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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 a very reasonable interpretation of the statute to construe it, which we do, as being the intention of the Legislature that such officers mentioned therein as the law required to have an official seal should certify under their hands only, as was done by the treasurer in this instance. It is not presumed that the Legislature intended that an officer should do what it is impossible for him to perform." This construction of the statute in question was approved and followed in Young v. Wood, 63 Neb. 291, SS N. W. 528. But even if it should be conceded that the deed was not a legal deed as executed, the Legislature, by act approved February 21, 1903 (Laws 1903, p. 14, c. 15), enacted that the county treasurer should have an official seal, and provided as follows: "Sec. 2. In all cases in which the county treasurer of any county in the state of Washington shall have executed a tax deed or deeds prior to the taking effect of this act, either to his county or to any private person or persons or corporation whomsoever, said deed or deeds shall not be deemed invalid by reason of the county treasurer who executed the same not having affixed a seal of office to the same or having affixed a seal not an official seal; nor shall said deed or deeds be deemed invalid by reason of the fact that at the date of the execution of said deed or deeds there was in the state of Washington no statute providing for an official seal for the office of county treasurer." It is contended by the appellant that this statute was void because it had a retroactive effect and undertook to revivify a dead and void law. It is conceded by all authority that, within the constitutional power of the Legislature and under proper limitations, it may pass acts curing or validating irregularities, and that this may be done in tax proceedings. So that the test is whether or not the defect is jurisdictional, for if not jurisdiction, but a mere omission or irregularity, the Legislature has a right by retrospective statutes to cure it. This is a mere defect or omission, for the Legislature might have dispensed with a seal altogether, just as it had been doing for years before, and the statute would have been just as effective without the interjection of the words which are complained of as with them. Mr. Cooley, in his work on Taxation, vol. 1 (3d) Ed.) at page 480, quotes approvingly from State v. Phillips, 137 Mo. 259. 38 S. W. 931, where it is said: "Many statutory regulations are designed for the information of tax officials, and a compliance is not a condition precedent to the validity of the tax;" and the author in this connection says: "All legislation must be supposed to take into account the possible, if not probable, mistakes and irregularities of officers in executing the provisions of the law, and it is hardly reasonable to infer an intent, on the part of a legislative body, that a failure of ad

vision made for the benefit of the state ex-
clusively, or merely as a guide in orderly
proceedings, should deprive the state of all
benefit to be derived from a compliance with
other provisions that embody the main pur-
pose and object of the law." In this case the
provisions which embody the main purpose
and object of the law were complied with.
In speaking of curative legislation, it is
said by Black on Tax Titles, § 483: "The
objection most frequently urged against this
species of legislation is that it impairs vest-
ed rights. But no party can be said to have
a vested right in a defense based upon de-
fects or irregularities not affecting his sub-
stantial equities. Curative statutes indeed
may disturb vested rights, and if so they are
void. But with the limitations we are here
taking for granted, the objection is not ten-
able. A learned judge has said: 'All acts
curing irregularities in legal proceedings nec-
essarily divest vested rights of the parties,
by closing the mouths of those who could
otherwise avail themselves of such irregulari-
ties to escape from the fulfillment of what is
a moral obligation, and, but for the irregu-
larity, would be a legal liability. So when-
ever formal defects in the execution or ac-
knowledgment of deeds, mortgages, or other
conveyances are remedied by
remedied by legislation,
those who might have pleaded and relied
on such defects are debarred of that which
otherwise would have been a legal vested
right. To deny the validity of such laws
would be to run the plowshare through hun-
dreds of titles which are founded and repose
in security upon them." Again it is said:
"When the Legislature, by a valid exercise
of its authority has conferred power to
act, and prescribed the mode of action, a
substantial compliance with the mode will
be essential to a valid exercise of the power,
but if the power be irregularly or defective-
ly exercised, and for that reason invalid, the
Legislature may, by subsequent action, cure
any such defect or irregularity, the require-
ment of which was originally within its dis-
cretion. * * *" In this case the power,
by reason of the incongruity in the legisla-
tive enactment, was defectively exercised,
and the requirement was originally within
the discretion of the Legislature. So that,
in the absence of any constitutional inhibi-
tion, it would seem certain that the Legis-
lature had a right, under authority gener-
ally, to remedy the defect. The old rule of
strict construction in relation to tax proceed-
ings has been very much modified of late
years, and necessarily so to permit the gov-
ernment to carry on its legitimate functions
by the enforcement of its tax laws. It was
said by the Supreme Court of the United
States in the case of Turpin v. Lemon, 187
U. S. 51, 23 Sup. Ct. 20, 47 L. Ed. 70: "Laws
for the collection and assessment of general
taxes stand upon a somewhat different fect-
ing and are construed with the utmost lib-

