City of Tacoma v. Nisqually Power Co.

• Decision Date: 21 February 1910
• Citation: 57 Wash. 420,107 P. 199
• Court: Washington Supreme Court
• Parties: CITY OF TACOMA v. NISQUALLY POWER CO.

107 P. 199

57 Wash. 420

CITY OF TACOMA v. NISQUALLY POWER CO.

Supreme Court of Washington, En Banc.

February 21, 1910

Appeal from Superior Court, Pierce County; C. M. Easterday, Judge.

Proceedings by the City of Tacoma against the Nisqually Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See also, 54 Wash. 292, 103 P. 49.

Hayden & Langhorne, for appellant.

T. L. Stiles, Frank R. Baker, and L. A. Latcham for respondent.

MORRIS J.

This is a proceeding instituted by the city of Tacoma to condemn and appropriate certain lands and water rights lying along the Nisqually river, for the purpose of generating electric power for the city. The appellant, being an owner of certain lands sought by the city for this purpose, resisted the attempt and, from a judgment of appropriation in which it is awarded $50,000 as the value of its lands, it appeals. Exceptions were taken by appellant to the order of the court holding the contemplated use by the city to be a public use and necessity, and various objections raised by appellant at the trial, all involving the same questions, are before us. We will not attempt to discuss them separately, except in so far as it is necessary.

It is first contended that the public utilities act of 1905 (Laws 1905, c. 159), as amended in 1909 (Laws 1909, c. 150), under which the city is proceeding, is unconstitutional, for the reason that it authorizes condemnation for both public and private use. The language of the act, in so far as this question is involved, is: 'That any incorporated city * * * is authorized to construct, condemn and purchase, purchase, acquire, add to, maintain and operate works, plants and facilities for the purpose of furnishing such city or town and the inhabitants thereof, and other persons, with gas, electricity and other means of power and facilities for lighting, heating, fuel and power purposes, public and private.' It may be accepted as well established that, inasmuch as private property may not be taken for private use, any legislative act which attempted to confer such a power would be a nullity. It may also be accepted that, where in a legislative act there is a conferring of authority to take private property for both public and private use in such a way that the two cannot be separated, the whole act is void. But it does not follow that the use of the word 'private' in the act under consideration renders this act void. In so far as such act would authorize the taking for a distinctively private purpose, it could not be upheld, but to render the whole act void it must appear that the public and private purposes are so commingled that they cannot be separated, as in the case cited by Lewis on Eminent Domain, § 206, where the act authorized the erection of a dam by a city, either for the purpose of waterworks for the city or for the purpose of leasing the water for private use. The purpose of the dam was manifestly two-fold; to supply the city with water for the use of its inhabitants--a public use, and to enable it to lease water for a private use. It could not be determined how much water would be desired or be necessary for one purpose, nor how much for the other, or which use was the greater. The two uses were principal uses, and were so intermingled that they could not be separated without destroying the purpose for which the dam was to be erected; and hence the whole act was void. But in the act before us, every mentioned and described purpose is an undoubted and public use. There is no commingling of public and private purposes; nor authority given under the act to use any of the facilities therein referred to for other than a distinctively municipal use. Unfortunately the word 'private' is incorporated in the act, and as such a purpose is a prohibited one, to that extent the act is obnoxious to the constitutional inhibition, and the word 'private' becomes a nullity. The withdrawal of the void part does not disturb nor affect the remainder of the act, the provisions of which are useful and necessary to the growing municipalities of this state in order to supply their inhabitants with needful public utilities, and it would be inconsistent with all just principles of constitutional law to hold the enactment of such purposes void; because they are associated with, but not connected with nor dependent on, another provision which is had, and which, when stricken from the act, leaves the remainder complete and capable of being executed in accordance with the legislative intent.

