
    [No. 23851.
    Department One.
    June 25, 1932.]
    H. J. Holton, Appellant, v. The City of Seattle, Respondent.
      
    
    
      Allen, Fronde, Hilen é Asieren, for appellant.
    
      A. C. Van Soelen and J. Ambler Newton, for respondent.
    
      
      Reported in 12 P. (2d) 754.
    
   Mitchell, J.

Tbis is an appeal from an order of tbe superior court sustaining a general demurrer to a complaint and entering a judgment dismissing tbe action upon tbe refusal of tbe plaintiff to plead further.

Upon completion, by tbe city of Seattle and tbe state, of wbat is spoken of as tbe Aurora bridge across lake Union in Seattle, it became necessary to construct approaches to it. The city provided for the improvements by separate ordinances relating to the respective approaches; which ordinances, for the purposes of this case, are practically identical, and which provide for the creation of local improvement districts for the payment, by the mode of “payment by bonds,” of a portion of the sums to be expended chargeable against certain property alleged to be benefited by the improvements, one district, including the south approach and other adjacent streets, being created by ordinance No. 61828, as amended by ordinance No. 62194, and the other district by ordinance No. 62212. The ordinances provided that contracts might be entered into jointly and severally by the state of Washington and the city of Seattle with the. contractor, for the performance of the work.

In short, it was provided by the ordinances and contracts pursuant thereto that the costs of the improvements should be paid by the state, the city, and by assessments upon property within the local improvement districts. The costs were distributed as follows: in one district, approximately one-third against the property in the local improvement district, and the remainder to be paid out of funds by the city from its bridge bonds, series “Gr-2,” 1931 construction fund of the city, and the state of Washington; and in the other district, nearly one-fourth of the total cost against the property benefited, the remainder to be paid by the city and state, as in the first mentioned district.

After the passage of the ordinance and the amenda-tory one referred to, for the improvement at the south end of the bridge, the city and the state, as parties of the first part, entered into a contract with S. A. Moceri, Inc., as the party of the second part, for the doing of that work, by which contract it was agreed, in substance, that tbe contractor would begin tbe work upon written notice by the city engineer and regularly prosecute tbe same, unless tbe city engineer or board of public works and director of highways gave written orders otherwise; that tbe first parties employed tbe contractor to provide material and to do tbe described work and complete tbe same within a time specified according to attached plans and specifications, and further agreed to employ tbe contractor to perform alterations and additions to tbe work as may be ordered and pay for tbe same under tbe terms of tbe contract, plans and specifications; that no one should be employed upon tbe work other than certain designated persons, without a permit from tbe board of public works and tbe director of highways.

Still further, it was alleged tbe. city and tbe state were about to or bad entered into a contract with tbe Northwest Construction Company, a corporation, for tbe doing of tbe work at tbe north end of tbe bridge, including tbe improvement of other adjacent streets, under ordinance No. 62212, tbe contract being in legal effect similar to tbe one with S. A. Moceri, Inc. Thereupon, tbe plaintiff, being tbe owner of real property within tbe assessment district, commenced this action questioning tbe right of tbe city to join tbe state in 'letting tbe contract to do tbe work under tbe ordinance, •and seeking an injunction restraining tbe city from proceeding with tbe contract and from issuing any bonds in payment for tbe work thereunder, and that tbe ordinance and contract thereunder be declared illegal.

Two arguments on behalf of tbe appellant are made against tbe judgment. First, that it is beyond tbe power of tbe city of Seattle to enter jointly into a contract with tbe state for tbe doing of public work wherein the property of an individual is to be assessed for the benefits — that is, for the city and the state, on one side, to enter into a contract with another to do snch work.

