other stockholders, or their assigns, of the, creditors, whose rights would be protected in amusement company should, prior to the ter- the receivership proceedings. mination of the agreement, begin an action for the appointment of a receiver or other adjudication in bankruptcy, then the party of the second part (Pantages) should be relieved from the obligations of the contract. It is further alleged in the complaint that, in conformity with the contract, the action for the appointment of a receiver was dismissed without the summons or complaint having been filed, and that Eggleston "gave no information in reference to the commencement of said action to any person." It is also alleged that none of the other stockholders instituted an action for the appointment of a receiver within the time specified in the contract, and that they (the other stockholders) knew of the financial condition of the company at the time the action for appointment of receiver was instituted, but declined to bring the action. In Paton v. Stewart, 78 Ill. 481, the action was upon a promissory note, the payment of which by the principals thereon had been guaranteed by the defendant. The principals upon the note were indebted to the plaintiff and others in large sums of money, and on petition of the plaintiffs a rule was issued out of the United States District Court that they should show cause why they should not be adjudicated bankrupts. While this rule was in force, and before any answer had been made thereto, and without the concurrence or consent of any of the other creditors, it was agreed between the plaintiffs and principals on the note that the plaintiff's would not further prosecute the rule in bankruptcy, but would abandon that proceeding, and, in consideration of the plaintiffs' agreement in that behalf, the note was executed by the principals, and the de[1-3] Whether this action can be maintain- fendant guaranteed its payment. It was ed depends upon the question as to whether there held that there could be no recovery the contract above referred to was against on the note because it was a contract inpublic policy. It is well settled that agree-hibited by sound public policy. The court ments against public policy and sound mor- used this language: als will not be enforced by the courts. It is a general rule that all agreements relating to proceedings in courts which may involve anything inconsistent with full and impartial course of justice therein are void, though not open to the actual charge of corruption. This is true, regardless of the good faith or intent of the parties at the time the contract was entered into, or the fact that no evil resulted by or through the contract. Delbridge v. Beach, 66 Wash. 416, 119 Pac. 856; 6 R. C. L. page 751. "A creditor, who seeks to use the remedy given by the law for his own benefit, as well as other creditors, should be required to proceed with the utmost fairness, and with a due regard to the rights of all parties concerned, including the debtor himself. He ought not to be permitted to use this extraordinary power_to compel the debtor to secure his claim or suffer the disastrous consequences of being thrown into bankruptcy, and contract, when his own claim has been secured, to dismiss the proceedings, to the detriment of other creditors. This is what is called an abuse of the process of the law, and all contracts thus obtained are illegal and void, as being inhibited by a sound public policy, even between the debtor and the composition creditor, as well as to other creditors." he did not want the complaint and summons filed, and provided in the contract that no information in reference to the commencement of the action should be given "to any person," was the effect that knowledge of the action might have upon a prospective purchaser. The appellant bound himself by the terms of the contract to give no information [4] The facts pleaded in the present case show that appellant here had instituted an action for the appointment of a receiver, had [5, 6] From the facts stated in the cominvoked the process of the court, and had plaint, and in the contract, it is reasonably duly served the summons and copy of the inferable that Pantages, at the time the recomplaint. After this was done the agree-ceivership action was instituted, had a proment was entered into which provided for spective purchaser for his circuit of vaudethe dismissal of the action and the withhold-ville theaters, and at least one reason why ing of the summons and complaint from filing. The legal effect of the action for appointment of receiver was to invoke the aid of the court, not only to protect the rights of the plaintiff, but to protect the rights of all other parties, including the creditors of the corporation, who had a right to come into the receivership proceeding. Where a party seeks to use the remedy given him by law for his own benefit, as well as that of others, he is required to proceed with the utmost fairness and with due regard to the rights of all parties concerned. He will not be