City of Tacoma v. State

• Decision Date: 16 March 1892
• Citation: 4 Wash. 64,29 P. 847
• Parties: CITY OF TACOMA v. STATE ET AL.
• Court: Washington Supreme Court

29 P. 847

4 Wash. 64

CITY OF TACOMA v. STATE ET AL.

Supreme Court of Washington

March 16, 1892

Appeal from superior court, Pierce county; F. CAMPBELL, Judge.

Proceedings taken by the city of Tacoma to condemn lands for the extension of streets. Demurrer of the state of Washington and others sustained. City appeals. Affirmed.

S. C. Milligan, for appellant.

John C. Stallcup, ( Fogg & Murray and Murray & Bryan, of counsel,) for respondents.

STILES J.

A demurrer to the petition of the city of Tacoma, addressed to the superior court of Pierce county, in proceedings taken to condemn certain lands for the extension of streets, was sustained, and the city appeals from the judgment entered thereon. The main ground of the court's decision was that, at the time of the petition, May 9, 1891, there was no law in force in this state in pursuance of which a municipal corporation of the first class, acting under a "freeholders"' charter, could exercise the power of eminent domain. The position of the court in this respect we fully sustain, and will but briefly state our principal reasons therefor. It is conceded, and, we hold rightly, that the act of March 21, 1890, (Acts, p. 294.) has no reference to municipal corporations; and, even were the fact otherwise, the demurrer in this instance would have to be sustained, inasmuch as the petition was for the appointment of three viewers, and not for a jury, as provided in that act. But the sixth subdivision of section 5 of the act of March 24, 1890, relating to the powers of cities of the first class, (Acts, p. 219,) expressly confers upon those cities, when organized under "freeholders"' charters, authority to appropriate private property to their corporate uses; and the city of Tacoma, by its charter adopted in 1890, enacted what purported to be a complete code of condemnation proceedings in aid of its exercise of the power granted by the statute. This charter proceeding it was attempting to follow, when stopped by the demurrer of interested defendants. The same act and clause which confers the power of eminent domain upon these cities empowers them "to institute and maintain such proceedings as may be authorized by the general laws of the state for the appropriation of private property for public use;" and it was doubtless the very absence of such a general law which led to the adoption of the charter law in this case. But the exercise of the power of eminent domain is so high and peculiar a thing that nothing less than an act of the legislature of a state can support it, and that act must not only confer the power, but prescribe the method by which it is to be done. This statement would apply were there no requirement of conformity to the general law, but with the requirement in the same act which confers the power the rule is doubly binding. Because the constitution permits certain cities to frame charters for their own government, is no sufficient reason for their assuming a branch of the sovereignty of the state which has no element of municipal government in it, and the provisions of the charter must therefore be held void. Says Judge Cooley, in his Constitutional Limitations, (page 653:) "The right to appropriate private property to public uses lies dormant in the state until legislative action is had, pointing out the occasions, the modes, conditions, and agencies for...