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slight elevation; the water to the north of sents the matter, and we take the liberty of this going into Indian slough, and that to the adopting it, wherein he said: south ultimately reaching Higgins. In the proposed plan of construction the ditch will has been substantially complied with. In fact,

“As above stated, in my opinion the statute be cut across this slight elevation, so that I believe the commissioners, aided by the enthe portion of the water that would only gineer and counsel, have to the very best of reach Higgins slough is diverted to Indian their ability complied with the statute, and for slough. At a certain point on each of these the court to hold at this time such district has sloughs it is necessary to construct a dam to not been legally organized, or that the steps prevent tide water extending up the slough. leading up to the institution of this action have The district as originally defined provided not been in accordance with the statute, or that for the construction of these dams at a point the system as outlined is not conducive to pubnearer the mouth of these sloughs than do lic health, welfare, etc., would be in my opin

ion a usurpation of authority by the court. The those now proposed. The reason for the change of the location to prosecute this drainage district, and they

vast majority of the people interested desire of the dams was that the federal govern- are attempting to do so as outlined by the legment, after investigation, refused to allow islative authority of this state." dams to be built at the points where they were originally contemplated. When the location of the dams was fixed farther up the ment of the district and the proceedings

[2] It is next contended that the establishslough, the drainage commissioners altered thereunder disclose a legal or constructive the western boundary of the district, and ex: fraud. In this connection attention is called cluded therefrom all the land which would to the location of the main ditch, that carries be below the proposed dams. Some time aft- the water from a point in the watershed of er the district was organized, the drainage Higgins slough and empties it into Indian commissioners brought an action in the su- slough; also that the property owners in the perior court for the purpose, as above stated, watershed of Indian slough will not be beneof condemning the necessary rights of way fted and that the system is so arranged as and causing the benefits from the proposed to specially benefit one or more of the drainimprovements to be assessed upon the property benefited. The relators are contesting dence which would sustain the finding that

åge district commissioners. There is no evi. the right to make the condemnation, and the location of the ditch was made with reffrom an adverse judgment have brought the

erence to the special benefits to any person. case here for review. [1] The first contention of the objectors is the place in which is was is an engineering

Whether the ditch was properly located in that drainage district No. 19 was not legally organized. Assuming without deciding, that matter, with which this record presents no

reason why we should interfere. As to the this question may be presented in this proceeding, we will pass directly to the consid- property owners in the Indian watershed, eration of the merits of the contention. It is whether they will be benefited by the drain.. claimed that the district is void for two rea- age system as planned is a matter which will sons: First, that the county commissioners be considered when the question of assessnever made a specific order establishing the record presents no facts which would sus

ments and benefits is being determined. The district; and, second, that the commissioners did not, in any order made by them, find tain the charge of legal or constructive

fraud. all the facts which the statute requires.

[3] The next contention is that the plans The proceedings before the county commissioners resulting in the organization of the provide no sufficient or legal outlet. In supdistrict are before us as an exhibit. It is port of this contention it is suggested that disclosed therein that the commissioners did the time covered by the permit issued by the

federal government has expired, and that in an order declare:

therefore there is no authority to construct “That said drainage district should be or the dam. It is further contended that the perganized and declared to be a drainage district mit, if effective, would be inoperative, since under the laws of the state of Washington, and it was made conditioned upon compliance to be known as Drainage District No. 19 of with the state law, and there is no state law Skagit County, Washington.”

I covering the matter. The argument on this

point, if we have gathered it correctly, is As to the contention that the commission- based on the assumption that the two sloughs ers did not in an order find all the facts which it is proposed to dam are navigable which the statute requires, it may be said streams. It may be assumed that below the that, in carefully comparing the record of points where the dams are to be constructed the proceedings with the requirements of the the streams are navigable. Above these statute, we find no merit in this contention. points they are nonnavigable streams. DurThe county commissioners found, as required ing a considerable portion of the time they by the statute, the things which it was neces- are dry, and, if navigable at all, are so dursary for them to find. The summary of the ing periods of high tide only. Under this set trial judge upon this question succinctly pre- of facts a permit from the federal govern.

