State v. City of Seattle

• Decision Date: 27 January 1926
• Docket Number: 19552.
• Citation: 242 P. 966,137 Wash. 455
• Parties: STATE ex rel. CLARK et al. v. CITY OF SEATTLE et al.
• Court: Washington Supreme Court

242 P. 966

137 Wash. 455

STATE ex rel. CLARK et al. v. CITY OF SEATTLE et al.

No. 19552.

Supreme Court of Washington

January 27, 1926

Department 2.

Appeal from Superior Court, King County; Paul, Judge.

Application by the State of Washington, on the relation of Donald H Clark and others, for mandamus against the City of Seattle and others. From a judgment dismissing the action, relators appeal. Affirmed.

Elias A. Wright and Sam A. Wright, both of Seattle (Joseph H Smith, of Everett, of counsel), for appellants.

Thomas J. L. Kennedy, George A. Meagher, and A. C. Van Soelen, all of Seattle, for respondents.

MITCHELL J.

On and prior to June 30, 1924, there was in use by the public a wooden trestle bridge or viaduct crossing a valley in a diagonal direction from Fifteenth Avenue West to Thorndyke avenue in Seattle, commonly known as the West Wheeler Street bridge. It was some 2,400 feet long, and was intersected by a branch bridge or viaduct. It was elevated above the ground about 40 feet, and where it crossed certain railroad tracks it was supported by trusses raised on pile piers. It had been built under ordinances of the city passed in 1910, and was paid for upon the local improvement district plan; that is, the property found to be specially benefited was assessed to pay a part of the cost of the bridge. On June 30, 1924, the central portion of the bridge, including the intersection with the branch bridge, was destroyed by accidental fire, leaving the ends--parts of which are in good condition, other parts in poor condition. Over 50 per cent of the bridge in length was burned. The destruction of it inconvenienced the inhabitants of quite a section of the city, who since that time have been compelled to use another bridge less convenient and accommodating over the valley. Parties more immediately interested, and whose property was assessed to pay in part the cost of the improvement petitioned the city council to repair or rebuild the bridge. It does not clearly appear that the city has affirmatively declined to rebuild it, but it is clear that it has not taken any active steps to do so. It rather appears that the city is considering the question of the construction of some kind of a bridge over the same valley with reference to the needs of the persons complaining as well as the needs of others who altogether will constitute a larger district to be accommodated. Unwilling to submit to further delay, the plaintiffs, who were inconvenienced by the loss of the bridge, on behalf of themselves and others similarly situated, instituted in the superior court this action in mandamus against the mayor and members of the city council to compel them to repair or reconstruct the bridge. The action was commenced in February, 1925. Upon the trial of the case the relators introduced evidence going to establish the facts above mentioned. They also introduced evidence as to other facts, the most of which, however, we think are not important in our view of the case. At the conclusion of the testimony on behalf of the relators a motion on the part of the respondents for a nonsuit or dismissal of the action was granted on the broad ground that the court would not direct by mandamus the legislative and discretional activities of the city government and compel the expenditure of moneys therefor; the court expressing the further view in the nature of a finding that there was an absence of any showing that the city authorities were guilty of any arbitrary conduct. The relators in the superior court have appealed from a judgment dismissing the action.

The statute (section 1014, Rem. Comp. Stat.) provides for the issuance of a writ of mandamus 'to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station,' etc. It relates to the performance of a ministerial duty and not to a duty or power which requires the exercise of discretion. To say in this case that the court can compel the city to substantially reconstruct this bridge would be going entirely beyond any authority we find in the law. 'There is no common-law liability on municipal authorities in respect to the repairs of bridges within their limits.' Dill. Mun. Corp. (5th Ed.) § 1157; Elliott on Roads and Streets (3d Ed.) § 59. The statute (section 8966, Rem. Comp. Stat.) governing cities of the first class says:

'Such city shall have power * * * 12. To construct and keep in repair bridges, viaducts, and tunnels, and to regulate the use thereof.'

The charter of the city (article 4, § 18), provides:

'The city council shall have power by ordinance and not otherwise * * * Twelfth. To construct and keep in repair bridges, viaducts and tunnels and to regulate the use thereof.'

These legislative and charter expressions deal with power. The exercise of them is legislative or discretional and not ministerial. These are the only provisions of the law that have been called to our attention or that we are advised of having direct bearing upon the matter before us.

Counsel for appellants concede that the building of a new bridge would be discretionary. They say:

'There is no contention on behalf of the relators that they could compel the city to construct as a new improvement any particular improvement because in law this would be compelling them to exercise discretion.'

We think that is the situation here. To reconstruct more than 50 per cent. of the length of the bridge which includes what appears to be the most expensive part of it and repair the remaining ends of the bridge, parts of which are in poor condition, would be in effect the same as the construction of a new improvement, when we come to consider the question of the discretion of the municipal authorities. There is a line of cases relating generally to highways, with reference to the subject of obstructions or nuisances, which holds it to be the duty of public authorities to remove obstructions and keep the highways free. Such was the case of State ex rel. Reynolds v. Hill (Wash.) 237 P. 1004, a case wherein by a general demurrer it was admitted that it was the duty of the city to keep its streets free from obstruction. And, while it is true that in that case the statute conferring power and authority upon the city was referred to, it is manifest that the gist and spirit of the decision and result reached rest upon the implied or in ferred duty growing out of the power conferred to remove obstructions in the nature of nuisances from highways actually in use, out of consideration for the safety of the public. In this case there is no question of obstruction or nuisance; a bridge, if one were in existence and might be termed a highway, does not exist; the safety of the public is not involved; there is no travel.

There are authorities, many of which are cited by appellants, which hold as stated in 18 R. C. L. § 165, p. 240, that:

'Mandamus is generally recognized as a proper remedy to compel public officers to perform their duty to take care of and keep in repair public highways, bridges and the like, whenever the necessity for its exercise is so apparent and obvious that the refusal to act is the result of a determination not to discharge a plain duty.'

That has reference to the arbitrary refusal to perform a plain duty. In some jurisdictions it is by specific enactment made the duty of public officers to keep highways in repair.

The case of People v. Commissioners of Highways, 130 Ill. 482, 22 N.E. 596, 6 L. R. A. 161, cited by appellants was a nuisance case. In that case the court said:

'The language

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