State v. Board of County Com'rs of King County

• Decision Date: 27 January 1911
• Citation: 112 P. 929,61 Wash. 684
• Court: Washington Supreme Court
• Parties: STATE ex rel. BURKE et al. v. BOARD OF COUNTY COM'RS OF KING COUNTY et al.

112 P. 929

61 Wash. 684

STATE ex rel. BURKE et al. v. BOARD OF COUNTY COM'RS OF KING COUNTY et al.

Supreme Court of Washington

January 27, 1911

On rehearing. Denied.

For former opinion, see 109 P. 350.

CROW J.

This cause has heretofore been heard by this court on an appeal prosecuted from a judgment in mandamus, requiring the commissioners of King county to equalize a local improvement assessment levied in aid of the construction of the Lake Washington Canal, and on May 28, 1910, in an opinion which states the issues (58 Wash. 511, 109 P. 350), a reversal of the judgment and a dismissal of the cause were ordered. Respondents' petition for rehearing was thereafter denied, and on July 19, 1910, the remittitur from this court was transmitted to the superior court of King county. On June 25, 1910, after the filing of the opinion the Congress in an act making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes (Act June 25, 1910, c. 382, 36 Stat. 666), made the following appropriations: 'Puget Sound-Lake Washington Waterway Continuing improvement by the construction of a double lock with the necessary accessory works, to be located at 'The Narrows,' at the entrance to Salmon Bay, in accordance with the project set forth in House Document numbered nine hundred and fifty-three, Sixtieth Congress, First Session one hundred and fifty thousand dollars; and the Secretary of War may enter into a contract or contracts for such material and work as may be necessary to complete said locks and accessory works, to be paid for as funds may be provided from time to time by law, not to exceed in the aggregate two million two hundred and seventy-five thousand dollars, including the amount herein appropriated: Provided, that before beginning said work, or making such contract or contracts, the Secretary of War shall be satisfied that King county, or some other local agency, will do the excavation in the waterway above the lock to the dimensions recommended in said project, and will also secure the United States from liability for any claims or damages on account of the grant made to James A. Moore or his assigns by the act of Congress approved June eleventh, nineteen hundred and six, or on account of the lowering of the level of Lake Washington, raising the level of Salmon Bay, or any other alteration of the level of any part of said waterway. Improving waterway connecting Puget Sound with Lakes Union and Washington: For maintenance of improvement, five thousand dollars.'

A certified copy of resolution adopted by the commissioners of King county was received by the clerk of this court on October 5, 1910, and filed herein, as follows: 'Be it resolved by the board of county commissioners as follows Whereas, on the 28th day of May, 1910, the Supreme Court of this state rendered a decision in the case of the state of Washington on the relation of Thomas Burke and Frank Hunter, plaintiff and respondent, vs. this Board and others, defendants and appellants, reversing the lower court on the ground that the United States government was not intending or proposing to construct or operate the Lake Washington Canal; and, whereas, since the filing of said decision the Congress of the United States has passed an act appropriating the sum of two million two hundred seventy-five thousand dollars ($2,275,000) for the construction of locks in said canal, and the respondent has filed a petition for a rehearing of the issue heretofore decided and of the other issues not decided; and, whereas, this board is desirous of continuing the proceedings thereunder in co-operation with the United States government, if it can do so legally, but is reluctant to spend the public funds, or issue bonds under the provisions of said act or place liens upon the thousands of parcels of property embraced in the assessment rolls filed with said board, thereby clouding the title thereto and incumbering the transfer thereof, until all the issues in said cause affecting its right to take such further proceedings shall have been decided. Now, therefore, in order that the principal purpose of said appeal may be accomplished and this board may be guided in its further proceedings, and be saved a multiplicity of litigation over matters already before said court, the prosecuting attorney is directed to petition for a rehearing of all the issues involved in said cause. It is not the intent of this resolution or of this board to suggest as to...