erality." And this court, in passing upon this question in Mills v. Thurston County, 16 Wash. 378, 47 Pac. 759, said: "But it is evident that, if the statute is to receive such a literal construction, it would serve little or no purpose. While there is some conflict in the authorities as to whether revenue statutes should be given a liberal or strict construction, it seems to us that the better rule is that they should receive a fair construction to effect the end for which they were intended." And we see no reason now for departing from the rule thus stated. A fair construction should be given to any law, whether it be a law in relation to the collection of taxes or not. We think no error was committed by the court in admitting the deed in evidence, and we may state here that, in passing upon this question, we have examined not only the briefs filed in this particular case, but briefs in other cases which are pending in this court on the construction of this statute in question.

There are other errors alleged, in relation to the unintelligible character of the delinquent tax certificates, their premature issue, and questions of notice, but we think they are all without substantial merit, and that all such questions have been practically decided by this court in Luff v. Gowan, 38 Wash. 504, SO Pac. 766; Taylor v. Huntington, 34 Wash. 455, 75 Pac. 1104; North Yakima v. Scudder, 41 Wash. 15, 82 Pac. 1022; and many other cases.

There being no reversible error committed by the court, the judgment will be affirmed.

MOUNT, C. J., and HADLEY, FULLERTON, ROOT, and CROW, JJ., concur.

(44 Wash. 108)

STATE ex rel. BIDDLE et ux. v. SUPERIOR COURT OF CLARKE COUNTY. (Supreme Court of Washington. Sept. 27, 1906.)


Ballinger's Ann. Codes & St. § 4250 provides that no railroad shall condemn land until the whole of its capital stock has been subscribed. Held, that in condemnation proceedings the corporation's books were admissible to show that the entire capital stock had been subscribed.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, § 1401.]


A showing that some of the stock had been subscribed for by one as trustee was sufficient under the statute as the undisclosed principal or the trustee was liable.


Where a railroad, incorporated under the laws of Washington, located the line at a meeting of a board of trustees held outside the state, the bringing of condemnation proceedings within the state was a sufficient adoption of the line within the state to enable the road to condemn lands therein.

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In condemnation proceedings by a railroad the answer alleged that certain other land, not described in the petition, was a part of the same tract, and the testimony showed that the land described in the petition was merely a part of defendant's farm. At the hearing the court was asked to describe the entire tract in the order of condemnation as the land to be considered in the assessment of damages. The court remarked that if it was one contiguous tract it would have to be included, but the order described only the land described in the petition. Held, that the court should have made the order requested.

5. SAME-DAMAGES-TAKING PART OF TRACT. Where, in a condemnation proceedings by a railroad, the answer alleged that other land described therein was a part of the same tract described in the petition, and it appeared that the two descriptions were a part of defendants' farm. being merely separated by a highway, defendants were entitled to have all the land considered in estimating damages.

[Ed. Note.-For cases in point. see vol. 18, Cent. Dig. Eminent Domain, §§ 367-369.]

Proceedings by the state on the relation of Henry J. Biddle and wife to review the proceedings of the superior court of Clarke county in railway condemnation proceedings by the Portland & Seattle Railway Company. On order to show cause why a writ of review should not issue. Cause remanded with instructions to proceed in accordance with the opinion.

Donald McMaster, Teal & Minor and J. W. Robinson, for relators. James B. Kerr and Geo. T. Reid, for respondent.

HADLEY, J. An order to show cause why a writ of review shall not issue to review the proceedings of the superior court of Clarke county in certain railway condemnation proceedings was made by this court July 11, 1906. The petitioner for the condemnation is the Portland & Seattle Railway Company, a corporation organized under the laws of this state. The petitioner seeks to condemn a strip of land 100 feet in width across the lands of Henry J. Biddle and wife for right of way purposes. Certain lands are described in the petition as comprising the entire tract of the defendants through which the railway line has been located. The defendants' answer admits the ownership of the land described in the petition, but alleges that they are the owners of a larger tract which is described as including what is mentioned in the petition, and that the whole of the larger tract described in the answer is owned and occupied by them as an entire tract as their farm and home. They allege that in order that their compensation may be fully ascertained, it is necessary to determine the damage to the entire tract owned by them considered as a whole. The answer also puts in issue the averments of the petition with reference to the legal capacity of the petitioner to condemn. A hearing was had. Testimony was submitted upon the question of public use

and necessity, and the court found that the contemplated use for which the land is sought to be appropriated is a public use, and that the public interests require its appropriation. An order was entered condemning a strip of land 100 feet in width, the same being 50 feet in width on either side of the center line of the petitioner's location as staked out over and across the land described in the petition. It was also ordered that the damages should | be ascertained by a jury in July, 1906. Before any hearing was had upon the subject of damages, the order to show cause herein was issued, and further proceedings were stayed. The record was certified to this court, together with a bill of exceptions. A hearing was had thereon, and this court finds that the record presents a proper case for the writ of review.

