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by law to have an official seal, while others , ministrative officers to comply with any proare not so required. It would seem to be vision made for the benefit of the state exa very reasonable interpretation of the stat-clusively, or merely as a guide in orderly ute to construe it, which we do, as being proceedings, should deprive the state of all the intention of the Legislature that such benefit to be derived from a compliance with officers mentioned therein as the law re- other provisions that embody the main purquired to have an official seal should certify pose and object of the law.” In this case the under their hands only, as was done by the provisions which embody the main purpose treasurer in this instance. It is not presum- and object of the law were complied with. ed that the Legislature intended that an of- In speaking of curative legislation, it is ficer should do what it is impossible for him said by Black on Tax Titles, § 483 :

: “The to perform." This construction of the stat-objection most frequently urged against this ute in question was approved and followed species of legislation is that it impairs vestin Young v. Wood, 63 Neb. 291, 88 N. W. ed rights. But no party can be said to have 528. But even if it should be conceded that a vested right in a defense based upon dethe deed was not a legal deed as executed, fects or irregularities not affecting his subthe Legislature, by act approved February stantial equities. Curative statutes indeed 21, 1903 (Laws 1903, p. 14, c. 15), enacted that may disturb vested rights, and if so they are the county treasurer should have an official void. But with the limitations we are here seal, and provided as follows: "Sec. 2. In taking for granted, the objection is not tenall cases in which the county treasurer of able. A learned judge has said: 'All acts any county in the state of Washington shall curing irregularities in legal proceedings nechave executed a tax deed or deeds prior to essarily divest vested rights of the parties, the taking effect of this act, either to his by closing the mouths of those who could county or to any private person or persons otherwise avail themselves of such irregularior corporation whomsoever, said deed or deeds ties to escape from the fulfillment of what is shall not be deemed invalid by reason of the a moral obligation, and, but for the irregucounty treasurer who executed the same not larity, would be a legal liability. So whenhaving affixed a seal of office to the same or ever formal defects in the execution or achaving affixed a seal not an official seal; nor knowledgment of deeds, mortgages, or other shall said deed or deeds be deemed invalid conveyances are remedied by

remedied by legislation, by reason of the fact that at the date of the those who might have pleaded and relied execution of said deed or deeds there was in on such defects are debarred of that which the state of Washington no statute providing otherwise would have been a legal vested for an official seal for the office of county right. To deny the validity of such laws treasurer.” It is contended by the appellant would be to run the plowshare through hunthat this statute was void because it had it re- dreds of titles which are founded and repose troactive effect and undertook to revivify a in security upon them.'” Again it is said: dead and void law. It is conceded by all au- "When the Legislature, by a valid exercise thority that, within the constitutional power of its authority has conferred power to of the Legislature and under proper limita- act, and prescribed the mode of action, a tions, it may pass acts curing or validating substantial compliance with the mode will irregularities, and that this may be done in be essential to a valid exercise of the power, tax proceedings. So that the test is whether

but if the power be irregularly or defectiveor not the defect is jurisdictional, for if not ly exercised, and for that reason invalid, the jurisdiction, but a mere omission or ir- Legislature may, by subsequent action, cure regularity, the Legislature has a right by any such defect or irregularity, the requireretrospective statutes to cure it. This is a

ment of which was originally within its dismere defect or omission, for the Legislature cretion. * *' In this case the power, might have dispensed with a seal altogether,

by reason of the incongruity in the legislajust as it had been doing for years before, tive enactment, was defectively exercised, and the statute would have been just as ef- and the requirement was originally within fective without the interjection of the words the discretion of the Legislature. So that, which are complained of as with them. Mr. in the absence of any constitutional inbibi. Cooley, in his work on Taxation, vol. 1 (30 tion, it would seem certain that the LegisEd.) at page 480, quotes approvingly from lature had a right, under authority generState v. Phillips, 137 Mo. 259, 38 S. W. 931, | ally, to remedy the defect. The old rule of where it is said: "Many statutory regula-strict construction in relation to tax proceedtions are designed for the information of tax ings has been very much modified of late officials, and a compliance is not a condition years, and necessarily so to permit the govprecedent to the validity of the tax;" and ernment to carry on its legitimate functions the author in this connection says: “All | by the enforcement of its tax laws. It was legislation must be supposed to take into said by the Supreme Court of the United account the possible, if not probable, mis- States in the case of Turpin v. Lemon, 187 takes and irregularities of officers in execut

