State v. Mountain Timber Co.

• Decision Date: 06 October 1913
• Citation: 75 Wash. 581,135 P. 645
• Parties: STATE v. MOUNTAIN TIMBER CO.
• Court: Washington Supreme Court

135 P. 645

75 Wash. 581

STATE v. MOUNTAIN TIMBER CO.

Supreme Court of Washington, En Banc.

October 6, 1913

Appeal from Superior Court, Cowlitz County; H. E. McKenney, Judge.

Action by the State of Washington against the Mountain Timber Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

Edmund C. Strode, of Lincoln, Neb., A. H. Imus, of Kalama, and Coy Burnett, of Portland, Or., for appellant.

W. V Tanner and S. H. Kelleran, both of Olympia, for the State.

CHADWICK J.

We are invited by the appellant to reconsider our discussion of the Industrial Insurance Law (Laws 1911, c. 74). It is insisted that it is unconstitutional in that (1) it is in violation of article 4, § 4, of the Constitution of the United States which guarantees to every state a republican form of government; (2) of the fourth amendment of the Constitution which secures all of the people against unreasonable searches and seizures of their person and effects; (3) of the fifth and seventh amendments, in that the act deprives plaintiff of its property without due process of law, and for a public use without just compensation, and deprives it of the right of trial by jury; (4) of the fourteenth amendment, in that it grants privileges and immunities, and deprives plaintiff of its property without due process of law and of equal protection of the laws. For the like reason that it violates article 1, §§ 3, 4, 7, 16, and 21 of the Constitution of the state of Washington.

The court as at present constituted is not disposed to recede from nor quality its opinion as expressed in the case of State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 165, 117 P. 1101, 37 L. R. A. (N. S.) 305. The right of trial by jury under the seventh amendment to the Constitution of the United States, the question of a delegation of judicial powers to the Industrial Insurance Commission, and the contention that the law violates the federal guaranty of a republican form of government, are possibly not covered by the argument of the court in State ex rel. Davis-Smith Co. v. Clausen, supra.

When we say that we sustain a law by reference to the police power that might otherwise be in conflict with some provision of the Constitution, it would seem that every incident to that law, as well as all methods necessary to make it effective, are likewise exempted from the prescriptions and limitations of the Constitution. The Legislature has adopted the idea of industrial insurance, and seen fit to make that idea a workable one by putting its execution, as well as its administrative features, in the hands of a commission. It has abolished rights of actions and defenses, and in certain cases denied the right of trial by jury. The Legislature has said to the man whose business is a dangerous one, and the operation of which may bring injury to an employé, that he cannot do business without waiving certain rights and privileges heretofore enjoyed, and it has said to the employé that, inasmuch as he may become dependent upon the state, he must give up his personal right of contract when about to engage in a hazardous occupation and contract with reference to the law. These demands are the fundamentals of our Industrial Insurance Law. If the law is not administered as therein provided, it is not likely that a compulsory law such as it is could ever be adequately administered, for, aside from its humane purpose, it was adopted in order that the delay and frequent injustice incident to civil trials might be avoided. 'The remedy of the workman has been uncertain, slow and inadequate. Injuries in such works, formerly occasional, have become frequent and inevitable.' Laws 1911, p. 345. To uphold the law in the sense of sustaining the idea of industrial insurance, and to deny the right of executing it without the intervention of the courts, would throw us back on the original ground, and we should then, if consistent, hold the idea of industrial insurance to be beyond the limit of the police power.

Police power has been defined as often as changed conditions have required or compelled its extension, although discriminating lawyers and able judges have recognized that there can be no fixed definition. In other words, courts have made a definition to fit the state of facts before them, always admitting that a different state of facts might call for another definition. It is a long reach between the definition of Sir William Blackstone and our present terminology of the police power. That eminent writer thus defined the term: 'The due regulation and domestic order of the kingdom, whereby the inhabitants of a state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations.' 4 Blackstone's Com. 162.

