Woodward v. Seattle , 140 Wash. 83 ( 1926 )


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  • The prevailing opinion is correct and able, if applied to an appropriate case, where strictness of construction is required. Such a case would be one testing and checking the use of power by a municipality not delegated to it by the statute. Such are all the cases cited in the prevailing opinion. In all such cases to test the use of ultra vires power it cannot be questioned that "a doubtful power is a power denied."

    The city was granted power by statute to carry urban passengers by a railway system. It acquired the system, and thereafter an emergency was created by the growth of an urban district into a populous locality requiring transportation. The city also desired the revenues. Being without funds to extend its actual railway tracks into this newly populous district, the city extended it, in effect, by the bus system, which is nothing more than an adjunct incident to the street railway system, — a part of its general traffic system. That it is agreeable to public policy is shown by the enactment of ch. 173, Laws of 1923, p. 570, granting the power expressly. This is not a suit upon a contract with the city, in which case, under our statutes, the plea of ultra vires could be interposed, but a suit for negligence in the operation of an instrumentality belonging to the city.

    Our statute granting authority to maintain actions against municipalities (Rem. Comp. Stat., § 951) [P.C. § 8394], provides: *Page 89

    "An action may be maintained against a county, or other of the public corporations mentioned or described in the preceding section, either upon a contract made by such county or other public corporation in its corporate character, and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of such county or other public corporation."

    Long ago it was held by this court that "not only is provision made for an action against a county upon contract within the scope of its authority, but for injury to plaintiff arising from some act or omission of the county." Kirtley v. Spokane County,20 Wash. 111, 54 P. 936.

    Cities are included within the same category of corporations as counties, in the matter of maintaining actions against them. We have also held that it is a rule of construction that statutes providing remedies against either public or private wrongs are to be liberally construed. State ex rel. King County v. SuperiorCourt, 104 Wash. 268, 176 P. 352.

    The rule is general that the defense of ultra vires can be interposed only where the act complained of was wholly beyond the powers of the municipality. If the wrongful act in question is one which the municipality had the right to do under some circumstances or in some manner, it is not ultra vires. BoiseDevelopment Co. v. Boise City, 30 Idaho 675, 167 P. 1032, and cases and texts cited.

    The rule of ultra vires ought to be reasonably, and not unreasonably, understood and applied, and whatever may be fairly regarded as incidental to, and consequential upon, those things which the legislature has authorized municipal corporations to do ought not, unless expressly prohibited, be held by judicial construction to be ultra vires. Gottlieb-Knabe Co. v. *Page 90 Macklin, 109 Md. 429, 71 A. 949, 31 L.R.A. (N.S.) 580; AtlasLife Ins. Co. v. Board of Education of City of Tulsa,83 Okla. 12, 200 P. 171.

    Had appellant bought a ticket entitling him to transportation in part over this bus line and had been refused carriage or ejected from the bus, or something of that kind, the city probably could rightfully have interposed the plea of ultravires under our statute; but where, as here, appellant was injured by the instrumentality used by respondent in its traffic system, through negligence, i.e., "an act or omission" of the municipality, it seems to me that it is stretching the doctrine of ultra vires to a very great extent to hold that the municipality is not liable.

    I therefore dissent.

Document Info

Docket Number: No. 19653. En Banc.

Citation Numbers: 248 P. 73, 140 Wash. 83

Judges: TOLMAN, C.J.

Filed Date: 7/30/1926

Precedential Status: Precedential

Modified Date: 1/13/2023