The defendants first contend that the petitioner did not show that it is authorized to prosecute a condemnation proceeding. The proof showed the regular incorporation of the petitioner as a railway company. It is contended, however, that the evidence did not show compliance with the following provision found in section 4250, Ballinger's Ann. Codes & St.: "Provided, that no such corporation shall commence business or institute proceedings to condemn land for corporate purposes until the whole amount of its capital stock has been subscribed." The books of the corporation properly identified were introduced to show that the entire capital stock had been subscribed. The evidence offered we think was competent for that purpose. It is generally held that when one's name appears upon the books of a corporation as a subscriber for stock it is presumptive evidence that he is such, in the absence of other evidence to rebut the presumption. "The records of a corporation are competent and sufficient evidence to prove subscriptions to its capital stock and to show whether or not the number of shares required by its charter have been subscribed, where no proof is introduced to destroy their effect. If it is shown that a person's name appears on the subscription or stockbook of a corporation as a subscribed or stockholder, or upon the books of commissioners appointed to receive subscriptions, this is prima facie proof that he is a subscriber or stockholder." 2 Clark & Marshall on Private Corporations, § 454. In Turnbull v. Payson, 95 U. S. 418. 24 L. Ed. 437. the court said: "Taken as a whole, it is clear that the evidence offered was amply sufficient to warrant the jury in finding that the defendant was a stockholder as alleged. Where the name of an individual appears on the stockbook of a corporation as a stockholder the prima facie presumption is that he is the owner of the stock in a case where there is nothing to rebut that presumption and in an action against him as a stockholder, the burden of proving that he is not a stockholder, or of rebutting that presumption is cast upon the defendant."

The above-stated rule is also supported by the following authorities: Glenn v. McAllister's Executors (C. C.) 46 Fed. 883; Glenn, Trustee, v. Orr (N. C.) 2 S. E. 538; Liggett v. Glenu, 51 Fed. 381; 2 C. C. A. 286; Marlborough Branch R. Co. v. Arnold, 9 Gray (Mass.) 159, 69 Am. Dec. 279; Rockville & W. Turnpike Road v. Van Ness, 20 Fed. Cas. 1080, No. 11,986; 1 Cook on Corporations (5th Ed.) § 55 and cases cited.

It is further contended that the records of the corporation admitted in evidence did not sufficiently show a subscription for all the capital stock. capital stock. The articles of incorporation show the capital stock to be $5,000,000, divided into 50,000 shares of $100 each. The subscription for the stock, as shown by the records, is as follows:

"We, the undersigned, hereby severally subscribe for the number of shares of the capital stock of the Portland and Seattle Railway Company set opposite our respective names and signatures, and agree to pay to the Portland and Seattle Railway Company one hundred dollars upon each share so subscribed. Number

Name of Subscriber. of Shares.
C. M. Levey, Trustee..49,995
J. C. Flanders...

C. F. Adams..

S. B. Linthicum. John S. Baker.... James D. Hoge..

Amount. $4,999,500 00


100 00


100 00

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It will be observed that the subscription for the entire capital stock except $500 was made by C. M. Levey, trustee. It is contended that the subscription by Mr. Levey as trustee is not binding upon him personally, and is not a compliance with the requirements of the statute. The case of Livesey V. Omaha Hotel, 5 Neb. 50, is cited. That case was, however, decided upon the theory that it was not shown that a condition precedent necessary to bind the subscriber had been performed. That condition was that a given amount of stock should be subscribed before liability attached. The same was true in Old Town & Lincoln R. Co. v. Veazie, 39 Me. 571, also cited. Penobscot R. Co. v. White, 41 Me. 512, 66 Am. Dec. 257, is cited. It was held in that case that in order to show the absence of a full subscription, testimony on the part of a subscriber was admissible which tended to show that the subscriptions were not made in good faith. Lewey's Island R. Co. v. Bolton, 48 Me. 451, 77. Am. Dec. 236, is also cited. That case was decided upon the theory that certain statutory regulations must be observed before collection may be enforced against the subscriber. The statute required that notice of assessments should be given, and if any subscriber or stockholder neglected to pay for the space of 30 days after notice, the shares should be sold at public auction to the highest bidder, and the delinquent subscriber was accountable to the corporation for the deficiency. The last case cited by the defendants upon this subject

is Phillips v. Covington & Cincinnati Bridge Co., 2 Metc. (Ky.) 219. It was held in that case that in determining whether the full amount of capital stock had been subscribed the unpaid subscriptions of persons who were insolvent or infants or married women at the time of making them should be excluded from the computation.

