Seattle & L. W. Waterway Co. v. Seattle Dock Co.

• Decision Date: 26 July 1904
• Citation: 77 P. 845,35 Wash. 503
• Court: Washington Supreme Court
• Parties: SEATTLE & L. W. WATERWAY CO. et al. v. SEATTLE DOCK CO.

77 P. 845

35 Wash. 503

SEATTLE & L. W. WATERWAY CO. et al. v. SEATTLE DOCK CO.

Supreme Court of Washington

July 26, 1904

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by the Seattle & Lake Washington Waterway Company and another against the Seattle Dock Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

Ballinger Ronald & Battle, for appellant.

Sachs & Hale, for respondents.

MOUNT J.

This action was brought by respondents to foreclose certain liens on tide lands in the city of Seattle. The liens arose under the provisions of chapter 99 of the Laws of 1893, page 241 (Ballinger's Ann. Codes & St. §§ 4080, 4089), 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.' The complaint contains five causes of action each cause being based upon a lien upon a separate tract of land. The complaint alleges, in substance, that on October 27, 1894, the state of Washington, by its duly authorized commissioner of public lands, entered into a written contract with Eugene Semple for the excavation of a waterway and filling in certain tide lands described (a copy of the contract is attached to the complaint); that after the execution of the contract Semple, for a valuable consideration, assigned and transferred the said contract and all his rights therein to respondent Seattle & Lake Washington Waterway Company, so that said company became substituted for the said Semple in the contract for all purposes; that the contract was entered into after due proceedings by advertisement and otherwise, in full compliance with the provisions of the laws of the state, which proceedings are fully set out; that the respondent the waterway company began the work of excavating the waterway and filling in the tide lands according to the contract prior to the dates of the certificates sued upon, and had filled in and raised above high tide, in full compliance with the contract, the tide lands upon which it is sought to foreclose the liens herein; that on the dates of the certificates the Commissioner of Public Lands issued to the waterway company the certificates described, and which are attached to and made a part of the complaint, and which contain a description of the lands improved and the cost of the improvements; that these certificates were filed in the office of the auditor of King county immediately after their execution, and were duly recorded under the provisions of section 4 of the act above referred to; that by the filing of said certificates the waterway company acquired a lien upon the said lands for the amount due and to become due upon the said certificates under the provisions of said act; that afterwards the waterway company, for value, sold, assigned, and transferred and delivered to respondents Morris & Whitehead, Bankers, a corporation, the said certificates and all right, title, and interest therein; that subsequent to the making of the contract above mentioned between the state of Washington and Eugene Semple, and subsequent to the assignment thereof by Semple to the Seattle & Lake Washington Waterway Company, the appellant acquired from the state of Washington the tide lands upon which liens are sought to be enforced; that the deed from the state for the lands described in the complaint contained the following provision: 'Subject, however, to any lien or liens that may arise or be created in consequence of or pursuant to the provisions of the act of the Legislature of the state of Washington 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 or shore lands belonging to the state, granting rightsof-way across lands belonging to the state,' approved March 9, 1893;' that certain installments on the certificates are long past due and unpaid. The prayer is for a foreclosure of the liens. Defendant Hofius appeared, and disclaimed any interest in the lands. Appellant, Seattle Dock Company, appeared, and filed a general demurrer to the complaint, which demurrer was overruled. It then filed an answer denying certain allegations, and pleaded six affirmative defenses, substantially as follows: (1) That under the act of the Legislature of the state approved March 26, 1890, the owners of uplands in front of which these tide lands are situated, or the improvers thereof, duly applied for the purchase of the same, which applications were allowed, and the contracts of purchase from the state issued and executed, to all of which the appellant, by mesne conveyances, has become the owner; that the said act of 1893 referred to in the complaint is unreasonable, and contrary to the federal and state Constitutions in certain respects set forth in said defense, and that its passage was an exercise of power prohibited by the fourteenth amendment to the federal Constitution. (2) The contract set forth was not in conformity with the act, but was contrary thereto in respects set forth in said defense; and that said contract was the taking or attempting to take defendant's property without just compensation, and is the depriving of defendant of its property without due process of law, contrary to the federal and state Constitutions; and that, prior to the filling in of said lands, the defendant forbade the Seattle & Lake Washington Waterway Company from filling in the same. (3) That the certificates issued and attempted to be foreclosed are null and void, in that the land commissioner had no jurisdiction to issue the same. (4) That the lots included within the description set forth in the contract of tide lands which the contractor was to fill were owned by many and divers persons; that the contractor has entered into contracts with certain of these owners, whereby said owners' lots and tracts should not be filled under the contract, but should be exempt therefrom. (5) That the contractor has contracted with other owners of lots included within said description of tide lands by which said contractor agreed to fill and is now filling said owners' lands in manner and upon terms as agreed upon with said owners, and different from the manner and terms mentioned in the contract with the state. (6) That the contractor did not comply with the terms and conditions of the contract with reference to bulkheads, but violated the same, and constructed bulkheads in a manner different from, and of a different material from, that provided in the contract, which manner of construction and materials used were inferior in every respect to the manner of construction and materials prescribed. The plaintiff demurred to these affirmative separate defenses on the ground that none of them stated facts sufficient to constitute a defense. These demurrers were sustained, and defendant refused to plead further. Upon a trial of the issues made by the denials of defendant the facts were stipulated, and the court entered a decree foreclosing the liens for the amount prayed in the complaint.

The appellant assigns error upon the orders of the trial court denying the demurrer to the complaint and in sustaining the demurrers of the plaintiff to the affirmative defenses of the defendant. It is first urged that the act creating the liens is void because it embraces more than one subject, as shown both by the title and by the act itself. The title of the act is as follows: '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.' This title is no doubt broad enough to include three separate, independent subjects of legislation, but when we come to examine the act itself we find that the real subject or purpose of the...