Condemnation, Credit, and Corporations in Washington: 100 Years of Judicial Decisions-have the Framers' Views Been Followed?

• Publication year: 1988

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 12, No. 2WINTER 1989

ARTICLES

Condemnation, Credit, and Corporations in Washington: 100 Years of Judicial Decisions-Have the Framers' Views Been Followed?

James M. Dolliver(fn*)

I. Introduction

One hundred years ago, on July 4, 1889, seventy-five delegates from Washington Territory met in Olympia to frame a constitution for the State of Washington. Seven weeks later, on August 22, 1889, a constitution had been drafted. By October 1, 1889, the people of Washington had ratified the constitution and on November 11, 1889, Washington was admitted to the Union as the forty-second state.

One hundred years later, even though this constitution has been amended eighty-two times, we celebrate the vision of the framers who gave the people of Washington a living, vibrant document that still provides the basic framework of government for the state. The purpose of this Article is to provide a greater awareness of how portions of the Washington Constitution were drafted in 1889 and how they since have been applied and interpreted.(fn1)

As part of the commemoration of Washington's centennial, this Article will examine three parts of the Washington Constitution written and adopted in 1889: article I, section 16,(fn2) the taking clause; article VIII, section 7,(fn3) the municipal credit clause; and article XII, sections 1-22,(fn4) the Corporations Article.

Each of these three provisions provides a different perspective on the draftsmanship and interpretation of constitutional language. Washington's taking clause is an example of a universal and traditional constitutional provision. The municipal credit clause shows the difficulties of applying constitutional language to new circumstances and situations inconceivable to the framers. The Corporations Article reflects language that essentially attempts to legislate, or codify in the constitution, restrictions on corporations, trusts, and railroads.

This Article will attempt to identify and explain the fundamental premises behind each of the three parts by considering the constitutional text, the specific intent of the framers where discoverable, the climate of the times in the territory and nation in 1889, and the judicial gloss from early case law. Additionally, given these considerations, this Article will explore how faithfully the decisions of the Washington Supreme Court have applied the framers' premises.

Constitutional interpretation, especially when involving ambiguous or arcane provisions, is difficult and controversial.(fn5) The difficulty increases when the constitution must be applied to conditions that could never have been foreseen when the constitution was drafted and adopted. Yet the interpretation of constitutions, among other documents, is precisely what judges are daily called upon to do.

Constitutional interpretation is similar to the interpretation of any other document, and four major factors must be considered.(fn6) First, the actual text of the constitution itself must be examined.(fn7) The meaning of the words themselves provide an excellent start, and often an end, to any interpretive dispute. However, open-textured clauses(fn8) or meanings of words that have changed over time require that the other factors of interpretation be considered in order properly to apply a constitutional section to a given contemporary factual situation.

Second, analysis of specific constitutional provisions requires consideration of the intent of the framers. The controversy over constitutional interpretation has reached its highest levels over this issue of "framers' intent." While many commentators condemn the use of, or dispute the existence or discoverability of framers' intent,(fn9) at a minimum, an examination of this intent is helpful.

Third, the atmosphere or temper of the times surrounding the constitutional convention must be considered. The problems facing constitutional delegates, and the methods chosen to address them, may reveal much and may be immensely helpful in future applications of constitutional provisions. In order to discover the general intent or fundamental premise of the framers behind each provision, an understanding of the political, social, and economic environment of 1889 is crucial.(fn10) This Article will attempt to discover the then-existing intellectual environment and gauge its impact on the language drafted by the framers in 1889. The Article's focus will be on broad themes existing in the territory and nation, as well as the specific history behind each of the three provisions, but is not intended to provide a comprehensive history of Washington Territory and the 1889 Constitutional Convention.(fn11)

One of the best sources from which to learn of the intellectual environment surrounding constitutional delegates would be a transcript of a convention's proceedings, which records the delegates' debates, voting records, and overall attitudes.(fn12) Unfortunately, such detailed records of the Washington Convention have not survived.(fn13) However, it remains possible to determine the underlying assumptions of the fram-ers, given the existing secondary records from the convention.(fn14) Writings completed after the convention by former delegates are also useful.(fn15)

A fourth factor to consider in constitutional interpretation is that it may be influenced by the judicial gloss placed on the framers' words by earlier courts construing the same or similar constitutional provisions. Constitutional interpretation based upon the language used, the specific intent of the framers, the climate of the times, and the problems facing the framers can certainly be aided by the gloss of earlier judicial writers.

By far the most difficult and important part of interpretation is applying the constitutional language to contemporary factual problems never considered or imagined when the constitution was drafted. These situations require a transposition of the language, purposes, and intent of the constitution from the time it was drafted and ratified, to the conditions of today.(fn16)

This Article will begin with a general historical overview of the 1889 convention, and continue with more specific histories of the adoption of the taking clause, municipal credit clause, and the Corporations Article. An analysis of each of the constitutional provisions follows this historical background. Finally, this Article will assess how faithfully the Washington Supreme Court has applied the constitutional language.

II. Historical Overview

Following years of attempts by Washington and the other territories to gain statehood,(fn17) Congress passed the Enabling Act, which granted the authority to call constitutional conventions.(fn18) On July 4, 1889, the Washington Constitutional Convention convened in Olympia, Washington, joining four other territories seeking to attain statehood. Washington, North Dakota, South Dakota, and Montana held constitutional conventions under the authority of the Enabling Act, which allowed each to "form constitutions and State governments and ... be admitted into the Union on an equal footing with the Original States."(fn19) Idaho also convened a constitutional convention on July 4, 1889, in the hope of attaining statehood.(fn20) All five states succeeded in gaining admission to the Union.(fn21)

Under the authority and guidance of the Enabling Act, the people of Washington Territory elected delegates representing twenty-five territorial districts to draft Washington's Constitution in the spring of 1889.(fn22)

The Act ensured minority representation by limiting voters to voting for only two delegates in their district.(fn23) Thus, while a strong Republican majority existed at the convention, over one-third of the delegates were Democrats.(fn24) And, despite the majority, several Democrats chaired a number of the convention committees.(fn25) Although facing a difficult task, the convention delegates were not without guidance in their attempt to draft a constitution. In addition to the constitutions of existing states, among which California and Oregon were most influential,(fn26) the convention delegates also looked to, and relied upon, the Hill Constitution(fn27) and the Washington Constitution of 1878.(fn28)

The convention delegates who met in the various states in 1889 reflected, to varying degrees, the growing populism of the 1880s and 1890s in the nation. Throughout the country, fears of corrupt government and large corporations increased, and many recognized a need and called for some type of reform.(fn29)

In Washington Territory, the delegates and people expressed concern over the abuse of public offices; the use of public funds for private purposes; the concentration of power, both in and out of government; and the protection of individual liberties.(fn30) Even so, many delegates and citizens recognized a need to provide flexibility and freedom for future government decision makers, and a need for business investments to help build the new state.(fn31)

III. Taking Clause

Article I, section 16 of the Declaration of Rights sets out Washington's version of the basic, and almost universal, constitutional provision limiting the sovereign's exercise of eminent domain power.(fn32) Although some discussion over this section's language did occur, little about this section can be discovered directly from the convention journal or contemporary newspapers because debate was...