Shanstrom v. Case

• Decision Date: 08 October 1918
• Docket Number: 14564.
• Citation: 175 P. 323,103 Wash. 672
• Court: Washington Supreme Court
• Parties: SHANSTROM v. CASE, Superintendent of Streets, et al.

175 P. 323

103 Wash. 672

SHANSTROM v. CASE, Superintendent of Streets, et al.

No. 14564.

Supreme Court of Washington

October 8, 1918

Department 1. Appeal from Superior Court, King County; King Dykeman Judge.

Suit by Percy C. Shanstrom against C. R. Case, Superintendent of Streets in the City of Seattle, and the City of Seattle. Decree for complainant, and defendants appeal. Affirmed.

George A. Meagher, Hugh R. Fullerton, and Hugh M. Caldwell, all of Seattle, for appellants.

Roberts Wilson & Skeel, of Seattle, for respondent.

TOLMAN J.

The respondent, who is a resident taxpayer of the city of Seattle, seeks in this action to enjoin the city of Seattle and its superintendent of streets from selling asphalt manufactured at its municipal plant, and from entering into any contract for such sale, until the city has by ordinance fixed the price at which such product may be sold. It is alleged in the complaint that the city of Seattle is the owner of an asphalt plant erected at public expense from funds raised by general taxation, and that the plant was constructed for the purpose of equalizing prices of certain paving materials and with a view of preventing exorbitant charges being made for certain character of improvements, and for the purpose of establishing and fixing a suitable price for the product manufactured at such plant. It is further alleged that by the city charter (subdivision 12a, § 18, art 4) the price may be fixed only by ordinance, that the product may be sold only at the plant at a price so fixed by ordinance, and that the tools, equipment, instrumentalities and agencies of the city may not be used for the purpose of entering into contracts or subcontracts for the paving of streets; that the city council has not passed any ordinance fixing the price at which such asphalt may be sold, and that the superintendent of streets, without legal authority, is presuming to sell such asphalt at prices fixed by him alone, and is entering into contracts for the laying of asphalt paving, in the performance of which he is using the products of such plant and the tools and implements of the city, and will continue so to do, unless enjoined by the court. The appellants demurred to the complaint on the ground that the facts alleged do not constitute a cause of action, which demurrer was by the trial court overruled, and, the appellants refusing to plead further, a decree was entered granting the respondent substantially the relief prayed for, from which decree this appeal is prosecuted.

Can the city of Seattle legally sell the product of its asphalt plant without an ordinance fixing the price at which it shall be sold? It is alleged by the respondent, and admitted by the appellant, 'that said plant was so built and constructed by the city of Seattle for the purpose of equalizing prices of paving materials and with a view of preventing exorbitant charges being made for certain character of improvements.' The authority to construct and operate such plant is found in Rem. Code, § 8005, which provides that any incorporated city or town within the state is authorized to 'maintain and operate works, plants and facilities for the preparation, and manufacture of all such stone or asphalt products or compositions or other materials which may be used in street construction or maintenance together with the right to use the same, and also to fix the price of and to sell the same for use in the construction of municipal improvements of such city or town'; but the statute is silent upon the question of how the city shall fix the price for the materials sold for use in the construction of municipal improvements of such city or town. It is manifest, if the plant is constructed and operated for the purpose of equalizing prices and preventing exorbitant charges, that the price at which the city...