permitted to use the process of the court to compel a debtor to secure his claim or suffer disastrous consequences of being thrown into bankruptcy, and contract, when his own claim has been secured, to dismiss in reference to the commencement of the action to any person, thereby sealing his lips against the disclosure of the true facts to any one rightly seeking the information as to the condition of the company. In Douglas State Bank v. Lewinsohn, 192 Ill. App. 364, the plaintiff brought an action on a promissory note. The defendant pleaded a set-off in the sum of $2,000. This $2,000 was alleged to be due from the plaintiff to the defendant, because the plaintiff had temporarily depositing the sum of $15,000 or more with the plaintiff bank, so as to show a substantial increase in its business, in order to effect a sale to or consolidation with another bank. It was held that: "The contract, if there was such a contract, between the plaintiff and defendant, was an immoral one, for the deception and defrauding of a third person, and no right to the compensation accrued to the defendant under it which courts will enforce." Cost of drainage improvement is to be ap- Commissioners of drainage district, in making assessment against railroad, are free to take special benefits into consideration, if proven or evident, but not to sustain levy of arbiWe think the contract upon which the ac- trary amount because special benefits may oction in the case now before us was based is cur. against public policy and sound morals, and 7. DRAINS 79-ASSESSMENT-LIKE ASSESSMENT FOR LIKE BENEFIT. was therefore void and unenforceable. It may be true that the objection that the contract is illegal and void as against public policy comes with poor grace from one who was a party thereto. Such objection, however, will not be allowed to prevail, even when put forward by one who participated in the wrong, not as a protection to him, but for the sake of the public good, and because the law will not lend its aid to enforce an illegal contract. In such cases, the law leaves the parties where they place themselves. Dieckmann v. Robyn, 162 Mo. App. 67, 141 S. W. 717. The judgment will be affirmed. Fullerton, J., dissenting. En Banc. Appeal from Superior Court, Action by the Oregon-Washington Rail- FULLERTON and PARKER, JJ., concur. of plaintiff. 1. CONSTITUTIONAL LAW 290(3)-DUE PROCESS-SPECIAL ASSESSMENT. It is not essential to validity of act authorizing special assessment for benefits, such as Laws 1913, p. 611 (Rem. Code, §§ 4226-1 to 4226-41), under due process clause of state and federal Constitutions, that act provide for assessment through courts, or for review by them of such proceeding, made by another body. 2. DRAINS 82(1) ASSESSMENT AGAINST RAILROAD AGREEMENT ON ARBITRARY SUM. If assessment against railroad for drainage improvement can be sustained in reason, it will not be rejected because commissioners, before proceeding to levy, agreed on arbitrary sum to be assessed against railroad. 3. DRAINS 71 HIGHER ASSESSMENT OF RAILROAD-BENEFITS. That drainage improvement lowered water level in district and vicinity of railroad, thus contributing to solidity of roadbed and life of ties, protecting road from floods, also drying up roads and making railroad more accessible, and increasing productivity of lands, are not sufficient reasons to sustain assessment of railroad's property over that of other land within district; some benefits being general. 4. DRAINS 71-SPECIAL ASSESSMENT-SPECIAL BENEFIT. If drainage district would put greater burden on one property than another, it must disclose some special benefit to specially burdened property different from any benefit to other. A. C. Spencer, of Portland, Or., Richards & CHADWICK, J. In the year 1915 the county commissioners of Yakima county, pursuant to the provisions of the statute of 1913 (Laws 1913, c. 176; Rem. Code, §§ 4226-1 to 4226-41), established a drainage district in that county, known as subdistrict No. 4 of drainage improvement district No. 3. The subdistrict comprised approximately 8,000 acres, and included a portion of the right of way and the improvements thereon of the appellant railway company. The right of way so included is some 4 miles in length, and amounts in area to 53.1 acres. The district was organized for the purpose of constructing on the assessment plan a drainage ditch and certain laterals, made necessary to take care of the seepage waters escaping from agricultural lands irrigated from the Sunnyside canal and the drainage from a hilly area lying north of the district. The ditch as constructed cost $15,415.97. Of this sum $490.35 was assessed upon the appellant's right of way as property benefited by the improvement. On the return of the assessment roll to the county commissioners, the appellant appeared before that body and protested against the assessment, on the ground that it was unjust, arbitrary, made upon a fundamentally wrong basis, and constituted a taking of its property with 1 out due process of law. The commission- | does not provide