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slight elevation; the water to the north of this going into Indian slough, and that to the south ultimately reaching Higgins. In the proposed plan of construction the ditch will be cut across this slight elevation, so that the portion of the water that would only reach Higgins slough is diverted to Indian slough. At a certain point on each of these sloughs it is necessary to construct a dam to prevent tide water extending up the slough. The district as originally defined provided for the construction of these dams at a point nearer the mouth of these sloughs than do those now proposed.

The reason for the change of the location of the dams was that the federal government, after investigation, refused to allow dams to be built at the points where they were originally contemplated. When the lòcation of the dams was fixed farther up the slough, the drainage commissioners altered the western boundary of the district, and ex

cluded therefrom all the land which would

be below the proposed dams. Some time after the district was organized, the drainage commissioners brought an action in the superior court for the purpose, as above stated, of condemning the necessary rights of way and causing the benefits from the proposed improvements to be assessed upon the property benefited. The relators are contesting the right to make the condemnation, and from an adverse judgment have brought the case here for review.

sents the matter, and we take the liberty of adopting it, wherein he said:

has been substantially complied with. In fact, "As above stated, in my opinion the statute I believe the commissioners, aided by the engineer and counsel, have to the very best of their ability complied with the statute, and for the court to hold at this time such district has not been legally organized, or that the steps leading up to the institution of this action have not been in accordance with the statute, or that the system as outlined is not conducive to public health, welfare, etc., would be in my opinion a usurpation of authority by the court. The vast majority of the people interested desire to prosecute this drainage district, and they are attempting to do so as outlined by the legislative authority of this state."

ment of the district and the proceedings
[2] It is next contended that the establish-
thereunder disclose a legal or constructive
fraud. In this connection attention is called
to the location of the main ditch, that carries
the water from a point in the watershed of
Higgins slough and empties it into Indian
slough; also that the property owners in the
watershed of Indian slough will not be bene-
fited and that the system is so arranged as
to specially benefit one or more of the drain-
age district commissioners. There is no evi- .
dence which would sustain the finding that
the location of the ditch was made with ref-
erence to the special benefits to any person.
Whether the ditch was properly located in

[1] The first contention of the objectors is the place in which is was is an engineering that drainage district No. 19 was not legally matter, with which this record presents no organized. Assuming without deciding, that 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- be considered when the question of assessage system as planned is a matter which will sons: First, that the county commissioners never made a specific order establishing the ments and benefits is being determined. The district; and, second, that the commission-record presents no facts which would sustain the charge of legal or constructive ers did not, in any order made by them, find fraud. all the facts which the statute requires. The proceedings before the county commissioners resulting in the organization of the

district are before us as an exhibit. It is

disclosed therein that the commissioners did

in an order declare:

"That said drainage district should be organized and declared to be a drainage district under the laws of the state of Washington, and to be known as Drainage District No. 19 of Skagit County, Washington."

[3] The next contention is that the plans provide no sufficient or legal outlet. In support of this contention it is suggested that the time covered by the permit issued by the

federal government has expired, and that therefore there is no authority to construct the dam. It is further contended that the permit, if effective, would be inoperative, since it was made conditioned upon compliance with the state law, and there is no state law 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 the statute requires, it may be said that, in carefully comparing the record of the proceedings with the requirements of the statute, we find no merit in this contention. The county commissioners found, as required by the statute, the things which it was necessary for them to find. The summary of the trial judge upon this question succinctly pre

which it is proposed to dam are navigable streams. It may be assumed that below the points where the dams are to be constructed the streams are navigable. Above these points they are nonnavigable streams. During a considerable portion of the time they are dry, and, if navigable at all, are so during periods of high tide only. Under this set 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. v. Superior Wash. 491, 85 Pac. 264, speaking upon a simi- Court, 45 Wash. 321, 88 Pac. 334. lar question, it was said:

"The evidence shows that a dam has been placed across the mouth of the Edison slough, which the relators contend is a navigable stream. It appears that this slough is meandered, but it also appears that, during the greater portion of the year, it is dry, except during high tide, at which time it is navigable for a short distance for small craft and floating logs. The dam was evidently built to keep out the high tide, so that the slough might be utilized as a reservoir to receive and hold water from

the drainage system until it could be discharged during low tide. The dam was constructed without any authority from the United States government, and the relators contend that it cannot be used in the drainage system, as its removal might be ordered by the government authorities. We do not think the evidence shows this North Samish river or Edison slough to be navigable to such an extent as to require the consent of the United States government to its obstruction by a dam."