The above decisions do not reach the point presented in the case at bar. The evidence shows subscriptions for the full amount of the capital stock, and there is neither evidence of want of good faith nor that any of the subscriptions were made by or in behalf of persons who were insolvent or under disability. Does the stock subscription show a liability to pay for all the stock? We think it does. In Cole v. Satsop R. Co., 9 Wash. 487, 37 Pac. 700, 43 Am. St. Rep. 858, it was held that when the subscription to the stock is made by one as trustee, an action to recover may be maintained against the real parties in interest when the subscription is made by the trustee as agent for others. It is also the rule that when an agent contracts for or on behalf of an irresponsible principal who does not possess the attributes of a legal entity, or when he signs a contract professing to be signing as agent when he has no principal existing at the time, the agent is himself liable on the contract. 1 Am. & Eng. Enc. of Law (2d Ed.) 1122. In Johnston, Trustee, v. Allis, 71 Conn. 207, 41 Atl. 816, it was held that where one had subscribed for stock as trustee, and it transpired that the undisclosed principal was not bound, the subscriber himself was personally bound. To the same effect are the following cases: State ex rel. Page v. Smith, 48 Vt. 266; National Commercial Bank v. McDonnell, 92 Ala. 387, 9 South. 149.

It follows that Mr. Levey's undisclosed principals must be liable on this subscription, or that he himself must be liable. As bearing upon the question of responsibility and good faith, the evidence shows that about $2,000,000 has already been expended by this corporation in construction work. Since the aggregate liability outside of Mr. Levey's subscription is but $500, it is therefore manifest that either the undisclosed principals or the trustee must have already paid large sums on the subscription.

It is argued that sufficient adoption of the line of location has not been shown to enable the petitioner to condemn. The petitioner is a Washington corporation, and the proof showed that the line of location was first adopted by a meeting of the board of trustees held in the city of Portland, Or. It is contended that the corporation could not thus act without the boundaries of the state of Washington, and many authorities are cited to sustain the argument. Whatever might be said upon the merits of this question in some cases, yet the evidence in the case at bar shows that the line of location as adopted at the l'ortland meeting in

cludes the route now sought to be condemned, and the bringing of this condemnation proceeding by the corporation itself within this state is such an act of the corporation as amounts to an adoption, and we think eliminates any question of extraterritorial acts in that regard.

It is also urged that the line of location of the railway across the defendants' land is not shown with sufficient definiteness. We think the testimony of the chief engineer and the maps and charts in evidence show the location with sufficient certainty. It is also insisted that the testimony does not show the necessity for appropriating a strip 100 feet in width, and that not to exceed 60 feet in width is required. We think it reasonably appears that 100 feet is necessary, and that the court did not err in ordering the condemnation of that amount.

It is next insisted that the court erred in its description of the land in its order adjudicating the necessity for appropriation and calling a jury. It will be remembered from the statement of the case that the order describes the land damages to which are to be ascertained as the same tract which is described in the petition for condemnation. The answer, however, avers that other land not described in the petition is a part of the same tract, and that all of the land is occupied and used by the defendants as an entirety for their home. The testimony shows that the defendants own all the land described in their answer, and that it constitutes their farm. A public highway crosses the farm, running in an easterly and westerly direction. The residence and a part of the farm buildings are situate on the south side of the highway, but a barn is located on the north side. The railway company in its petition described only the land on the north side of the road, and the order of condemnation describes the same. We think it manifest that the defendants use and occupy all the land as a whole as one undivided farm. The uses to which they put all this land situate in one body except that it is crossed by the highway, comprise all the combined arrangements for carrying on the business of a single farm. Inasmuch as the defendants expressly raised this question by their answer, and described the whole tract as the damaged one, we think they are entitled under the evidence to have the entire tract described in the answer considered as one, as a basis for estimating their damages, within what was said by this court in Northern Pacific, etc., R. Co. v. Coleman, 3 Wash. St. 228, 28 Pac. 514. At the hearing the court was asked to describe the entire tract in the order of condemnation as the land to be considered in the ascertainment of damages. Thereupon the court remarked as follows: "Without passing on that now particularly, I would say that if it is one contiguous tract it will have to be included. I presume it is one 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 evldence upon the hearing for the condemnation. 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.

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

(44 Wash. 68)

KNUDSON-JACOB CO. v. BRANDT et al. (Supreme Court of Washington. Sept. 25, 1900.)


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. Appeal and Error, §§ 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. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4193.] 3. MECHANIC'S LIEN-PROOF OF FURNISHING


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-FURNISHING 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

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.


Where a materialman furnishing materials for the 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.]


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, §§ 2867-2872.]

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.

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 $115.85 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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