for a review of such assessment Asers overruled the objections and confirmed and a hearing by a court, is not tenable. the assessment whereupon the appellants sessment can be made conclusive, the law may suming the necessity of a hearing before an asbrought the present action to restrain the provide for that hearing by the body which collection of the assessment and to remove levies the assessment, and after such hearing the apparent lien thereof as a cloud upon its may make the decision of that body conclusive. title. It admitted, however, that the land Although in imposing such assessments the common council or board of trustees may be acting occupied by its right of way might be justly somewhat in a judicial character, yet the founassessed for the sum of $112.92, which sum dation of the right to assess exists in the taxing it tendered and paid into court for the use power, and it is not necessary that, in imposing an assessment, there shall be a hearing beof the district. The trial court, after a trial fore a court provided by the law in order to give upon the merits, found the assessment just validity to such assessment. Due process of and valid and dismissed the action. From law is afforded where there is opportunity to be the judgment of dismissal this appeal is heard before the body which is to make the assessment, and the Legislature of a state may provide that such hearing shall be conclusive so far as the federal Constitution is concerned." prosecuted. [1] Of the assignments of error the first to be noticed is that the statute under which the proceedings were had violates the due process of law clauses of both the state and federal Constitutions. The contention is founded on the fact that the statute makes no provision for reviewing the legality and justness of the assessment in the ordinary courts of law. But it is not essential to the validity of an act authorizing a special assessment for benefits under this clause of either the state or federal Constitution that the act provide for an assessment through the medium of the courts, or for a review by the courts of such a proceeding when made by another body. This we held in Bowes v. Aberdeen, 58 Wash. 535, 109 Pac. 369. In that case we said: "Nor do we believe that appellants are in any way deprived of their property without due process of law, within the rule of Davidson v. New Orleans, 96 U. S. 97 [24 L. Ed. 616], and Hagar v. Reclamation District, 111 U. S. 701 [4 Sup. Ct. 663, 28 L. Ed. 569]. If it be conceded that the legislative department has not the right to arbitrarily fix the amount of the tax, the act of 1909 is within that line of cases holding that, if the citizen be given an opportunity to be heard, either before the assessing body or in the courts, then the levy of such special assessments will not operate as a deprivation of rights of property without due process of law. The act in question provides for a hearing upon the assessments levied, and that at such time the board may hear, consider, and determine objections and protests, and make 'such alterations and modifications in the assessment roll as justice and equity may require.'" The constitutionality of this very act was also before us in the recent case of Foster v. County Com'rs of Cowlitz County, 171 Pac. 539. While the precise point here urged seems not to have been raised or discussed, the sole question urged was the constitutionality of the act, and we upheld it, sustaining an assessment made thereunder. That such an act is not violative of the federal Consti [2, 3] The further contention is that the assessment was unjust and arbitrary, and made upon a fundamentally wrong basis. Figured as acreage, the assessment of appellant's right of way is about five times greater than the assessment of adjoining property. It is admitted that the land of the railroad company is the same as other land in the community, and that the commissioners had a very definite idea that out of the whole cost of the improvement appellant should pay about the sum of $500. The assessment is justified by counsel, although it is questionable whether the commissioners had all that is now advanced in mind, for they frankly admit that before proceeding to the levy an arbitrary sum was agreed upon to be assessed against the appellant. But, if an assessment can be sustained in reason, we take it that it will not be rejected for this account. It is now said that the commissioners found that the drainage tended to lower the general water level in the drainage district and in the vicinity of appellant's road, thus contributing to the solidity and safety of the roadbed and the effective life of the ties, thus lessening the cost of maintenance; that it protected the road in a material degree from damage by floods and high water, which were that it dried up and made likely to occur; passable the county roads in the vicinity of appellant's line, thus making it more accessible to the patrons of its road; and that it reclaimed much agricultural land in the vicinity of the road, which but for the drainage would have remained fallow, thus contributing to the benefit of the road by an increase of its business. But these reasons are not enough to sustain an assessment of the property of the appellant over that of other lands and other business within the limits of the district. While we recognize tution, for the reason urged, was held by the that some property may be benefited to a Supreme Court of the United States in Hib-greater extent than other property, the bene fit must be sustained upon reasonable ben v. Smith, 191 U. S. 310, 24 Sup. Ct. 88, grounds. 