Mar. 1902.] Opinion of the Court-WHITE, J. ing to the general purpose and intent of the legislature as shown in the act, it will not be adjudged unconstitutional in toto, but sustained to that extent. It is necessary that the remaining portions be sufficient in themselves to constitute a complete, intelligible law, and one capable of being executed, and that they should be so independent of the rejected portions that it may be fairly presumed that the legislature would have enacted the restricted statute by itself without making the rejected portions a condition to the passage of the whole act. Cooley, Constitutional Limitations (6th ed.), p. 210; Black, Interpretation of Laws, p. 96. Have we a right to presume that the legislature would not have enacted the law in question without inserting the provision as to payment by the county of the costs appor tioned to the school land? We think not. The improvement of land was not the principal object. As declared in the title, the ditches contemplated were for agricultural, sanitary, and domestic purposes. The health of the people was one of the principal considerations for the passage of the act. This is a matter of the very highest importance to the state. We are not warranted in believing, under these circumstances, that the legislature would not have passed the act with the omission of the unconstitutional portion. We therefore conclude that the remainder of the act at least is constitutional, unless subject to some other and fatal objection. The appellants claim that the board of county commissioners is not an impartial tribunal to determine the benefits and make the assessments, because the act provides that if any one makes an exception to the apportionment and the board sustains the exception, the costs of the hearing thereon shall be paid out of the county treasury. From Opinion of the Court-WHITE, J. [28 Wash. what we have heretofore said, it is clear that no portion of the general funds of the county can be applied to the payment of such costs, and such costs can only be paid out of the ditch fund authorized by the act. It is true that under the act the commissioners have the disbursement of this fund, but the presumption is that they will discharge their duties in a lawful manner. The mere fact that they are to disburse the funds under their control in a way pointed out by the law, on the happening of certain events determined by them judicially, is not sufficient to make it manifest that they are not an impartial tribunal. Costs to be assessed for local improvements cannot exceed the benefits conferred. Section 3 of the act of 1895, in effect, so provides. It requires the county commissioners to ascertain the aggregate cost of the ditch and apportion the same to each lot, tract of land, etc., according to benefits resulting from the improvements, not exceeding the amount of said benefits. Under this provision the cost may be less or equal to the benefits. For all portions of the cost exceeding the benefits, no assessment can be made on the property benefited. The act provides for notice to land owners of the apportionment of such assessments, provides for an opportunity to be heard before the board of commissioners, and provides that if, on such hearing, the commissioners find that the apportionment is unfair and unjust and ought not to be confirmed, they shall so order and amend it as to make it fair and just in proportion to the benefits. The only objection made to the assessment was that set forth in the answer. No com plaint is made as to the fairness of the apportionment. That question is not now before us. It is nowhere suggested in the answer that the proposed improvement is not of a public nature. The affidavit for the writ distinctly Mar. 1902.] Opinion of the Court-WHITE, J. alleges that legal proceedings for the purpose of acquiring title to the lands occupied by and necessary to the construction and maintenance of the ditch, by proceedings in eminent domain, were instituted and maintained for the condemnation of a right of way for said ditch in the superior court of Skagit county in the case of Skagit County v. McLean, 20 Wash. 92 (54 Pac. 781), and the right of way necessary for the construction of said ditch was condemned, etc. From this we must presume that there was an adjudication by the court that the improvement was for a public use, and that all persons interested in this question had an opportunity to be heard, or can be heard, in the manner hereinafter indicated. That question is not now before us. But it is claimed that the act violates the fourteenth amendment to the constitution of the United States, inasmuch as it deprives the owners of the land benefited of their property without due process of law. The supreme court of the United States, in passing upon this question, says: "We reiterate the statement made in Davidson v. New Orleans, supra, that, 'whenever by the laws of the state or by state authority a tax, assessment, servitude or other burden is imposed upon property for the public use, whether it be for the whole state or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed in the ordinary courts of justice, with such notice to the person or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections."" Fallbrook Irrigation District v. Bradley, 164 U. S. 112 (17 Sup. Ct. 56); Davidson v. New Orleans, 96 U. S. 97. 4-28 WASH, Opinion of the Court-WHITE, J. [28 Wash. It is true that in the act in question no provision is made in positive terms for confirming or contesting, in the ordinary courts of justice, the charge imposed. Under the act, when the assessment is made it is placed upon a tax roll. It may be paid in installments as provided in the act. The act further provides, if any installment is not paid, the county attorney must proceed at once by a civil action to collect such charges and foreclose the lien therefor. In the case of Garvin v. Daussman, 114 Ind. 429 (5 Am. St. Rep. 637, 16 N. E. 826), which was a proceeding to foreclose a lien for a street improvement where no provision was made for notice and hearing, the court said: "To give each property owner the right to contest every step in such an undertaking, would be, in effect, to prohibit the improvement, or render its execution practically impossible in many instances. If, therefore, the law provides for giving notice and for a method whereby the property owner may ultimately challenge the correctness of the assessment made against his property, in respect to whether it was made in good faith, without intervening mistake or error, and according to the method and under the safeguards provided by the law, the constitutional provision is to be deemed satisfied. These ends seem to have been adequately provided for by the ordinance under which the improvement involved in the present case was made. It is conceded that, under the ordinance, the assessment against the appellant's property could only be enforced by legal proceedings in a court having jurisdiction to foreclose mortgages. Such proceedings could only be taken in pursuance of notice, and in a court in which ample opportunity would be afforded for questioning the validity of the proceedings for the improvement of the street, and of all other matters respecting the legality and amount of the assessment, or which might constitute a legitimate cause of grievance to the property holder." Mar. 1902.] Opinion of the Court-WHITE, J. In the suit, then, to enforce the lien, the property owner might set up any matter respecting the amount or legality of the assessment. But if this remedy was not sufficient, under the general laws of the state, at the time the act was passed, it was provided that the superior court should have jurisdiction in special cases and proceedings not otherwise provided for, with power to issue writs of review and certiorari. Where no appeal is given, certiorari will lie, and many cases hold that, where there is no remedy by appeal, all questions may be reviewed under the writ of certiorari. Elliott, Roads & Streets (2d ed.), § 372. At the same session of the legislature at which the act in question was passed, the legislature enlarged the functions of the writ of certiorari, and when this action was brought under $$ 5740 to 5757, Bal. Code, a full and ample remedy for reviewing the proceedings of the board of county commissioners, even to a review of the evidence, was provided by law. Browne v. Gear, 21 Wash. 147 (57 Pac. 359). We conclude, therefore, that the act of 1895 does not seek to deprive the owner of property of the same without due process of law. The last point urged by the appellants is well taken. For the reasons already given, that the state by appropriate legislation may provide for the payment of the assessment on school lands, we think such lands should not be excluded from the assessment for the cost of the improvements. The judgment of the court is therefore so far modified as to require the assessment of the cost of the improvements to each lot, tract of land, etc., in the district, including the school land mentioned in the answer, and the court below is directed to enter judgment |