Wallis v. Fidelity & Deposit Co. of Maryland

• Decision Date: 05 March 1930
• Docket Number: 22301.
• Citation: 155 Wash. 618,285 P. 656
• Court: Washington Supreme Court
• Parties: WALLIS v. FIDELITY & DEPOSIT CO. OF MARYLAND.

285 P. 656

155 Wash. 618

WALLIS v. FIDELITY & DEPOSIT CO. OF MARYLAND.

No. 22301.

Supreme Court of Washington

March 5, 1930

Department 2.

Appeal from Superior Court, Pierce County; Ernest M. Card, Judge.

Action by Gabriel Wallis against the Fidelity & Deposit Company of Maryland. Judgment for defendant, and plaintiff appeals.

Reversed.

Rickabaugh & McElroy, of Tacoma, for appellant.

Charles T. Peterson, Robert M. Davis, and Reuben C. Carlson, all of Tacoma, for respondent.

FRENCH J.

The appellant, Gabriel Wallis, in February, 1924, was, by ordinance, granted the exclusive privilege of handling all garbage in the city of Kelso for a period of ten years; the ordinance providing that rates to be approved by the city of Kelso should be charged therefor, and requiring a bond in the sum of $2,000 to be filed by the appellant as a guaranty for faithful performance of the contract. This ordinance was introduced, and passed as an emergency ordinance on the 5th day of February, 1924, and was passed by a vote of four of the city councilmen. Appellant thereafter filed a bond in the amount of $2,000 with the respondent as surety on such bond. In August, 1925 respondent notified the city of Kelso and the appellant that it elected to cancel such bond, and it is claimed that this cancellation was wrongful. The city being notified of the cancellation of the bond revoked the contract held by the appellant, and this action was brought by the appellant against the bonding company for wrongful cancellation of the bond. The cause was tried before the court with a jury. The court instructed the jury that:

'You are instructed that the ordinance passed by the city of Kelso awarding plaintiff a franchise for garbage removal was not passed in the manner required by law. It was therefore invalid and void, and could be revoked by the city at any time without cause, upon duly passing an ordinance revoking the same.

'In case your verdict should be for the plaintiff under the evidence in the case, then you must consider the fact that the franchise could have been revoked by the city at any time before the expiration of the full unexpired term of the contract in determining the plaintiff's damage, if any.'

The statute of this state relative to the passage of ordinances in cities such as Kelso provides: 'No ordinance and no resolution granting any franchise for any purpose shall be passed by the city council, on the day of its introduction nor within five days thereafter, nor at any other than a regular meeting, nor without being first submitted to the city attorney. * * * No franchise or valuable privilege shall be granted unless by the vote of at least five members of the city council. No ordinance and no resolution or order shall have any validity or effect, unless passed by the votes of at least four councilmen. * * *' Section 9125, Rem. Comp. Stat.

That a city in this state has the right under the policy power to handle garbage itself, or to provide for its being handled by private parties, is well settled. Smith v. Spokane, 55 Wash. 219, 104 P. 249, 19 Ann. Cas. 1220; Cornelius v. Seattle, 123 Wash. 550, 213 P. 17. It is true that the ordinance in the instant case denominates the right to handle the garbage as a franchise. The bond filed denominates the right granted by the ordinance in question as being a franchise. And if the right granted by this ordinance is a...