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And this brings the discussion to respondent's second point, viz., that the complaint did not aver that the stockholders, by their by-laws, did not exercise the powers granted them. The trustees collectively are the corporation, and it is the corporation alone which collects subscriptions. The general power to do this, and to do all things preliminary thereto, is vested in the trustees; and when they show that they have taken any step which the law authorizes them to take, the presumption is that they have taken it regularly. If there is any by-law on the subject which renders their action irregular it is, we think, matter of defense, and should be so pleaded.

The judgment is reversed, and the cause remanded with
directions to overrule the demurrer to the complaint.
ANDERS, SCOTT and HOYT, JJ., concur.
DUNBAR, C. J., not sitting.

[No. 994. Decided November 15, 1893.]

J. T. LONG, Appellant, v. C. A. BILLINGS et al., Re

spondents.

CONSTITUTIONAL LAW-APPROPRIATION OF WAY OF NECESSITY—
APPEAL-RECORD — BILL OF EXCEPTIONS.

A special proceeding to appropriate a “private way of necessity" not being an equitable proceeding, but a legal one in the nature of a condemnation proceeding, no more of the record need be brought up on appeal under Code Proc., §1423, than in ordinary civil actions.

When the only error assigned is the judgment of dismissal of a complaint, which is substantially the sustaining of a demurrer thereto, there is no necessity for a bill of exceptions.

The provision of art. 1, § 16 of the state constitution authorizing the taking of private lands for "private ways of necessity" is not self-executing, but before a right to such private ways of necessity ean arise, the legislature must define what they are, authorize per

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Opinion of the Court - STILES, J.

[7 Wash.

sons to apply for them, and prescribe the method by which the necessary land is to be taken.

Appeal from Superior Court, Thurston County.

George W. Tyler, for appellant.

Skillman & Agnew, and Robinson & Linn, for respond

ents.

The opinion of the court was delivered by

STILES, J.-An application to a court for the designation of a way of necessity, as a common law right, would be an equitable proceeding, and on an appeal in such a case, taken in April, 1893, the entire record must have been brought up, as in other equity cases. But the matter before us is not such an application, but rather a special proceeding to appropriate a private way of necessity" as the term is used in the constitution; in other words, it is a condemnation proceeding. In such cases no more of the record need be brought up than in ordinary civil actions. Code Proc., § 1423.

In this case there was no necessity for a bill of exceptions to be settled and signed. The only error assigned was upon the judgment of dismissal. The decision of the superior court was substantially the sustaining of a demurrer to the complaint, which was made apparent upon the record, and no exception was necessary. Code Proc., $398. Moreover, an exception was noted and signed by the judge, being made a part of the order of dismissal.

The respondents' motion to dismiss must, therefore, be denied.

Appellant procured a lease of five acres of land, to be used as a stone quarry. This land lay along the south side of a sixty-acre tract of land belonging to a third party, through which ran the track of the Northern Pacific Railroad Company, several hundred feet away. Appellant

Nov. 1893.]

Opinion of the Court-STILES, J.

In

alleged that after he received his lease he entered into negotiations with the owner of this latter tract for a way over it to the railroad track, and had been orally promised a right-of-way, when the respondents, one of whom was. his lessor, interfered, and purchased the entire sixty-acre tract and refused him a crossing upon any terms. The allegations show the practical necessity for a way across the particular tract of land. The right to a way of necessity arose at common law when the owner sold land to another which was cut off from necessary access to a highway, by other land at the time owned by the grantor. such a case the purchaser's right was to have a way desig nated without any compensation to the owner. But when the purchaser found himself thus cut off by lands not the property of his grantor, his remedy was by means of a public road only; and this public road could be opened only through the proper authorities having such matters. within their jurisdiction, through condemnation proceedings, since private lands could not be taken for merely private purposes. In our constitution, however, there is authority for the taking of lands for "private ways of necessity" (art. 1, § 16), and it is of this authority that appellant sought to take advantage. This authority is contained in a section which is wholly devoted to prohibitions against the invasion of private rights of property, and can be regarded in no higher light than as a permission to the legislature to provide for the taking of private lands for these merely private roads. It is not a selfexecuting provision which operates to confer the right to have such a way laid out, upon any person. Before any

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such right can arise, the legislature must define what are to be private ways of necessity," authorize persons to apply for them, and prescribe the method by which the necessary land is to be taken. Tacoma v. State, 4 Wash. 64 (29 Pac. Rep. 847).

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Opinion of the Court - SCOTT, J.

[ 7 Wash.

The court below having disposed of the case in accordance with the views here expressed, the judgment is af firmed.

DUNBAR, C. J., and SCOTT and ANDERS, JJ., concur.
HOYT, J.-I concur in the result.

[No. 1010. Decided November 15, 1893.]

THE STATE OF WASHINGTON, on the relation of School
District No. 24, Snohomish County, v. L. R. GRIMES,
State Auditor.

CONSTITUTIONAL LAW-INVESTMENT OF SCHOOL FUND — SCHOOL
DISTRICT BONDS.

Under the provisions of art. 16, §5 of the constitution, authorizing the investment of the permanent school fund "in national, state, county or municipal bonds," the moneys in such fund may be invested in school district bonds, as school districts are municipal corporations within the purview of our state constitution. (HOYT, J., dissents.)

Original Application for Mandamus.

Phil. Skillman, for relator.

W. C. Jones, Attorney General, and James A. Haight, for respondent.

The opinion of the court was delivered by

SCOTT, J.-This is an application to compel the respondent to draw a warrant against the permanent school fund in the sum of $35,000 in favor of the relator, to pay the purchase price of its school district bonds. It is conceded that said bonds have been regularly issued and are in all respects valid, and that they have been regularly sold to and purchased by the board of state land commissioners, and that there is money in the state treasury suf

Nov. 1893.]

Opinion of the Court―SCOTT, J.

ficient in amount for and applicable to the purchase of said bonds, and it is conceded that the sole reason why the respondent refused to issue the warrant therefor was because he was in doubt as to whether a school district is a municipal corporation within the meaning of § 5, art. 16 of the constitution, and this is the only question presented. It is stipulated that the decision upon the petition and demurrer shall be conclusive of the case.

There are a number of sections in the constitution bearing upon this proposition, which will furnish some light in arriving at a conclusion. For instance, a part of § 2, art.

7, reads as follows:

"Provided further, That the property of the United States, and of the state, counties, school districts, and other municipal corporations, and such other property as the legislature may by general laws provide, shall be exempt from taxation.

In § 6, art. 8, it is declared that

"No county, city, town, school district or other municipal corporation shall for any purpose become indebted in any manner to any amount exceeding one and one-half per centum of the taxable property in such county, city, town, school district or other municipal corporation, without the assent of three-fifths of the voters therein;"

Also that

"Provided, That no part of the indebtedness allowed in this section, shall be incurred for any purpose other than strictly county, city, town, school district or other munici pal purposes.

Sec. 7 of art. 8 declares that

"No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money or credit, to or in aid of any individual, association, company or corporation."

In this last section school districts are not specially mentioned, and yet they would be included as municipal cor

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