The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1893-11-12
Judge Langley Declares 1t to
BE Constitutional
DEcIslon ON HouoHTon ROAD.
Csehr.ns's oh3setfsss Are overrnis4-
Land Contest Dsessea-aex.msr.
Dfseree suIt.


land damaged by the construction Of
csunsy roads, - the damages awarded
them in court viii nos be- paid By the
county auditor. This Official has not been
issuing warrants Tor them. fearing decis-
Zen adverse 20 the law, in which case prop
10y osners coald compel the roads %
Gated ul9er IL 20 be vacated. and the
rnonsy paid for damages 20 private prop
eFty uogfd be thrown away.
The Smith road, m located, runs along
toe east shore Of Lake Washington near
houghton. q nd through property owned
hy the contestant. William Cochrsne. who
bed contest against il. alleging that IL
Eas imprscticabss. Of no public bene It.
not properly petitioned for and illegally
located. He aise questioned the consti-
nationality OF the las for the reason that
BY its provisions private property was
taken Tor pubic use without due process
OF law. and il In upon the last objection
that Judge Langley decides. The others
be will decide later. Judge Upton, Of
Nalia Walla county, aud Judge Wishall,
OF Clarke county. have decided cases in
which the came points were raised against
ths law. as will be seen By Judge Lang
ley's decision. which in fall IL as follows:
These objections question both the
legal sun cheney Of the proceedings under
the act of March Q. fssD, relating 10 laying
out eoun ~ roads, and the eonstitutionaIity
Of the act itself. So TAR &c they involve
the latter question they will be FIRST con-
sideFed here. Those provisions Of the
constitution supposed TO be violated by
the legislative enactment above cited are
found in section l6 article l, and are IS
follows:
mo private property shall be taken or
damaged Tor public or private use without
Just compensation having been first m ade
or paid into court for the owner.
which compensation shall be ascsrtained
by jury, unless a Jury be waived as in
otter civil cases In courts Of record In the
manner prescribed by Law.
Whenever an attempt is made to take
private property for = use alleged to De
public, the question whether the contem-
plated use be really public shall be judi
ciai question aud determined as such
without regard to any legislative assertion
that the use Is public
Keeping these limitations upon the
exercise of legislative power steadily in
view, let as compare with them the sa-
lent provisions OF the act complained Of.
IL hrst requires a petition for county
rosd signed by ten or more freeholders, TO
be hled In the superior court. The court
shall nix day for hearing the pet ition. OF
which notice shall be issucd BIZ the clerk
aud posted By the principal petitioner a.
~.
hearing. II no rcmonstrance be lied. the
court shall appoint viewers TO view
and lay out the proposed road and
estimate the damages TO the prem
tses OF any person through whose
land the proposed road will run. but il
TemonstFsnce be fiied and IL appear 20 the
court that the proposed road wonId be inn
practicable, not Of public necessity or gem
eTal use. the petition shall he dismissed
The viewers after being duly sworn are
directed TO view, lay out and survey the
proposed road. and within ten days there
after fils their report with the clerk of the
court. who shall give notice that on day
10 be q xed by the court the court will hear
said petition, consider the report Of the
viewers and their award of damages. which
notice shall be published for three consec-
utive weeks in q newspaper Of general cir
cuiation in the county.
''CounseI's contention Is so pointediy
directed against the provisions Of section
OF the act that Iquose the section In full
".see. Z AZ the time hxed for the hsaring Of
said petition and tho report OF tee viewers
thereon, the court shalt proved % hear the same
sad consider the award OF damages. II on the
hearing IL appears 90 te court that the said read
and eslle ess snn me tss eosr s order ssa
f0ad be established IS surveyed and that the
anne De opened - may Be pEoYidea BY Jaw for
TIE opening Of paolic roads: The court shall also
order that the MAPS 81 the surveyor and the
order of the court be aled Ia ths efilce OF the
county auditor. The court shall also direct the
comfy auditor 90 draw his warrant the
county treasurer for the amount awarded 10
eaeh person Tor damagas By reason OF the said
road being laid out and surveyed seross the
premises 81 such person or persons. provided.
thai II Aay person or persons through whose
premises said Tosd has eseB surveyed appear
and contest tia award the court mar empansl
jars aud hsAy testimony on the subject
Section s provides the same man
ner Of payment Of damages rs tn section
Z. and by section the court may deny the
petition altogether and tax the costs 10 the
principal and sureties on the bonds. IL 1t
appear from the hearing that the proposed
road Is impractieabse, not of general use
and public benefit
Having thus summarized q pA Z Of the
Questionable enactment aud quoted other
parts literally. where do We fiud them op-
posed ia any of the Limitations or require
ments OF artiess i, section Ii of our state
constitution, either IN letter or spiritF One
special objection IS made 10 the character
OF the notice Of the two hearings of the
petition. the urst by posting, the oIher by
publication. 1T this were proceeding
against the person or To recover some form
q personal Judgment. the objection wonid
doubtless he well taken, but IL being an
action against the land. where the princi-
Pal thing sought is 10 appropriate
the land 60 . pahitc use. and The
award og damages only being an incident
Of tais principal purpose, think the AL
=
the power Of the legislature 20 provide for
eoastFue tiye notice in the manner pro-
s'ded BY this act Lewis on Eminent Do
ilatn, section 30; Cooiey's constitutional
llaigations sections 492. as; Elliott on
Roads aud ftreets. pages ls2, lbs and $40.
But the strong point Of objection urged
BY learned counsel relates TO the manner
o. awarding damages. urging that IL il
PRACTICAL denial III the land owners consst-
tgaoaal right 90 have such damages as
cerss,ned by jury. Upon this point
think the whole case rests, and II coanses's
eeniengion is welt sustained, rot only
these proceedings bat slg attempts GO Law
oat public roads under the act of March =,
tS4A, except With the written consent o.
Parties interested, should be abandoned.
Bat ny views Of the Law governing these
Proceedings do not accord ain those OF
sosasel tor objector. | am aware that
on tais poiat chiefly. perhaps solely, the
aet N question has neen heid To be unccn-
sutBEsouAl hy at least tao Of nv learned
erotAerx 90 the superior court bench ia
ether parts Of the state. hose opinions
Are before me. They both cite As govern
me their action the ease Peterson Vs.
emlth - a.. s. Pae. Rep. leo, wherein
eeE Supreme court held the road Law 81 $50
unconstitutional. aad conclude thst the
act Of ISIS contains the same vicious fs&-
sares thai induced the supreme eoaEs -
overthrow the former law.
The Gecision Of the suprens cosrt wss
pronounced nineteen DAYS after the ScE
ei lsS0 Was passed, 50 thai the legislature