The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1892-05-17
ROAD LAW INVALID.
Judge Lichtenberg Holds It
Unconstitutional.
PROPERTY MUST BE CONDEMNED
CeumissIoners Have for Years Been
Establishing Roads by Illegal
Methods-A Test Case.

Methods--A Test Case.
Judge Iichtenberg of the superior court
rendered q decision yesterday in the case
of Drummer We. Johnston, which is of the
utmost Importance, since it declares I'M
3 constitutional the state road law and rem
& ders void the proceedings in building all
county roads in Washington since it be-
came state. The trouble out of which
the suit arose began about year ago in
The establishment of q county road in
Maple valley, and the feeling over the
matter ran high. George J. Drummer
~as the petitioner in the proceedings and
. snorder was made by the county commits
& zioners establishing the road over prop
srty belonging to William Johnston.
The latter appealed from the action of
HE commissioners to the superior court to
~ aside the proceedings on account of
Irregularities. While Drummer appears
y the nominal plaintiff, King county was
Ne real party at interest and has con-
1ucted the suit. The defendant, John
ton, was represented by Bausman, Kelle-
her d Emory and Jere HI. Wneelwright.
while A. F. Burleigh was retained by the
eounty commissioners.
The court after a hearing decided to set
eside the proceedings on account of irreg-
nI1rities in the action Of the commission
"a, and that body, under the law, was
/ shout to appoint new viewers to relocate
! he road. Then the defendants attorneys
] advanced the point that the road act was
& unconstitutional and that no road could
~ established under it. Arguments were
4had In the case and briefs filed by the at
torneys. After having the question under
advisement for several months, Judge
Nchtenberg yesterday decided the position
taken by the defendants counsel as cor
rect and declared the act unconstitutional.
The general opinion of attorneys who
have examined the law supports Judge
Lichtenberg's ruling. The court, however.
81 desirous of having the question adjudi-
Gated by the supreme court, and it will be
taken up on appeal. Mr.. Burleigh, on be-
half of the county, excepted to the decision
Of the court and an appeal will be taken.
The full text of Judge Lichtenberg's
opinion is rs follows:
This 10 an appeal by the defendant from "the
anal order OF the county commissioners sstab-
fishing . county road" (sec Sc Road Act .. 60D
and An "appeal to the superior court from the
anal decision OF the county commissioners con.
1rmfng the assessment of compensation aud
damages made" (Sec. AZ
The hearing upon the appeal from the fnal
order estabiishing the road was first taken up
and orally Designated the irrsgula tiles and
ilegalities OF the proceedings, and held that the
proceedings must b set asidA Having 90 held
It became the duty OF the court to ssorder an.
other view by thres disintsrestsd freeholders
who shall perform the same duties that
Trad fafV q vvfn scA h. -
county commissioner under this act
(Sec. 30)
Counsel for the county commissioners con-
cede that the lands of the defendant are sought
70 b appropriated or condemned under said act
BY virtue Of the right of eminent domain, and
counsel for the defendant claim that said act,
In 80 far - the method to exercise the right Of
eminent dsnain. Is unconstitutional. II this
position IS we'll taken the appointment Of such
new viswers would only entail additional sx-
pense without accomplishing the purpose
sought, to-wit: The appropriation or condemna-
ton OF appellants land for public road By che
proceedings inaugurated under and by virtue Of
saao ROAD act. New viewers - provided In Sec
non y were not appointed until the defendants
position was examined and determined.
Is the method provided In said road act exer-
cising ths power OF eminent domain constitu-
uonaif That the commissioners can establish
sucn road under the method provided in said
act when the owner consents or does not object
OF agrees as to the compensation for his prop
erty taken Is not Questioned. But If he does
mol 20 act or consent, can his private property
% taken for public county road in the man
ner provided in said actf If it can, Ii 10 only by
the exercise OF the sovereign right of eminent
domain
The exercise OF this right differs from the right
Of taxation Under it "the citizen is compelled
% surrender to the public something beyond his
que proportion for the public benefit" The
enzens property is seized without his consent
escause the state has "a special need for il, aud
hot because Ii is right rs between him and the
goyernment that he should surrender it," The
sxercise Of the right Of eminent domain is ire
mendous power and without constitutional pro-
Visions the legislature, like the British parlia.
ment, is practically omnipotent; while the right
lies dormant in the state until tho Legislature
Gets, when IL acts, it becomes "the law of the
land," requiring no further finding or adjudica-
uon, and while under the educ process of law"
clause of constitutions, compensation must be
made, yet the citizens property might DO first
uxen BY the municipality and payment made
ener taking. While the slime, when ana occa-
non OF Its exercise are wholly in the control and
uscfetion of the legislature" yet the ascertain
ment OF compensation might 'be prosecuted be-
ioge commissioners or special boards or the
courts. with or without the Intervention of
All OF these are incidents to the right of emf
nent domain where the constitution was silent
1xperience taught the citizen that these Incl
uentai rights worked gIave hardship to the in
c'ylousl when property was taken by munich
-, we'll as railroad and other private corpor-
s.ons; therefore, to protect against the hard
sau suffered, this tremendous power OF the
'ssaisfure has teen restricted by constitutional
paosanons adopted from time to time in the
suioas states. 1hese constitutional provisions
~ limitations upon the exercise OF the power
eminent domain. These limitations are i'm
sfaave, "snd any law which violates them 10
capable OF enforcement" lCoo.ey Const. Lam.
on Eminent Domain. Dillon Mun'c.
VOL ElliOts Roads and Streets. Brown
sssdictior.l
nconstitutions wherein the people have
-. restrictions the exercises OF the
sw0ong which Is the constitution OF the
l...sashington, contain two conditions a.
O~ on the right of eminent domain:
49, emnations-that is the decision in
hssssnm OF inquest that the private property
enH0 ior the particular public use. Second,
ssssaaston-that is the assessment aud pay
+ sne owner of the land appropriated.
A~hppyiag these conditions or Limitations
r,1. sasge employed is nearly as diversified
Ap..snieer OF constitutions, but they have all
nA..saea IN these conditions or restrictions
IN ls.Sla twe main principles, to-wit: First.
Afe.~ ss-Ssaai tribunal; second, compensation
vh.,s,~ins Whatever the Language used or
trs. ~ TIE restriction, the Fundamental OBJ
Ae.o,s ~ impastia, tribunal and compensation
ve,N dhg have both been kept in
eco..s,s.s sas people in the framing OF their
sass. :. In later years-ei,her in new
sas~ - framing new constitutions IN older
aha Nsisher the language of any two are
hat ~ - ara the exact restrictions or the ex.
Section Ie, eon.titnIinn az. ~ "a. .,.,s ~