On Petition for Rehearing. [2 Wash. that the peremptory writ would be denied on final hearing. In the opinion rendered we attempted to show that to do this was not according to the practice of the courts, and that in this court, at least, such had never been the course adopted. We only desire to say a word in addition to what was then said. The respondent in such a proceeding is not necessarily called upon to answer such alternative writ by showing cause why the peremptory writ should not issue, instead thereof he may return that he has done the act which it is sought to compel. If he should take this course the alternative order of this court would probably be a complete justification for the act, however illegal. In the case at bar, if the court had granted the alternative writ, the auditor might have issued the warrant in question and returned his action in so doing as a complete answer to said writ. And it would have followed that the order of this court would be pleaded as justification for an act which was in its opinion, clearly illegal. The above statement clearly shows that the course contended for by the petitioner would be an improper and dangerous one. A further contention is, that the petition on its face prima facie established the right to the relief prayed for. This is probably true if we were bound by the conclusions of law therein pleaded. If this court was bound to accept as true the twelfth paragraph of the petition, there would be little left to be decided. Said paragraph is as follows: "Twelfth. That the said Thomas M. Reed was at all times mentioned herein and now is the duly elected and qualified auditor of the State of Washington; and that it was then and now is, his duty enjoined by law to draw his warrant upon the state treasurer for the payment of said voucher, bill and claims; but he unlawfully refused and still refuses so to do." What is herein alleged as a fact is the very question of law that the court was expected to decide. It needs no argument to prove that this and other conclusions of law June, 1891.] On Petition for Rehearing. could not be taken as true simply because alleged in the petition. The court was bound by the allegations of fact in the petition, and if, assuming them to be as stated, it was of the prima facie opinion that the peremptory writ should issue, then the alternative writ should have been granted; but if from such facts the court was of the opinion that the peremptory writ would be denied, then the alternative one was properly denied. In other words, it would have been idle to call upon the respondent to answer a petition which did not, in the opinion of the court, even prima facie state a cause of action. Besides, in this case it appears from the petition that the auditor had substantially admitted the main facts pleaded therein, and had stated his view of the law to be directly contrary to the theory of the petitioner. It would have followed that, if the alternative writ had issued, he might well have thought that the court must be of the same opinion as the petitioner, as to the law applicable to the facts, and, as he could not deny the facts, that he ought to accept the view of the court as to the law, and, as directed, issue the warrant at once, and stop further contention. This was a cause of importance to the public, and the court for that reason heard the petitioner much more fully than usual. When the petition was presented full argument was allowed, and the matter taken under advisement, and upon a conclusion being reached that there was no merit in the petition, instead of at once entering an order of dismissal, the counsel for petitioner were called and an intimation as to the situation given, and further argument allowed. We have carefully examined the able argument. on the merits contained in the petition for rehearing, but our opinion has not been changed thereby. For, while it is true that several ingenious theories have been presented upon which it could be held that the legislature might have intended to legislate as claimed, yet none of them satisfy us that in fact such was the intention; and for this court to hold that money could properly be paid out of the funds of the state because the legislature might have so intended, or even because it did so properly intend, would establish a precedent that would threaten greater evils to the commonwealth than will the delay for a few months of the work of the mining bureau, however important it may be. It is the contemplation of our constitution that money should only be paid out of the treasury of the state under and by virtue of some positive provision of law, and before this court will coerce the administrative officers into making such payments, the authority for so doing must appear with reasonable certainty. The petition is denied. ANDERS, C. J., and DUNBAR and SCOTT, JJ., concur. 2 500 5 781 27* 174) 32* 746 [No. 130. Decided July 1, 1891.] BELLINGHAM BAY RAILWAY AND NAVIGATION COM- EMINENT DOMAIN-ENTRY BEFORE CONDEMNATION-TRESPASS. Where an entry is made by a railroad upon lands without notice to the owner thereof of an intention to take under the statute for that purpose, and without any setting apart of the land to be so taken, the owner may maintain trespass for injuries to his trees and other property, and is not confined to the proceeding provided by the act of February 1, 1888, regulating the mode of appropriating land, and ascertaining and securing compensation therefor. Appeal from Superior Court, Whatcom County. The facts are fully stated in the opinion. H. B. Williams, and Albert S. Cole, for appellants. Doolittle, Pritchard & Stevens, and H. A. Fairchild, for appellee. July, 1891.] Opinion of the Court - HOYT, J. The opinion of the court was delivered by HOYT, J.-Respondent brought an action of trespass against the appellants to recover damages for the destruction of certain trees and shrubbery situated upon land owned by him and in his possession. Appellants answered, admitting the trespass, but attempted to justify the same by alleging that the defendant, the Bellingham Bay Railway & Navigation Company, was a corporation duly organized to construct a railroad, and that it had appropriated said land, and entered upon the same, by virtue of the provisions of an act entitled "An act to regulate the mode of proceeding to appropriate lands," etc., passed February 1, 1888, and that the acts of the other defendants were done under its direction. Respondent had a verdict and judgment in the court below, from which appellants prosecute this appeal. The sole contention upon their part is as to the rights of railroad corporations under the act above quoted. Their claim is, that both the railroad and the owner are given the right to proceed under said act to have fixed the compensation to be paid the owner for property taken, and that by the terms of § 14 of said act the same is made exclusive of all other remedies, and that for that reason the action of trespass will not lie. It is somewhat difficult to understand just what the legislature meant by providing all the details for condemning property, and the method of fixing compensation therefor, and making it applicable to both owner and railroad company. The whole scope of the act is that of one designed only for the use of the corporation desiring to acquire land, and is largely inapplicable to the case of an owner desiring simply to obtain compensation therefor, and the only reasonable interpretation that can be given would seem to be that the owner could only make use of this means of obtaining compensation when the property had already Opinion of the Court-HOYT, J. [2 Wash. been taken possession of and fully occupied by the railroad, either with his actual consent, or under such circumstances that his cousent would be presumed. It is not necessary, however, for the purposes of this case, to decide just what the respective rights of the appropriator and owner of lands are under said act. It is sufficient for my purpose to decide that where, as in this case, the entry is made without any notice to the owner of an intention to take under the act in question, and without any setting apart of the land to be so taken, said act will not so apply as to defeat an action of trespass by the owner, and I think such must be the construction of said act. I am satisfied that it could not have been intended thereby to clothe a railroad or other corporation with the right to go upon the premises of any person, and destroy his trees and other property, without in any manner giving him notice that in doing such acts they were proceeding under the law for the appropriation of property for public use. Such would not be a reasonable provision of law. Under it an owner of property would be powerless against the arbitrary and oppressive methods of a corporation. Before there would be given any opportunity on the part of such owner to contest the question as to whether or not such lands were necessary for the purposes of the corporation, all the acts of damage would have been accomplished. And if, afterwards, the owner should seek compensation under the act in question, how could he protect himself and intelligently maintain his contention that such taking was not necessary? Besides, the provision of our constitution, providing that no property shall be taken for public use without compensation being first paid therefor, might be entirely nullified. The corporation, after procuring the condemnation of the property and its possession thereunder, might long delay the payment of the award therefor; and while it is true that the constitution was not in force at the time of the |