U. S. 51, 23 Sup. Ct. 20, 47 L. Ed. 70: "Laws ing the provisions of the law, and it is hard- for the collection and assessment of general ly reasonable to infer an intent, on the part taxes stand upon a somewhat different factof a legislative body, that a failure of ad- | ing and are construed with the utmost liberality.” And this court, in passing upon 4. SAJE – ORDER OF CONDEMNATION - SUFFI• this question in Mills v. Thurston County,

CIENCY. 16 Wash. 378, 47 Pac. 759, said: "But it

In condemnation proceedings by a railroad

the answer alleged that certain other land, not is evident that, if the statute is to receive

described in the petition, was a part of the same such a literal construction, it would serve tract, and the testimony showed that the land little or no purpose. While there is some

described in the petition was merely a part of

defendant's farm. At the hearing the court was conflict in the authorities as to whether rev

asked to describe the entire tract in the order enue statutes should be given a liberal or of condemnation as the land to be considered strict construction, it seems to us that the in the assessment of damages. The court rebetter rule is that they should receive a

marked that if it was one contiguous tract it

would have to be included, but the order de. fair construction to effect the end for which

scribed only the land described in the petition. they were intended.” And we see no reason II cld, that the court should have made the order now for departing from the rule thus stated. requested. A fair construction should be given to any

5. SANE-DAVAGES-TAKING PART OF TRACT. law, whether it be a law in relation to the

Where, in a condemnation proceedings by

a railroad, the answer alleged that other land collection of taxes or not. We think no er- described therein was a part of the same tract ror was committed by the court in admitting described in the petition, and it appeared that the deed in evidence, and we may state here

the two descriptions were a part of defendants'

farm, being merely separated by a highway, that, in passing upon this question, we have

defendants were entitled to have all the land examined not only the briefs filed in this considered in estimating damages. particular case, but briefs in other cases [Ed. Note.-For cases in point. See vol. 18, which are pending in this court on the con- Cent. Dig. Eminent Domain, $$ 367–309.) struction of this statute in question.

Proceedings by the state on the relation of There are other errors alleged, in relation

IIenry J. Biddle and wife to review the proto the unintelligible character of the delin ceedings of the superior court of Clarke counquent tax certificates, their premature is

ty in railway condemnation proceedings by sue, and questions of notice, but we think

the Portland & Seattle Railway Company. they are all without substantial merit, ani

On order to show cause why a writ of rethat all such questions have been practica:

view should not issue. Cause remanded with ly deridled by this court in Luff v. Gowan,

instructions to proceed in accordance with 38 Wash. 504, SO Pac. 766; Taylor v. Hunting

the opinion.
ton, 34 Wash. 435, 73 Pac. 1101; North Yaki-
ma v. Scudder, 41 Wash. 15, 82 Pac. 1022;

Donald McMaster, Teal & Minor and J. and many other cases.

W. Robinson, for relators. James B. Kerr There being no reversible error committed

and Geo. T. Reid, for respondent. by the court, the judgment will be affirmed.

IIADLEY, J. An order to show cause MOUNT, C. J., and HADLEY, FULLER

why a writ of review shall not issue to review TON, ROOT, and CROW, JJ., concur.

the proceedings of the superior Court of Clarke county in certain railway condemna

tion proceedings was made by this court (44 Wash. 108)

July 11, 1906. The petitioner for the conSTATE ex rel. BIDDLE et ux. v. SUPERIOR

demnation is the Portland & Seattle RailCOURT OF CLARKE COUNTY.

way Company, a corporation organized un

der the laws of this state. The petitioner (Supreme Court of Washington. Sept. 27, 1906.)

seeks to condemn a strip of land 100 feet in

width across the lands of Henry J. Biddle 1. EVIDENCE-CORPORATE RECORDS-SHOWING

and wife for right of way purposes. CerSUBSCRIPTIONS.

