The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1895-04-23
THE CONTRACT GOOD.
Text Of the Decision i'm the
Canal Test Case.
THE RULE OF APpoRTIoNMeNT.
supreme Court Says the Law Contains
run instructions-The Form of
the Certificates.

The text Of the decision OF the supreme
court IN the case OF FREDERICK SrnoIr3
VS. W 7. Forrest, commissioner OF pub
nc lands and the Ssafsle aud Lake Wash
AAs ioa " A1erway Company, has been re-
tSiFea nere. and shows that the co1lr. has
4Sl4y sustained the consS4taff0AaIlfy Of
the law under which the defendant com
pany Is 70 III in the tide lands ard exe2-
fals the waterways It's position thus
supported By q judicial confirmation or
TIE law under which x Is To operate. the
waterway company can now carry out rs
ton.
The decision begins by recfting the pro-
VISIONS OF the Law. the letting OF the con-
tracts, and the adoFeton by the commits
sioher or public lands of A form OF certi-
hcate 10 be issued TO he waterway COM
pa1ay on the completion Of the whole or
shy part OF the work, with the terms OF
payment II then proceeds:
This action was brought 10 eriogn aud
restrain the defendant company from per
FORMING the work commenced and con-
teanpiated by 1t upon the tide lands de-
scr1oed in ahe complaint and from tres
passing thereon. and 20 restrain the COM
missioner Of public lands from issuing
any certificates under the contracts above
mentioned. and for a decree discharging
and freeing said lands from the alleged
cloud caused by the execution and re-
coroing or said contracts. The superior
court denied the relief prayed for In
whole and in part, aud gave judgmen, i'm
favor OF the Defendants, from which
the plaintiff appeals
None of the facts alleged in the com
pialnt were denied in she answer, and Il
Is conceded that IL the conclusions of law
deduced SherefrOm by the trial court are
correct the Judgment and decree must be
aihrmed. In addition to the facts already
stated, Il appears from the complaint as
well as from the findings OF fact. that
the plaintiff Is entitled under the law TO
preference right OF purchase. and that
ne has duly and legally applied TO pur-
chase from the state the tide lands de-
scrfhed in his complaint. and mas nled such
application with the commissioner OF pub
lie lands. 1t also appears that the de
PENDANT corporation has entered upon
those lands and has commenced work,
under and by virtue of the said contract
with the Intention and for the purpose of
ming In said lands and raising them
above high tide. and Will, unless restrain
ed by the court, I'LL and raise said lands
above high tide and claim lien there
on for the cost OF filling the same, as pro-
vided for in said contracts. And IL fur
ther appears that the commissioner OF
public lands will. unless restrained by the
defendant corporation. issue his certificate
for the cost Of filling said lands and rails
ing them above high tide under and by
virtue OF said contracts: and that the
said defendant Will file such certificate In
the Office of the auditor of King county,
WaSn.. and claim lien upon the lands
20 flied II and raised. and that the said
defendant Will issue said certificate IN the
form and AT the times set forth In the
complaint.
The only question 20 be determined
on this appeal IS whatever the contracts
and the certificate proposed to he issued
Hereunder are in accordance with the
provisions OF the statute. The learned
counsel for appellant claim that the con-
tracts In question are Intellectual and void
because % they contain provision which
Is contrary 10 the rule laid down by the
Law with reference to the manner OF ap-
rortioning liens among the several owners
Of land covered by a certificate issued I'M
der the contracts and the law: % because
the first contract entered into contains
provision for the excavation OF a water
way through the highlands between the
head OF Elliott bay and Lake Washing
ton; and ga because the last contract pro
vades for the excavation OF material from
the same waterway described I'm the first.
The provision Of the contracts which
Il Is claimed invalldates them is as fol-
lows:
I'm apportioning the cost Of such work
70 any lot or pared OF land TO which any
person or corporation has a pre-Crnpticn
right Of purchase. the cost OF the bulk
head shall De apportioned 20 the several
lots Enclosed within and protected by such
bulkhead in such proportion as the area
OF such lot or parcel bears 10 the entire
area inCiosed within such bulkhead. But
The charge against any lot or parcel for
rllinE in shall be in such proportion -
the entire cost OF the work Of filing In
as the number Of cubic yards required 20
nj In such lot bears 20 the entire area
included within any bulkhcad.'
The rule Of appoTiionment prescribed
by the aforesaid act reads q follows:
Such lien snail not be in solido. and
upon The sale by the state 10 any person
or by any owner claiming under the state
10 any other person. Of any Of the tide
and shore lands specified in such certla-
cate. the lien herein granted may re dis
charged as hereinbelow provided. rs 90
any such part OF said lands separately
granted or owned. upon the payment Of
such part Of the amount for which the
lien upon the lands was given in the first
instance as shall bear the same proper
ton 10 said whole amount which the AREA
o. such separate part of said lands bears
20 The area Of the whole thereof
1T VIII be seen that this provision 81
the contracts Is al variance win the law;
and this being 50. the question IS what
T. the effect upon the contracts, X any.
or such provision.
AN examination Of the law and the
contracts dtscloses that all of the condi-
lions and provisions which the statute
requires are contained in tho contracts,
exclusive q the provisions objected 20
and the trial court held that such proYls-
ION IS without any force or effect what
ever. and that 81 should DE treated as
mere Surplusaga The learned counsel for
respondents insists that the conclusion
% the court was riEhg. and We are incisn-
esi 70 agree with him. Tire Law itself pro
viies rhe manner IN which the liens shall
be apporttoned. ana how they may be
raiA and discharged, and these matters
are therefore not the subject - contract
TIE amount ana character 81 the work g.
- performed. the manner and time o.
doing e. and fhe price - - paid are all
subjects 81 stipulation between the par
ties 20 the contract. but the manner in
which the resulting liens are % be ar
portloued. being axei specifically by The
law governing the contracts. Is fncor-
porated into the contracts and becomes
a payr thereof. whether mentioned or not
L Is admitted by appellant that these
contracts contain All thaV the law r.
CURES them 20 contain. Irrespective %
the Objectionable provision and that b.
ing true. We perceive 70 fouH1 ton Tor
his contention that they are Illegal and
void by reason % such provision