(209 P.) ment was not necessary. In the case of , and this is all that the law requires. State State ex rel. Matson v. Superior Court, 42 ex rel. Oregon R. & Nav. Co. 7. Superior Wash. 491, 85 Pac. 264, speaking upon a simi- Court, 45 Wash, 321, 88 Pac. 334. lar question, it was said:

The next contention is that it will be im“The evidence shows that a dam has been practicable for certain of the land on the placed across the mouth of the Edison slough, westerly side of Indian slough to be drained which the relators contend is a navigable by the system. Whether any of the lands stream. It appears that this slough is mean- within the district will be benefited by the dered, but it also appears that, during the great- proposed improvement must be determined er portion of the year, it is dry, except during when the question of benefits is upon trial. high tide, at which time it is navigable for a That question is not before us in this proshort distance for small craft and floating logs. ceeding. The dam was evidently built to keep out the [7] Finally it is argued that the boundary high tide, so that the slough might be utilized lines of the drainage district had been as a reservoir to receive and hold water from changed by the drainage commissioners the drainage system until it could be discharged without any authority of law. In support of during low tide. The dam was constructed without any authority from the United States this contention it is pointed out that the government, and the relators contend that it boundaries of the assessment district as cannot be used in the drainage system, as its fixed by the drainage commissioners did not removal might be ordered by the government au-coincide with the boundaries of the drainthorities. We do not think the evidence shows age district as fixed by the county commisthis North Samish river or Edison slough to sioners. As already stated, the dams in the be navigable to such an extent as to require two sloughs were moved some distance up the consent of the United States government from their original location. In the assessto its obstruction by a dam."

ment district, as fixed by the drainage dis.

trict commissioners, the land to the west cr [4] It is next contended that, since the wa- below the dams is not included in such dister is to be diverted from one watershed to trict, even though it was within the boundanother, it constitutes an additional servi- aries of the original district. Section 4137 tude upon the lands in the watershed of of Remington's 1915 Code, among other Indian slough, without legal right. Much of things, provides that any portion of the the argument on this point, and the authori-county requiring drainage, which contains ties cited, relate to the question of the flood-five or more inhabitants and freeholders ing of the lands. The plans in this case do therein, may be organized into a drainage not contemplate flooding. The purpose is to district. The subsequent sections provide carry the water which will be diverted from the method of procedure by which such disthe watershed of Higgins slough through trict shall be organized. One of the steps in Indian slough. If this additional water thus the organization of the district is the fixing results in legal damage to any of the prop of the boundaries thereof at a hearing beerty owners in the watershed of Indian fore the board of county commissioners aftslough, it is a proper matter to be determined er notice; that body being given the power to by the jury in the condemnation proceedings. change the proposed boundaries as they may The evidence will not sustain a finding that deem proper. After the district is organized, the diverting of the water from one water- the drainage commissioners are elected to shed to the other would result in an overflow carry on the affairs of the district. Section or flooding of any of the lands of the ob- 4145 provides that, when it is desired to prosjectors.

ecute the construction of a drainage system, (5, 6] The next point is that the right of the drainage commissioners shall file in the way sought to be condemned has no proper superior court of the county a petition setdescription, and it is impracticable to ac- ting forth therein, among other things, the quire it by the description given. One ob- names of the landowners' who will be benejection to the description is that it makes no fited by the improvements. There is no promention of a large dike which extends along vision in the law, so far as we are advised, Indian slough for a distance of one-half to which requires the boundaries of the assessthree-fourths of a mile. It was unnecessary ment district as fixed by the drainage comto specifically refer to the dike in the descrip missioners to be the same as the boundaries tion, because, if the ground upon which the of the drainage district as fixed by the dike was constructed were described, it county commissioners. It is obvious that the would include the dike. Another objection land below where the proposed dams are to is that the description given provides for the be constructed will not be benefited by the taking of a strip of land 60 feet wide, and improvement, and there is no reason why along certain courses or distances fixes the such land should have been included within center line thereof as the center line of Hig- the proposed assessment district. gins slough. To this description it appears The judgment will be affirmed. that only one of the relators is objecting. It seems to us that the land proposed to be PARKER, C. J., and MACKINTOSH, taken is described with reasonable certainty, HOVEY, and HOLCOMB, JJ., concur.

