Griggs v. Port of Tacoma

• Decision Date: 31 December 1928
• Docket Number: 21646.
• Citation: 150 Wash. 402,273 P. 521
• Parties: GRIGGS v. PORT OF TACOMA et al.
• Court: Washington Supreme Court

273 P. 521

150 Wash. 402

GRIGGS v. PORT OF TACOMA et al.

No. 21646.

Supreme Court of Washington, En Banc.

December 31, 1928

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Herbert S. Griggs against the Port of Tacoma, a municipal corporation, and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Homer T. Bone, of Tacoma, for appellants.

Herbert S. Griggs, of Tacoma, in pro. per.

HOLCOMB J.

On September 10, 1928, the port commission of the port of Tacoma adopted a resolution numbered 233, appropriating $35,000 of the general fund of the port of Tacoma, or so much thereof as might be necessary to be used to dredge and improve Hylebos creek waterway by straightening, widening and deepening it. Respondent, a resident and taxpayer in the port district of the port of Tacoma conceiving himself to be injured by the proceeding, began suit against the port commission and the port district to restrain the expenditure of any of this money, setting forth the resolution. It is alleged in the complaint that long prior to the resolution complained of, a certain portion of the harbor and waterways of the city of Tacoma, including what was and is known as Hylebos creek, was, by due and legal action of the residents, voters, and electors thereof and in accordance with the statutes applying thereto, segregated and separately organized as and under the name of Commercial Waterway District No. 1 of Pierce County, Washington, for brevity therein called 'Hylebos district'; that a board of commissioners was duly elected, qualified therefor and their successors in office constitute the only official body qualified to act for and on behalf of Hylebos district with reference to the care or improvement of Hylebos district, and of any and all waterways included therein, including the making of necessary improvements by raising of necessary funds therefor by lawful assessments against the property included in the district; that on September 10, 1928, the port commission of the port of Tacoma passed the resolution complained of; that unless restrained they will carry out and perform the terms of the resolution contrary to their rights, duties, and limited powers, and will assist in financing certain extensive and expensive improvements in the Hylebos district, all without any lawful authority or jurisdiction so to do, and will divert to such unlawful and improper purposes the sum of $35,000 of the accumulated funds of the port of Tacoma, to the great loss and damage of plaintiff and all other owners of property in Pierce County, which is not included in Hylebos district. It is alleged that none of the proposed improvements were ever duly adopted or ratified as a part of the original 'comprehensive scheme' of harbor improvements in and for the port of Tacoma, and have not since been adopted or ratified as required by law by the port commission of the port of Tacoma or the qualified electors thereof. It is further alleged that since the organization of the Hylebos district, its board of commissioners is the only board or power authorized to make any improvements or to expend any money for any construction, superintendence, or care of the improvements in the Hylebos district, or to loan or expend money for such purposes. The complaint prayed that appellants be restrained and enjoined from diverting or using any of the credit or money of the port of Tacoma for the unauthorized purposes set forth in the resolution, or at all.

Resolution No. 233, in brief, recites the creation of the Commercial Waterway District No. 1 in Pierce county under the law, and that it is a waterway district duly constituted and existing; that the waterway district had theretofore caused assessments to be made against the real property in the waterway district beneficially affected by such improvement for the purpose of dredging and improving a stream commonly known as Hylebos creek, for the purpose of creating therefrom a commercial waterway, and that the total funds derived from such assessments had been found inadequate and insufficient to complete the waterway, and that the waterway district and its commissioners had not the lawful power to make further and additional assessments against that property for the purpose of completing the waterway, the waterway being then in an unfinished condition and partially closed to ocean commerce. It was then recited that a petition had been presented to the port commission of the port of Tacoma requesting that commission to appropriate from its general fund a sum not exceeding $35,000 for the purpose of dredging and otherwise improving the commercial waterway known as Hylebos creek waterway; it was then recited that Hylebos creek waterway and the waterway district were wholly within the territorial limits of the port district of the port of Tacoma and constituted a vital part of the harbor development of the harbor of Tacoma, and the improvement of the waterway by additional dredging was deemed by the port commission to be of vital importance to the development of the harbor of Tacoma, 'although such waterway and the improvement thereof as herein proposed is not a part of the comprehensive scheme of harbor improvement adopted by the port commission and ratified by the voters of the port district of the port of Tacoma.' The resolution of the port commission to grant the appropriation and let contracts for dredging and improving the waterway as requested then followed.

To the complaint appellants demurred. Their demurrer was overruled, they declined to plead further, and a decree permanently enjoining the proposed action of the port district and commission was entered.

There is nothing in the record before us showing the nature and extent of the 'comprehensive scheme' of the port of Tacoma for improving the harbor, navigable waters, and other waterways within the limits of the port of Tacoma, except as shown by the complaint and the resolution passed by the commissioners of the port. By the complaint and the resolution as quoted it affirmatively appears that the improvement of the Hylebos waterway was not a part of...