48 Wash. 150 | Wash. | 1907
On March 18, 1907, the council of Columbia, a city of the third class in King county, Washington, passed an ordinance granting to the Seattle Electric Company, a corporation, a franchise to construct maintain, and operate a street car line over and upon certain streets and highways. Lewis E. Tenny and Carrie B.' Tenny, his wife, the relators and appellants herein, were then, and still are, owners of block . 89, Maynard’s Lake Washington Addition to the city of Seattle, now within the corporate limits of the city of Columbia. Many years ago a public county road, known as road No. 169, extended diagonally across the tract of land which has since been platted as block 89. Relators allege that this road was
After the passage of the ordinance the relators applied to the superior court of King county for a writ of certiorari to review the action of the city council in passing the ordinance, and in their petition have made the city of Columbia, its mayor and clerk, the individual members of the city council, and the Seattle Electric Company, a corporation, parties defendant. Upon notice a writ of review was issued, to which the municipal authorities made return by affidavit, alleging their several capacities as officers of the city of Columbia, and further alleging that on May 2, 1907, the city of Columbia was annexed to the city of Seattle and ceased to be a separate corporation; that by such annexation their terms as officers had expired; that at no time since have any of them been custodians of any official records of the proceedings of the municipality, but that the same have passed into the custody and control of officers of the city of Seattle. At the final hearing the respondents attacked the jurisdiction of the trial coui’t by motion to quash the writ of review theretofore issued and to dismiss the proceeding. Thereupon the relators made an application for leave to amend their petition by making the city of Seattle a party defendant, and moved for an alias writ of certiorari against said city of Seattle and its clerk. This application being denied the motion of the respondents was sustained, and the proceeding being finally dismissed, the relators have appealed.
The appellants contend that the trial court erred, (1) in refusing to make the city of Seattle and its clerk parties de
'Appellants have mistaken their remedy. While a writ of certiorari may issue to review judicial action when there is no remedy by appeal, it will not issue to review mere legislative acts. The appellants, however, for the purpose of maintaining their right to the writ, insist that the action of the council of the city of Columbia, being an exercise of discretion, was judicial. In substance they admit that, if the granting of the franchise was a legislative act, they are not pursuing the proper remedy. The passage of an ordinance by a city council granting a franchise to a public service corporation involves legislative action only. Schwede v. Hemrich, Bros. Brewing Co., 29 Wash. 21, 69 Pac. 362; Hindman v. Boyd, 42 Wash. 17, 84 Pac. 609; 27 Am. & Eng. Ency. Law (2d ed.), pp. 14, 15; McQuillin, Municipal Ordinances, § 569; Nellis, Street Surface Railroads, § 4. Such legislative action cannot be reviewed by a writ of certiorari. 6 Cyc. 753; Spelling, Injunctions and Other Extraordinary Remedies (2d ed.), § 1899a; In re Wilson, 32 Minn. 145, 19 N. W. 723; Spring Valley Water Works v. Bryant, 52 Cal. 132; People v. Supervisors etc., 25 Hun. 131; Whittaker v. Venice, 150 Ill. 195, 37 N. E. 240.
If there is no legal highway over appellants’ land, a fact which cannot be adjudicated in this proceeding, the city of
The judgment is affirmed.
Hadley, C. J., Mount, and Fullerton, JJ., concur.