The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-01-24

of
be as therein and thereon Designated an, r.. IL
,,layed and the same arr Ut
aIaresi TO be the harbor lines; x,,.,.s
The fling OF the plat makes the lines e.
. tixesi certainty The lines are then a0soiuteIy
liked though the harbor strip may never pc Vs.
for the purpose intended, still the stsse tsli, ",
mediately after appraisement- sell 70 es i,,e
The intervening space between the inner tihs
and the upland owners land under the tislS 49, 49,
act The filing of the plat Is the nrst - y. ~
of the state in taking the water from Wy " -
nyr,er,s bank As under our constitution II doSs
not reonire taking to entitle one 10 comps
satiorl. 'sdamsge" only being saineiens, VIC Wiz
not discuss vi hat constitutes taking
If this first step, the fling OF the ptal- - nos
an actual taking, that Is the act net col 49,
still is it not damage TO the upiahd piopeis ~,
Whether this damage is as great as wnsh tlas az
is completed, is not the controlling inquiry.
it materially damaged irrespective o. me e 1913,
whether great or snallR We mus nes sco
that the Constitution of our state is IN advance
az the constitution of many states, tnat ouIs
does not require the taking OF private PIP
erty for public use before the owner Is eHsthaTe
to CONDENSATION. If 1t is "dsmaged HI.uoas
auy taking he is entitled TO eompehsation.
This proposition we discussed IN Brown ~.
city of seattle. nog pending n our sirn.
MY inquire whether the littorai owner can ask
and expect to receive. and any person Wouiu pay
the same, money for the dry lana OF ths uP.aiilr
owner knowing any moment a stranger uh4cE
the authority of the state, could intervene ~
tween him, the intended purchaser, ana tne
waters of the bay by making new lal b SIM
erecting structures thereon, thus deprlying nnn
of the water. as he would pay for the Janus
without that risk or contingency, or without the
water washing the land? ,.s
that the act OF the commission II ddHH. Ky,
absqae fnjRrid. 1.-The littorai dehni,ion % snS
term = is damage without INJURY
fWeass, Dam. Abs. Ini see Al "But still be-
fore we arrive at a satisfactory understanding OF
the term as used by the profession ana writers,
age is the loss sustained by the act OF another
Injury is the wrongful act llhld Inc plain
tift must have right susceptible OF damage or
inJ,as;o Of snme risht which he is en-
titled to enjoy 10 the exclusion OF others. tlDidI
There is no damage where there Is no wrong, II
the law Therefore, the state contends the doc-
trine applies that the act of the commission Is
lawful act, and in the absence OF negligence:
etc. the injury done is natural consequence on
a lawful act, therefore ''if there Is damage IN
the nroper and reasonable exercise OF the right,
neeessitated by the OCCASION, 1t falls WITHIN the
doctrine.
in Washington? The doctrine is based on the
principle '.that regard be had for the pubic
welfare Is the highest law. There IS an implied
assent on the part OF every member Of socleiy,
that is any individual welfare shall
Weld to that of the community Ana
based on this principle is the law tnaI mere
must be an actual, physical. manual, taxing.
[Ibid, Sec. 10, Brooms Legal Maxim, 2tS-l
Whilst the doctrine is correct, the law applica-
BILE, to-wit: Taken" is changed in this state Dy
the constitution Apply the rules OF construc-
ton, first. what was the law prior aud at adop-
ton; second, the mischief; third. the remedy;
fourth, the reason OF the remedy land then the
duty of the judges II TO put such q construction
as shall suppress the mischief and advance thes
remedy to suppress subtle inventions aud in
vasious for continuing the mischief
and to add force and life to the cure and rem
edy, according to the true intent OF the people,
in adopting the constitution pro bona pubiaco.
In Brown VS.. City OF Seattle we fully discuss
the law, the mischief, the remedy, the broad
doctrine of ddmauR dbsqae ijarld, as con-
tended for is not applicable to the case at bar
The conclusions we have reached makes il I'M
necessary to examine or to decide two other
propositions relied upon by the plaintiff, towit:
First, whether or not the acts complained of are
in violation of the con stitution OF the United
States; second, whether or not congress of the
United States, by the act of September 10, $780,
has assumed Jurisdiction i'll all harbors. and
that, therefore, the state cannot fix harbor lines
we simply give authorities on these PROPOSE
tons.
