State v. Dexter , 32 Wash. 2d 551 ( 1949 )

Because the majority opinion approves a law which takes from the people of this state another of their constitutional rights, I dissent.

The development of the doctrine of "the police power" has passed all constitutional barriers, so that now all that is necessary to introduce and enforce any repressive measure is to use a high-sounding, plausible preamble, and the courts will then approve, regardless of the fact that personal liberties are taken from the individual. Let us not forget that

". . . the Constitution itself is in every real sense a law — the lawmakers being the people themselves, in whom under our system all political power and sovereignty primarily resides, and through whom such power and sovereignty primarily speaks. It is by that law, and not otherwise, that the legislative, executive, and judicial agencies which it created exercise such political authority as they have been permitted to possess. The Constitution speaks for itself in terms so plain that to misunderstand their import is not rationally possible. `We the people of the United States,' it says, `do ordain and establish this Constitution . . .' Ordain and establish! These are definite words of enactment, and without more would stamp what follows with the dignity and character of law. The framers of the Constitution, however, were not content to let the matter rest here, but provided explicitly — `This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; .. . shall be the supreme Law of the Land; . . .' The supremacy of the Constitution as law is thus declared without qualification. That supremacy is absolute; the supremacy of a statute enacted by Congress is not absolute but conditioned upon its being made in pursuance of the Constitution. And a judicial tribunal, clothed by that instrument with complete judicial power, and, therefore, by the very nature of the power, required to ascertain and apply the law to the facts in every case or proceeding properly brought for adjudication, must apply the supreme law and reject the inferior statute whenever the two conflict." Carter v. CarterCoal Co., 298 U.S. 238, 80 L. Ed. 1160, 56 S. Ct. 855.

As stated in the above case, "Every journey to a forbidden end begins with the first step." That danger is apparent in the statute before us. The only difficulty with us is that we have too many times taken the first step. It is not too late to reform.

True, it is of importance that we preserve our natural resources, but they should not be preserved at the expense of the liberties of the people of this state and nation, and that is the thing the present act proposes to do. I call attention to certain provisions of the law which either encroach upon, or take away, an individual's right to do with his property as he pleases. I shall point out later that an individual has a right to sell his own property in any way he sees fit, and to use his property as he desires.

Any bona fide owner or operator of land in the state with a merchantable stand of timber to be cut during the current year,must first obtain a written permit from the forester. The owner or operator must make a written application to the forester, and submit a map showing the area to be logged, legal description, and acreage. Should application be made by the operator, the forester may require that he secure from the owner, and file with the forester, an agreement that the owner will be jointly responsible with the operator for the carrying out of the requirements of the act, or that the operator shall furnish a bond or other security satisfactory to the forester to assure satisfactory compliance with the act. The permits expire at the end of each calendar year, but may be renewed upon the written application of the owner, providing there has been no violation of the act. The foregoing provisions are found in Laws of 1947, chapter 218, § 2, p. 929.

Section 4 of the act provides that every permittee must provide that during the process of logging adequate precautions shall be taken to leave reserve trees of commercial species deemedadequate under normal conditions to maintain continuous forest growth, or provide adequate restocking to insure future forestproduction. The act then specifies when poles or stands of timber may be cut and sold, and what portion of the timbermust be left to grow. Section 7, chapter 193 of the act of 1945 provides that the owner or operator may adopt other practicalmethods than contained in the act, but if he does, they must beapproved by the forester. Section 6 of the 1947 law is so very definite that I quote it in full:

"SEC. 6. Section 8 of chapter 193, Laws of 1945 (Rem. 1945 Supp. 5823-17; PPC 1945, 574h-15) is hereby amended to read as follows:

"Section 8. The Forester shall have the power to employ a sufficient number of technically trained foresters asinspectors to enable him to maintain an inspection service deemed adequate to secure compliance with the provisions of thisact. In the event that an owner or operator shall fail, refuse or neglect to comply with the provisions of this act, the Forester shall be empowered to order the particular operation in which the violation occurs discontinued until the owner or operator has given satisfactory assurance that he will resume operations in compliance with the provisions of this act and furnish cash deposit or bond in lieu thereof as set by the Forester but not to exceed eight dollars ($8) per acre for that portion of the area which through his failure to carry out the provisions of this act does not have sufficient source of seed to adequately restock the area. Such order may be enforced byinjunction proceedings. Such cash deposit or bond shall be furnished to insure that the owner or operator will artificially restock the area for which the money was collected, within five (5) years. In the event that at the end of said five (5) yearsthe owner or operator has not artificially restocked the area, orthis area has not become adequately restocked, the cash depositshall be forfeited, or if the owner or operator has posted bond in lieu of making cash deposit he shall within thirty (30) days after notification in writing by the Forester furnish the amount of money for which he has posted bond. The Forester shall place this money in a special deposit fund of the State Treasury for artificially restocking the land on which the deposit was withheld. The Forester shall artificially restock the areawithin two (2) years after said deposit has been forfeited, using the money in the special deposit fund collected from the owner for that purpose. In the event that the full amount of money forfeited for any specified area is not required by the Forester to restock the area, the unexpended balance shall be returned to the depositor. Until compliance is so assured, theForester shall also have power to prevent any new operation oroperations in this state by the delinquent operator. Any person violating the provisions of this act by operating without a permit shall be guilty of a misdemeanor, and each day of operation shall constitute a separate offense." (Italics mine.)

Section 9 of the 1945 act contains a provision that the act in question shall not apply where, upon application to the state forester, he has in writing permitted the removal of trees. The permits are required to be issued when removal is sought, (1) to benefit the general health and increase annual growth of residual timber stands, or for the purpose of removing dying or diseased trees; (2) to clear the land upon which said trees are situated for bona fide agricultural, mining, business, or residential purposes; (3) to clear rights of way, landings, campsites, or firebreaks. In other words, themanagement and control of property owned by an individual istransferred to the forester. The American citizen who owns land upon which there are trees has no longer any right to do other than obey the dictates of the state forester.

Appellant says in its brief:

"It will not do to say that only the land owner is concerned with whether timber growth is perpetuated on his land. That is the concern of the man who must in the future buy timber, of the laborer who hopes to make a living from the lumber industry, of the merchant, the banker and the manufacturer, who depend upon a stable economy in our state. In short it is the concern of everyone."

In other words, it is the right of the state and not that of the citizen, which counts. If this be so, why limit ourselves to timber. As counsel for respondent points out, why not include our fields, our grains, our livestock, our soil, our places of private enterprise, the rearing of our children, the ordering of our daily lives? For, are not these things, too, the concern of everyone? What is more important than the raising of families? If the argument of the state is sound, why not have marriage bureaus with a director at the head so that every couple who desires to marry would be compelled to apply to the director for a permit, whereupon he would conduct an investigation to ascertain whether or not they were properly mated before approving their application.

Why not, also, if the state is to be the predominant factor, compel people who wish to have children to first get a permit from the director of the bureau. In short, if we follow the argument to which I have just referred, and the holdings of this court in the present and some other cases, then we should have bureaus to see to it that we have a government of men and not of laws — in other words, a police state.

The trial judge, in his memorandum opinion, expressed the situation exceptionally well in the following language:

"The invasion of the respective states, as well as the Federal Government, in the right of every individual to conduct his business in compliance with law has gone far beyond our conception of a few years ago of what could possibly happen. It should not be permitted to go further irrespective of the extent that a legislative body may believe it should go, voluntarily or under undue pressure. It is apparent that if the constitutionality of the law in question is upheld, that it is only one step further to the control, domination, and, in fact, operation of the farms and other lawful business of this state directed by bureaus, agencies, and incompetents. It could also be extended to the great fruit producing areas of the state whereby fruit growers would be required to plant apples, peaches, prunes, pears, apricots, or other fruit trees and vines as designated and demanded by a state agency regardless of the wishes and experience and judgment of the owner of the land. This should never be permitted, but if there is a continuation of the policy as indicated in the present law, there can be no end to final and complete control and domination of the forests and farms of every type, as well as other business activities of the people of the state under guise of the police power."