The germ of police power, in so far as it assumes to interfere with private rights, is to be found in the power of the state to suppress nuisances. This right was forced upon the state in the exercise of its functions, or rather duty, to preserve that equilibrium of relative right which must be preserved wherever society is organized. This is indicated by the conception of Kent, who found the police power to be 'the power to regulate unwholesome trades, slaughter houses, operations offensive to the senses.' In the definition of Chief Justice Shaw will be found a wider limit. He described it as: 'The power * * * vested in the Legislature by the Constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same. It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise.' Commonwealth v. Alger, 7 Cush. (Mass.) 53. In the case of Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 4 S.Ct. 652, 28 L.Ed. 585, it is suggested that the public health and public morals are matters of legislative concern, and of which the Legislature cannot divest itself. In State v. Wagener, 77 Minn. 483, 80 N.W. 633, 778, 1134, 46 L. R. A. 442, 77 Am. St. Rep. 681, it is said that the exercise of the police power is not confined to matters relating to the public health, morals, and peace; but there may be interference whenever the public interest demands it. In Champer v. City of Greencastle, 138 Ind. 339, 35 N.E. 14, 24 L. R. A. 768, 46 Am. St. Rep. 390, the court said that: 'It is known when and where it begins, but not when and where it terminates.' The insinuation that there may be an exhaustion of the power may well be doubted in the light of the words of Mr. Justice Holmes: 'It may be said in a general way that the police power extends to all the great public needs. Camfield v. U. S., 167 U.S. 518, 17 S.Ct. 864, 12 L.Ed. 260. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.' Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 55 L.Ed. 112, 32 L. R. A. (N. S.) 1062, Ann. Cas. 1912A, 487.

Our own cases--those cited in State ex rel. Davis-Smith v. Clausen, 65 Wash. 156, 117 P. 1101, 37 L. R. A. (N. S.) 466, and Karasek v. Peier, 22 Wash. 419, 61 P. 33, 50 L. R. A. 345; Bowes v. Aberdeen, 58 Wash. 542, 109 P. 369, 30 L. R. A. (N. S.) 709; Tacoma v. Boutelle, 61 Wash. 443, 112 P. 661; Shepard v. Seattle, 59 Wash. 363, 109 P. 1067, 40 L. R. A. (N. S.) 647; State ex rel. Webster v. Superior Court, 67 Wash. 40, 120 P. 861; State v. Somerville, 67 Wash. 643, 122 P. 324-show a like growth in liberal interpretation.

'In the exercise of police power the Legislature may, to a reasonable extent, and with due regard to the public welfare, prohibit or regulate the use of private property; but any provision or regulation of the use and enjoyment of land by the owner which is not limited to the prevention of nuisances is opposed to constitutional principles, and the power of the Legislature to prohibit nuisances is confined to the prohibition or regulation of such acts as violate, or materially interfere with, the rights of others.' Karasek v. Peier.

'Incapability of definition, however, does not destroy the right of the public to safeguard property, insure the general health, protect the morals, preserve the peace, or compel the use of property consistent with surrounding conditions by the exercise of arbitrary power, and in disregard of the primary right of the individual. A subject when measured by other conditions may warrant its exercise; whereas, if the relative condition be lacking, the power will be denied. Its exercise in proper cases marks the growth and development of the law rather than, as some assert, a tyrannical assertion of governmental powers denied by our written constitutions. Although the fundamental truths must from their very nature remain unchanged, the right of property is a legal right and not a natural right, and it must be measured always by reference to the rights of others and of the public. Neither an individual nor the public has the right to take the property of another and put it to a private use. But it would be manifestly destructive to the advancement or development of organized communities to put the public to the burden of rendering compensation to one, or to many, when the individual use is, or might be, a menace to the health, morals, or peace of the whole community.' Bowes v. Aberdeen.

'All courts concede the impossibility of adopting fixed rules by which to...