State ex rel. Washington Nav. Co. v. Pierce County

• Decision Date: 14 November 1935
• Docket Number: 25933.
• Parties: STATE ex rel. WASHINGTON NAV. CO. v. PIERCE COUNTY et al.
• Court: Washington Supreme Court

51 P.2d 407

184 Wash. 414

STATE ex rel. WASHINGTON NAV. CO. v. PIERCE COUNTY et al.

No. 25933.

Supreme Court of Washington, En Banc.

November 14, 1935

Appeal from Superior Court, Pierce County; George B. Simpson, Judge.

Action in mandamus by the State of Washington, on the relation of the Washington Navigation Company, against Pierce County, a municipal corporation, and others, in which the defendants filed a cross-complaint. From the judgment, the Washington Navigation Company appeals.

Reversed in part, and remanded, with direction.

Charles T. Peterson, of Tacoma, for appellant.

Harry H. Johnston and John E. Belcher, both of Tacoma, for respondents.

HOLCOMB Justice.

This is an action in mandamus by appellant against Pierce county and its county commissioners, county auditor, and county treasurer to compel them to audit, approve for payment, and issue a warrant to it in the sum of $7,000, alleged to be due appellant as subsidies for the operation by appellant of a ferry in Pierce county during the months of June and July, 1935. It claims the right thereto by virtue of contracts made at various times with the then boards of county commissioners, covering a period of ten years. An alternative writ was granted by the lower court, upon the return date of which respondents answered denying that any sum whatever was due and owing appellant because the contracts, made the basis of the action, were and are ultra vires; and by cross-complaint, in two separate causes of action, demanded recovery from appellant in the sum of $303,600; the first cause of action being for $299,000 theretofore paid appellant, covering a period of nine years and the second cause of action was for license fees aggregating $3,600.

By answer to cross-complaint, relator set up two special pleas first, the three-year statute of limitations (Rem. Rev. Stat § 159) and, second, an estoppel.

After a trial to the court on the merits, the trial court denied the writ, allowed recovery on respondents' first cause of action against appellant for the years within the three-year statute of limitations, but denied recovery on the second cause of action. Before the entry of judgment, this written stipulation was made by the parties:

'It is hereby stipulated by and between the parties hereto through their respective counsel that the amount of subsidies paid to the Washington Navigation Company by Pierce County for the three year period ending May 31st, 1935, was the sum of $126,000.00, made up as follows:

1932 June 1st to Dec. 31st	$24,500.00
1933 Jan. 1st to Dec. 31st	42,000.00
1934 Jan. 1st to Dec. 31st	42,000.00
1935 Jan. 1st to May 31st	17,500.00
-----------
$126,000.00

'This stipulation is entered into because the evidence in said cause fails to show a segregation of the sums so paid during the period involved in said suit. The total sum for the period being pleaded by the county and admitted in the pleadings by the relator without segregration.

'Dated at Tacoma, this 17th day of October, 1935.'

Among others, the trial court made the following findings, the third of which is more of a summary and conclusion of law than a finding of fact:

'I. That the Washington Navigation Company, is and at all of the times hereinafter mentioned was a corporation duly organized and existing under and by virtue of the laws of the State of Washington, and has paid its annual license fee last past due.

'II. That Pierce County is one of the duly organized counties and political subdivisions of the State of Washington; that Harvey O. Scofield, John Schlarb and A. A. Rankin are the duly elected, qualified and acting members of the Board of County Commissioners of Pierce County, Washington, and that S. Clifford Davis is the duly elected, qualified and acting county auditor of Pierce County, Washington, and that Paul Newman is the duly elected, qualified and acting county treasurer of Pierce County, Washington.

