120 Wash. 372 | Wash. | 1922
—In 1919, the city of Seattle, being desirous of making betterments and extensions to its municipal street car system, passed ordinance number 39,492, pursuant to §§ 9488-9491, Remington’s Com-
The plaintiff sought to maintain his action as a taxpayer, property owner and bondholder. It is not necessary for us to determine whether he can maintain the action as an owner of property or as a taxpayer, because we are of the opinion that he can maintain it as the holder of one or more of the bonds issued by the city under the original ordinance. It is true the plaintiff bought his bond only a few days before he insti
The more difficult question is: Gan the city at this time make the change proposed by it — can it extend north on 30th avenue northeast, instead of east on 55th street, as provided by the original plan upon which the bonds were issued and sold? The city claims this right by virtue of a portion of § 3 of the original ordinance reading as follows:
“The city of Seattle may modify details in the foregoing plan or system where necessary or advisable in the judgment of the city council, and where not substantially changing the purposes specified; the city shall also effect such other construction, reconstruction, repair, moving, removing, changing and connecting as may be incidental to carrying out any of all of the foregoing purposes.”
Is the change here proposed one which merely modifies the “details in the foregoing plan or system” and “where not substantially changing the purposes specified”? It seems to us that it is not. By the issuance and sale of these bonds, the city contracted with the bond purchasers to make the extensions and better-
Appellant quotes from a number of our cases where we have held that we will not, in the absence of fraud or arbitrary action, review proceedings taken by municipal authorities under a discretion lawfully given. We are not here reviewing a discretionary action which the city council has a right to exercise; we are holding that it has no power to exercise the discretion it is here undertaking to exercise — it is not a question of abuse of discretion, but one of power.
By his cross-appeal, the plaintiff contends that the lower court erred in not issuing a mandate to the city requiring it to build this extension along east 55th street, as provided in the original ordinance. We think the action of the lower court in this respect was correct. It may be that the city will not have money sufficient out of the sale of the bonds to make all of the contemplated improvements, and on that account it may be that it will prefer to expend the money on some other of the proposed extensions or betterments. Whether an extension shall be made rests largely in the discretion of the city council, and we do not feel that we are justified in commanding the city to construct this extension. The judgment is affirmed. '
Parker, C. J., Mitchell, and Tolman, JJ., concur.