Commercial Waterway Dist. No. 1 of King County v. King County

• Decision Date: 26 September 1939
• Docket Number: 27153.
• Citation: 94 P.2d 491,200 Wash. 538
• Parties: COMMERCIAL WATERWAY DIST. NO. 1 OF KING COUNTY et al. v. KING COUNTY (HEMRICH BREWING CO., Intervenor.
• Court: Washington Supreme Court

94 P.2d 491

200 Wash. 538

COMMERCIAL WATERWAY DIST. NO. 1 OF KING COUNTY et al. v. KING COUNTY (HEMRICH BREWING CO., Intervenor.

No. 27153.

Supreme Court of Washington

September 26, 1939

Department 1.

Action by the Commercial Waterway District No. 1 of King County Wash., and Anton Lindberg and Alma D. Lindberg, his wife against King County, of the state of Washington, to prevent the sale by King County of a tract of land to the Hemrich Brewing Company, wherein the Hemrich Brewing Company intervened. From a judgment and decree in favor of the plaintiffs, the defendant and intervener appeal.

Affirmed.

Appeal from Superior Court, King County; Roger J. Meakim, judge.

Skeel MeKelvy, Henke, Evenson & Uhlmann and Eggerman & Rosling, all of Seattle, for appellant Hemrich Brewing Co.

B. Gray Warner and William Hickman Moore, both of Seattle, for appellant King County.

Shorett, Shorett & Taylor and Evans, McLaren & Littell, all of Seattle, for respondents.

ROBINSON Justice.

The purpose of this action was to prevent the sale by King county of a tract of land abutting on the Duwamish waterway. The action was begun on August 11, 1937. On August 16, 1937, the land was sold at public auction to the Hemrich Brewing Company, a corporation. Subsequently, it was permitted to intervene in the action, and the cause proceeded as one to cancel and annul the deed. That relief was granted by a judgment and decree entered on April 12, 1938. The Hemrich Brewing Company has appealed, and, although we find no notice of appeal by King county in the record, it is joined with the brewing company in the briefs, and all parties appear to recognize it as an appellant.

Approximately five-sixths of the tract included in the deed is part of a larger tract acquired by King county for a dock site in 1912 and 1913. On November 8, 1910, there was submitted to the voters of King county, and approved by them, a proposition for the issuance by King county of bonds in the principal amount of $1,750,000, to aid in a comprehensive harbor development project. The resolution of the county commissioners submitting the proposition to the vote of the people was incorporated in the notice of election, and recited, among other things:

'Whereas, it has long been and is essential to the future growth, development and prosperity of King County that its one harbor be made into a great and a cheap harbor, lest the commerce of the north Pacific Ocean, of Alaska, and of the Orient, be attracted to ports of other states or to British Columbia by Reason of the development of harbors at such other parts now under way at expenditures many times greater than that therein proposed, and for the creation of such a harbor the County possesses natural advantages unsurpassed; and

'Whereas, the enterprise of artificial extension of present harbor facilities toward the end aforesaid has heretofore proceeded in parts and sections to the disadvantage of the whole; and

'Whereas, the project known as the Lake Washinton Canal, though but a part of the harbor improvement, has heretofore received aid from the government of the United States to an extent exceeding $600,000.00 in money, and the last Congress appropriated the sum of $2,275,000.00 for the locks of said canal upon the continuing contract system, this county has procured and deeded to the government a considerable part of the right of way for the same at an expense of upwards of $240,000.00, the State has granted several hundred thousand dollars in value of lands, tide, shore and upland, and has appropriated $250,000.00 in money in aid of the same, thereby recognizing the national, state and county benefit to be derived therefrom, and it will require further aid only to the extent of the sum of $75,000.00 which will pay for the excavation of the channel of said canal; and

'Whereas, the improvement of the south end of the harbor has now proceeded so far as the formation of commercial waterway district Number One for the straightening, widening and deepening of the channel of the Duwamish River at an estimated cost of $1,500,000.00, of which $600,000.00 is properly a county expenditure to be contributed by the county in consideration of the benefit to the county from the improvement, and the remainder of the cost will be contributed by the Commercial Waterway District Number One in recognition of the local benefit; and

