Seattle & Lake Washington Waterway Co. v. Seattle Dock Co.

77 P. 845, 35 Wash. 503, 1904 Wash. LEXIS 477

• Court: Washington Supreme Court
• Decided: July 26, 1904
• Docket: No. 5011
• Status: Published

Opinion

Mount, J.

This action was brought by respondents to foreclose certain liens on tide lands in the city of Seattle. The liens arose under the provisions of chapter 99 of the laws of 1893, page 241 (Bal. Code, §§ 4080-4089), entitled, “An act prescribing the ways in which waterways for the uses of navigation may be excavated by private contract, providing for liens upon tide and shore lands belonging to the state, granting rights-of-way across lands belonging to the state.”

The complaint contains five causes of action, each cause being based upon a lien upon a separate tract of land. The complaint alleges, in substance, that on October 27, 1894, the state of Washington, hv its duly authorized commissioner of public lands, entered into a written contract with Eugene Semple, for the excavation of a waterway and filling in certain tide lands described (a copy of the contract is attached to the complaint) ; that, after the execution of the contract, Semple, for a valuable consideration, assigned and transferred the said contract, and ail his rights therein, to respondent Seattle & Lake Washington Waterway Company, so that said company became substituted for¹ the said Semple in the contract for all purposes; that the contract was entered into after due proceedings by advertisement and otherwise, in full compliance with the provisions of the laws of the state, which proceedings are fully set out; that the respondent waterway company began the work of excavating the waterway and filling in the tide lands, according to the contract, prior to the dates of the certificates sued upon, and had filled in and raised above hightide, in full compliance with the contract, the tide lands upon which it is sought to foreclose the liens herein; that, on the dates of the certificates, the commissioner of public lauds issued to the waterway company the certificates described, and which are attached to and made a part of the complaint, and which contain a description of the lands improved, and the cost of the improvements; that these certificates wei'e filed in the office of the auditor of King county immediately after their execution, and were duly recorded, under the provisions of §4 of the act above referred to; that, by the filing of said certificates, the waterway company acquired a lieu upon the said lands for the amount due, and to become due, upon tbe said certificates, under the provisions of said act; that afterwards the waterway company, for value, sold, assigned, and transferred and delivered to respondent Morris & Whitehead, Banker's, a corporation, tiie said certificates and all right, title, and interest therein; that, subsequent to the making of the contract above mentioned between the state of Washington and Eugene Semple, and subsequent to the assignment thereof by Semple to the Seattle & Lake Washington Waterway Company, the appellant acquired from the state of Washington the tide lands upon which liens are sought to he enforced; that the deed from the state, for the lands described in the complaint, contained the following provision: “Subject, however, to any lien or liens that may arise or be created in consequence of, or pursuant to, the provisions of the act of the legislature of the state of Washington, entitled, ‘An act prescribing the ways in which waterways for the uses of navigation may be excavated by private contract, providing for liens upon tide or shore lands belonging to the state, granting rights-of-way across lands belonging to the state/ approved March 9, 1893;” that certain installments on the certificates are long past due and unpaid. The prayer is for a foreclosure of the liens.

Defendant Hofius appeared, and disclaimed any interest in the lands. Appellant Seattle Dock Company appeared, and filed a general demurrer to the complaint, which demurrer was overruled. It then filed an answer, denying certain allegations, and pleaded six affirmative defenses, substantially as follows: (1) That, under the act of the legislature of the state, approved March 26, 1890, the owners of uplands in front of which these tide lands are situated, or the improvers thereof, duly applied for the purchase of the same, which applications were allowed and the contracts of purchase from the state issued and executed, to all of which -the appellant, by mesne conveyances, has become the owner; that the said act of 1893, referred to in the complaint, is unreasonable and contrary to the federal and state constitutions in certain respects set forth in said defense, and that its passage was an exercise of power prohibited by the fourteenth amendment to the federal constitution. (2) The contract set forth was not in conformity with the act, but was contrary thereto, in respects set forth in said defense, and that said contract was the taking, or attempting to take, defendant’s property without just compensation, and. is the depriving of defendant of its property without due process of law, contrary to the federal and state constitutions, and that, prior to the filling in of said lands, the defendant forbade the Seattle & Lake Washington Waterway Company from filling in the same. (3) That the certificates issued, and attempted to he foreclosed, are null and void in that the land commissioner had no jurisdiction to issue the same. (4) That the lots, included within the description set forth in the contract, of tide lands which the contractor was to fill were owned by many and divers persons; that the contractor has entered into contracts with certain of these owners, whereby said owners’ lots and tracts should not he filled under the contract but should he exempt therefrom. (5) That the contractor has contracted with other owners of lots, included within said description of tide lands, by which said contractor agreed to fill, and is now filling said owners’ lands, in manner and upon terms as agreed upon with said owners, and different from the manner and terms mentioned in the contract with the state. (6) That the contractor did not comply with the terms and conditions of the contract with reference to bulkheads, but violated the same, aud constructed bulkheads in a manner different from, and of a different material from, that provided in the contract, which manner of construction and materials used were inferior in every respect to the manner of construction and materials prescribed.

