(193 P.)

of way, waters, water rights, easements, priv-¡ of public utilities by cities under which the ileges and property necessary for the con- city is proceeding, we read: struction, convenient use, maintenance and "Any incorporated city or town within the operation of the additions, betterments and state be, and hereby is, authorized to construct, extensions herein mentioned, and shall con- condemn and purchase, purchase, acquire, add struct, own, control, operate and maintain to, maintain, conduct and operate waterworks, said additions, betterments and extensions within or without its limits.

as a part of its municipally owned waterworks system"; and that the costs of the pro- In so far as this constitutes authority for posed additions, betterments, and extensions, the city acquiring and owning property of including the acquisition and control of prop- the nature here in question outside of the erty necessary therefor, all of which is de- city's corporate limits, it manifestly is auclared to be of an estimated cost of $500,000, thority for the city acquiring and owning shall be paid for by the issuance and disposi-property so situated, in its proprietary, and tion of the city's general indebtedness bonds not in its governmental, capacity. That is, in that sum, or so much thereof as may be authority to acquire and own such property necessary; specifying the times within which just as any corporation, other than municithe several specified classes of bonds shall pal, could exercise ownership over public mature, providing for such levying of taxes utility property. We find nothing in the oreach year as may be necessary to pay the ganic law of our cities suggesting that their principal and interest of the indebtedness so governmental authority shall extend beyond evidenced, and pledging the faith and re- their corporate limits, now, since a city's sources of the city to the payment of the ownership and dominion over such property bonds and interest thereon, as a general in- is of this nature, and the city is unqualifiedly debtedness of the city. An election was ac-authorized to acquire such property "withcordingly held, after due notice thereof, sub- out" as well as "within" its corporate limits, mitting the proposition to the voters of the we are quite unable to see that the power city, which resulted in its adoption by more of acquiring and owning such property is than three-fifths of the qualified voters of limited to property within our own state. the city voting at the election, as provided by section 8006, Rem. Code. Other facts will be noticed as may become necessary in our discussion of the several questions presented.

[1] The most elaborately argued, and evidently regarded by counsel for appellants as the soundest, ground of contention made by them, is stated in their brief as follows:

[2] The suggestion that, to allow a city of this state to acquire property of the nature here in question in another state would, in effect, be an assumption of extraterritorial jurisdiction, we think is wholly without force, in view of the fact that the city's ownership of such property situated outside its own territorial limits, whether within or "The trial court erred in not holding said or- without this state, is only the ownership and dinance and all proceedings thereunder invalid control over such property in the city's profor the reason that the city is without any right, prietary capacity. Such ownership does not, power, or authority to purchase or acquire by to our minds, suggest an assumption of exeminent domain any property or property rights, traterritorial governmental jurisdiction, eior to expend money in, or become indebted for, ther on the part of the state of Washington the construction or maintenance of the propos-or of its cities, over property, situated in aned extension of its waterworks system in Umatilla county, Oregon, or within the Wenaha Na

tional Forest Reserve."

We first inquire, Has the city of Walla Walla the power, in so far as its own organic law is concerned, to acquire property of the nature and for the purpose here in question, which is situated in the state of Oregon; that is, do the laws of this state grant to the city the privilege of acquiring such property in another state? In the enumeration of powers of cities of the second class, to which class Walla Walla belongs, we read in section 7612, Rem. Code, as follows:

"44. Waterworks: To provide for the erection, purchase or otherwise acquiring of waterworks within or without the corporate limits of the city to supply such city and its inhabitants with water.

And in section 8005, Rem. Code, the first section of the act relating to the acquiring

other state. If the laws of Oregon permit the city of Walla Walla to acquire and own within that state property of the nature and Ifor the use here in question; which as we think will presently appear, though that is apart from this particular inquiry, manifestly we must presume that the courts of Oregon will protect the property rights the city so permissively acquires in that state, the same as they will protect the property rights of any other similar ownership of property therein, and that, should such protection be refused by the Oregon courts, the courts of the United States will afford such protection.

