State ex rel. Schroeder v. Superior Court , 29 Wash. 1 ( 1902 )

The opinion of the court was delivered by

White, J.

This is an application for a writ of review. The affidavit and petition shows that on the 2d day of February, 1900, John Schmidt and others- presented to the board of county commissioners of Adams county a petition in writing praying for the establishment and laying out of a county road upon a certain route described therein; that thereafter said John Schmidt filed with the board his bond as required by law, and the board thereupon ordered a survey to he made by the county surveyor, and appointed three viewers to view said proposed road and report to the board; that on the 3d of July, 1900, the county surveyor and the viewers filed with the board a plat showing the proposed route of the road and report thereon, in which report the viewers recommended that the road he established according to the plat thereof filed by the county surveyor; that thereupon the board fixed the 4th day of October, 1900, as tbe day for bearing said petition and tbe report of the viewers, and that thereafter the board of county commissioners proceeded to. bear the! viewers’ report and the said petition, and to hear evidence for and against said petition and report, and after hearing said evidence the board found that said road should be established as prayed for, with the exception of a slight variation; that the board then determined that said proposed road was a public use and benefit and for tbe public use and convenience; that the hoard then made an order directing that said road he opened in accordance with the surveyor’s plat and field notes filed therein, and the board then and there awarded damages to the various land owners over which said road would pass-, except those who had waived their claims thereto., and the board fixed the damages to the relators at $65, and this amount was thereafter tenderedto-therelators, and the same was refused. The road proposed and ordered laid out and established runs through, across, and over and onto the lands of the relators, as described in the petition for the laying out of the road. Thereafter, after the! refusal by the relators to accept said damages, the board ordered and directed the county attorliey to' institute, in the name of the county, condemnation proceedings as provided by law for the taking of private property for a public use. Thereafter the county attorney filed in the superior court of Adams county a petition for such purpose, wherein Adams county is plaintiff and the relators are defendants. The relators were served with process as required by law, and thereafter the case came on to be heard before the court and was called for trial. Thereupon the defendants requested the court to hear and determine the question of public utility and necessity before a jury be called to assess the damages to. the relators. The judge of the court thereupon, upon his own motion, made and entered the following order:

“This cause came on regularly this day for trial, C. L. Holcomb, prosecuting attorney for said Adams county, appearing for the petitioner, and W. W. Zent for the defendants, and at the time the case was called for tidal, and before the jury was impaneled to’ try said cause, the defendants offered to. prove that the road petitioned for was not one of general utility, and objected to. the impaneling of a jury until the court should first hear testimony and decide whether or not said road was one of general utility and necessity and ought to be established; but the court ruled that the decision of the board of county commissioners of said Adams county that said road petitioned for was one of general utility and should be opened and esr tablished was final and conclusive and binding upon the court, and that the only question opened to inquiry in this court was the amount of damages to1 be allowed and paid to the defendants, to which ruling of the court the defendants excepted, and exceptions were allowed.”

Thereupon the court called a jury to assess the damages to be. paid to the said relators, and refused to permit the relators to interrogate any witness as to the utility or necessity of said road, to. which ruling of the court defendants duly excepted and their exceptions were entered in the record. The jury was impaneled and sworn, heard the evidence adduced by the plaintiff and relators, and, after being instructed by the court, retired to deliberate upon its verdict, and thereafter returned a verdict assessing the damages to' be paid to relators at- the sum of $65; whereupon the jury was discharged. Judgment was entered upon said verdict, against Adams county, and by said judgment it was ordered and decreed that said road, as petitioned for by said plaintiff, be established over, through,, and across said defendants’ land, as prayed for in said complaint. The error complained of- for which it is. claimed that, no remedy by appeal is provided, is that the court erred in refusing to determine by competent proof whether or not the road petitioned for was one of general ulility and convenience to the public, and that the court erred in granting plaintiff’s judgment before determining-the necessity for the road, and that the. court erred in impaneling a jury before an order finding that the ground proposed to- be taken was for public utility.

Property used for a public highway is under the direct control of public agencies. The opening and keeping open of public highways is a governmental function. Prom time-immemorial a highway used for the public and controlled by the public has been considered a public use. There is. no necessity for a legislative or judicial determination that sncli a way is for a public use. We must construe the-constitution of this state as if that question was considered as settled by the makers of the constitution. As is said by Mr. Lewis in his work on Eminent Domain (2d eel.), 416:

“If we go back a century and place ourselves in the situation of those who framed the constitutions of the-original states, we shall find that the principal purposes, if not, the only purposes, for which private property was appropriated were for ways and mills. The mills, were mostly saw-mills and grist-mills, and were accustomed, and in most cases, obliged, to saw and grind for toll for whomsoever applied. They were for public use, in the stricter sense of the phrase. There was- nothing in the practice of the states at the time the earlier constitutions, were adopted to- require that the words public use should have the meaning of public benefit or advantage.”

In course of time individuals and private corporations desired the use of property for uses beneficial to the public, such as for canals, turnpikes, railroads-, etc. In such case it was held by the courts that the necessity, expediency, or propriety of exercising the power of eminent domain and the extent and manner of its exercise were questions of general public policy, and belonged to1 the legislative department,. In granting the right of eminent domain to individuals and private corporations in such cases, the legislature often declared the purposes named in the act to he for the public use, and it was contended that this was conclusive upon the courts. Under such a construction it can he seen that the legislature might declare a use which was in reality a private use a public one@, and, if such a declaration was conclusive upon the courts; prívate property might in many instances he taken for a private use. Hence; the maker’s of our constitution, in order to put this question beyond controversy, inserted this clause in §16, art. 1 of the constitution;

“Whenever1 an attempt is made to take private property for a use alleged to he public, the question, whether the contemplated use he really public shall he a judicial question, and determined as, such, without regard to any legislative assertion that the usa is public.”

Thiaprovisionofthe constitution is not a limitation upon the right of the legislature to lay out public roads under the control of public agencies, and no previous detennination by tbe court tbat such a way is for a public use was necessary, and is not covered by this provision. Whether property is proposed to, be taken for a public highway under the. general statutes regulating such matters can be readily determined by an inspection of tbe proceedings, and, when it is apparent that the use is for a public highway, the court, is not called uppn to, judicially determine that the usa is a public use under the provision of the constitution referred to. When authority to lay out a county road has been conferred by the legislature, as under the general laws of this state, upon the boards of county commissioners, it rests with such boards to determine when such power shall be exercised and to wha,t extent it shall be exercised, provided, of course, that the power is not extended or abused. These questions axe political in their nature, and not, judicial. Thus, whether a particular road or street shall be laid out rests entirely with the local authorities vested with the power in the premises. 1 Lewis, Eminent Domain (2d ed.), § 239; Selde v. Lincoln County, 25 Wash. 198 (65 Pac. 192).

The petition for the writ is denied.

B-eayis, O. J., and Fullerton, Hadley, Anders, Mount and Dunbar, JJ., concur.