In this case, I contend that the act under consideration seeks to take private property without consideration.

"The right of private property is a natural, inherent, and inalienable right. Such right antedates all constitutions, but to insure its continuance, it is guaranteed by the federal and by the various state constitutions. As explained in § 599 et seq, infra, the right to property is also included within the constitutional guaranties of due process of law.

"As protected by the various constitutions, property is more than a mere thing which a person owns. The constitutional guaranty embraces the right to acquire, possess, use, enjoy, protect, improve, lease, and dispose of property." 16 C.J.S. 606, Constitutional Law, § 209.

By reference, I reiterate as a dissent here the statements made in my dissent in State v. Sears, 4 Wash. 2d 200, 223,103 P.2d 337.

The constitution of the state of Washington contains the following provisions declaratory of property rights in this state:

"PERSONAL RIGHTS. — No person shall be deprived of life, liberty, or property without due process of law." Washington constitution, Art. I, § 3.

"INVASION OF PRIVATE AFFAIRS OR HOME PROHIBITED. — No person shall be disturbed in his private affairs, or his home invaded without authority of law." Washington constitution, Art. I, § 7.

"EMINENT DOMAIN. — Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner . . . Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public." Washington constitution, Art. I, § 16 (now amendment 9).

The legislature sought by the passage of the act under consideration to take from the people of this state a property right (the right to sell property) without just, or any, compensation whatever. The legislature, by this same act, has sought to compel property owners to expend money and labor to reforest their lands. All this is prohibited by our state and Federal constitutions.

As I have indicated, the ultimate end is confiscation of property rights and the imposition of governmental decrees by political appointees.

The act (Laws of 1947, chapter 218, § 6) also provides for the employment of inspectors. I presume that in violation of Art. I, § 7, of our state constitution which reads: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law," the inspectors will go upon the lands of those owning property and disturb their private affairs to see that the owners obey the mandates of the state forester.

The supreme court of Montana announced the proper rule in GasProducts Co. v. Rankin, 63 Mont. 372, 207 P. 993, 24 A.L.R. 294. That decision concerned a statute which declared that the burning of natural gas without utilizing all the heat therein contained for other manufacturing or domestic purposes, was wasteful and unlawful and prohibited that act. In holding the act unconstitutional, the court said:

"Were we to sustain the constitutionality of the Act, there would be no limit to which the legislature might go in depriving persons of the use of private property under the guise of the police power. If it may constitutionally prohibit the use of natural gas taken from privately owned property for use in one industrial or manufacturing business, why not in another? If the rule contended for is given sanction, the use of natural gas in blast furnaces, smelters, factories or for cooking, heating or lighting is equally a proper subject for such prohibitory legislation. Under this rule there is no limit to which the legislature may not go. The owner of coal or minerals in the ground may thus by legislative control have his property rights so limited and restricted that he would be compelled to abandon mining although the owner of the fee in the land. The same rule would be applicable to percolating waters, oil, growing trees and agricultural crops grown upon the land. The land owner would be subject to regulation as to the number, kind and character of trees he might cut on his own land, and the conditions for cutting imposed. In short, all recognized principles of property rights would thus be destroyed. If the legislature may prohibit the burning of natural gas in the manufacture of carbon black because of the loss of heat units, why may it not as reasonably condemn its use for fuel on account of the fact that the carbon black contained therein is wasted? We are living in a free government, with definite guaranties of property rights, not under the rule of an emperor or czar. Such legislation is paternalistic in character and conflicts with the guaranties of the national and state Constitution and is contrary to the theory upon which our government was formed. The paternal theory of government is odious, and we should not treat lightly or disregard the sacred rights of property recognized and guaranteed by the government."

March 28, 1949. Petition for rehearing denied.