State ex rel. Jackson v. King County

The opinion of the court was delivered by Fullerton, J. On November 1, 1901, the hoard of county commissioners of King county entered into a contract with George Bartsch and H. E. Tompkins, hy the [361] terms of which Bartsch and Tompkins undertook and agreed to take possession of a certain ferry boat, owned by the county, and used for carrying passengers and freight, and operate the same for a period of three years, in consideration of the tolls to be earned by the boat, at rates to be prescribed by the board of county commissioners, and the further sum of three hundred and seventy-five dollars per month, to be paid out of the county treasury. The ■contract further provides that Bartsch and Tompkins shall keep the boat in commission and running on such schedule time as may be fixed by the board, and shall not charge any greater tolls than the board shall from time to time determine. The board agree, however, that the rate of tolls shall not be fixed below a certain minimum named in the contract, and that the schedule time of the boat shall not he fixed at more than seven trips per day. The appellant, who is a resident citizen and taxpayer of King county, instituted this action to’ enjoin the board of county commissioners from carrying into’ effect the contract, averring in his complaint that the county was without power to’ enter into the same, and that the contract was void, as against public policy; further averring that it was entered into by the board of county commissioners without first submitting the matter to competitive bidding. A demurrer was interposed to’ the complaint, and sustained by the trial court, and from thei judgment entered thereon this appeal is taken. The appellant urges here the want of power of the board of county commissioners to enter into the contract. But we think this power is conferred by the act of the legislature of March 6, 1899 (Laws 1899, p. 89). It is there provided that any county within the state is authorized to operate and maintain a ferry across any unford [362] able stream, lake, estuary, or bay, within or bordering on such county, “freei or for toll, by and under the direction and control of the board of county commissioners of such county, and as said board shall by resolution determine.” This act empowers a county to maintain, as well as operate, a ferry. In carrying into' effect the contract in question, the county is doing no> more than maintaining a ferry, and it is not therefore proceeding in excess of its powers. With the policy of this contract, viewed from a business standpoint, the courts have nothing to do’. Where a county is acting within the scope of its ppwers, its acts are not subject to review by the courts, unless they show such a gross abuse of the power conferred as to amount practically to fraud. Nothing of this kind is shown by the record before us. It is said, however, that the act requires that a ferry maintained by a county shall be under the direction and control of the board of county commissioners of such county, and that this contract surrenders such direction and control, inasmuch as it is agreed that the board will not reduce tolls below a certain minimum, or require the boat to make more than a certain number of trips per day, and that these conditions render the contract void. But we cannot think the clause in the statute here referred to means that the board may not agree that for fixed periods it will not make changes in the rates of toll or the schedule time of the boat. To deny to' it this power would be virtually to deny it the power to contract at all for the maintenance of a, ferry, as every contract must mean the surrender for the time being of some absolute right. The limitation means, we think, that the board shall not leave it optional with the persons operating the ferry what rates of toll shall be charged, or what number of trips the ferry [363] shall malte, but tbat it must exercise its right of control in so far as to see that the tolls are reasonable and the service adequate, and that when it does this it is acting within its power. To sustain the contention that the contract should have been submitted to competitive bidding, the act of March 16, 1901, is cited (Laws 1901, p. 183). An examination of this act, however, convinces us that it has no application to cases of the character in question here. The judgment is affirmed. Mount, Anders, Hadley, White and Dunbar,- JJ., concur.