48 L. Ed. 195. In that case Mr. Justice Peckham, speaking for the court upon the question, used this language: "The claim set up on the part of the lot owner, that there can be no due process of law un Some of the reasons urged for sustaining the greater assessment of appellant's property may be called special benefits, while others are as clearly general benefits. One of the drainage will contribute to the solidity and safety of the road, and add to the life of the ties, and lessen the cost of maintenance; but, if the commission has acted upon that assumption, it is hardly borne out by the record, for the road is upon a grade elevated above the surface of the surrounding country, has been in no way impaired by existing conditions, and the greater preponderance of the testimony is that there has been no extra expense of maintenance by reason of the need of drainage to the adjacent agricultural lands, which have been alkalied by reason of the raising of the water table in that vicinity. In the light of the testimony, this condition ceases to be a reason, and be comes only an unsustained theory. That the drainage would protect the road in a material degree from damage by floods and high water is called a special benefit, but thus a bencfit common to all the property in the district. We may grant that an assessment should be sustained upon this benefit, but it does not follow that it should be laid with heavier hand upon appellant's property than upon other property. The other reasons urged, that the drainage will dry up and make the country roads in the vicinity more accessible, so that the patrons of appellant's road may more conveniently patronize it, is a general, and not a special, benefit; for, if the drainage will make the roads more accessible, so that business will follow, it will make the roads more available to the patrons of the road, and make it possible for them to haul their products more cheaply and conveniently than they would be able to do if the work were left undone. To adopt the theory that the reclamation of land which had been rendered useless by the elevation of the water table would increase the business of appellant would be to ignore entirely the fact that the very same benefit would come to the adjoining lands; for if the country in its present condition does not furnish traffic for the road, and will with the drainage afford traffic, how can it be said that this item is special to the appellant, when the thing that is done to make that traffic is of the same benefit to the landowner. Without it the landowner can raise no crops, his land is valueless; and with it under this assessment by the expenditure of less than $2 an acre his land is made productive and of great value. As the road would get more tonnage by reason of the improvement, the landowner would get more yield per acre. If the appellant will draw two tons of freight from the adjoining land where it drew none before, so will the landowner raise two blades of grass where he raised none before. Their situation is identically the same; the return of one being in crops, and the other in freight for moving the crops. When the day's work of each of them is done, and they meet to the same footing. They are both engaged in a business enterprise, and there is no statute that gives one an advantage over the other, because of his calling. We think, therefore, that the only special benefits are as noted, and that they are the same in kind as the special benefits occurring to other property. Respondent relies upon In re Westlake Avenue, 40 Wash. 144, 82 Pac. 279, and Vancouver v. Corporation of Catholic Bishop of Nisqually, 90 Wash. 319, 156 Pac. 383, and other cases; but the difficulty in applying them is that the argument is as applicable under the facts of this case to the situation of the adjoining lands as it is to the situation of appellant's right of way. [4] It cannot be denied that there is a benefit to all of the property that will sustain an assessment; but, if the district would put a greater burden upon one property over another, it must disclose some benefit different in character and special to the property which is made subject to the greater burden. The contention of counsel is fairly met in Re Harvard Avenue North, 47 Wash. 535, 92 Pac. 410, where it is suggested that a convenience or benefit to a street railway company by the improvement of a street may nevertheless be considered as an element of special benefit to the neighboring