Allen v. Forrest

• Citation: 8 Wash. 700,36 P. 971
• Parties: ALLEN v. FORREST, COMMISSIONER OF PUBLIC LANDS.
• Decision Date: 19 May 1894
• Court: Washington Supreme Court

36 P. 971

8 Wash. 700

ALLEN v. FORREST, COMMISSIONER OF PUBLIC LANDS.

Supreme Court of Washington

May 19, 1894

Appeal from superior court, King county; J. W. Langley, Judge.

Action by Watson Allen against W. T. Forrest, commissioner of public lands of the state of Washington, for an injunction. From a judgment for plaintiff, defendant appeals. Reversed.

W. C Jones, Atty. Gen., and Semple & Hale, for appellant.

Arthur, Lindsay & King, for respondent.

DUNBAR C.J.

The plaintiff, claiming right to purchase certain tide lands under the act of March 26, 1890, brought his action against the defendant, W. T. Forrest, commissioner of public lands, to restrain him from entering into a contract with one Eugene Semple, who had made application under the act of March 9, 1893, entitled, "An act prescribing the ways in which waterways for the uses of navigation may be excavated by private contract; providing for liens upon tide and shore lands belonging to the state granting rights of way across lands belonging to the state," etc. The complaint set up the necessary qualifications of the plaintiff under the act of March 26 1890. Defendant demurred to the complaint. The demurrer was overruled, and the defendant, resting upon his demurrer, refused to plead further. Judgment was awarded the plaintiff, and defendant appeals to this court.

The sole question to be determined is, does the law of March 26 1890, entitled, "An act for the appraising and disposing of the tide and shore lands belonging to the state of Washington," constitute a contract between the state and the class of privileged persons mentioned in said act which the legislature cannot annul or change by a subsequent enactment? Or, in other words, did the said class of privileged persons obtain any vested rights in the tide lands of the state by reason of said enactment, and is the said act of March 9, 1893, an impairment of the obligation of a contract between the state and the said privileged class of persons. It has been the uniform holding of this court that the ownership of the tide and shore lands is in the state of Washington, and the power to deal conclusively with them is in the state, subject only to the power of the federal government to prevent the obstruction, impairment, or injurious modification of navigable waters. See Eisenbach v. Hatfield, 2 Wash. St. 236, 26 P. 539, and all subsequent cases on that subject. The attorneys for both appellant and respondent have prepared elaborate and painstaking briefs in this case, but it seems plain to us that the respondent obtained no vested rights whatever under the act of March 26, 1890; that no contract whatever was entered into between the state and the respondent, but that his right to purchase under the conditions named in the act was simply a privilege which he had a right to exercise only while the law remained in force. We do not think that the cases cited by respondent in any manner sustain his contention. Fletcher v. Peck, 6 Cranch, 87, is a long and exceedingly interesting case. It is true that the court there decided that when a law is in its nature a contract, when absolute rights have vested in that contract, a repeal of the law cannot divest those rights. This doctrine, we take it, will not be disputed anywhere. But in that case there was an actual grant of lands made by the legislature. The court stated that the lands in controversy vested absolutely in the grantees; that the grant, when issued, conveyed an estate in fee simple to the grantee, clothed with all the solemnities which the law can bestow. The court also held that the grant in that case was a contract executed, and that the fact that the legislature which had passed the prior act had been stimulated to do so by and through corrupt means would not justify a subsequent legislature in destroying vested rights which had grown up under the prior law, and which involved innocent purchasers. There is nothing in that case, we think, that in any way sustains the contention of respondent. In Waterworks Co. v. Rivers, 115 U.S. 674, 6 S.Ct. 273, it was decided that a legislative grant of an exclusive right to supply water to a municipality and its inhabitants through pipes and mains laid in the public streets, and upon the condition of the performance of the service by the grantee, is a grant of a franchise, and vests in the grantee in consideration of the performance of a public service, and, after performance by the grantee, is a contract protected by the constitution of the United States against state legislation to impair it. It will be seen that this was an executed contract, and that the decision was based upon the fact that the grantee had performed his part of the contract. St. Tammany Waterworks Co. v. New Orleans Waterworks Co., 7 Sup. Ct. 405, is the same kind of a case, and the decision is based upon the principle announced in Waterworks Co. v. Rivers, supra. People v. Board of State Auditors, 9 Mich. 326, was where, under an act to encourage the manufacture of salt in the state of Michigan, approved February 15, 1859, a bounty of 10 cents per barrel had been offered to manufacturers, and afterwards, viz. on March 15, 1861, the law had been changed. It was held, on application for mandamus, that the manufacturers were entitled to the bounty on a certain number of barrels of salt which had been manufactured before the passage of the act of March 15, 1861. We hardly see how the law could have been construed in any other way, the only defense to the action being that the claim had not been presented until after the enactment of the new law. Montgomery v. Casson, 16 Cal. 189, is a case brought under the grant of swamp lands. The court there held that the grant was a grant upon condition precedent. The grant was to certain individuals, on condition of certain drainage ditches and canals being constructed; but the case specially recites that the said grantees have, pursuant to said act, commenced the construction of said canals provided for by the said act. "It is a contract," says the court, "by which the state grants certain lands upon condition of work to be performed, the grant to take effect when the work is done. It is a contract by which valuable rights may be acquired absolutely upon the performance of the acts specified as the consideration moving to the state. The grantees, as appears from the evidence in the record, and as found by the referee, entered...