77 Wash. 267 | Wash. | 1914
The judgment of this court, reported in Ettor v. Tacoma, 57 Wash. 50, 106 Pac. 478, 107 Pac. 1061, and Howard v. Tacoma, 57 Wash. 698, 106 Pac. 481, 107 Pac. 1064, was reversed by the Supreme Court of the United States. A remittitur has come down in each case commanding further proceedings not inconsistent with the decision of that court. Ettor v. Tacoma, 228 U. S. 148.
The defendant Chicago, Milwaukee & St. Paul Railway Company, of Washington, and the City of Tacoma were sued by plaintiffs as joint tort feasors. The liability of the railway company to respond in damages was not discussed by this court. It was argued in the briefs filed by the railway company in the Supreme Court of the United States, but that court did not pass upon the question. That court went no further in its opinion than to decide the particular question upon which our former opinions turn; that is, the validity and constitutionality of the act of the legislature of this state. Laws 1909, p. 151, § 1 (Rem. & Bal. Code, § 7815; P. C. 171 § 125). The railway company and the city filed separate answers, denying liability on grounds other than those based upon the statute of 1909. The parties defendant appeared separately, and filed briefs in this court. Their proffered defenses have never been passed upon. This being made to appear by motion, we believe that the defendants are entitled to have the questions raised by them passed upon, and that our consideration of them will not be a proceeding inconsistent with the decision of the Supreme Court of the United States.
In the year 1906, the railway company was seeking entrance into, and-terminal facilities at, the city of Tacoma. It had acquired certain property for terminal uses. The property was at that time platted ground, and a part of what was known as Indian addition to the city of Tacoma. It was not embraced within the corporate limits of the city. The railway company entered into a contract with the county commissioners of Pierce county wherein it agreed that, in consid
In the spring of 1908, the railway company graded 26th street. The city engineer was upon or about the work from time to time. He had a copy of the contract with the county commissioners. The mayor and the commissioner of public works were aware that the work was going on, and upon one occasion, if not more, the commissioner made some suggestion-with reference thereto. Some of the city councilmen, probably a minority of them, visited the work and were aware of the fact that it was being done by the lailway company. The members of the committee on streets were also upon the ground, and had notice that the work was being done. In the progress of the work, a water main was broken. This was repaired by the city under the direction of the city engineer. The work was completed to the satisfaction of the city engineer, but was never formally accepted by the city. Thereafter, plaintiffs brought an action to recover damages under § 47, ch. 84, Laws 1893, p. 207, and § 48, ch. 153, Laws 1907, p. 336.
Upon this state of facts, we are of the opinion that the railway company is not liable to answer in damages. The theory upon which it is sought to hold the railway company is that the city, being a tort feasor and having assumed to do or
We notice, however, that it is said by the plaintiffs in their brief filed in the Supreme Court of the United States, that:
“When the city, by its engineer, ordered the work to be done in a certain manner, and vacated ‘M’ and ‘N’ streets, and the railway company accepted such vacation and built the grade as directed by the city, they impliedly agreed that their rights and liabilities the one to the other, should be as set out in the order of the board. One of these provisions was that the grading of the street should be at the railway company’s ‘own expense, and without cost or charges to or upon the said county of Pierce.’ Under the statute governing the city, which by the mutual acceptance of the parties succeeded in the contract to the county of Pierce, a part of this ex-, pense so contracted to be paid was payment of compensation to the property owners. The railway company has, therefore, by proceeding as though the original order of vacation*272 were a contract between itself and the city, agreed to pay plaintiffs in error for the injury which they would sustain. The promise was obviously not only for the benefit of the city, but for the benefit of the property owners, and they may rely upon it in an action to recover such damages. This is not only the universal rule in the United States, but is made positive by the provisions of the Washington Code (Rem. & Bal. § 179.) that ‘every action shall be prosecuted in the name of the real party in interest,’ except as otherwise specially provided.”
We are unable to follow the reasoning of counsel. The words “own expense, and without cost or charges to or upon the said county of Pierce,” cannot be given the meaning contended for for two reasons: first, it is obvious that the expenses, costs, and charges contemplated was the cost of making the grade conform to the plans and specifications. The words “costs or charges” add nothing to the word “expense.” The word “expense” is used to define the promise of the railroad company, and the words “cost or charges” are used by the other contracting party to disclaim any liability to those who might do the work. Furthermore, at the time the contract was made, the payment of damages as for compensation for property taken or damaged could not have been within the contemplation of the parties. It has rarely, if ever, been held, and certainly not in this state, that a property owner abutting a public highway owned by the county and subject to the jurisdiction of the county commissioners, can recover damages for an improvement of the highway or for a change in its grade. At the time the words relied on were written, the county had jurisdiction over the street that was thereafter improved, and the law will presume that the parties contracted with reference to the facts and the law as they existed at the time.