The plaintiff demurred to these affirmative separate defenses, on the ground that none of them stated facts sufficient to constitute a defense. These demurrers were sustained, and defendant refused to plead further. Upon a trial of the issues made by the denials of defendant, the facts were stipulated, and the court entered a decree foreclosing the liens for the amount prayed in the complaint.

The appellant assigns error upon the orders of the trial court denying the demurrer to the complaint, and in sustaining the demurrers of the plaintiff to the affirmative defenses of the defendant. It is first urged that the act creating the liens is void because it embraces more than one subject, as shown both by the title and by the act itself. The title of the act is as follows, “An act prescribing the ways in which waterways for the uses of navigation may be excavated by private contract, providing for liens upon tide and shore lands belonging to the state, granting rights-of-way across lands belonging to the state.” This title is no doubt broad enough to include three separate, independent subjects of legislation, but, when we come to examine the act itself, we find that the real subject or purpose of the act is the excavation of public waterways by private contract. The liens and rights-of-way provided for are merely incidental to the main subject, and are special only to this class of contracts. They are ends or means to the accomplishment of the main purpose of the act, and are not independent subjects. The act is therefore not void upon the ground urged.

It is next argued, that there is nothing in the title of the act indicating the powers conferred upon the land commissioner; that power is conferred upon the land commissioner to incumber private property with liens for the filling in of such property, against the owner’s will. In the first place, we do not think the act is capable of the construction which appellant seeks to- place upon it. The act intends, no doubt, to give a lien for filling in lands owned by the state on March 9, 1893, where a contract has been entered into while the state was owner of the land, but the act does not give a lien upon lands where tlie contract is entered into after the state has parted with its title thereto. But, if the act is susceptible of the construction placed upon it by appellant, it is not necessary to the validity of it that the powers and duties of the land commissioner shall be stated in the title. The office of the title is to call attention to the subject matter of the act, which must be looked to for a full description of the powers and duties conferred. Lancey v. King County, 15 Wash. 9, 45 Pac. 645, 34 L. R. A. 817. It is not required that the title of the act shall be a complete index to the act.

Appellant next insists that the act is in conflict with § 3, art 1 of tlie state constitution, and the fourteenth amendment to tlie constitution of the United States, which declare that no person shall be deprived of property without due process of law. It is argued that this act deprives appellant of its property without due process of law in four particulars, viz.: (1) It does not afford the owner any notice or opportunity to be heard touching the improvements; (2) the method provided by the act for determining the amount which appellant’s lands are to pay is arbitrary, and contrary to the constitutional provision above named; (3) the act is a delegation of legislative and judicial power to a branch of tlie executive department; (4) the act is an excess of legislative power and is for a private purpose, or, if for a public purpose, then it imposes burdens upon a small locality for the benefit of the whole public. One hundred and sixty pages of appellant’s brief are taken up in discussing these four propositions. The general principles laid down and discussed, and the authorities cited in the brief, are no doubt correct, when applied to a state of facts where the state itself is not. the owner of the land; but, in this case, it is conceded that the state was the owner of all the tide land« in controversy at the time the act was passed, and at the time the contract to fill the same was entered into. This being true, the state could enter into any kind of a contract for filling the lands, at any price, and upon any terms. It could also designate some officer to accept the work, when such officer should deem it completed according to the contract. It could afterwards sell the land, and the purchaser would take subject to all the terms and conditions of the contract, and this is what the state did. At the time the act was passed and the waterway contract entered into, the state was the sole and exclusive owner of the lands. Appellant had no interest in any of them. Appellant’s grantors had only a preference right to purchase. They had no vested or other interest. Allen v. Forrest, 8 Wash. 700, 36 Pac. 971, 24 L. R. A. 606; Mississippi Valley Trust Co. v. Hofius, 20 Wash. 272, 55 Pac. 54. They were, therefore, entitled to no notice except such as is provided by the act or the contract. When they purchased the land from the state, they took with notice of the contract, and all the terms and conditions thereof. The commissioner of public lands is made the judge of when the contractor is entitled to a certificate, and, in the absence of fraud, his decision is conclusive upon the appellant, as it would be upon the state if the state were still the owner. Scholpp v. Forrest, 11 Wash. 640, 40 Pac. 133; Mississippi Valley Trust Co. v. Hofius, supra. For these reasons there is no question of due process of law or want of notice in the case.

