Hogue v. Port of Seattle

Decision Date11 June 1959
Docket NumberNo. 34849,34849
Citation341 P.2d 171,54 Wn.2d 799
PartiesShannon HOGUE and Lucille Hogue, his wife; Paul Wieser and Beatrice Wieser, his wife; and Harlan Bull and Ruby Bull, his wife, Appellants, v. PORT OF SEATTLE, a municipal corporation; Ralph S. Stacy, as King County Assessor; Robert A. Morris, as King County Auditor; and A. A. Tremper, as King County Treasurer; and John J. O'Connell, as Attorney General, State of Washington, Respondents.
CourtWashington Supreme Court

Dore, Cummings & Dubuar, Seattle, for appellants.

Bogle, Bogle & Gates, Edward G. Dobrin, Robert W. Graham, George N. Prince, Seattle, for Port of Seattle.

John J. O'Connell, Atty. Gen., and Robert F. Hauth, Olympia, concurring in the brief submitted by Port of Seattle.

John H. Binns, Tacoma, for amicus curiae.


This action was initiated by appellants as taxpayers on their own behalf, and on behalf of all other taxpayers similarly situated, for a declaratory judgment and injunctive relief against the respondents, who are the Port of Seattle and certain public officers concerned with the enforcement of the statutes involved in this litigation. For convenience, appellants will be referred to as the Taxpayers and the principal respondent as the Port.

The two statutes involved in this case are Laws of 1957, chapter 265 (RCW 53.36.100), herein referred to as the 1957 act, and Laws of 1955, chapter 73 (RCW 53.25), herein referred to as the 1955 act.

The Taxpayers have challenged the constitutionality of the 1957 act and seek to enjoin the expenditure of the proceeds derived from the tax levy made pursuant thereto. The act authorizes an annual twomill levy (for six successive years only) by a port district that has adopted a comprehensive scheme of harbor improvements and industrial developments, and further provides that the proceeds of such tax must be used exclusively for the exercise of those powers granted to port districts by the 1955 act. Thus, the 1957 act, in effect, incorporates by reference the provisions of the 1955 act, so that, in order to pass on the constitutional validity of the 1957 act, it is necessary to first consider the constitutionality of the 1955 act.

The provisions of the 1955 act will be more fully discussed below. At this point, it is sufficient to state that the act, in general, authorizes port districts to create industrial development districts; declares that lands having certain characteristics shall be classified as marginal lands; provides for the acquisition and development of marginal lands by port districts and the sale or lease thereof by them to private entities, and for the redevelopment of such lands by private enterprise. The act also authorizes port districts to acquire all lands within an industrial development district after they have been made a part of the comprehensive scheme of harbor improvements and industrial developments.

In the trial court, the Taxpayers requested, but were denied, a temporary injunction. Trial was subsequently had upon the Taxpayers' amended complaint, which was further amended during the trial. The trial amendment alleged that the findings and determinations of the Port contained in its resolution No. 1814 were wholly without foundation in fact, and were arbitrary and capricious. The evidence encompassed a wide range of subjects, including engineering, zoning, economics, flood control, and statistics concerning industrial conditions in the Seattle area. Ninety-nine exhibits were admitted, including five engineers' reports of considerable length, and minutes of various citizens' committees and other groups which were concerned about the existing industrial conditions in the locality and also the contemplated construction of the Eagle Gorge Dam. The trial court entered findings of fact similar to the facts stated in resolution No. 1814, which the court found were not arbitrarily or capriciously adopted. Judgment was rendered for the Port, wherein the constitutionality of both the 1955 act and the 1957 act was upheld and the Taxpayers' request for injunctive relief was denied. The Taxpayers' subsequent motion for judgment notwithstanding the court's oral decision or, in the alternative, for a new trial, was denied, and the Taxpayers have appealed to this court.

The case has been argued twice before this court, which sat en banc on both occasions. The briefs submitted totaled more than three hundred pages, including an amicus curiae brief which was filed on behalf of the Washington State Public Port Authorities Association, whose membership consists of twenty-one port districts in the state of Washington. The attorney general, who was named as a party defendant, has advised us that he concurs in the brief filed by the Port. The questions which we are called upon to decide are of paramount public importance.

In order to place the questions presented in their proper perspective, it is necessary to briefly relate certain historical facts underlying the enactment of the statutes challenged in this case.

In 1911, the legislature provided for the creation of port districts. Shortly thereafter, the Port of Seattle was organized and it adopted a comprehensive scheme of harbor improvements, which has been amended from time to time. During this same period, Commercial Waterway District No. 1 was formed, pursuant to the applicable statutes, and it undertook the project of dredging and straightening the Duwamish River from Elliot Bay upstream for a distance of about five or six miles. Subsequent to the completion of this project and the creation of Harbor Island, a number of industrial plants have located in the lower Duwamish area.

