The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-06-19
Be a.ss.na ed ,hsy b sa. law a. existed

highway BY nature and by the laws of nations.
put ail we waters OF the territory northwest Of
oregon and Washington, have been expressly
declared 70 be public highways, forever free, by
enactment OF positive law.
Ano unless this court IL ready TO hold when
case requiring IL shall be presented. that are
state, or those whom IL shall authorize, may
fence up and sell out any highway, the fee Of
Tue sot Ensfeoi Is IN the state. without lisbil
aoutfing land owner for loss OF his egress to the
Ways OF public travel, IL cannot safely ceciare
snss tne state may do like act at viii with is
kLeAt Watef highways without compromising for
the Damage that viii result 70 the iittoral pro-
prietor Indeed, II the safe can do this in the
case o. one stretch of land or water highway It
can DO II with all; and there would in legal pos
ability, be no hfudrance 70 the destruction
Dy oespotlc majority Of all the means OF inter-
communlcatlon between the private holdings of
t ,s W.. cillzens The plea could be raised
power, that the legislature represents and in
law Is the public, and may do what IL viii with
t .ts on. But Il IL 70 prevent organized spolis
OF the property rights OF individuals are made
III. ne realtors rights of property, both In
nls improvements ard IN his access 10 the sea,
w. W. ,b ~ .saen away or damaged, for public USE
~ tne contemplated action OF the board of
narDor line commissioners If permitted
AZ ms DAY, with the development and broad
s en- mat the law has undergone relative 20
We question what constitutes O taking, and
Win tne enlarged notions of justice evidenced
BY and embodied in the broader compensation
causes IN our later state constitutions, from
Iiaa oI ILLINOIS, adopted In 1870, down TO our own
OF 1882 II Is unnecessary 10 enter upon any discus
SOD 70 satisfy this court that assuming the ex-
is1enee Of the littoral rights claimed and the
praeiica injury TO result TO them as above stated
from the fling of the harbor Commissioners
map, such injury will amount probably TO q
taking within the rule Of tho elevated railroad
case, above cited, and other advanced decisions
on the subject, and certainly, at least, 10 q
Damaging OF those property rights within
the meaning OF our constitutional provisions,
as IKE provisions have been Interpreted
~ series OF important decisions throughout
the states that have adopted such. We content
ourselves with citing these decisions to the
court, and rernArking that the principle run
Mug through them seems TO be, that when the
people OF q state adopt such constitutional pro-
vision as ours, broadening the scope of the word
taken" by adding the words aor damaged"
they must De deemed TO have relinquished that
Immunity OF the state from liability for injury
zone 70 private property by any act for the COM
mon benefit, which immunity Is complete in
the absence OF any constitutional compensation
clause whatever, and TO have subjected the
state to the same liability for damage resulting
rom such acts as would rest upon q private
individual doing the same act without legisla-
tive authority. That II, the right TO compensa-
ton now exists wherever there is damage that
would be actionable an between individuals.
Where the loss suffered by the claimant would,
as between him and an individual causing il, be
ddnssun absque tnjuria, 10 right to compensation
exists; but in every case where the loss
would be the foundation of an action against q
private individual If caused by him, the state Is
equally liable 10 compensate for il. This must
be the true principle, we submit, because there
In logically no hating place between the old
narrow rule that there must be an actual
physical taking TO found q claim for compensa-
ton, and the principle here contended for that
actionsbility between individuals is the test of
the right to compensation. and because we
cannot stop at the old line without denying all
force TO the added words sor damaged" 1t is
worthy of notice in this connection, that the
Iowa statute under which the United States
supreme court in kenwick VS.. railway company.
supra held the plaintiff entitled TO coin ensa.
ton for the impairment of his access 10 the
water, contained no broader words 10 tx the
scope OF the right TO compensation than those
found in our constitutional guaranty. And
this is equally true OF the compensation clauses
In the English statutes that figured in Buc-
cleuchs and Lyons cases.