Ballinger's Ann. Codes & St. § 4250 pro- tain lands are described in the petition vides that no railroad shall condemn land as comprising the entire tract of the defenduntil the whole of its capital stock has been sub

ants through which the railway line has been scribed. Heid, that in condemnation proceedings

located. The defendants' answer admits the the corporation's books were admissible show that the entire capital stock had been ownership of the land described in the retisubscribed.

tion, but alleges that they are the owners of [Ed. Note.-For cases in point, see vol. 20, a larger tract which is described as includCent. Dig. Evidence, § 1401.]

ing what is mentioned in the petition, and 2. EMINENT DOMAIN -- PROCEEDINGS - RIGHT

that the whole of the larger tract described TO CONDEMN-EVIDENCE.

in the answer is owned and occupied by A showing that some of the stock had been subscribed for by one as trustee was sufficient

them as an entire tract as their farm and under the statute as the undisclosed principal home. They allege that in order that their or the trustee was liable.

compensation may be fully ascertained, it 3. SAME-RIGHT TO INSTITUTE PROCEEDINGS

is necessary to determine the damage to the RAILROADS-LOCATION OF LINE. Where a railroad, incorporated under the

entire tract owned by them considered as laws of Washington, located the line at a meet- a whole. The answer also puts in issue the ing of a board of trustees held outside the state, averments of the petition with reference to the bringing of condemnation proceedings within

the legal capacity of the petitioner to conthe state was a sufficient adoption of the line within the state to enable the road to condemn

demn. A hearing was had. Testimony was lands taerein.

submitted upon the question of public use

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and necessity, and the court found that the The above-stated rule is also supported by contemplated use for which the land is sought the following authorities: Glenn v. McAllisto be appropriated is a public use, and that ter's Executors (C. C.) 46 Fed. 883; Glenn, the public interests require its appropriation. Trustee, v. Orr (N. C.) 2 S. E. 538; Liggett v. An order was entered condemning a strip of Glenn, 51 Fed. 381; 2 C. C. A. 286; Marlland 100 feet in width, the same being 30 borough Branch R. Co. v. Arnold, 9 Gray feet in width on either side of the center line (Mass.) 159, 69 Am. Dec. 279; Rockville & of the petitioner's location as staked out over W. Turnpike Road v. Van Ness, 20 Fed. Cas. and across the land described in the petition. | 1080, No. 11,986; 1 Cook on Corporations (5th It was also ordered that the damages should Ed.) § 55 and cases cited. be ascertained by a jury in July, 1906. Be

It is further contended that the records of fore any hearing was had upon the subject the corporation admitted in evidence did not of damages, the order to show cause herein sufficiently show a subscription for all the was issued, and further proceedings were capital stock. The articles of incorporation stayed. The record was certified to this show the capital stock to be $5,000,000, dividcourt, together with a bill of exceptions. A ed into 50,000 shares of $100 each. The subhearing was had thereon, and this court finds scription for the stock, as shown by the recthat the record presents a proper case for ords, is as follows: the writ of review.

“We, the undersigned, hereby severally subThe defendants first contend that the peti- scribe for the number of shares of the capital tioner did not show that it is authorized to stock of the Portland and Seattle Railway prosecute a condemnation proceeding. The Company set opposite our respective names proof showed the regular incorporation of and signatures, and agree to pay to the Portthe petitioner as a railway company. It is land and Seattle Railway Company one huncontended, however, that the evidence did

dred dollars upon each share so subscribed. not show compliance with the following pro

Number vision found in section 4250, Ballinger's Ann.

Name of Subscriber. of Shares. Amount. Codes & St.: "Provided, that no such cor

C. M. Levey, Trustee..49,995 $4,999,500 00 poration shall commence business or institute J. C. Flanders. ...


100 00 proceedings to condemn land for corporate C. F. Adams...


