court, power, under the rule that a statute does not Walla Walla County; Thos. H. Brents, Judge. delegate legislative power so long as it is complete in itself and has been regularly passed, Mandamus by the State, on the relation though it is left to some local body to deter- of Gilbert Hunt and others, against Eugene