[4] It is next contended that, since the water is to be diverted from one watershed to another, it constitutes an additional servitude upon the lands in the watershed of Indian slough, without legal right. Much of the argument on this point, and the authorities cited, relate to the question of the flooding of the lands. The plans in this case do not contemplate flooding. The purpose is to carry the water which will be diverted from the watershed of Higgins slough through Indian slough. If this additional water thus results in legal damage to any of the property owners in the watershed of Indian slough, it is a proper matter to be determined by the jury in the condemnation proceedings. The evidence will not sustain a finding that the diverting of the water from one watershed to the other would result in an overflow or flooding of any of the lands of the objectors.

[5, 6] The next point is that the right of way sought to be condemned has no proper description, and it is impracticable to acquire it by the description given. One objection to the description is that it makes no mention of a large dike which extends along Indian slough for a distance of one-half to three-fourths of a mile. It was unnecessary to specifically refer to the dike in the description, because, if the ground upon which the dike was constructed were described, it would include the dike. Another objection is that the description given provides for the taking of a strip of land 60 feet wide, and along certain courses or distances fixes the center line thereof as the center line of Higgins slough. To this description it appears that only one of the relators is objecting. It seems to us that the land proposed to be taken is described with reasonable certainty,

The next contention is that it will be impracticable for certain of the land on the Westerly side of Indian slough to be drained by the system. Whether any of the lands within the district will be benefited by the proposed improvement must be determined when the question of benefits is upon trial. That question is not before us in this proceeding.

[7] Finally it is argued that the boundary lines of the drainage district had been without any authority of law. In support of changed by the drainage commissioners this contention it is pointed out that the boundaries of the assessment district as fixed by the drainage commissioners did not coincide with the boundaries of the drainage district as fixed by the county commissioners. As already stated, the dams in the two sloughs were moved some distance up from their original location. In the assessment district, as fixed by the drainage dis trict commissioners, the land to the west cr below the dams is not included in such district, even though it was within the boundaries of the original district. Section 4137 of Remington's 1915 Code, among other things, provides that any portion of the county requiring drainage, which contains five or more inhabitants and freeholders therein, may be organized into a drainage district. The subsequent sections provide the method of procedure by which such district shall be organized. One of the steps in the organization of the district is the fixing of the boundaries thereof at a hearing before the board of county commissioners after notice; that body being given the power to change the proposed boundaries as they may deem proper. After the district is organized, the drainage commissioners are elected to carry on the affairs of the district. Section 4145 provides that, when it is desired to prosecute the construction of a drainage system, the drainage commissioners shall file in the superior court of the county a petition setting forth therein, among other things, the names of the landowners who will be benefited by the improvements. There is no provision in the law, so far as we are advised, which requires the boundaries of the assessment district as fixed by the drainage commissioners to be the same as the boundaries of the drainage district as fixed by the county commissioners. It is obvious that the land below where the proposed dams are to be constructed will not be benefited by the improvement, and there is no reason why such land should have been included within the proposed assessment district.

The judgment will be affirmed.

PARKER, C. J., and MACKINTOSH, HOVEY, and HOLCOMB, JJ., concur.

STATE v. BAYLES et al. (No. 17229.) (Supreme Court of Washington. Sept. 8, 1922.) 1. Judgment 486(1)-Void order or judgment may be attacked at any time.

A void order or judgment may be attacked directly or collaterally at any time or place, and in any proceeding, by persons adversely affected.

340, § 1, and Laws 1920-21, p. 719, § 1, giving the labor department power, after hearing on its own motion, or on the application of any person interested, to declare any occupation to be extrahazardous and to be under the act, is not void, because not fixing a standard.

Department 1.

Appeal from Superior Court, King County; Frater, Judge.

2. Master and servant 361-Validity of la- Action by the State of Washington against bor department's order, declaring work extra- W. C. Bayles and another, copartners. Judg hazardous within Compensation Act, review-ment for plaintiff, and defendants appeal, able in collateral proceeding.

The question of validity of an order under Workmen's Compensation Act (Rem. Code 1915, § 6604-2) as amended by Laws 1919, p. 340, § 1, and Laws 1920-21, p. 719, § 1, by the labor department, declaring work to be extrahazardous, may be raised by the employer in a collateral suit by state to recover the amount declared to be due to the insurance fund.