340, § 1, and Laws 1920-21, p. 719, § 1, giving STATE V. BAYLES et al. (No. 17229.)

the labor department power, after hearing on

its own motion, or on the application of any (Supreme Court of Washington. Sept. 8, 1922.) person interested, to declare any occupation to 1. Judgment Ow486(1)-Void order or judg. be extrabazardous and to be under the act, is ment may be attacked at any time,

not void, because not fixing a standard. A void order or judgment may be attacked directly or collaterally at any time or place,

Department 1. and in any proceeding, by persons adversely af- Appeal from Superior Court, King Counfected.

ty; Frater, judge. 2. Master and servant O361-Validity of la- Action by the State of Washington against

bor department's order, declaring work extra- W. C. Bayles and another, copartners. Judge hazardous within Compensation Act, review. ment for plaintiff, and defendants appeal, able in collateral proceeding.

Affirmed.
The question of validity of an order under
Workmen's Compensation Act (Rem. Code

Wm. E. Froude, of Seattle, for appellants, 1915, 8 66042) as amended by Laws 1919, p.

Lindsay L. Thompson, John H. Dunbar, 340, § 1, and Laws 1920–21, p. 719, § 1, by the and

Vight, all of Olympia, for the labor department, declaring work to be extra- State. hazardous, may be raised by the employer in a collateral suit by state to recover the amount

BRIDGES, J. The complaint in this acdeclared to be due to the insurance fund.

tion alleged that the defendants were en3. Master and servant Cw361-Correctness of gaged in the business of operating a retail labor department's order, declaring work ex. fuel yard in the county of King, state of trahazardous within Compensation Act, not Washington, and that in December, 1921, the reviewable in collateral proceeding.

department of labor and industries, through The question whether the labor department and by means of the division of industrial erroneously declared employees of a retail coal yard to be engaged in an extrabazardous occu- insurance, acting by virtue of chapter 182 pation, within Workmen's Compensation Act of the Laws of 1921, after a hearing duly (Rem. Code 1915, § 6604–2), as amended by bad, made a decision and an order that the Laws 1919, p. 340, § 1, and Laws 1920–21, p. business of operating a retail coal yard is 719, § 1, does not go to the validity of the in fact extrahazardous, and therefore came order, but only to its correctness, and can be within the provisions of the state Workmen's reviewed only by appeal from the order, and Compensation Act, and that such decision not in a suit by the state against the employer and order fixed the amount to be paid by all for the amount declared to be due to the insur- retail fuel yards to the state, as 1 per cent. ance fund.

of the actual amount of the pay roll em4. Master and servant @w 361 - Labor depart. ployed in such business; that because of such

ment empowered to declare work extrahaze decision and order the defendants had beardous within Compensation Act.

come indebted to the state in the sum of Under Workmen's Compensation Act (Rem. Code 1915, $ 6604–2), as amended by Laws $1.96, which amount they had failed and re1919, p. 340, § 1, and Laws 1920-21, p. 719, s fused to pay, and judgment was sought 1, providing that the labor department may, against them for that amount. The demurafter hearing had on its own motion, or on the rer of the defendants to the complaint, on application of any person interested, declare the ground that it did not state facts suffiany occupation to be extrahazardous, the de- cient to constitute a cause of action, was partment has power to declare the employees overruled. By their answer the defendants of a retail coal yard to be in extrahazardous admitted practically all the allegations of occupations.

the complaint, except they denied they were 5. Constitutional law C 62-Act giving labor indebted to the state in any sum. The andepartment power to declare any occupation swer contained attirmative defenses to the efto be extrahazardous held not to delegate leg- fect that their employees are not, as a matislative authority.

ter of fact, engaged in any extrahazardous Workmen's Compensation Act (Rem. Code 1915, $ 6604–2), as amended by Laws 1919, p. Compensation Act; that the department had

occupation, as provided by the Workmen's 340, § 1, and Laws 1920–21, p. 719, § 1, giving the labor department power, after hearing had no power or authority to make any such oron its own motion, or on the application of any der; that such order was and is void and person interested, to declare any occupation of no legal effect; and that any statute preto be extrahazardous, and be under the act, is tending to give the department any such pownot unconstitutional, as delegating legislative er is unconstitutional and void. The demurauthority.

rer of the state to these affirmative defens6. Master and servant Ou 347-Compensation es, on the ground that they failed to state

Act provision, authorizing labor department facts sufficient to constitute a defense, was to declare occupation extrahazardous, valid. sustained. The defendants elected to stand

Workmen's Compensation Act (Rem. Code on the pleadings as thus made, and judg 1915, $ 6604—2), as amended by Laws 1919, p. I ment was rendered against them as prayed

