State v. Superior Court of King County

Decision Date15 April 1902
CourtWashington Supreme Court

Original mandamus by the state, on the relation of the Seattle Electric Company, against the superior court of King county and another. Writ granted.

Piles Donworth & Howe, for relator.

Wm. Hickman and Kerr & McCord, for respondents.


This is an original application in this court for a peremptory writ of mandate directed to the superior court of King county and to the Honorable Aruthur E. Griffin, judge thereof. The relator is a corporation authorized to construct and operate street and other railways in the state of Washington. By ordinance of the city of Seattle a franchise was granted to said relator or to maintain and operate a street railway upon Fourth avenue south and other streets in said city. In December, 1901, the relator filed a petition in the office of the clerk of the superior court of King county for the ascertainment of compensation and appropriation of certain rights in connection with the construction of a trestle, bridge, and roadway in said Fourth avenue south which structure, or a similar one, was required by the ordinance aforesaid. The ordinance requires that where relator's railway shall cross the tracks of the Columbia & Puget Sound Railroad Company, on Fourth avenue south, it shall be elevated a reasonable height above the present grade of said tracks. In said petitionCharles B. Smith and Tucker-Hanford Company, a corporation, were and are claimants and respondents. That petition recites, among other things that the claimants are the owners of certain lots which lie immediately south of the tracks of said Columbia & Puget Sound Railroad Company, and on the west side of Fourth avenue south; that in order to comply with said ordinance, and to avoid a dangerous grade crossing of the tracks of said railroad company, which operates a steam railroad, it is necessary for relator to construct a trestle and truss bridge for supporting its tracks and roadway above the grade of said railroad; and that such structure must necessarily be elevated above the natural surface of the ground in front of the claimants' premises. The character of the proposed structure is described in the petition, and it is alleged that said claimants claim that they will be damaged by the construction and operation of the same. It is alleged that the use for which such bridge is to be constructed is a public use, that public necessity requires the prosecution of said enterprise, and that it is necessary for said petitioner in the operation of its franchises and the exercise of its public duties. The petition prays that a jury may be impaneled to ascertain and determine the compensation to be paid to the claimants. Thereafter the petition came on for hearing, and the court found that the contemplated use of said structure is a public use, and that public interest requires the construction and maintenance of said bridge, and entered an order accordingly. The court further ordered that upon a given date a jury should be impaneled to ascertain the amount of damages which will result to the claimants by reason of the construction and maintenance of said proposed structure. At the time of entering said decree the claimant, Charles B. Smith, in open court, gave notice of appeal from said order. Thereafter the releator filed in the office of the clerk of the superior court a bond conditioned as required by section 5646, Ballinger's Ann. Codes & St., which bond was approved by said clerk; and the claimant, Charles B. Smith, on the same day filed an appeal bond in the sum of $200. Afterwards the said claimant moved the court for a stay of proceedings in said superior court pending the determination by the supreme court of the aforesaid appeal, the ground of said motion being that by reason of the said appeal the superior court had no jurisdiction to proceed with the trial of the question of damages and compensation while said appeal is pending. The court whereby said motion, and entered an order whereby it was ordered that by reason of the lack of jurisdiction of said court, on account of the pendency of said appeal, no jury shall be impaneled in said cause to determine the question of compensation, and that said cause shall not be tried before said court on said question until the determination of said appeal by the supreme court. At the time of the making of the last-named order, the relator objected, and demanded that a jury be impaneled, and that the question of damages be tried and determined in accordance with the order theretofore made, which demand was denied solely for the reason that the court was of the opinion that it had no power to proceed with said trial while said appeal is pending. The relator duly excepted to said order at the time it was made, and said exception was allowed. Thereupon application was made to this court for a peremptory writ of mandate, directed to the superior court, commanding that said court shall immediately cause a jury to be impaneled, and proceed to try the question of damages, notwithstanding said appeal.

It is conceded that mandamus is the proper remedy, if the relator is entitled to relief at all in the premises. A number of questions are discussed by counsel, but we think one question must be decisive of this case, and we will therefore confine ourselves to the discussion of that alone. By an act of the legislature found in the Session Laws of 1901, at page 213 it is provided that either party may appeal from the order of the court adjudicating or refusing to adjudicate that the contemplated use of property sought to be appropriated is really a public use, and ordering or refusing to order a jury to be summoned for the assessment of damages. The provision is contained in what purports to be an amendment to Section 5645 of Ballinger's Annotated Codes & Statutes of Washington. The act is entitled as follows: 'An act to amend section 5645 of Ballinger's Annotated Codes and Statutes of Washington, and declaring an emergency.' Relator's counsel urge that the said act is unconstitutional and void for the reason that the subject of the act is not expressed in the title. Section 19, art. 2, of the constitution of Washington, is as follows: 'No bill shall embrace more than one subject and that shall be expressed in the title.' The above constitutional provision is clera, direct, and mandatory in its nature; and, if the legislative act in question violates that provision, it must be held void. Manifestly, under the constitutional requirement the title of an act must express the subject with which the act deals. This rule is so universal, and the reason for it has been so generally discussed, that it seems unnecessary to dwell upon it here. The wisdom of the rule suggests itself, in that the reader, whether a member of the legislature or otherwise, may, by a mere glance at a few catchwords in the title, be apprised of what the act treats, without further search. Does the title of the act in question contain such a statement of the subject-matter? It will be observed that it merely refers to a certain section of Ballinger's Code, which it purpots to amend, and no intimation is given as to the subject-matter of the section which it is sought to amend. It is clear that the reader cannot determine from the title what subject is treated by the section in Ballinger's Code or by the amending act itself. This, we think, is in violation of the constitutional requirement. No elaborate statement of the subject of an act is necessary to meet the spirit of the constitution. A few well-chosen words, suggestive of the general subject treated, is all that is required. But we think the absence of any such suggestive words is fatal, and that to hold otherwise would be to utterly ignore the constitutional provision. In Marston v. Humes, 3 Wash. 267, 28 P. 520, the constitutionality of an act was assailed because of an alleged defective title. The title was as follows: 'An act relating to pleadings in civil actions, and amending sections 76, 77 and 109 of the Code of Washington of 1881.' Sess. Laws 1891, p. 106. The act was held to be valid for the reason that the title did state a subject, to wit, 'An act relating to pleadings in civil actions.' It is true, the learned writer of the opinion went further, and stated that as the Code of 1881 is a valid and binding body of laws, arranged and consecutively sectionized under authority of the legislature, a section of such Code may be amended by an act under a title which simply provides for the amendment of such section by its number, without any designation of the subject-matter of the section to be amended. But such statement was not necessary for the decision of that case, inasmuch as it was determined that the title then under consideration did contain a clearly defined subject. t It is suggested that the argument there used, as applying to acts amending a section of the Code of 1881, does not apply with equal force here. That Code, as stated above, was adopted as an authoritative body of laws. Its consecutive sections were arranged by authority of the legislature, and afterwards re-enacted by that body, threby making not only its contents, but the numbers and arrangement of the sections, the act of the legislature. It is very properly suggested by counsel that Judge Ballinger has prepared a Code which is of great convenience to the bench and bar of the state, but that Code cannot be said to be clothed with authority equal to that of the Code of 1881. The latter is a purely legislative product, while the former is a private compilation, which has simply received the approval of the legislature as an official compilation...

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