100 00 1

100 00 purposes until the whole amount of its capital Ş. B. Linthicum.

John S. Baker..


100 00 stock has been subscribed. The books of the The books of the James D. Hoge..


100 00" corporation properly identified were introduced to show that the entire capital stock had

It will be observed that the subscription been subscribed. The evidence offered we

for the entire capital stock except $500 was think was competent for that purpose. It

made by C. J. Levey, trustee. It is contendis generally held that when one's name ap

ed that the subscription by Mr. Levey as pears upon the books of a corporation as a

trustee is not binding upon him personally, subscriber for stock it is presumptive evi- and is not a compliance with the requiredence that he is such, in the absence of other ments of the statute. The case of Livesey evidence to rebut the presumption. "The V. Omaha Hotel, 5 Neb. 50, is cited. That records of a corporation are competent and case was, however, decided upon the theory sufficient evidence to prove subscriptions to

that it was not shown that a condition preits capital stock and to show whether or not cedent necessary to bind the subscriber had the number of shares required by its charter been perforined.

been performed. That condition was that a have been subscribed, where no proof is in- given amount of stock should be subscribed troduced to destroy their effect. If it is before liability attached. The same was true shown that a person's name appears on the

in Old Town & Lincoln R. Co. v. Veazie, 39 subscription or stockbook of a corporation as

Me. 571, also cited. Penobscot R. Co. v. a subscribed or stockholder, or upon the White, 41 Me. 512, 66 Am. Dec. 257, is cited. books of commissioners appointed to receive It was held in that case that in order to show subscriptions, this is prima facie proof that the absence of a full subscription, testimony he is a subscriber or stockholder.” 2 Clark on the part of a subscriber was admissible & Marshall on Private Corporations, § 454. which tended to show that the subscriptions In Turnbull v. Payson, 95 U. S. 418, 24 L. were not made in good faith. Lewey's Island Ed. 437, the court said: "Taken as a whole, R. Co. v. Bolton, 48 Me. 451, 77. Am. Dec. it is clear that the evidence offered was an- 236, is also cited. That case was decided ply sufficient to warrant the jury in finding upon the theory that certain statutory regulathat the defendant was a stockholder as al- tions must be observed before collection may leged. Where the name of an individual ap- be enforced against the subscriber. The statpears on the stockbook of a corporation as ute required that notice of assessments should a stockholder the prima facie presumption is be given, and if any subscriber or stockholder that he is the owner of the stock in a case neglected to pay for the space of 30 days where there is nothing to rebut that pre- after notice, the shares should be sold at sumption: and in an action against him as public auction to the highest bidder, and the a stockholder, the burden of proving that he delinquent subscriber was accountable to the is not a stockholder, or of rebutting that corporation for the deficiency. The last case presumption is cast upon the defendant.” cited by the defendants upon this subject is Phillips v. Covington & Cincinnati Bridge cludes the route now sought to be condemned, Co., 2 Metc. (Ky.) 219. It was held in that and the bringing of this condemnation procase that in determining whether the full ceeding by the corporation itself within this amount of capital stock had been subscribed state is such an act of the corporation as the unpaid subscriptions of persons who were amounts to an adoption, and we think eliminsolvent or infants or married women at inates any question of extraterritorial acts the time of making them should be excluded in that regard. from the computation.

