State v. Superior Court for Chelan County

• Decision Date: 04 February 1927
• Docket Number: 20247.
• Citation: 142 Wash. 270,253 P. 115
• Parties: STATE er rel. CHELAN ELECTRIC CO. v. SUPERIOR COURT FOR CHELAN COUNTY et al.
• Court: Washington Supreme Court

253 P. 115

142 Wash. 270

STATE er rel. CHELAN ELECTRIC CO. v. SUPERIOR COURT FOR CHELAN COUNTY et al.

No. 20247.

Supreme Court of Washington, En Banc.

February 4, 1927

Appeal from Superior Court, Chelan County; Parr, Judge.

Certiorari by the State of Washington, on the relation of the Chelan Electric Company, to the Superior Court of the State of Washington for the County of Chelan and others, to review an order denying application of relator for adjudication of public use and necessity in condemnation case. Order reversed, with instructions.

Post &amp Russell, of Spokane, and Thomas Balmer, and Edwin C Matthias, both of Seattle, for relator.

Shorts & Denney, of Seattle, and Wm. A. Grimshaw, O. P. Barrows, and Fred Kemp, all of Wenatchee, for respondents.

ASKREN, J.

Certiorari to review an order from an order denying an application for an adjudication of public use and necessity in a condemnation case.

The facts follow: Relator is a public service corporation which desires to expropriate the right to overflow certain lands of the respondents for the purpose of raising the surface of Lake Chelan, and thereby developing a large amount of electric energy. The primary purpose of the corporation appears to have been to furnish motive power for the operation of the trains of the Great Northern Railway Company, but owing to the fact that the railway company has not yet started the development of its properties for that purpose, it was deemed better to allow the development of the power site to be handled by a company already actively engaged in that business, and which would have immediate demand and sale for the energy thus produced. To this end all of the stock, save five qualifying shares, were sold to the Washington Water Power Company, which company agreed to develop the project and sell electricity to the railroad when and as it became needed through the electrification of its railroad lines. The Washington Water Power Company, which thus became practically the sole owner of the relator company, has been engaged in business in this state for many years supplying electric energy to a very large extent in Eastern Washington, and to a lesser extent in the neighboring state of Idaho. It has five water power sites on the Spokane river in this state, and one in Idaho. It supplies electric energy to other public service corporations for the operation of railways and electric lines, furnishes power to municipalities and the inhabitants thereof for lighting streets and homes, as well as supplying power for general uses. Its present capacity of electric energy is insufficient for the demands made upon it, and in 1925, and 1926, it was obliged to purchase power to avoid a shortage. To overcome the shortage and comply with new contracts, it is seeking to develop the Lake Chelan project. The power produced at this project will be delivered to it and from it to its customers in the state of Washington. About 85 per cent. of all the energy produced, including the Lake Chelan project, will be devoted to lighting homes, buildings, streets, public buildings, operation of railroad, street and interurban railways, pumping water for irrigation, pumping for municipal water supply systems, and the operation of domestic appliances.

The use for all the purposes mentioned has heretofore by our decisions been declared to be a public use, with the exception of the operation of domestic appliances. We have not been called upon to construe its use in this connection. Its use, however, in the manifold ways to which it is capable of being put, is seemingly limited only by the number of appliances found in the home itself. It is used for cooking, heating, operating washing machines, ironers, and other like devices. Its use is almost as universal in the home for these things as it is for light itself, and we think that such a use should be classified as a public use.

The balance of the generated power, 15 per cent., will be applied to uses which we have heretofore held to be private, being for mining and manufacturing purposes. The use for manufacturing purposes includes everything in a commercial way to which power of this character can be applied, and takes in almost every known business, together with many of the professions, and since the universality of its use is urged upon us here in behalf of relator, we feel justified in setting out some of these uses. They are: Refrigeration in stores and cafés; grinding, slicing, air and water heating and refrigeration in butcher shops; mixing machines and ovens in bakeries; water heating and popcorn machines in confectioneries; trip hammers and emery wheels in machine shops; repair and sewing machines in shoe repairing places; sewing machines used by dressmakers, tailors and harness shops; clippers, vibrators, etc., used by barbers; sterilizers and X-ray rachines used by physicians; drills, compressors, water heaters, sterilizers and X-ray machines used by dentists; coffee urns, soup plates, and water heaters used in cafés; presses, molders, and melting pots used by printers; blowers, chop mills, and elevators used by grain elevators; water and air heaters, irons, mangles, and washing machines used in laundries; trip hammers and emery wheels used in blacksmith shops; motor generators, air pumps, rectifiers, buffers, air heaters, lathes, and shapers used in garages.