[3] The state of Oregon may, of course, if it so choose, withhold from the cities of this state the right to acquire property in that state, just as it may withhold such right from any other foreign corporation, but that does not argue that this state has not given to its cities such power of acquisition and ownership of property as will enable them to acquire property in Oregon by consent of that

acquire title to any land or water right within the State of Oregon, by purchase or condemnation, which lies within any watershed from which said municipal (corporation) obtains or desires to obtain its water supply.

state. This, we think, is as far as we need go in our inquiry touching the power of the city of Walla Walla under its organic law; that is, under the laws of this state which brought the city into being, and gave to it the powers specified in the statutes above quot-cause to be placed within any watershed from ed from. We conclude, then, that the city of Walla Walla does possess in its proprietary capacity the power to acquire and own in the state of Oregon, so far as it may be necessary for it to acquire such power from the state of Washington. Whether or not and to what extent the city may be able to exercise such power in the state of Oregon is, of course, a question to be decided under the laws and Constitution of that state. There

"Sec. 2. That any person who shall place or which any city or municipal corporation of any adjoining state obtains its water supply, any substance which either by itself or in connection with other matter will corrupt, pollute or impair the quality of said water supply, or the owner of any dead animal who shall knowingly leave or cause to be left the carcass of any portion thereof within any such watershed in such condition as to in any way corrupt or pollute such water supply, shall be deemed guilty of a misdemeanor and upon conviction shall be punished by fine in any sum not exceeding five hundred dollars." Laws of Oregon, c. 182, p. 256.

has come to our notice but one decision which we regard as calling for particular notice, as tending to show the law to be otherwise. That is the decision of the Wisconsin court in Becker v. La Crosse, 99 Wis. 414, 75 N. W. [5] On the following day, February 24, 84, 40 L. R. A. 829, 67 Am. St. Rep. 874. The 1909 (Laws 1909, p. 18) there was enacted by city of La Crosse in the state of Wisconsin, the Legislature of the state of Washington a on the east bank of the Mississippi river, law in exactly the same language, excepting was authorized by the Legislature of that that the words "state of Washington" appear state to construct a bridge across that river in the first section thereof, as the words to the Minnesota shore. The city not only "state of Oregon" appear in the first section constructed the bridge, but constructed a of the Oregon law. That the city of Walla highway 21⁄2 miles long beyond the end of the Walla possesses power to acquire property of bridge in Minnesota. This seems to have the nature and for the use here in question, been done by consent of the state of Min- situated in this state, by the exercise of its nesota; but manifestly without the consent, right of eminent domain, is conceded; so the express or implied, of the state of Wisconsin, express language of the law of Oregon above since it does not appear that the city could quoted renders it plain that nothing stands have gone outside its limits and maintained in the way of the city of Walla Walla acquira highway even in Wisconsin. In a suit ing property as contemplated, in Oregon, by against the city by one injured as the result the exercise of the power of eminent domain of a defect in the highway so maintained of that state, except it be that the Oregon by it in Minnesota, the Wisconsin court held law is in violation of some provision of the that recovery could not be had, because Constitution of that state. So far as we are the state of Wisconsin had not granted to the advised, the courts of that state have never city the power to construct and maintain been called upon to determine the question such highway in Minnesota, and that in so of the constitutionality of that law, and we doing the city was wholly without authority, are therefore placed in the position of being so the city authorities could not render it called upon to determine that question withliable for any act committed in the construc- out the aid of any expression of opinion tion or maintenance of the highway in Min- thereon from the courts of Oregon. We cannesota. We think that is not this situation. not escape this delicate task, because if the [4] We next inquire, Has the city of Walla city of Walla Walla cannot exercise the pow Walla the right and power, under the laws of er of eminent domain in that state which its Oregon, to acquire by purchase, and also by law in terms grants to our cities, the city of condemnation, in the exercise of the power Walla Walla cannot lawfully proceed in the of eminent domain of that state, the prop-making of the proposed additions, bettererty rights here in question, which the city ments, and extensions to its waterworks sysproposes to acquire in Umatilla county, in tem. We shall assume that the question of that state, outside of the Wenaha National public use is a judicial question in Oregon as Forest Reserve? We pass to the question of it is in our state, and that such question has the city's right to acquire such property by condemnation, since as a matter of course, if the city can acquire such property by condemnation, under the laws of that state, it can do so by purchase. On February 23, 1909, there was enacted by the Legislative Assembly of the state of Oregon, a law reading as follows:

"Section 1. That any municipal corporation of any state adjoining the State of Oregon may

been and will be decided by the courts of that state, guided by the same considerations as control us; and we shall therefore be governed in our conclusions as we would be were this a case of an Oregon city seeking in this state what Walla Walla is seeking in Oregon.

