The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1892-05-17

ior proceeding In court in ill cases vhere pri.
sa'e properly Is sought to be taken for public
os .no |" pfohiofts any other proceeding to
mat ena' and declares Unconstitutional an act
somewhat similar to the one now under consid.
s s, weber u. The Board of super
.,sols OF the County Of Santa Clara.
80 CAL, 265: Thrahen Va BOARD Of An.
pefvisors OF San Joaquin County, 50 Cal,
owl ana the laws Of that state are framed In
1ccofoance with the said CONSTR ction. Vol 1.
Oeerings Code and Statutes, secs. 2,esi, 2,Ss4,
snu suPpiement vol. s. p 100, relating to laying
s Uus Altering and disseminating roads.l Under
~ psovnlona, where ''there are no non consent
lug o"neis TIA roads can be 10 establishes
secs z,6s9. 1850 but where there are such
accommodating owners" then proceedings
nus. % under Ibid, vol. 8, secs. l,2S7 to l,26S,
providing Tor proceedings TO condemn and COM
pensate % be commenced in the superior
ooueu tsecs l,s43, ct seq, and supplement
vol 5. p. 40, 1901
Inc Legislature of the state of Washington
recognized the constitutional restriction As con.
..lueo In caiifornis the same session at which
saey passed the road act now before me- Act
=. 1os, page 2s4, AN act to regulate the mode
" proceoure to appropriate lands, real estate or
properly by corporations for corporate purposes,
nu 1oI ascertaiaing and securing compensation
condemnation and compensation OF private
property to be ascertained in the superior court
~ proceedings there FIRST inaugurated It ap-
plies 70 q corporation other than municipal"
eConsI Arr I'D; at least so understand the de-
clsion OF our supreme court In City OF Tacoma
VI STATE OF Washington, fled March 16 1897:
tnougn the language of the title and the act
seemingly 10 broad enough to cover all corpora
Hons municipal aud 'other than muuici-
pal why when private property Is
appropriated by county-a munich
pal corporation-a different method than
when appropriated by railroad corporation-s
private corporation? II the constitutional re-.
ssriction applies to one class of corporatious Il
applies to the other, uuless the sentence,
"hlcn compensation shall be ascertained BY q
jury relates only to corporations other than
municipal" The California supreme court
suprd does not recognize such distinction. The
only main distinctton recognized BY said learned
court as applicable to the proposition before me
now, to-wit, distinctions between the two
classes OF corporations, is that in cases of 4cor-
porations other than municipal the owner of
private property shall be compensated SIRE
specttve OF any benefit from any Improvement
proposed by suck corporation" while the owner
OF private property appropriated by municipal
corporations" shall be compensated for lands
appropriated, taking into consideration s.the
benefits from the Improvements" Pacific Coast
H. n. Co., vs. Porter and wife, Is Pac., 77i Lewis
Eminent Domain, Sec 472
In Ohio In constituting similar section between
the two classes of corporations the supreme
court held that the compensation clause relates
20 Doth; but on the benefit clause held different
70 the California court, to-wit: That the benefit
clause applied to both classes of corporations.
Lamb and Mckee w. Lane, Ohio St D. l76.
The Legislature of the state OF Washington
again In 1881 (Act OF 1891. p. 1881 recognized the
constitutional restrictions as construed in Cali
fornia by an act regulating condemnation and
compensation for appropriation of private prop.
erty when appropriated by the state for the
direct use OF the etate, that il by . corporation
not corporation other than municipal"
Hence in both classes of corporations has the
legislature OF this state recognized the con.titu-
tional restriction and provided the same method
Of proceedings first inaugurated Gin court" II
the constitution provides and directs such pro-
ceedure when the state appropriates direct, then
It 10 also required when . county appropriates.
The constitutional restriction requiring ga
jury" the legislature recognized in the road act
The viewers therein provided for are "also q jury
to assess and determine TIE ompensation to be
paid" Sections 6, 10. Is And 1t also
provides for an appeal to the superior court
where jury trial can be had for compensation
(section n ct seql. but no jury trial for con-
demnation (sectio1 IS ct seq.) Authorities have
been examined discussing in all its details and
aspects whether or not such provisions are q
compliance with the constitution. including
whether the viewers who act ~ Q jury being
solely appointed BY the commissioners, the
owner having no choice In the selection, are an
impartial tribunal; whether or not the notice
provided for In the act. the payments and kind
red questions, are Sufficient under our constitu-
ton. Though some are applicable and favorable
to the views herein expressed, these authorities
are not reviewed because they oil are, favorable
or unfsvorable, constituting q constitution
different to ours, some in less, other in greater
degree It has been suggested that the road act
was to great extent copied from similar act
of Ohio, hence authorities from that state sus-
tanning its constitutionality should be followed
Therefore. on the one hand the decision of Ohio
unfolding the acs under constitution some
what similar to ours. but in several important
respects different On the other hand. the de-
cision OF California against, under q constitu-
ton identically like ours and whose constitu-
ton on this provision was adopted by
our constitutional convention. Which of
these two authorities should be followed
il clear, especially when the reasons as
herein set forth of the causes compelling
the people to restrict the power of eminent do
main are taken into consideration. Unless
authorities from sister states directly applicable
to the question before the trial court in absence
of controlling decision OF the highest court of
the state, shall govern and be followed the use-
fulnessIof authorities will be diminished and the
labor counsel bestow in searching for and apply
ing the same will BE- useless An appellate court
may select what authorities shall be followed,
or may not be governed by any Of the authori-
ties, but trial court cannot "trespass" in that
exclusive "close' OF the appellate court.
For the reason given. and under the California
authorities. l hold that the act of 1890, known
as the Road Act 10 valid in lite provisions for the
establishment of a county road where the
owner of private property consents or does not
object, but when objecting or non-consenting
the land must be appropriated under the right
of eminent domain, and that the exercise of
that right under said Road Act in tho manner
therein provided 10 unconstitutional. "The
power to determine the necessity for seizing
property of the citisen is legislative, and the
power to determine what loss results to the
owner from the seizure is judicial"
Elliott Roads and Streets, p. 2l4
Proceedings appealed from are set aside, with
costs to the defendant
AFTER TUE POLICEMAN'S STAR.
V,,at hnW W~n ~ Re-