City of Tacoma v. Nisqually Power Co.

Citations

• 57 Wash. 420
• 107 P. 199
• 1910 Wash. LEXIS 769

Syllabus

<p>Eminent Domain — Private Use — Statutes—Partial Validity. Under Rem. & Bal. Code, § 8005, authorizing cities to condemn property for lighting, heating, and power purposes “public and private” the word “private” will be eliminated as a nullity, as it is not so commingled with the public uses that they cannot be separated, and the remainder of the act is constitutional as a complete act capable of execution in accordance with the legislative intent (Rudkin, C. J., Fullerton, Gose, and Dunbar, JJ., dissenting).</p> <p>Eminent Domain — Public and Private Purposes — Pleading— Test. While a city cannot condemn property where the use is for commingled public and private purposes, an allegation in the city’s petition that it has, since 1893, been furnishing facilities for lighting, heating and power purposes “public and private,” will not defeat the proceeding; since the test is the ultimate purpose now sought, and not what was done in the past.</p> <p>Eminent Domain — Public Necessity — Power Required — Expected Increase — Evidence—Sufficiency. The evidence sufficiently shows that there is a necessity for the acquisition of 20,000 horse power for public lighting purposes, where the city now uses 9,000 horse power'under contract with a power company, that in the past three years the increase has been from 3,400 to 9,000 horse power and from 5,228 lighting meters to 11,258, with an increase of one hundred miles of wire in the last six months, and that at the same ratio, the increase in the next ten years would require 20,000 to 25,000 horse power.</p> <p>Eminent Domain — Public Use —Lighting — Peak Load — Incidental Private Use. Since a municipal power plant for electric lighting must provide for the peak load, or maximum power required on the shortest day of the year, the sale by the city of current for heating and cooking devices and running small machines such as lathes, etc., in the meantime, is so insignificant and incidental to the main public use as not to defeat t