Driscoll v. City of Bremerton, 33502

• Decision Date: 15 December 1955
• Docket Number: No. 33502,33502
• Citation: 48 Wn.2d 95,291 P.2d 642
• Court: Washington Supreme Court
• Parties: John S. DRISCOLL, Plaintiff and Relator, v. The CITY OF BREMERTON, a municipal corporation; H. O. Domstad, as Mayor & Commissioner of Public Health & Safety of the City of Bremerton; Ruth C. Cullin, as Commissioner of Finance and Accounting of the City of Bremerton; David B. Wheaton, as Commissioner of Public Works & Utilities of the City of Bremerton; and Edward H. T. McGowan, as City Clerk of the City of Bremerton, Defendants. The STATE of Washington, on the relation of John S. DRISCOLL, Plaintiff, v. Bertil JOHNSON, as Judge of the Superior Court for Kitsap County, Respondent.

Page 95

48 Wn.2d 95

291 P.2d 642

John S. DRISCOLL, Plaintiff and Relator, v. The CITY OF BREMERTON, a municipal corporation; H. O.

Domstad, as Mayor & Commissioner of Public Health & Safety

of the City of Bremerton; Ruth C. Cullin, as Commissioner of

Finance and Accounting of the City of Bremerton; David B.

Wheaton, as Commissioner of Public Works & Utilities of the

City of Bremerton; and Edward H. T. McGowan, as City Clerk

of the City of Bremerton, Defendants.

The STATE of Washington, on the relation of John S.

DRISCOLL, Plaintiff, v. Bertil JOHNSON, as Judge of the Superior Court for Kitsap

County, Respondent.

No. 33502.

Supreme Court of Washington, Department 1.

Dec. 15, 1955.

James O. Arthur, bremerton, Riddell, Riddell & Williams, Seattle, for plaintiff.

Preston, Thorgrimson & Horowitz, Seattle, Roy A. Holland, Bremerton, for defendants.

SCHWELLENBACH, Justice.

The City of Bremerton passed an ordinance authorizing the issuance of bonds in the amount of $200,000, the money to be advanced to the Washington Toll Bridge Authority to pay the costs of engineering, feasibility, and financial plans, reports, surveys, appraisals, estimates, studies and other items preliminary and necessary for the reconstruction and improvement of the existing approaches and the construction of new approaches to the Manette Bridge (which extends across the Port Washington Narrows in the City of Bremerton) and for the construction of a new bridge across the Narrows. It is provided in the ordinance that the city will be reimbursed out of the proceeds of the sale of revenue bonds issued by the Authority which will be payable out of tolls imposed for pedestrian and vehicular traffic over the new bridge and the existing bridge as improved. This ordinance was enacted pursuant to Chapter 208 of the 1955 session laws which specifically authorizes the project.

Plaintiff and relator herein, as a taxpayer, sought an injunction to prevent the city from issuing the bonds. A demurrer was sustained to the complaint and subsequently a judgment of dismissal entered. The matter is before us on a writ of certiorari, the city having agreed not to issue the bonds pending a decision by this court.

The complaint alleged that the ordinance was invalid in that it purported to authorize the reimposition of tolls by the State of Washington upon the existing Manette Bridge and that such proposed action was prohibited by the Act of Congress entitled, 'An Act Granting the consent of Congress to W. E. Buell of Seattle, Washington, to construct a bridge across Port Washington Narrows within the city of Bremerton in the State of Washington.' Approved, June 14, 1926. 44 Stat. 744.

The Act in its pertinent sections reads:

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the consent of Congress is hereby granted to W. E. Buell, his heirs, legal representatives, and assigns, to construct, maintain, and operate a bridge and approaches thereto across Port Washington Narrows, at a point suitable to the interests of navigation, within the city of Bremerton, in the State of Washington, in accordance with the provisions of the Act entitled 'An Act to regulate the construction of bridges over navigable waters,' approved March 23, 1906, and subject to the conditions and limitations contained in this Act.