It is earnestly contended by the city attorney that the city is not liable for the reason that the work was done under a contract made with the county which was lawful at the time it was made; that the plans were never formally adopted; that
No cases have been cited by counsel, nor have we been able to find any, covering the exact state of facts now before us. In consequence, we are put to the stress of searching out such fundamental principles as, in our judgment, are controlling. It is settled in this period of the law’s evolution that, when territory is annexed or brought into a city, the authority of the city is ipso facto extended over the new territory, and it becomes subject to the control and supervision of the municipal authority. Outside territory when annexed “shall thereupon become a part of such city and subject to all its laws and ordinances then and thereafter in force.” Rem. & Bal. Code, § 7449 (P. C. 77 § 129) ; Peterson v. Tacoma R. & Power Co., 60 Wash. 406, 111 Pac. 338, 140 Am. St. 936; Railroad Co. v. Defiance, 52 Ohio St. 262, 40 N. E. 89; St. Louis Gaslight Co. v. St. Louis, 46 Mo. 121; Trustees of Schools v. Board of School Inspection, 214 Ill. 30, 73 N. E. 412.
It would necessarily follow that contracts, theretofore entered into by the legislative or administrative body having jurisdiction over the new territory, and not then executed, or if of such character that their execution would be inconsistent with or tend to defeat the contracts, rights, powers, and duties of the annexing municipality, and not coming within some guarantee of the constitution, should be held to be extinguished by the act of annexation. The case of Peterson is controlling in principle. We there held that, where the limits of a city were extended so as to take in á part of a street railway then being operated through the city and upon a public road beyond the city limits under franchise from the
The city was not bound to act upon or acquiesce in a contract made by the county with the railway company; but the contract that was made was a lawful one, and might have been entered into by the city on its own account. This court has frequently held that, where a contract is not unlawful and for that reason ultra vires, the city will be bound by the same rules which govern individuals in dealing one with another. State ex rel. Maddaugh v. Ritter, 74 Wash. 649, 134 Pac. 492; Green v. Okanogan County, 60 Wash. 309, 111 Pac. 226; Franklin County v. Carstens, 68 Wash. 176, 122 Pac. 999; Criswell v. Directors School Dist. No. 24, 34 Wash. 420, 75 Pac. 984; Coliseum Inv. Co. v. King County, 72 Wash. 687, 131 Pac. 245; Turner Inv. Co. v. Seattle, 70 Wash. 201, 126 Pac. 426, 41 L. R. A. (N. S.) 781.
There is much confusion in the books in applying the principles of ratification and estoppel to municipal corporations. We confess our confusion in determining upon which ground we-should rest our decision. We believe that it may be rested upon either ground, but more securely upon the ground of ratification. That an unauthorized contract may be ratified by a city will not be denied, and needs no citation of authority. The only question for us is whether the conduct' of the city has been such as to make a ratification. We think there was sufficient notice to the various administrative officers of the city to make it chargeable with knowledge of the fact that the work was going on, it having extended, ás we now remember, over a period of two or three months. The contract with the county was a matter of public record. The city might have disclaimed the contract and denied the right of the railway company to proceed. A city is not bound to accept the encumbrance of an executory contract when an
In taxing the costs on appeal to the Supreme Court of the United States, the clerk of this court disallowed certain items that were expended in the preparation of the appeals. There is no statute covering the taxation of costs in a case like this, and we think the clerk did not err when he refused to tax items of expenditure as costs that were paid without the intervention of this court or of his office and which cannot be checked by reference to our statutes or to our practice in cases appealed to this court. If the items complained of are properly taxable, it would seem that they should have been so taxed in the other court. The order taxing costs is approved.
The Ettor case comes here from a judgment of nonsuit and dismissal. It will be remanded for a new trial.
The Howard case comes here from a judgment of dismissal entered upon a refusal to plead further after the entry of an
Crow, C. J., Gose, Ellis, and Main, JJ., concur.