3. Master and servant 361-Correctness of labor department's order, declaring work extrahazardous within Compensation Act, not reviewable in collateral proceeding.

The question whether the labor department erroneously declared employees of a retail coal yard to be engaged in an extrahazardous occupation, within Workmen's Compensation Act (Rem. Code 1915, § 6604-2), as amended by Laws 1919, p. 340, § 1, and Laws 1920-21, p. 719, § 1, does not go to the validity of the order, but only to its correctness, and can be reviewed only by appeal from the order, and not in a suit by the state against the employer for the amount declared to be due to the insur

ance fund.

Affirmed.

Wm. E. Froude, of Seattle, for appellants. Lindsay L. Thompson, John H. Dunbar, and M. H. Wight, all of Olympia, for the State.

BRIDGES, J. The complaint in this action alleged that the defendants were engaged in the business of operating a retail fuel yard in the county of King, state of Washington, and that in December, 1921, the department of labor and industries, through and by means of the division of industrial insurance, acting by virtue of chapter 182 of the Laws of 1921, after a hearing duly had, made a decision and an order that the business of operating a retail coal yard is in fact extrahazardous, and therefore came within the provisions of the state Workmen's Compensation Act, and that such decision and order fixed the amount to be paid by all retail fuel yards to the state, as 1 per cent. of the actual amount of the pay roll em

decision and order the defendants had become indebted to the state in the sum of

4. Master and servant 361-Labor depart-ployed in such business; that because of such ment empowered to declare work extrahazardous within Compensation Act. Under Workmen's Compensation Act (Rem. Code 1915, $6604-2), as amended by Laws 1919, p. 340, § 1, and Laws 1920-21, p. 719, § 1, providing that the labor department may, after hearing had on its own motion, or on the application of any person interested, declare any occupation to be extrahazardous, the department has power to declare the employees of a retail coal yard to be in extrahazardous occupations.

$1.96, which amount they had failed and refused to pay, and judgment was sought against them for that amount. The demurrer of the defendants to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, was overruled. By their answer the defendants admitted practically all the allegations of the complaint, except they denied they were The an5. Constitutional law 62-Act giving labor indebted to the state in any sum. department power' to declare any occupation swer contained affirmative defenses to the efto be extrahazardous held not to delegate leg-fect that their employees are not, as a matislative authority.

Workmen's Compensation Act (Rem. Code 1915, § 6604-2), as amended by Laws 1919, P. 340, § 1, and Laws 1920-21, p. 719, § 1, giving the labor department power, after hearing had on its own motion, or on the application of any person interested, to declare any occupation to be extrahazardous, and be under the act, is not unconstitutional, as delegating legislative authority.

6. Master and servant 347-Compensation Act provision, authorizing labor department to declare occupation extrahazardous, valid. Workmen's Compensation Act (Rem. Code 1915, § 6604-2), as amended by Laws 1919, p.

ter of fact, engaged in any extrahazardous occupation, as provided by the Workmen's Compensation Act; that the department had no power or authority to make any such order; that such order was and is void and of no legal effect; and that any statute pretending to give the department any such power is unconstitutional and void. The demurrer of the state to these affirmative defenses, on the ground that they failed to state facts sufficient to constitute a defense, was sustained. The defendants elected to stand on the pleadings as thus made, and judg ment was rendered against them as prayed

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

(209 P.)

time or place and in any proceeding by persons adversely affected. Appeal from such an order or judgment is not the only way it can be attacked. Any ruling or decision in a valid order or judgment may be attacked only by appeal, if that remedy be given, and, if not, then by some other direct method; but a void judgment may be attacked directly and collaterally. We practically so held

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-order or judgment may be attacked at any ardous occupation as contemplated by the Workmen's Compensation Act; second, that, if there be a legislative act granting such power to the department, it is void and unconstitutional, because it undertakes to delegate legislative power; third, the act is void, because it does not furnish any standard to guide the department in determining whether employments other than those expressly mentioned in the act are extrahazardous; in the case of State v. Eyres Storage, etc., and, fourth, that, in any event, it was the duty of the trial court to hear testimony under the allegation in the answer to the effect that the defendants' employees are not engaged in an extrahazardous employment, and render its decision upon that question. At the outset we are met with the contention of the respondent that the judgment must be affirmed because the defendants did not appeal from the order of the department declaring their employees to be engaged in extrahazardous work. Section 1, c. 182, p. 719, Laws 1920-21, amended section 6604-2, Rem. Code, by adding certain provisions thereto which purport to authorize the department to determine and declare what occupations, other than those particularly mentioned in the Workmen's Compensation Act, are extrahazardous. The last sentence of the section as amended reads as follows:

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Co., 115 Wash. 682, 198 Pac, 390. There the department had done, with reference to another class of business, the same thing it has done in this instance, and there, as here, the state sued for the amount declared to be due it. In that action the respondent also contended that, inasmuch as the defendant had not appealed from the order or decision of the department, it was precluded from asserting in the action by the state any lack of power on the part of the commission to make the order. Touching that question we said:

"The second assignment of error is without within the power granted by the amendment, merit also. Had the commission made an order assuming, without deciding, that such power could be granted, and no appeal had been taken from the order as provided in the amendment, a different question would be presented from the one here wherein there is an attempted recovery upon an order the commission had no power to make. The order is void and may be asserted to be so at any time by any one who would wish to be free without it."

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

The result of this conclusion is that the appellants have a right in this action to question the validity of the order made by the department.

[3] A different question, however, arises concerning the contention of the appellants that the decision of the department was erroneous, in that it found and declared that appellants' employees were engaged in an extrahazardous occupation, when as a matter of fact, as alleged in their answer, it was not extrahazardous. This contention does not go to the validity of the decision of the department, but only to its correctness, and can be reviewed, if at all, only by appeal directly from the order of the department. Such being the situation, we cannot, in this proceeding, review that question.

These provisions make it clear that there is a right of appeal from such an order as the department made in this instance. But, notwithstanding this granted right of appeal, 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 extrahazardous, then any order to that or included in the Workmen's Compensation

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make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and known to the law-making power, and must useful legislation must depend which cannot be therefore be a subject of inquiry and determination outside of the halls of legislation."

"If there be or arise any extrahazardous occupation or work other than those hereinabove enumerated, it shall come under this act, and its rate of contribution to the accident fund hereinafter established shall be, until fixed by legislation, determined by the department hereinafter created, upon the basis of the relation which the risk involved bears to the risks classi-empowered the county game commission to

fied in section 6604-4."

tion Act:

This doctrine was quoted and approved in the case of U. S. v. Grimaud, 220 U. S. 506, 31 Sup. Ct. 480, 55 L. Ed. 563. In the case of Cawsey v. Brickey, 82 Wash. 653, 144 Pac. 938, we sustained a statute which

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. 359, 194 Pac. 595, we held that a statute which authorized the industrial welfare commission to ascertain certain facts and provide minimum wages and conditions of labor for women and minors was not an unlawful delegation of legislative power. The following cases out of this court also support the view that the legislation involved here is not open to the objection made: State v. Storey, 51 Wash. 630, 99 Pac. 878; State v. Superior Court, 103 Wash. 409, 174 Pac. 973; Vail v. Seaborg (Wash.) 207 Pac. 15.

"The commission shall have power, after hearing had upon its own motion, or upon the application of any party interested, to declare any such extrahazardous occupation or work to be under this act."

In the case of State v. Eyres Co., supra, we held that the amendment just quoted failed to accomplish the purpose apparently desired. The 1921 Legislature again amended section 2 of the original act, being section 6604-2, Rem. Code, by adding thereto the following:

"The director of labor and industries through and by means of the division of industrial insurance shall have power, after hearing had upon its own motion, or upon the application of any party interested, to declare any occupation or work to be extrahazardous and to be under this act.

[6] Appellant further contends that the power granted to the department to determine certain occupations to be extrahazardous is void, because no standard is fixed by which the department can be guided in coming to its conclusions. We do not think there is merit in this contention. The word "extrahazardous" defines itself; but, if any additional standard should be required, it is found throughout the Workmen's Compensation Act. Section 6604-2, Rem. Code, says:

It is plain that by this amendment the Legislature has expressly authorized the department, 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 and decide that employees in retail fuel yards were engaged in extrahazardous occupations.

That section then proceeds to give a large number of occupations which the Legislature itself has declared to be extrahazardous. 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 extrahazgate 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. Ct. 495, 36 L. Ed. 294, the court, discussing this question, said:

"The Legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to

The affirmative defense, to the effect that appellant's employees are not in fact engaged in an extrahazardous employment and that the department erred in holding otherwise, failed to state a defense, because it could not be raised in this proceeding. The other

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