Furth v. Town of West Seattle
| Decision Date | 08 March 1905 |
| Parties | FURTH v. TOWN OF WEST SEATTLE et al. |
| Court | Washington Supreme Court |
Appeal from Superior Court, King County; W. R. Bell, Judge.
Suit by Jacob Furth against the town of West Seattle and others. From a decree in favor of plaintiff, defendants appeal. Reversed.
Herbert N. De Wolfe and Boyle & Richardson, for appellants.
Piles Donworth & Howe, for respondent.
On the 3d of March, 1903, the town council of the town of West Seattle, a municipal corporation of the fourth class, passed an ordinance granting to Jacob Furth, his successors and assigns, a franchise to construct and maintain street railways in the town of West Seattle, which ordinance was approved by the council, and published as required by law. By section 8 of this ordinance the grantee was required to construct and begin to operate, within one year, at least one single-track railway on what is designated as 'Route No. 1' and certain parts of other routes. The ordinance required the grantee to file his written acceptance of the rights, privileges, and franchises thereby granted within 30 days thereafter; and further provided as follows 'At the time of filing the written acceptance above provided for, said grantee, his successors or assigns, shall also file in the office of the town clerk a certified check payable to the town of West Seattle, for the sum of $2,000 as security, which check shall be forfeited to said town if said grantee, his successors or assigns, shall fail to comply with those provisions of section 8 hereof requiring the construction and beginning of operation of certain track within one year, unless said grantee, his successors or assigns, shall be entitled to further time as provided in section 12 hereof; and in case said grantee, his successors or assigns, shall comply with so much of said section 8 as requires the construction and beginning of operation of said track within on year, either within said one year, or within such further time as said grantee, his successors or assigns shall be entitled to as provided in section 12 hereof, then said certified check shall be returned to said grantee, his successors or assigns.' The following is the provision of section 12: 'In case said grantee, his successors or assigns, shall be prevented from doing any act or thing in this ordinance required to be done, by any suit or action in court, by any accident, act of God, inability to obtain material, act of town or of the public enemy, or by any strike or strikes, or by any mob violence, then the time within which such act or thing is herein required to be done shall thereby be extended by a length of time equal to the period during which any such interfering cause or causes shall hinder, or delay said grantee, his successors or assigns.' The respondent filed his written acceptance of the franchise and rights granted by this ordinance on the 2d day of April, 1903, and delivered to the town clerk a certified check for $2,000, payable to the town of West Seattle. The railway was not constructed according to the provisions of the ordinance within 12 months from the grant of such franchise, nor was such construction commenced. On February 2d the grantee applied to the town council for an extension of the time within which to construct such line, but such extension was not granted. On the 5th day of March the council of the town of West Seattle passed an ordinance reciting, in effect, that the grantee, Jacob Furth, had wholly failed, refused, and neglected to comply with the terms of the ordinance, and it was resolved that the town clerk be directed to deposit the $2,000 certified check with the town treasurer on the 6th day of March, 1904, and that the town treasurer be directed to deposit said certified check to the credit of the general fund of the town of West Seattle. In accordance with such ordinance and resolution the clerk turned over the check to the town treasurer on March 6, 1904, the treasurer collected the check, and the proceeds were commingled with the general funds in the hands of the town. At the time of this collection the treasurer had a general balance of $741.35...
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