property; or, to put it in another way, where the benefit is like in kind and mutual, the charge should be about the same to each owner. [5, 6] The case of C., R. I. & P. Ry. Co. v. Wright County Drainage District, 175 Iowa, 417, 154 N. W. 888, if casually read, would seem to sustain the judgment. But in that case, aside from contending that there was no benefit at all, a contention which is not available to appellant under its tender, the company maintained that the assessment was disproportionate when figured on an acreage basis. The court rightly held upon the case before it that the assessment need not necessarily be laid upon an acreage basis, and upon the facts that the company had received a special benefit in the very things that respondent here asserts. We may confidently assume that the testimony was sufficient to sustain the finding. We hold, as was there held, that the burden is on the appellant to show a want of special benefit; but this burden was assumed, and the testimony clearly preponderates, if, indeed, it can be said that there is any evidence to the contrary, that there will not be a greater convenience or economy of maintenance, or that the life of the ties will be lengthened, or that there will be greater solidity or safety to the road. Commissioners are free to take all such things into consideration, if they be proven, or are evident facts; but they are not privileged to sustain the levy of an arbitrary amount because in some cases they may occur. its position might be changed at the city's expense, and further that the size of lamps might be changed, but that the company's revenue should not be reduced, the company, refusing to reduce the size of lamps as ordered by the city, might recover on the basis of the size of Department 2. Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge. should not complain, for, under the testimony, We are convinced that the assessment was made upon a fundamentally wrong basis, that it is disproportionate to the assessment laid upon other property in the district, and that it cannot be sustained. We understand that the district is not without remedy by reassessment. Reversed and remanded, with directions to enter a judgment in favor of appellant. MAIN, C. J., and MOUNT, MITCHELL, PARKER, HOLCOMB, MACKINTOSH, and TOLMAN, JJ., concur. FULLERTON, J., dissents. Action by the Puget Sound International Railway against the City of Everett. Judg ment for plaintiff, and defendant appeals. Affirmed. Wm. A. Johnson, of Everett, for appellant. J. A. Coleman, of Everett, for respondent. HOLCOMB, J. On April 15, 1914, the ap pellant and respondent's assignor entered into a contract for the furnishing of street lights by the respondent for the use of appellant during a term of five years from the date of the agreement, the material parts of which are as follows: "Fourth.-The company agrees to furnish all the light that may be required by the city for street lighting purposes during the life of this contract, to install such lights as may be ordered by it from time to time during the life of this contract and to operate all lights from the cessation of daylight in the evening until the coming of daylight in the morning, upon each and every night, all for the price hereinbefore in [paragraph 2] set forth. The company shall furnish all lamps and lamp renewals and replace the same at its own expense and shall bear all cost of maintenance, repair, and operation of service in placing the lamps and lights in position. When a lamp shall have been once established, it shall continue during the life of this contract, except that its position may be changed upon order of the city council and at the expense of the city. * "Seventh.-The council shall by resolution determine the location and size of all lamps to be installed hereunder, and all said lamps shall remain in service during each and every month during the term of this contract, except that position and size of said lamps may be changed as hereinafter specified. * "Eleventh.-The company further agrees that, should a new and improved form of lamp for street lighting come into general use during the life of this contract, it will, upon application of the city, substitute such new and improved lamp: Provided, however, that such new lamp shall be approximately of the same wattage and cost as the one for which it is substituted." On September 21, 1917, appellant gave respondent written notice of an adopted resolution directing respondent to reduce, on October 1, 1917, the size of certain of the street lights, with a schedule of the lights the size of which respondent was directed to reduce. Respondent refused to reduce the size of the lamps, and at the end of the month of October appellant paid to the respondent the amount which would have been due had respondent reduced the size of the lamps. Respondent brought action to recover the difference between the original schedule price and that which appellant paid. A demurrer was interposed to the answer, which raised the question of the construction |