State v. Superior Court for Stevens County

• Decision Date: 17 December 1903
• Citation: 74 P. 686,33 Wash. 542
• Court: Washington Supreme Court
• Parties: STATE ex rel. MORRILL v. SUPERIOR COURT FOR STEVENS COUNTY.

74 P. 686

33 Wash. 542

STATE ex rel. MORRILL v. SUPERIOR COURT FOR STEVENS COUNTY.

Supreme Court of Washington

December 17, 1903

Writ of review, on the relation of Robert Morrill, to the superior court for Stevens county. Reversed.

Post, Avery & Higgins, for relator.

Voorhees & Voorhees, for respondent.

DUNBAR J.

The Northport Smelting & Refining Company, a foreign corporation is operating a smelter in the city of Northport, Wash. It made application under its asserted right to eminent domain to condemn certain lands of the relator, defendant in that action, for the purpose of conducting water across the relator's land to its smelter. The amended petition alleged, in addition to the allegations in the first petition in relation to the necessities of the smelter, that the corporation was also furnishing water to the city of Northport. The defendant's answer admitted that said corporation 'was furnishing incidentally to said town of Northport a comparatively insignificant portion of the water used from said Deep creek,' the source from which the water is sought to be taken. The defendant demanded of the plaintiff that it furnish answers to certain interrogatories, among which was the following: 'Please state which, if any, of the owners or holders of the stock of said corporation is an alien; and, if any of the stock of said corporation is owned or held for another person or corporation, please state whether the person or corporation for whom the same is held is an alien, and how much stock is so held.' The plaintiff refused to answer these interrogatories, and the defendant, among other things incorporated in his answer the allegation that the plaintiff did not have a right to condemn land or exercise the right of eminent domain, and that the capital stock of the plaintiff and each and every share thereof was owned by aliens, and that no part of the lands sought to be condemned contained valuable deposits of mineral, metals, iron, coal, or fire clay, nor was necessary for mills or machinery to be used in the development of lands of the above character or for the manufacture of the products therefrom. The defendant asked the court for judgment on the pleadings for the reason that the plaintiff refused to answer the interrogatories in relation to the stockholders being aliens. This motion was denied. A demurrer was interposed to the affirmative matter in the answer in that regard, which was sustained by the court. A jury was called to assess the damages, judgment of condemnation was entered, and this writ of review has been sued out to question such judgment, and to review the errors of the court alleged to have been committed in the proceeding.

The articles of incorporation which were exhibited in this case are not sufficient in our judgment to constitute the plaintiff a water company, within the meaning of section 4278, 1 Ballinger's Ann. Codes & St., which provides that 'such water companies, incorporated for the purposes specified in the preceding section, shall have the right to purchase or take possession of and use and hold such lands and waters for the purposes of the company, lying without the limits of the city or town intended to be supplied with water, upon making compensation therefor.' The preceding section referred to is as follows: 'The provisions of this chapter shall extend to and apply to all associations already formed under any law of this state [or] hereafter to be formed under the provisions of this act for the purpose of supplying any cities or towns in this state or the inhabitants thereof with pure, fresh water.' The articles of incorporation are too long to set forth in this opinion, but a careful study of them convinces us that, while they provide for carrying on many kinds of business, the statement that the purposes for which the corporation is formed are the acquiring, purchasing, leasing, owning, and operating of lands, mines, mining claims, water rights smelters, reduction works, mills, machinery, electric, water, and steam power plants, and all conduits and means of using and applying the same in any manner and at any place, and to do all and everything in connection with the acquiring, construction, owning, using, and enjoyment of smelters, mills, mines, water rights, power sources, power plants, and means and appliances used in connection therewith, the purchasing of and working ores, minerals, and metals by smelting, milling, or other process, and the carrying on of the general business of purchasing, treating, smelting, refining, or the reduction of ores by any process, either as owners of said ores or under contract for the treatment of the same or for hire, does not indicate an intention to form a water company for the purpose of supplying cities or towns, or the citizens thereof, with pure and fresh water, but that the words 'water rights,' like the other words used in the articles, have reference to some mechanical application; and, while this statement is amplified somewhat in succeeding sections, the amplifications, like the section quoted, center around and apply to the evident main object of the incorporation.

The question as to whether or not a corporation has a right to condemn land for the purpose of aiding in operating a smelter, on the theory that the operation of the smelter is for public use, has been decided adversely to the contention of the respondent in Healy Lumber Co. v. Morris (recently decided) 74 P. 681. At the threshold of this case, however there is a question, the proper determination of which we think is fatal to respondent's contention. The court proceeded upon the theory that the defendant did not have the right to raise the constitutional question as to the ownership of lands by aliens. Section 33 of article 2 of the Constitution provides that the ownership of lands by aliens, other than those who in good faith have declared their intention to become citizens of the United States, is prohibited in this state, except where acquired by inheritance, under mortgage, or in good faith in the ordinary course of justice in the collection of debts; and that all conveyances of lands hereafter made to any alien, directly or in trust for such alien, shall be void; with a proviso that the provisions of such sectons shall not apply to lands containing valuable deposits of minerals, metals, iron, coal, or fire clay. In this we think the court erred. It is true that in the case of Oregon Mortgage Co. v. Carstens, 16 Wash. 165, 47 P. 421, 35 L. R. A. 841, it was decided in this state by a divided court that, where a mortgagor had deeded the lands to the alien mortgagee before foreclosure of suit, no one but the state could raise the question that the land was deeded to an alien in violation of the...