[The City of Salem, . T.. A. r. $50: Green &
Barren Company VS. Railroad Company, . L. 4.
r. 80, full notes. cases cited; Case vs. LOTUS, 5
L. A. r. ga, fun notes; Swanson VS.. Miss. Boon
Co., Z l.. A. r. GA. full notes
Nor will we examine whether or not the con-
stitution of the state permits the establishment
OF the harbor strip on any space except nayiga
bic waters, that is, the bed that is always COW
cred by waters; whether any portion of the
strip can be located on the shore, that is, bed
that Is not always covered by water. Ii is
proposition that may be vital, but the eonclu
sions reached makes it necessary to enter into
examination
Private property being damaged if not actu-
ally taken, by this act of the harbor commission,
VIII writ of prohibition lie? At the argument,
stress was placed on the constitutional creation
OF the commission, therefore the Judiciary had
no jurisdiction. Assuming the constitutional
creation, we adopt the language OF Judge
Champlin in Dullam VS.. Wilson, IS Michigan.
s97, in case stronger than this, because he was
passing upon the act of the executive Of the
state: 'The question is one of considerable
delicacy. - The presumption is that the
department has the same desire 10
oil ffc aft
or the other. From the nature of our
government, acting under written constitu-
ton, describing the Jurisdiction and powers of
each branch, il devolyes upon the judiciary
TO decide upon the acts of the other
department. whenever 1T is claimed that such
action is not in harmony with the fundamental
law and an appeal Is made to it to decide the
controversy. If the harbor commission is
created by the constitution then in the instru-
sion; IN IT we find the powers granted to the
Judiciary, and in it 1--WE find the rights reserved
10 the citizens, and restraints upon the exercise
Oh judicial as well as the harhor commissioner
power TO deprive ''any person of prop-
erty without due process of law Judge
campbell In the same case says, p. 400: alt is
unuouDtedly true that no court can review the
lawful discretion of anybody that is not n
court, and that the executive stauds in this
respect on the same footing with all other
persons and bodies. But it is equally true that
private rights cannot be subjected by lecis-
latlVe, executive, or any other AUTHORITY to the
unregniated discretion OF anyone. Legal rights
can only be Invested by such measures as are
ciasseo under the law of the land as due process
OF law. Courts in determining whether rights
exist, or whether vested rights have ceased to
eAIst, 90 NOT act necessarily, or usually, as APP
Ieliate tribunals whose judgments operate on
the tribunals, or persons whose invaSiOns of
right are complained of. They may or NAV not
90 So But IN a constitutional government the
acts OF all persons, on cial or private which il
III violation oil constitutional rights, is simply
nun ana void aud usually needs no reversal
And the action of any department OF govern
lnent, whether legislative, executive or judicial
Deyohd its jurisdiction, or against the constitu-
uoii;i limitation OF Its authority is, in law the
same as II there had been no action and cannot
De recognized as having legal effect
III is not commended that the commission is act
ig pgyona lts jurisdiction, and hence its action
a. nun ana Fold, but that in exercising the ilIris
dieton and filing the plat the first act is one
Which damages the right OF property in the nm
s'na u@ner' hence II is invading and violating a
Served and s hrOtcc qd h. 81; citizen; re-
non ana this action is mot in HARMONY with the
fundamental law" From the act of The coTn
mission absolutely fixing the inner line az a
MIRROR strlp, there Is no appeal, no redress no
wrong has been done; il practicaIIy laayes ~
cItlIeu WIlnout remedy. Is il true the Ioaxirn
gray Win tne age of centuries ssTherr is M
E vi 9s1 Ti y It remedy Broom Leg Max,
iated, ana It is the duty OF the courts In nrotaet
hle Ileut, theh on general principles il not ON
AHuItnoflty, should not the court apply remedy
r rat pIbl I'm are applicable? tIfa man has
cate and maintain ii, and remedy n he is IN
ffu ThtS III the exercise and enjoyment of II =
lioid-I remedy as here annlied =
sense ser, uea an AN an; action in the modern
peculiar mode pointed out by the law for inrore e
,nss,oI,, ~ and an action Is
Wy the legitimate means OF enforcing rigbt
IN sfqnify ra vheai . must here be understood