In chapter 314, Laws of 1927, pp. 910, 911, the legislature appropriated $500,000 for the establishment of this bridge on condition, among others, that the city of Seattle or King county, or both, should also help financially. In chapter 231, Laws of 1929, p. 681, the legislature appropriated $1,000,000 additional and re-appropriated the former $500,000, upon the same conditions as those expressed in the 1927 act. In chapter 135, Laws of 1931, p. 414, the legislature reappropriated the unexpended balance of the former appropriation, saying:

“And provided further, That any unexpended balance remaining after the completion of said bridge shall be applied by the director of highways for right of way, engineering and construction of the Aurora Avenue Highway approaches to said bridge

It has become common in expensive highway construction for the strong to assist the weak — -the Federal government helps the state, and the state helps the counties and cities. The appropriation acts and the contract involved in this case contain no suggestion or attempt at interfering with or limiting the jurisdiction and power of the cities with respect to the management and control of its streets, including these bridge approaches; and the fact that the state, as such, nominally becomes a party with the city by which the contract for the construction is let to another, amounts to no more, under the circumstances of this case, than administrative cooperation in an important public work, the cost of which is met mostly by the state and the remainder by the city and benefited property, whose owners are represented by the city. • Such joining of the state with the city in making the contract, does not question, nor is it beyond, the power of the city.

The second argument against the judgment is that the contract entered into by the city delegates its authority to a third person and, therefore, the contract is void. The ordinances creating the local improvement district under which the work is being done, were enacted under the provisions of the local improvement act contained in § 9352 et seq., Rem. Comp. Stat.; § 9352 with reference to the power of a city to make local improvements to be paid by assessments on property specially benefited thereby, and § 9357 referring particularly to the improvement of streets, being especially applicable to the question now under consideration. Each ordinance, accordingly, provides in section one that the street or avenue, including the approach to the bridge, be improved by paving, etc., and in section .two, that the costs shall be borne by special assessment on property specially benefited, except the portion to be paid by the state and the city.

More specifically, the argument on behalf of the appellant is that, to the extent the cost of improving streets is to be met by the local improvement district plan, the city acts as agent ex necessitate of the property owner (Malette v. Spokane, 68 Wash. 578, 123 Pac. 1005, Ann. Cas. 1913E 986), and that the city cannot delegate its authority as such agent as it has done in the present contract of the city and the state for the street improvement in question.

There is nothing, however, in the appropriation acts, the ordinances or the contract, that gives the state any power to collect from the property owners, • or turn aside in any manner whatever those provisions of the local improvement act by which the city calls for and acts upon competitive bids, spreads tbe assessments against the property benefited, and affords owners of tbe property opportunity to be beard concerning tbe amount of tbe assessments compared with tbe amount of tbe benefits bestowed on tbe property in tbe district. There is nothing in tbe plan or contract to tbe prejudice of tbe property benefited. On tbe contrary, it appears rather clearly that tbe total arrangement relieves tbe property within tbe improvement district of tbe greater part of tbe burden for a fine improvement.

True, tbe contract associates tbe state with tbe city as a party to tbe contract, and, in certain particulars, speaks of tbe relations of such parties to tbe eontrac-tee and tbe subject matter of tbe contract, but tbe plans and specifications which are made a part of tbe contract provide, among other things:

“Tbe work embraced in tbe contract shall be under tbe supervision of tbe Director of Highways and of tbe City Engineer, subject to the acceptance and approval of the Board of Public Works of the City of Seattle.
“Wherever tbe term ‘Director of Highways’ or ‘City Engineer’ is used in these specifications, it shall be interpreted to mean tbe joint action of the Director of Highways of Washington and tbe City Engineer of Seattle. Whenever the term ‘Board of Public Works’ is used, it shall be interpreted to mean tbe joint action of tbe Director of Highways of Washington and tbe Board of Public Works of Seattle.”

No special assessment tax or liability can be incurred against tbe property of appellant or others similarly situated without affirmative action and consent on tbe part of tbe city. We are not able to see in tbe contract any delegation of authority which,.in any way, cripples tbe power of tbe city in observing and protecting tbe property rights of tbe appellant and others similarly situated, under the local improvement act.

Judgment affirmed.

Herman, Main, Millard, and Beals, JJ., concur.  