State v. Superior Court of Pierce County

• Decision Date: 13 June 1906
• Citation: 85 P. 669,42 Wash. 675
• Parties: STATE ex rel. AMI CO. v. SUPERIOR COURT OF PIERCE COUNTY et al.
• Court: Washington Supreme Court

85 P. 669

42 Wash. 675

STATE ex rel. AMI CO. v. SUPERIOR COURT OF PIERCE COUNTY et al.

Supreme Court of Washington

June 13, 1906

Application on the relation of the Ami Company for writ of review to review the order of the superior court of Pierce county in condemnation proceedings by the Northern Pacific Railway Company and others. Affirmed.

Herbert S. Griggs, for relator.

B. S. Grosscup, for respondents.

RUDKIN J.

On the 4th day of May, 1906, the Northern Pacific Railway Company filed its petition in the court below by which it sought to appropriate certain real property therein described for railway purposes. On the 19th day of May, 1906, a hearing was had on this petition, after notice to all parties in interest, and upon such hearing the court entered an order adjudging the contemplated use a public one, and that the public interest required the prosecution of the enterprise and directing the impaneling of a jury to assess the damages. The Ami Company, one of the defendants in the condemnation proceeding, thereupon applied to this court for a writ of review, to review the order of the court below on the questions of public use and public necessity. The writ was allowed, return made, and the entire record is now before us.

The first assignment of error is that the respondent failed to show a compliance with the requirements of the act of March 13, 1897, Laws 1897, p. 134, c. 70. Section 1 of that act provides that every corporation incorporated under the laws of this state, or any other state or territory of the United States, having a capital stock divided into shares, must pay to the Secretary of State, for use of the state, a fee of $10 upon the filing of the articles of incorporation in the office of the Secretary of State, and that no such corporation shall have or exercise any corporate powers or be permitted to do any business in this state until such fee shall have been paid; and that the Secretary of State shall not file articles of incorporation or their equivalent or give any certificate therefor until such fee shall have been paid. Section 5 (page 135) provides for an annual license fee of $10 payable on or before the 1st day of July of each year and if not paid until after that date a penalty of $2.50 is added until the 1st day of January following, after which the penalty is $5 per day for each day's delinquency. As to the last provision it is only necessary to say that the payment of the annual license fee is exclusively a matter between the state and the corporation, and a failure to pay such fee does not in any manner affect the powers or rights of the corporation as against third persons. Assuming that it is incumbent upon a corporation seeking to condemn to show a compliance with section 1, supra, the objection of the petitioner is untenable for several reasons: First, in its application for the writ of review the petitioner avers that the Northern Pacific Railway Company is a corporation organized and existing under the law of the state of Wisconsin and is authorized to do business as a foreign corporation in the state of Washington. This of itself shows a compliance with the statute; second, the articles of incorporation of the Northern Pacific Railroad Company were filed in the office of the Secretary of State long prior to the passage of the act of 1897; and, third, this court will presume, in any event, that the Secretary of State performed his duty and did not file the articles of incorporation until the necessary fee was paid.

The next assignment is that the court erred in striking the answer filed in the condemnation proceeding. This court held in Seattle & Mont. Ry. Co. v. Murphine, 4 Wash. 448, 30 P. 720, that no answer is contemplated or required in such a proceeding. The defendant may offer any competent proof or establish any defense without answer, and therefore no error can be predicated on the ruling complained of.

The next assignment is that the testimony fails to show that the public interest requires the prosecution of the enterprise set forth in the petition for condemnation. The enterprise in aid of which the appropriation of the petitioner's land issought is the construction of what is known as the 'Tacoma Tide Flat Branch' extending a...