It needs no argument to demonstrate that the purpose for which this property is sought to be acquired is, speaking generally, a public

(193 P.)

use. But counsel contend, and strenuously | domain by King county in acquiring the necargue that the public use which is necessary essary property rights to render possible the to support the exercise of the right of emi-construction of the Lake Washington Canal. nent domain in the acquisition of this prop-In Grover Irrigation Co. v. Lovella Ditch Co., erty is a public use for the benefit of the 21 Wyo. 204, 134 Pac. 43, Ann. Cas. 1915D, people of Oregon, and that since the acquisi- 1207, L. R. A. 1916C, 1275, is to be found tion of the property here in question, lying what appears to us as one of the most exwithin that state is only for the purpose of haustive and learned discussions to be found enabling the city to take and convey water in the books touching the exercise of the powfrom that state into this state for use whol-er of eminent domain in the acquisition of ly within this state, it is not such a use as property rights in one state, primarily for will support the exercise by the city of Walla public use in another state. That case involvWalla of the eminent domain power of Ore- ed the attempted condemnation of a small gon. Many general expressions may be found tract of land for a headgate and intake of in the decisions of the courts of this country | water a short distance north of the southern which seem to lend support to this conten- boundary of Wyoming, which is also the north tion. For instance, in Kohl v. United States, boundary of Colorado, for irrigation use in 91 U. S. 367, 23 L. Ed. 449, Justice Strong said:

"The proper view of the right of eminent domain seems to be that it is a right belonging to a sovereignty to take private property for its own public uses, and not for those of another. Beyond that, there exists no necessity, which alone is the foundation of the right."

Colorado. It was held, we think correctly, that the right of eminent domain of the state of Wyoming could not be exercised by the corporation seeking to thus exercise it, because there was no law of Wyoming authorizing the exercise of the state's right of eminent domain to promote a public use beyond the state's territorial limits. Near the conclusion of his exhaustive opinion, Justice Potter, This language is used, however, only in an speaking for the court, uses language which argumentative way, in the consideration of a we understand as plainly indicates that the controversy in which there was not involved court refrains from deciding what the legis the question of the power of a state by ex-lative power of the state may be touching press legislative enactment, to exercise or the granting of the exercise of the state's authorize the exercising of its power of emi- power of eminent domain in the acquisition nent domain in the acquisition or damaging of property within the state for a public use of property for a public use primarily in a in a sister state. We might notice many othsister state. We think that expressions of er decisions of the courts wherein can be this import made in the decisions of the found general expressions seeming to lend

courts are all to be found in cases wherein

there was not involved the power of a state support to the contention of counsel for apby express legislative enactment to use, or pellant. We think, however, that they will authorize the use of, its eminent domain pow-all be found to come no nearer a solution of er for a public use in another state. The our present problem then those already nodecision in Trombley v. Humphrey, 23 Mich. ticed. 471, 9 Am. Rep. 94, seems to come nearest to We now notice two decisions of state courts the situation here involved, as lending sup- of eminence, which are so nearly parallel in port to the contentions made in appellant's their facts with the facts of this controversy behalf. The Legislature of that state passed that we think they are all but conclusive in an act purporting to authorize the exercise the support they lend to the contentions here of the eminent domain power of that state made in the city's behalf. In Re Townsend, in its own courts to acquire a site for a 39 N. Y. 171, the Court of Appeals of that lighthouse, and when so acquired to convey state had under consideration the question the same to the United States. In the court's of the exercise of the power of eminent doopinion observations are made of the same main of that state by a New Jersey canal general import as above quoted from the company, for the purpose of acquiring propKohl decision. It was held that the state's erty rights in New York to aid in the maintepower of eminent domain could not be so ex-nance of the company's canal, the whole of ercised, because it was, in effect, the exer- which was within the state of New Jersey. cising of the power in the acquisition of The eminent domain power of New York was the property for a public use, which was sought to be exercised in pursuance of a not a use for the people of Michigan, but statute of that state expressly authorizing for the United States. That decision, how- the canal company to thereby acquire the ever, can hardly be regarded as authority necessary property rights in New York. The here as to the exercising of a state's power of eminent domain for a federal use, in view of the early decision of this court in Lancey v. King County, 15 Wash. 9, 45 Pac. 645, 34 L. R. A. 817, wherein this court sanctioned the exercise of the state's power of eminent

course of the canal ran from the Delaware river easterly across the northern part of New Jersey to tidewater on the Passaic river, and constituted with the waters of the Passaic river a water highway across New Jersey to a point opposite the city of New

(193 P.)