It is next argued that the act is in violation of § 9 of art. 12, and of § 5, of art. 8 of the state constitution, which declares that, “The credit of the state shall not in any manner be given or loaned to or in aid of any individual, association, company, or corporation.” We are unable to see that this act in any manner gives the credit of the state to the enterprise. It is true that certain tide lands are authorized to he filled in, and at a stated price, but the state is not bound to pay even this price. The lands were to be appraised and nob sold for less than the- appraised price, but the purchasers of these lands were required to take notice of the lien created by the cost of filling the same, and were bound to pay for the improvements. So that no aid or credit was given by the state directly or indirectly to the waterway company. The state was not even liable to discharge the lien. It fixed the price of the land without the improvements, and any person qualified to purchase was at liberty to do so. It is argued that the certificates of liens-have the state’s land back of them, but this is only true after the state has sold the lands, and then the purchaser takes with notice of the lien and the improvements, which he impliedly, at least, agrees to discharge. If preference right purchasers did not see fit to pay the state the appraised value of the land, and, in addition thereto, pay the waterway company for the improvements, they were under no obligation to purchase. In the event that the state did not sell the land, the only remedy of the waterway company was to purchase the land from the state at the appraised price before the expiration of the lien. While it may have been an advantage to the waterway company to be able to purchase at the appraised price in case preference right purchasers did not do so, we fail to see that the credit of the state was thereby loaned or in any manner given to the waterway company.

It is next argued that the act is in violation of § 3 of art. 8 of the state constitution, which provides that, “Ho debts shall hereafter be contracted by or on behalf of the state, unless such debts shall be authorized by law for some single work or object to be distinctly specified therein. . . . Ho such law shall take effect until it shall at a general election have been submitted to the people and have received a majority of all the votes cast for and against it at such election,” etc. It is clear from what we have said above that this is not a debt created of contracted by or on behalf of the state. By the terms of the act and the contract, the state is not liable for any improvements upon the lands. Hor are the state’s lands liable therefor while they remain the property of the state. The lands become liable only after the state has parted with all its interest. The purchaser from the state takes the title with notice, and agrees to pay the claim of the waterway company for improvements. If this claim may be said to be a debt, it is not such a debt as is meant by the provision named.

It is next argued that the act is contrary to § 12 of art. 1, which declares that, ‘Ho law shall be passed gi'anting to any citizen, class of citizens or corporation other than municipal privileges or immunities which upon the same terms shall not equally belong to all citizens or corporations and § 22 of art. 12, which declares that monopolies shall not be allowed in this state. It is said that, because the act allows the respondent waterway company to erect locks in the waterway, and to exercise exclusive control thereof, and collect toll for its own private gain, this is a special privilege and a monopoly. Even if this contention is correct, it does not affect this case, because this is a separable part of the act, and, if this part fails, the portion relating to the certificates would not necessarily fail. Hence, it is unnecessary in this ease to decide this question.

Appellant further claims that the act is contrary to § 15 of art. 11, which provides that private property shall not be taken or sold for the payment of corporate’ debts of any public or municipal corporation except in the mode provided by law for the levy and collection of taxes. As we have seen above, this is not a debt of any public or municipal corporation. It is no debt at all, until some one purchases the land, and thereby assumes it,- and agrees to pay for the improvements which the state, as owner, has permitted the waterway company to place upon the lands. It then, and for that reason, becomes a debt of the purchaser. Hence this provision of the constitution is not violated.

The remaining questions presented by appellant are, that the contract is not in conformity with the act in a number of respects, and that the commissioner of public lands had no jurisdiction to issue the certificates sued on, because the certificates are not in conformity with the act. All these questions were settled by this court in Scholpp v. Forrest, 11 Wash. 640, 40 Pac. 133, and Mississipp Valley Trust Co. v. Hofius, 20 Wash. 272, 55 Pac. 54. We shall therefore not notice them further.

There is no error in the record, and the judgment is affirmed.

Fullerton, C. J., and Hadley, Anders, and Dunbar, JIT., concur.