'III. That, at all of the times hereinafter mentioned, and since long prior to statehood, to-wit: since the year 1854, there has been and now is in existence on the statute books of the State of Washington a complete legislative enactment dealing with the matter of ferry operation on the rivers, lakes, and other bodies of water within the State of Washington by the provision of which exclusive jurisdiction over such ferries is, by the sovereign state delegated to, and vested in, the boards of county commissioners of the various counties of the state of Washington wherein such ferry systems are maintained and operated for the convenience of the travelling public; such political subdivisions of the sovereign state being further authorized to construct, condemn, or purchase, operate and maintain ferries or boats across, wharf at, any unfordable stream, lake, estuary, or bay within or bordering on said county, or across any body of water, separating any portions of such county or separating such county from other counties, together with all the necessary boats, grounds roads, approaches and landings necessary or appertaining thereto, with full jurisdiction and authority to operate and maintain the same free or for toll, by and under the direction of the board of county commissioners of such county and as such board shall by resolution determine.

'IV. That in the year 1916, certain residents of the peninsular district of Pierce County, at or near Gig Harbor, petitioned the board of County Commissioners of Pierce County to establish ferry service from Tacoma to Gig Harbor and thereafter and on to-wit: the 24th day of March, 1917, pursuant to the authority in it vested by said ferry law referred to in the preceding paragraph hereof, the then county commissioners of Pierce County purchased a certain ferry named 'City of Vancouver', which was later, by said county, re-named 'City of Tacoma', and which said county for a time operated in its proprietory capacity under an arrangement whereby it paid a lawful subsidy to keep said ferry in operation.

'V. That thereafter and in the month of July, 1926, said county, acting through its then board of county commissioners, sold said ferry, together with another ferry named 'Gig Harbor,' to relator herein for the sum of $64,998.97, and on said date ceased to own or have any proprietary interest whatsoever in said vessels.

'VI. That on the 20th day of July, 1926, one Henry Ball, Frederic Shaw and Forrest R. Easterday, constituting the board of county commissioners of Pierce County, undertook to make a contract in writing with said Mitchell Skansie for a period of ten years from January 1, 1927, providing for the future operation of a ferry system owned, or to be thereafter acquired and owned by the said Skansie, by the terms of which the said Skansie was to receive all receipts, fares and income, less an amount equal to 5% of the gross earnings to be paid to Pierce County, to become effective on and after January 1, 1927, and to continue until January 1, 1937, which purported agreement was transferred by said Skansie to the relator herein, and which agreement was attempted to be modified on the 27th day of May, 1930, by George M. Meath, C. Ostlund, and C. A. Campbell, constituting the then board of county commissioners of Pierce County, by adding additional vessels and making certain changes in the routes and time schedules theretofore adopted, but these respondents allege the fact to be that the resolution then adopted and the agreement made on said 27th day of May, 1930, was but the exercise of those duties devolving upon said board of county commissioners in the regulation of the service and rates of the relator herein vested in said commissioners under the said ferry laws of the State of Washington and not otherwise

'VII. That on or about the 2nd day of February, 1927, Henry Ball and George Meath, two of the then members of the board of county commissioners of Pierce County, without lawful authority to bind Pierce County, undertook to make an agreement in writing with the Washington Navigation Company, a corporation, for the operation of a ferry boat between Steilacoom and McNeil's Island in Pierce County, and without requiring the payment to Pierce County of a license fee for such franchise right and privilege, undertook to agree to pay to the said Washington Navigation Company a subsidy of $750 per month for a period to end January 1, 1937, in violation of the existing so called ferry laws of the State of Washington, in full force and effect at said time, which the cross-complaint alleges was in violation of law and beyond the power of said Ball and Meath and not in anywise binding on Pierce County, and was and is of no legal effect and to the detriment of the best interests of Pierce County and the taxpayers thereof.

'VIII. That on or about the 27th day of June, 1927, Frederic Shaw Henry Ball and George Meath, members of the board of county commissioners of Pierce County, without lawful authority to bind Pierce County, undertook to make an agreement in writing with the Washington Navigation Company, a corporation, for the operation of a ferry boat between Sixth Avenue (Titlow Beach) and Wollochet, East Cromwell, and Fox Island, in Pierce County and without requiring the payment to Pierce County of a license fee for such franchise right and privilege undertook to agree to pay to the said Washington Navigation Company a subsidy of $1150 per month for a period to end January 1, 1937, in violation of the existing so called ferry laws of the State of Washington, in full force and effect at said time, which this cross-complainant alleges was in violation of law and beyond the power of said Shaw, Ball, and Meath and not in anywise binding on Pierce County, and was and is of...