It is next asserted by appellant that the city is seeking in this proceeding to condemn for both public and private use, and hence the whole proceeding should fall. This contention is based upon a paragraph of the petition in which it is alleged: 'That at all times since the year 1893 the city of Tacoma has been engaged in the business of owning, operating, and maintaining works, plants and facilities for the purpose of furnishing said city and the inhabitants thereof with electricity and facilities for lighting, heating, fuel and power purposes, public and private.' It is also suggested that the same fact is disclosed in the evidence. None of the ordinances which initiated this proceeding or are in any wise indicative of the city's purpose in seeking to acquire these lands indicate or refer to any private use or to any purpose other than a strictly municipal and public one. We have no desire at this time to enter upon any discussion of what is a public use, or the effect upon proceedings of this character where there is an attempt to commingle public and private uses. Such questions have been before this court in a number of cases, and it has been uniformly held that condemnation could not be had where the manifest purpose was partly private. Healy Lumber Co. v. Morris, 33 Wash. 490, 74 P. 681, 63 L. R. A. 820, 99 Am. St. Rep. 964; State ex rel. Tacoma I. Co. v. White River Power Co., 39 Wash. 648, 82 P. 150, 2 L. R. A. (N. S.) 842; State ex rel. Harlan v. Centralia, etc., 42 Wash. 632, 85 P. 344, 7 L. R. A. (N. S.) 198; State ex rel. Harris v. Superior Court, 42 Wash. 660, 85 P. 666, 5 L. R. A. (N. S.) 672; State ex rel. Dominick v. Superior Court, 52 Wash. 196, 100 P. 317, 21 L. R. A. (N. S.) 448. The same rule obtains here as announced in the interpretation of the act to determine its constitutionality; that is, the public and private use must be so blended and united that they cannot be separated. It was said in the Harlan Case, 'That where the two [public and private uses] are not so combined as to be inseparable, the good may be separated from the bad;' citing Lake Koen Irr. Co. v. Klein, 63 Kan. 484, 65 P. 684, Brown v. Gerald, 100 Me. 351, 61 A. 785, 70 L. R. A. 472, 109 Am. St. Rep. 526, and In re Niagara Falls, etc., R. Co., 108 N.Y. 375, 15 N.E. 429, in which last case it is said 'the courts are not confined to, and it is not to be tested exclusively by the description of those objects and purposes as set forth in the articles of association, but evidence aliunde, showing the actual business proposed to be conducted, may be considered.' So here, the right to maintain these proceedings would not be denied the city because in its petition it recited that since 1893 it had been furnishing 'power purposes, public and private.' It is not what the city has been doing, but what its purpose is in seeking to appropriate this land that we are concerned with. If its ultimate use of the power it now seeks is for both public and private purposes, then if those powers cannot be separated they must both be denied.

We will now examine the evidence and see what use the city has made of its electrical power, as bearing in some measure upon what use it will put the additional power to which it now seeks. Under contract with a power company the city now uses 9,000 horse power, and it is purposed by the use of the power plant which is the object of these proceedings to generate 20,000 horse power. The use of power has increased in the past three years from 3,400 horse power to 9,000, and from 5,228 lighting meters to 11,258; and for the purpose of supplying its inhabitants with electricity for lighting purposes, it has strung about 100 miles additional wire in the last 6 months. It also appears that the same ratio of increase would necessitate 20,000 to 25,000 horse power in the next 10 years. From this showing it would seem that, with an average increase in population and consequent demand for additional lighting facilities, the city is justified in preparing for a plant that will create 20,000 horse power. It is evident that the growing demands of the present city and the requirements of the near future will necessitate the generation of 20,000 horse power to supply the inhabitants of Tacoma with lights and other public uses. The city electrician in his testimony, referring to the use made by the city of its present power, said: 'We furnish current for lighting, and also for heating devices, cooking and ironing and things like that; also for motors;' and in response to a question seeking to elicit evidence of use of power by manufacturing plants and factories, the same witness testified: 'I am sure I cannot say all the purposes running small machines, such as lathes and grinding machines.' He also testified that the city could not enter into competition with power companies for factory use, because it could not afford to make as cheap a rate, and hence could not get the business if it desired to. It was also stated that these small users above referred to were compelled to keep off the peak load. It is manifest that in its use of power the city must provide for the maximum power that will be required on the shortest day of the year. This required use would be its...