The trial court denied the adjudication of public use upon the ground that it felt bound by the prior decisions of this court, holding that power for manufacturing purposes was private, and not a public, use, and that where the power is to be devoted partly for public and partly for private uses the right to use the power of eminent domain should be denied.

Relator has earnestly prayed in this court for a rescission of the rule laid down in our previous cases to the effect that such uses as manufacturing and mining are private, and we feel constrained to re-examine these cases.

The first case involving this question was State ex rel. Tacoma Industrial Company v. White River Powder Co., 39 Wash. 648, 82 P. 150, 2 L. R. A. (N. S.) 842, 4 Ann. Cas. 987. In that action the respondent sought to condemn and expropriate lands for the purpose of storing water and creating electric energy. The adjudication for a public use was ordered by the trial court and reversed on appeal upon the ground that the power was not to be put to a public use. An exhaustive opinion was filed setting forth the views of this and other courts as to what constitutes a public use. The court found as one of the grounds for holding that it was not a public use that----

'It is not claimed that there is a present demand for the 50,000 electrical horse power. It is not claimed that the respondent has a franchise to enter any of the cities or towns mentioned, or that it will or can obtain one. It does not appear that there are any street or other railways to utilize its product. It is not under contract or obligation to furnish electricity to any person, or for any purpose. Under its articles, it may erect and maintain mills and manufactories and operate the same. For aught that appears, aside from its professions and voluntary promises, it may take the relator's property, generate electricity or not, at will, and use the same for any purpose, public or private, to suit its convenience.'

In the same opinion reference was made to the claim of the respondent therein that the use became public by reason of article 21 of the state Constitution, which reads:

'The use of the waters of this state for irrigation, mining, and manufacturing purposes shall be deemed a public use.'

In reply to this contention it was said:

'We are not called upon, at this time, to determine the full import or meaning of this constitutional provision. What we have already said disposes of the question before us. If it was intended by the article in question to extend the right of eminent domain to private manufacturing corporations, or to authorize the taking of private property for a private use, it violates the due process clause of the Federal Constitution. A state is powerless, by statute or by constitutional provision, to declare a use public which is essentially and inherently private.'

The next important case in this connection is State ex rel. Harris v. Superior Court, 42 Wash. 660, 85 P. 666, 5 L. R. A. (N. S.) 672, 7 Ann. Cas. 748, where an order of public use entered by the trial court in an action to expropriate land for the purpose of generating electricity for the operation of a light plant and electric car system, and in addition thereto power for general uses, was reversed upon the ground that the use of power for general purposes was not a public use, relying on the previous decisions in State ex rel. Tacoma I. Co. v. White River P. Co., supra.

In State ex rel. Tolt P. & T. Co. v. Superior Court, 50 Wash. 13, 96 P. 519, the same question was raised, and it was decided without argument in conformity with, and reliance upon, the White River and the Harris Cases.

In State ex rel. Public Service Commission v. Spokane & I. E. R. Co., 89 Wash. 599, 154 P. 1110, L. R. A. 1918C, 675, the Public Service Commission was denied access to the contracts of the railway company for rate-making purposes, upon the ground that the sale of surplus power for private business was not engaging in a public business, citing as authority therefor the cases previously cited herein.

In State ex rel. Puget Sound P. & L. Co. v. Superior Court, 133 Wash. 308, 233 P. 651, following our previous cases, we denied the right of eminent domain to a power company which desired an easement for a power line to be used to carry electric current devoted partly to private and party to public uses.

Relator frankly...