9 Wash. 1 | Wash. | 1894
Lead Opinion
The opinion of the court was delivered by
— The constitutionality of the law known as the “drainage law”(ch. 1, tit. 21, Gen. Stat.) is the sole question presented upon this appeal. The lower court held that the law was unconstitutional, and dismissed the proceedings instituted thereunder. The appellant here seeks to sustain the constitutionality of the law on two grounds — one, that it properly provides for the acquisition of property by the exercise of the right of eminent domain; and the other, that it is an exercise of the police power of the state.
As to the first proposition, it is only necessary to say that the decision of this court in the case of Peterson v. Smith, 6 Wash. 163 (32 Pac. 1050), applies with full force to this law, and the rule there announced compels us to hold that the law cannot be sustained upon any rule relating to the acquisition of propei’ty by the exercise of the right of eminent domain. Under the provisions of such law there is no pretense of an attempt to have the damages incident to the taking of private property assessed and compensated for in the first instance, and, if the property owner does not appear and himself take the initiative, the law provides that his property may be taken without there having been an assessment of damages or the payment of any compensation whatever.
To give effect to a law of this kind would be to substantially overthrow the provision of our constitution which provides, in § 16 of art. 1, that no private property shall be taken or damaged without just compensation having
The act in question cannot be sustained on this ground. Can it be as an exercise of the police power of the state ? We think not; for while it is undoubtedly true that in extreme emergencies the rights of private parties as to property must yield to the requirements of the public, yet to authorize such interference the emergency must be such as to make the action necessary.
The law under consideration was not, in our opinion, enacted for the purpose of authorizing private rights to be interfered with without compensation, because necessary for the protection of the public. It is true that there are some things in the act which indicate that the interests of the public were to be considered in the determination of the question as to whether or not the improvement was
The judgment of the superior court must be affirmed.
Anders and Scott, JJ., concur.
Dunbar, C. J., concurs in the result.
Concurrence Opinion
(concurring). — In this case there is a stipulation on file which shows that all of the statutory steps leading up to the acquisition of a right-of-way for the ditch have been regularly taken. The appellant shows that it is proposed to have the ditch run across a portion of his land. The sole question for decision, therefore, is whether or not the right-of-way could be acquired across his land in the manner provided for by the statute without affirmative condemnation proceedings.' I hold the negative, and therefore concur in the judgment of the court. As to whether the act is valid in other respects or not, I do not pretend to decide.