Om bor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(209 P.) for. From this Judgment they have appealed. ( effect made by It would be void, or if such

They here contend, first, that there is no statute exist, but is unconstitutional because legislative act authorizing or purporting to of a delegation of legislative power, or for authorize the department to find and decide, any other reason, any order so made by the as a fact, that persons working in and about department would likewise be void. A void retail fuel yards are engaged in an extrahaz- orde or judgment may be attacked at any ardous occupation as contemplated by the time or place and in any proceeding by perWorkmen's Compensation Act; second, that, sons adversely affected. Appeal from such If there be a legislative act granting such an order or judgment is not the only way it power to the department, it is void and un- can be attacked. Any ruling or decision in a constitutional, because it undertakes to dele- valid order or judgment may be attacked gate legislative power; third, the act is void, only by appeal, if that remedy be given, and, because it does not furnish any standard to if not, then by some other direct method ; guide the department in determining wheth- but a void judgment may be attacked directer employments other than those expressly ly and collaterally. We practically so held mentioned in the act are extrahazardous; in the case of State v. Eyres Storage, etc., and, fourth, that, in any event, it was the Co., 115 Wash. 682, 198 Pac, 390. There the duty of the trial court to hear testimony un- department had done, with reference to ander the allegation in the answer to the ef- other class of business, the same thing it fect that the defendants' employees are not has done in this instance, and there, as here, engaged in an extrahazardous employment, the state sued for the amount declared to and render its decision upon that question. be due it. In that action the respondent

At the outset we are met with the conten- also contended that, inasmuch as the defendtion of the respondent that the judgment ant had not appealed from the order or demust be affirmed because the defendants did cision of the department, it was precluded not appeal from the order of the department from asserting in the action by the state declaring their employees to be engaged in ex- any lack of power on the part of the commistrahazardous work. Section 1, c. 182, p. 719, sion to make the order. Touching that quesLaws 1920–21, amended section 6604—2, Rem. tion we said: Code, by adding certain provisions thereto which purport to authorize the department

"The second assignment of error is without to determine and declare what occupations, merit also. Had the commission made an order other than those particularly mentioned in assuming, without deciding, that such power

within the power granted by the amendment, the Workmen's Compensation Act, are extra- could be granted, and no appeal had been taken hazardous. The last sentence of the section from the order as provided in the amendment, as amended reads as follows:

a different question would be presented from "Any order, finding or decision of the director the one here wherein there is an attempted reof labor and industries made and entered under covery upon an order the commission had no the foregoing provisions of this act shall be power to make. The order is void and may be subject to review by the courts within the time asserted to be so at any time by any one who and in the manner specified in section 6604-20 would wish to be free without it.” and not otherwise."

See also 15 R. C. L. 841 et seq.

The result of this conclusion is that the The section there mentioned provides that

appellants have a right in this action to

question the validity of the order made by “Any employer, workman, beneficiary, or per. the department. son feeling aggrieved at any decision of the [3] A different question, however, arises department affecting his interests under this concerning the contention of the appellants act may have the same 'reviewed by a proceed that the decision of the department was ing for that purpose, in the nature of an ap: erroneous, in that it found and declared that peal

in so far as such decision rests upon questions of fact, or of the proper appli- appellants' employees were engaged in an cation of the provisions of this act, it being extrahazardous occupation, when as a matter the intent that matters resting in the discre- of fact, as alleged in their answer, it was tion of the department shall not be subject to not extrahazardous. This contention does review.

not go to the validity of the decision of the

department, but only to its correctness, and These provisions make it clear that there can be reviewed, if at all, only by appeal is a right of appeal from such an order as directly from the order of the department. the department made in this instance. But, Such being the situation, we cannot, in this notwithstanding this granted right of appeal, proceeding, review that question. at least some of the questions raised in the [4] We proceed then to consider the quescollateral proceeding may be reviewed by us. tions which in this action are reviewable.