It is also urged that the line of location The above decisions do not reach the point of the railway across the defendants' land presented in the case at bar. The evidence is not shown with sufficient definiteness. shows subscriptions for the full amount of We think the testimony of the chief engineer the capital stock, and there is neither evi- and the maps and charts in evidence show dence of want of good faith nor that any of the location with sufficient certainty. It is the subscriptions were made by or in behalf also insisted that the testimony does not of persons who were insolvent or under dis- show the necessity for appropriating a strip ability. Does the stock subscription show a 100 feet in width, and that not to exceed liability to pay for all the stock? We think 60 feet in width is required. We think it it does. In Cole v. Satsop R. Co., 9 Wash. reasonably appears that 100 feet is necessary, 487, 37 Pac. 700, 43 Am. St. Rep. 858, it was and that the court did not err in ordering held that when the subscription to the stock the condemnation of that amount. is made by one as trustee, an action to re- It is next insisted that the court erred in cover may be maintained against the real its description of the land in its order adparties in interest when the subscription is judicating the necessity for appropriation made by the trustee as agent for others. It and calling a jury. It will be remembered is also the rule that when an agent contracts from the statement of the case that the order for or on behalf of an irresponsible principal describes the land damages to which are to who does not possess the attributes of a be ascertained as the same tract which is de legal entity, or when he signs a contract pro- scribed in the petition for condemnation. fessing to be signing as agent when he has The answer, however, avers that other land no principal existing at the time, the agent not described in the petition is a part of the is himself liable on the contract. 1 Am. & same tract, and that all of the land is ocEng. Enc. of Law (2d Ed.) 1122. In John- cupied and used by the defendants as an ston, Trustee, v. Allis, 71 Conn. 207, 41 Atl. entirety for their bome. The testimony 816, it was held that where one had sub- shows that the defendants own all the land scribed for stock as trustee, and it transpired described in their answer, and that it conthat the undisclosed principal was not bound, stitutes their farm. A public highway crossthe subscriber himself was personally bound. es the farm, running in an easterly and westTo the same effect are the following cases : erly direction. The residence and a part of State ex rel. Page V. Smith, 48 Vt. 266; the farm buildings are situate on the south National Commercial Bank v. McDonnell, 92 side of the highway, but a barn is located on Ala. 387, 9 South. 149.

the north side. The railway company in its It follows that Mr. Levey's undisclosed petition described only the land on the north principals must be liable on this subscription,

side of the road, and the order of condemnaor that he himself must be liable. As bear- tion describes the same. We think it maning upon the question of responsibility and

ifest that the defendants use and occupy all good faith, the evidence shows that about the land as a whole as one undivided farm. $2,000,000 has already been expended by this The uses to which they put all this land sitcorporation in construction work. Since the uate in one body except that it is crossed aggregate liability outside of Mr. Levey's sub- by the highway, comprise all the combined scription is but $500, it is therefore manifest arrangements for carrying on the business of that either the undisclosed principals or the

a single farm. Inasmuch as the defendants trustee must have already paid large sums on

expressly raised this question by their anthe subscription.

swer, and described the whole tract as the It is argued that sufficient adoption of the damaged one, we think they are entitled unline of location has not been shown to en

der the evidence to have the entire tract deable the petitioner to condemn. The peti

scribed in the answer considered as one, as a tioner is a Washington corporation, and the basis for estimating their damages, within proof showed that the line of location was what was said by this court in Northern first adopted by a meeting of the board of Pacific, etc., R. Co. v. Coleman, 3 Wash, St. trustees held in the city of Portland, Or. 228, 28 Pac. 514. At the hearing the court was It is contended that the corporation could

asked to describe the entire tract in the order not thus act without the boundaries of the of condemnation as the land to be considered state of Washington, and many authorities in the ascertainment of damages. Thereupare cited to sustain the argument. Wbat- he court remarked as follows: "Withever might be said upon the merits of this out passing on that now particularly, I would question in some cases, yet the evidence in say that if it is one contiguous tract it will the case at bar shows that the line of loca- have to be included. I presume it is one tion as adopted at the Portland meeting in- tract of land." The order entered, however,

described the smaller area only. The court seems to have inclined to the view that the larger area is the tract to be considered, but must have been of the further opinion that the matter presented involved a mere rule of evidence to be determined upon the trial for the ascertainment of damages. Otherwise, it would seem that the court would have passed upon the question as it was squarely presented by the pleadings and evidence upon the hearing for the condeinnation. While it does involve a rule of evidence, yet the order of condemnation as made would at least afford the basis for the contention that the inquiry as to damages must be confined to the smaller area. We therefore think the court should have passed upon the point directly, and should have made its order accordingly. In this particular the order should be modified, but in all other respects it is affirmed, and the defendants are entitled to recover their costs upon this review.