'* * *

'Whereas, the uplands and shore lands adjacent to said lakes and waters are, for the most part, in every respect suitable, convenient and inviting for manufacturing sites and other industrial uses, if only said lakes and waters were accessible by seagoing ships; but until said lakes and waters are so accessible, are of comparatively small value and are unattractive and unprofitable for such uses; and

'* * *

'Whereas, the topography of said city of Seattle fronting on Elliott Bay is so hilly that there is but a narrow strip of land at or near the level of water transportation and all the water front on said bay, except a few street ends owned by said city, is privately owned and privately controlled, some of it by industrial concerns, but most of it by railroad and steamship lines, and said waterfront and the adjacent lands are much congested by business interests; and

'* * *

'Whereas, said Duwamish river, straightened and deepened, as aforesaid, and said canal when constructed, will each serve the purpose of a great public highway into the interior of said county, whereby the transportation and commercial facilities of said county will be largely augmented and manufacturing and business industries stimulated and developed, * * *

'* * *

'Whereas, the acquisition of sites for public wharves and docks and of other rights and interests necessary and proper to be acquired, for the purpose of better and fuller enjoyment of the benefits of said public improvement by the people of King county, will reasonably cost $350,000.00; and

'* * *

'Whereas, it is the intention of this resolution that King county shall bear its proper share of the cost of said improvement and of its several parts, and at the same time not in any way interfere with the progress of the commercial waterways aforesaid, but, on the contrary, leaving the said canal and commercial waterway districts free to proceed with their work under the law of their creation and thereby raise and expend the sums necessary to pay for the local benefits to each; and

'* * *

'Whereas, said Board is proposing and intending, if authorized and empowered so to do, to have King county, by and through said Board, contract indebtedness for the object and purpose of the public improvement aforesaid, and in aid and furtherance and completion of the same to the amount of $1,750,000.00 to be expended under the directions of and subject to the approval of said Board, as follows: that is to say:

'$750,000.00 thereof in excavating the channel of said Lake Washington canal; $600,000.00 thereof in acquiring rights of way for, and in dredging along the same a straightened, widened and deepened channel for said Duwamish river along the line laid out by said Commercial Waterway District number one; $350,000.00 thereof in acquisition for public uses of sites for wharves and docks, and of other rights and interests necessary or proper to be acquired in aid and furtherance of said improvement, or of securing the drainage or commercial public facilities and benefits to be derived therefrom; and $50,000.00 in turning Cedar river into Lake Washington along lines to be adopted by said proposed Commercial Waterway District Number Two, subject to the approval of this Board; and

'* * *

The bond issue, which was proposed by the resolution, and authorized by a vote of the people, was validated by an emergency act promptly passed at the next session of the legislature. This act (Laws of 1911, chapter 3, p. 3) reads, in part, as follows:

'Section 1. That whenever the board of county commissioners of any county of the first class of this state shall deem it for the interest of the county to engage in or to aid the United States of America, the State of Washington, or any adjoining county or any city of this state, or any of them, in construction, enlargement, improvement, modification, repair or operation of any harbor, canal, waterway, river channel, slip, dock, wharf, or other public improvement, or any of the same, for the purposes of commerce, navigation, sanitation and drainage, or any thereof, or to acquire or operate wharf sites, dock sites, or other properties, rights or interests, or any thereof, necessary or proper to be acquired or operated for public enjoyment of any such public improvement, and to incur indebtedness to meet the cost thereof and expenses connected therewith, and issue bonds of the county for the payment of such indebtedness, or any thereof, such county is hereby authorized and empowered, by and through its county commissioners, to engage in or aid in any such public work or works, operation or acquisition, as aforesaid, and to incur indebtedness for such purpose or purposes to an amount, which, together with the then existing indebtedness of such county, shall not exceed five per centum of the taxable value of the taxable property in said county, as shown by the last previous assessment roll thereof for state and county purposes, and to issue the negotiable bonds of the county for all or any of such indebtedness and for the payment thereof, * * *.' (Italics above and elsewhere in this opinion are supplied.)

Section 2 declared that every purpose mentioned in section 1 was a county purpose.

Section 3 provided that, in case the question of incurring such indebtedness or issuing any such bonds had...