3. The contem plated action of the commits.
sioners Is illegal, because ii concerns a matter
now within the exclusive jurisdiction and
control OF the government of the United states.
The so-called "harbor strip" embraced within
the map intended to be filed by the harbor line
commissioners is 600 feet in width and extends
along the entire water front of the city OF Sc
side OF the same, being about six miles in
length. The inner line of the strip ia located at
point where the average depth of the water at
low tide is ten feet, thus bringing IL long dis
lance outside OF the line of ordinary low tide
and placing IL entirely within the navigable
waters OF Elliott bay, which Is q navigabie arm
Vi TIC rea- Anc AREA Vi thAs etlip - aDoOt 4St
acres.
Section Article of the Federal constitution
provides:
sThat congress shall have power to .
regulate commerce with foreign nations aud
among the several states"
1t is further provided in section 10 of the same
s'No state shall. without the consent of con-
gress, lay any impos.s duties on imports or
exports except what may be absolutely neces-
sary for executing its inspection laws .
without
lay any duty of tonnage"
Under these sections we maintain that the
power of congress over the waters embraced in
the hsrbor strip is exclusive, and that any pro-
vision IN the constitution or the laws of this
state intended 10 vest such power In the state is
unconstitutional and void
The claim of the state to exercise control over
this area of water cannot be considered other
wise than as q reg ulatfon OF navigation, and as
these waters are part OF sn arm OF the sea
through which interstate commerce is constantly
being carried on, such regulation of navigation
would amount TO q regulation of interstate and
foreign commerce.
v Such illegal action of the board OF harbor
line commissioners is in excess of its powers
and jurisdiction.
The board being a judicial body, ii the argu-
ment already made holds good, their threatened
action is in excess of their powers and iurisdic-
ton: because that action trauscends coustitu-
tional Limitation. No court or Judicial officer
has Jurisdiction 10 do that which the law for
bids; much less that which the fundamental
law, giving life 70 the government whereof he is
q part, forbids. There is nothing In the pro-
posed action OF the commissioners in excess of
the powers that article XIV. of the constitution
confers upon them. But that article was not
self-executfng. 1t called for legislation 10 set
those powers in motion. The same constitution
elsewhere forbade that private property should
be taken or damaged for public use without Just
compensation being first made. The legislature,
in seeking TO give life and activity TO the com
mission whose powers the constitution had con-
ferred, neglected 10 provide the commissioners
with means whereby they could exercise those
powers where the exercise would involve the
taking or damaging OF private property. with
out transgressing the constitutional mandate as
to compensation. Hence, they cannot now ex-
ercise those powers at ali so rs 20 affect injuri-
ousiy the REALTORS property, without violating
the fundamental law and thus exceeding their
powers and Jurisdiction. This is why the board
are unable % act as the constitution directed
that they should. The fault lies with the legis-
lature.
The board of harbor line commissioners claim
that they are not an inferior judicial body,
So are justices OF the peace vet the writ OF pro-
hibition runs TO them. Inferior" does not refer
to the source OF title. but to a limited as dis
tinguished from a general jurisdiction. The
board claim that the writ came after they had
determined the location of the hArbor lines, and
was too late. A judicial Judgment is not the
mental act, but the PRONUNCIATION of that set
when aled would be both the announce-
mens and the entry OF the judicial decision of
the board. just as in tie case Of Judgment of 8
court OF law Till then the matter was still
within the breast OF the board, sublec: TO further
consideration and different outcome.
The board has insisted upon proceeding 10 act
IN the execution of their constitutional powers,
without having been provided BE- the ieglsla-
ture with the means of satisfying those obliga-
tions that the constitution lays alike upoa all
agencies of the state when touching rights Of
private property. The reletor saw his rights of
property threatened by their intended course
He had no other remedy. ne applied for writ %
prohibition. the writ lay well in the instance,