The cause is remanded, with instructions to proceed in accordance with this opinion, and to ascertain the damages.

clude the enforcement of a lien afterwards, where the goods were actually sold for the understood purpose of being used in the building and they were so used, unless the right to a lien is waived. 7. SANE-BURDEN OF PROOF.

Where a materialman furnishing materials for tl:e construction of a building did not, at the time of furnishing the same, intend to assert a lien therefor, he must, on subsequently seeking to enforce the lien, clearly show that the materials were used in the building and what amount of the purchase price remained unpaid.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Mechanics' Liens, § 556.] 8. APPEAL REVIEW-RECORD-SUFFICIENCY.

Where no evidence was introduced in support of the allegations of the complaint against one of the defendants and its answer was not brought up with the record, dismissal of the complaint as to that defendant is not reviewable.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $8 2867–2872.]

MOUNT, C. J., and DUNBAR, ROOT, and CROW, JJ., concur. FULLERTON, J., concurs in the result.

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by the Knudson-Jacob Company against A. M. Brandt and others. From a judgment for certain of the defendants, plaintiff appeals. Affirmed.

E. L. Sanders, for appellant. Hamblen, Lund & Gilbert, for respondents.

(44 Wash. 68) KNUDSON-JACOB CO. v. BRANDT et al. (Supreme Court of Washington. Sept. 25,


The exclusion as evidence of a merchant's daybooks containing items involved in the suit was not prejudicial, where his memorandum and delivery slips containing the items were admitted as books of original entry.

[Ed. Note.--For cases in point, see vol. 3, Cent. Dig. Appcal and Error, 88 4194-4199.] 2. SAME.

Where a mechanic's lien sought to be enforced cannot be sustained the exclusion of evidence of the amount due is immaterial.

[Ed. Yote.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $ 4193.] 3. MECITANIC'S LIEN-PROOF OF FURNISHING MATERIALS-SUFFICIENCY.

In a suit to enforce a mechanic's lien for materials furnished in the construction of a building, evidence held insufficient to show actual delivery of the materials for the building. 4. SAME.

In a suit to enforce a mechanic's lien for materials furnished for a building, evidence held insufficient to show what amount, if any, should be charged against the building. 5. SAME-BURDEN OF PROOF.

A materialman seeking to enforce a mechanic's lien against a building for materials furnished in its construction, has the burden of proof, and his account must be so kept that it can be clearly ascertained what was chargeable against the building.

[Ed. Note.For cases in point, see vol. 34, Cent. Dig. Mechanics' Liens, $ 556.] 6. SAME-FURNISIIING MATERIALS TO CREDIT OF CONTRACTOR-RIGHT TO ENFORCE LIEN.

The absence of intention at the time one furnishes materials for the construction of a building to assert a lien therefor, does not pre

HADLEY, J. This is an action to foreclose a lien for material alleged to have been used in the construction of a certain building. The material consisted of building hardware and paints, and it is alleged that the plaintiff furnished the same at the special instance and request of the defendant Sly, to be used in the construction of a building on lot 9, block 33, of Second Sinto addition to Spokane Falls, now Spokane. It is also alleged that the defendants A. M. Brandt and wife are the owners and reputed owners of the lot, and that said Sly was the contractor in charge of the construction of the building. The usual averments concerning the filing of a lien notice are made, and a balance of $115.83 is claimed as due and unpaid. The complaint also contains certain allegations concerning a mortgage upon said property said to have been executed by said Brandt and wife to the Netherlands American Mortgage Bank, to secure the sum of $3,250, which it is charged was fraudulently made. Said Brandt and wife answered the complaint, denying the material allegations thereof and affirmatively alleging that the goods were sold to said Sly upon general account with the intention of holding him personally without reference to any particular property upon which the same was to be used and without any intention of claiming a lien therefor. Also that before the commencement of suit, said Sly had fully paid for all materials mentioned in the complaint. It is conceded that the said bank also appeared and answered, but the answer was not brought up with the record and it does not appear what issue

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