The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1895-04-23

% said harpor line corniSSso exrafst
with the consent ard approval OF such
hArsor line commission. and where no
haroor naes and waterways have been
50 established. then the plan mentioned
in said contract mast. before being a47-t-
ed by said commissions. De submitted
20 and approved BY the harbor line CON-
mission
And this further provision is found
In section of said act:
All waterways sxcavatef through
any D or shore lands belonging to the
state OF Washington BY virtue OF the rro-
visions az this act, 80 far as they run
through said tide or shore lands. are
hereby declared 70 be putsiic waterways
free 70 al citizens upon equal terms. and
subject 70 the jurisdiction OF the proper
authorities. as provided by law
From these provisions IL seems clear
that Il vas the intention OF the Iegisla-
ture 10 authorize contracts for excavat-
ing waterways through lands not owned
by the state. 20 BE entered into by the
commissioned OF public lands. with the
consent and approval Of the harRor line
commission. The record shows that this
consent and approval have been obtained.
and we. therefore. think that the con-
tracts under consideration properly in
cIude that portion Of the waterways
therein mentioned which extends through
the high lands between Elliott bay and
Lake Washing ton. We are not prepared
10 say. In opposition 10 the opinion Of the
commissioner of public lands. that such
a waterway would not snhserve the in
ferests Of commerce. and II II Will Sc -
certainly such as u contemplated BY law
Nor do We think that the fact that
both of these contracts embrace the same
waterways invslidates either. They
are both between the same parties. refer
20 the same subject matter and relate
Ia, the same public Improvement, and the
latter merely enlarged the scope or the
former. without otherwise affecting II.
In effect they both constitute but one
contract.
at is next objected that the form Of
the certificate which has been adopted
by the commissioner or public LANDS 10
he issued 70 the contracting parties upon
rroof 81 their having complied with the
requirements OF the contract and the law,
does not conform 10 the requirements or
the act in question. All we need say up
on this proposition is, that an eXamina-
ton of the certificates set forth in the
record convinces us that ii is in all re-
spectS in conformity with the law under
which Il was prepared
Lastly. il IS insisted that the plan
adopted by the commissioner for fssu-
iue his certificates is not warranted by
pany proposes TO excavate the waterways
described in the contracts by excavating
material from the deep water and also
from the end next 10 the upland. and
when IL has hiled in a portion or por-
tious or the tide lands described In the
contracts. it will then apply 10 the COM
missioner OF public lands for a certificate
or certificates in the form adopted by
him. embracing the whole or part OF
the lands so flled, and the commissioner
will then issue certificate or certificates
covering the whole, or any part, OF the
tide lands so filled. The law provides
that the commissioner. upon completion
OF the work provided for by the contracts,
or any part thereof, capable OF separate
use for the purposes of commerce, snail
issue his certificate 10 the contracting
PARTIES or their assigns This would
clearly seem to contemplate that such
contracting PARTIES may ask for ana re-
cefve certificates for the cost or such
part Of the work as may have been per
formed In accordance with their con-
tracts. provided that such part Is capa-
BILE of separate use for the purposes OF
commerce. without waiting Tor Inc COM
pletion of the whole work.
"The law vests the commissioner with
the duty and discretion of determining
when he shall issue his certificates. We
do not see anything in the plan proposed
which authorizes us TO say that IL Is not
within his discretion. We cannot pre-
suua that he will either violate the law
or abuse the discretionary power vested
In him. Before the waterway company
can rIghtfully claim certificate under
the law and It's contract. II must create
inc waterway therein mentioned, or
norton thereof capable Of use as sucn :
and until at least a portion or the !ahus
included I'm the contract are nieu 'heI9
.. ,o+b,n- 10 which the lien which Is pro-
yfded for by the statute can attach. But
as we have intimated already. 1t Is the
nrovince Of the commissioner OF public
lands to determine. in the first instance
vben q certificate has been earned.
THE judgment is affirmed