[1, 2] If, as, contended by the appellants, the The Legislature has made several attempts department is not given any power by the to authorize the department to declare cerstatute to declare certain occupations to tain occupations which are not mentioned be extrabazardous, then any order to that or included in the Workmen's Compensation Act to be extrahazardous, and thus come, make, its own action depend. To deny this under the provisions of that act. Section would be to stop the wheels of government. 6604—2, Rem. Code, being a part of the There are many things upon which wise and original Workmen's Compensation Act, pro- | known to the law-making power, and must

useful legislation must depend which cannot be vides that

therefore be a subject of inquiry and determina"If there be or arise any extrabazardous oc- tion outside of the halls of legislation." cupation or work other than those hereinabove enumerated, it shall come under this act, and

This doctrine was quoted and approved its rate of contribution to the accident fund in the case of U. 8. v. Grimaud, 220 U. S. hereinafter established sball be, until fixed by 506, 31 Sup. Ct. 480, 55 L, Ed. 563. In the legislation, determined by the department here- case of Cawsey v. Brickey, 82 Wash. 653, inafter created, upon the basis of the relation 144 Pac. 938, we sustained a statute which which the risk involved bears to the risks classified in section 6604_4."

empowered the county game commission to

create game perserves. In the case of CarIn the case of State v. Powles & Co., 94 stens v. De Sellem, 82 Wash. 643, 144 Pac. Wash. 416, 162 Pac. 569, we held that such 934, the statute considered delegated to the language did not authorize the department commissioner of horticulture the power to to declare additional occupations to be extra- designate what pests and diseases were inhazardous. In an effort to correct this situa-jurious to fruit trees, and we held that the tion the Legislature of 1919, in section 1, c. act was not subject to the objection that it 131, Laws 1919, added the following to sec-delegated legislative power. In the case of tion 2 of the original Workmen's Compensa- Spokane Hotel Co. v. Younger, 113 Wash. tion Act :

359, 194 Pac. 595, we held that a statute "The commission shall have power, after hear- mission to ascertain certain facts and provide

which authorized the industrial welfare coming had upon its own motion, or upon the application of any party interested, to declare any minimum wagès and conditions of labor for such extrahazardous occupation or work to be women and minors was not an unlawful under this act."

delegation of legislative power. The fol

lowing cases out of this court also support In the case of State v. Eyres Co., supra, we the view that the legislation involved here held that the amendment just quoted failed is not open to the objection made: State to accomplish the purpose apparently de- v. Storey, 51 Wash. 630, 99 Pac. 878; State v. sired. The 1921 Legislature again amended Superior Court, 103 Wash. 409, 174 Pac. 973; section 2 of the original act, being section Vail v. Seaborg (Wash.) 207 Pac. 15. 6604—2, Rem. Code, by adding thereto the [6] Appellant further contends that the following:

power granted to the department to deter"The director of labor and industries through mine certain occupations to be extrahazardand by means of the division of industrial in- ous is void, because no standard is fixed surance shall have power, after hearing had by which the department can be guided in upon its own motion, or upon the application coming to its conclusions. We do not think of any party interested, to declare any occupa- there is merit in this contention. The word tion or work to be extrahazardous and to be “extrabazardous” defines itself; but, if any under this act.

additional standard should be required, it It is plain that by this amendment the is found throughout the Workmen's Compen

sation Act. Legislature has expressly authorized the de

Section 6604—2, Rem. Code,

says: partment, after a hearing as provided by the statute, to find and declare any occupa

"There is a hazard in all employment, but tion not already included within the Work- certain employments have come to be, and to be men's Compensation Act to be extrahazard recognized as being, inherently and constantly

dangerous. ous. We must hold, therefore, that the statute authorized the department to find That section then proceeds to give a large and decide that employees in retail fuel number of occupations which the Legislature yards were engaged in extrahazardous oc- itself has declared to be extrahazardous. cupations.

In determining whether some other occupa[5] The appellants further contend that tion is extrahazardous, the department the act as construed by us is unconstitution would compare it with those which the Legal and void, because it undertakes to dele-islature itself has declared to be extra hazgate to the department legislative power. ardous." In any instance, if the occupation We cannot agree with this contention. In be "inherently and constantly dangerous," the case of Field v. Clark, 143 U. S. 649, it is extrahazardous. 12 Sup. Ot. 495, 36 L. Ed. 294, the court, dis- The affirmative defense, to the effect that cussing this question, said:

appellant's employees are not in fact engaged

in an extrahazardous employment and that "The Legislature cannot delegate its power to make a law; but it can make a law to dele- the department erred in holding otherwise, gate a power to determine some fact or state of failed to state a defense, because it could things upon which the law makes, or intends to not be raised in this proceeding. The other

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