'Sec. 2. After the completion of such bridge, as determined by the Secretary of War, either the State of Washington, any political subdivision thereof within or adjoining which any part of such bridge is located, or any two or more of them jointly, may at any time acquire and take over all right, title, and interest in such bridge and its approaches, and any interests in real property necessary therefor, by purchase or condemnation in accordance with the laws of such State governing the acquisition of private property for public purposes by condemnation. * * *

'Sec. 3. If such bridge shall at any time be taken over or acquired by any municipality or other political subdivision or subdivisions of the State of Washington under the provisions of section 3 of this Act, and if tolls are charged for the use thereof, the rates of toll shall be so adjusted as to provide a fund sufficient to pay for the cost of maintaining, repairing, and operating the bridge and its approaches, and to provide a sinking fund sufficient to amortize the amount paid for such bridge and its approaches as soon as possible under reasonable charges, but within a period of not to exceed fifteen years from the date of acquiring the same. After a sinking fund sufficient to amortize the cost of acquiring the bridge and its approaches shall have been provided, such bridge shall thereafter be maintained and operated free of tolls, or the rates of tolls shall thereafter be so adjusted as to provide a fund of not to exceed the amount necessary for the proper care, repair, maintenance, and operation of the bridge and its approaches. An accurate record of the amount paid for the bridge and its approaches, the expenditures for operating, repairing, and maintaining the same, and of daily tolls collected shall be kept and shall be available for the information of all persons interested.'

Buell constructed the bridge and it was thereafter taken over by the State of Washington through condemnation proceedings and is now the property of the state. Tolls were imposed for a period of the state's ownership, but that practice has been discontinued for some years.

Our problem is this: Is the State of Washington prohibited by the Act from reimposing tolls on the existing Manette bridge.

It will be noted from a reading of the act that Section 2 provides for acquisition by purchase or condemnation by either the State of Washington, any political subdivision within or adjoining which any part of the bridge is located, or any two or more of them jointly. On the other hand, Section 3 relating to tolls, refers only to 'any municipality or other political subdivision or subdivisions of the State of Washington.' The Act does not, by its terms, prohibit the state from imposing tolls.

It is contended that the Act of 1906 entitled, 'An Act To regulate the construction of bridges over navigable waters', approved March 23, 1906, 34 Stat. 84, established a 'spirit' or 'policy' prohibiting the imposition of tolls. The 1906 Act merely regulated the construction of bridges over navigable waters. Congress has authorized the construction of hundreds of bridges in accordance with the provisions of that act. Some of the acts mention tolls, others do not. In fact, the vast majority of the acts make no mention of tolls whatsoever. The only reference in the 1906 Act to tolls is as follows:

'* * * If tolls shall be charged for the transit over any bridge constructed under the provisions of this Act, of engines cars, street cars, wagons, carriages, vehicles, animals, foot passengers, or other passengers, such tolls shall be reasonable and just, and the Secretary of War may, at any time, and from time to time, prescribe the reasonable rates of toll for such transit over such bridge, and the rates so prescribed shall be the legal rates and shall be the rates demanded and received for such transit.'

We are convinced that the Act of 1906 did not establish or inaugurate any 'spirit' or 'policy' that bridges authorized under it should eventually become toll free, nor has such a policy been evidenced by subsequent acts of Congress. The sole expression of policy in the 1906 Act with reference to tolls is that if they are to be charged, they must be reasonable.

It is also contended that, inasmuch as section 2 of the act under consideration provides for the acquisition of the bridge by the state, any political subdivision within or adjoining which any part of the bridge is located, or any two or more of them jointly, it was the intention of Congress, with respect to tolls, to limit any or all of those authorized to so acquire it, including the state.

One answer to that contention is that the act does not so state. In interpreting a statute, the legislative intent must be determined primarily from the language of the statute itself. 50 Am.Jur. 210, Statutes, § 227. It is also advisable at times to consider statutes in pari materia. 2 Sutherland Statutory Construction 535, In Pari Materia and Adopted Statutes, § 5202.

Chapter 358, Sixty-Eighth Congress, Sess. I, 43 Stat. 660, was an act approved June 7, 1924, authorizing the counties of Kittitas and Grant, in the State of Washington, to construct a bridge at Vantage Ferry. Section 2 provided:

'The State of Washington, or any political subdivision or subdivisions thereof, within or adjoining which said bridge is located, may at any time acquire all right, title, and interest in...