Since the end of World War II, there had been a growing concern among civic leaders and public officials over the imbalance of industrial employment in the Seattle area. Statistics indicated that the Boeing Airplane Company alone employed over half of the industrial employees in the area. They further showed that the net employment increase in all other manufacturing activities has been at a rate of one per cent a year, which is not sufficient to keep pace with the natural increase in population experienced by the Seattle area. It was therefore apparent that Seattle was increasingly becoming a one-industry town. Various committees were organized to consider this problem. After numerous meetings, they came to the conclusion that, if Seattle is to have normal industrial growth, immediate steps should be taken to develop a sound program for broadening and strengthening its industrial base.

In 1951, legislation (Laws of 1951, chapter 33, § 1) was enacted to authorize the city of Seattle, the port district, and King county to:

'* * * participate jointly in surveys, investigations and studies for determining the location, type and design, with cost estimates, of a project plan for the improvement of any section or sections, within or without the limits of such city, of any navigable river emptying into tidal waters in such city, in aid of commerce and navigation and in aid of the comprehensive land use and development of such river valley, including present and future industrial and manufacturing uses.'

Pursuant to this legislation, the Duwamish and Green River Joint Survey Board was created. This board retained a New York engineering firm to make a study for the industrial development of the Duwamish-Lower Green River Valley, and these engineers submitted a final report to the joint board in 1954. The report predicted rapid industrial development in the Puget Sound area to 1970, and found that the Duwamish-Lower Green River Valley was the most logical location for such development, and submitted a detailed plan therefor. The report also recommended that the Port of Seattle be the agency to construct and supervise the operation of this industrial development, and suggested that several changes be made in the port district laws and in the existing industrial development district act, which was originally enacted in 1939.

To this end there was formed, in 1953, the industrial development council of Seattle and King county. Included in this group were representatives of the city of Seattle, King county, and the port district as well as civic and business groups. In 1957, a mayor's citizens committee was established in Seattle to study the problem and recommend a course of action that would place the local industrial economy on a sound basis. Each of these groups concluded that the lack of suitable industrial sites was one of the major deficiencies of the Seattle area.

Accordingly, new legislation was prepared with the assistance of the Seattle-King county industrial development council, and the 1955 act (known as the industrial development district act) was enacted.

Then, in 1957, the legislature passed the tax act under which the tow-mill tax here in question was levied.

Pursuant to these two statutes, the port district initiated the procedure for the improvements recommended for the industrial development of the Duwamish-Green River Valley on June 20, 1957, by holding a public hearing, after due notice, at which resolution No. 1814 was adopted by the port commissioners.

Basically, this resolution (which consists of ten typewritten pages) accomplished three things:

(1) It created the Duwamish Industrial Development District (herein called the Duwamish District), which encompasses an area of approximately 2,175 acres lying in the Duwamish Valley and lower Green River Valley.

(2) It set forth various determinations and findings of the port commission, foremost of which was the finding that all the lands within the Duwamish District were marginal lands.

(3) It established a comprehensive scheme of harbor improvements and industrial development.

Incorporated within this comprehensive scheme was a modified version of the plan that had been proposed by the New...

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    ...of Washington v. State, 142 Wash. 2d 347, 359-60, 13 P.3d 183 (2000) (regulatory taking); see also Hogue v. Port of Seattle, 54 Wash. 2d 799, 827-29, 341 P.2d 171 (1959) (utilizing narrow definition of state public use clause to strike statute allowing eminent domain for industrial developm......
  • Miller v. City of Tacoma
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    ...* * *'--was, after two en banc arguments to this court, exhaustively researched, discussed, and established in Hogue v. Port of Seattle, 54 Wash.2d 799, 341 P.2d 171 (1959). Our decision in the Hogue case expressly distinguishes the statutes then before the court from those of the instant c......
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    ...and a plan for the use of condemnation to acquire land for an industrial development district was struck down in Hogue v. Port of Seattle, 54 Wash.2d 799, 341 P.2d 171 (1959).13 See generally 2A Nichols, Eminent Domain, § 7.2 (rev. 3d ed.).14 In addition, the Minnesota court applied an extr......
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    ...sites was unconstitutional as authorizing the condemnation of private property for the private use of others. Hogue v. Port of Seattle, 54 Wash.2d 799, 341 P.2d 171 (1959). A constitutional amendment followed in The exposition in the preceding Florida, Nebraska, Idaho, and Washington cases ......
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