State Ex Rel. Wasington Toll Bridge Authority v. Yelle , 197 Wash. 110 ( 1938 )

STEINERT, C.J., HOLCOMB, and BLAKE, JJ., dissent. This is an original mandamus action instituted by the Washington toll bridge authority and the director of highways for a writ of mandate to compel the state auditor to audit and approve certain vouchers authenticated by the authority and the director of highways, and to issue warrants for the amounts of the vouchers in payment of services performed in making the preliminary plans and survey for a project known as the Lake Washington toll bridge.

Subsequent to the filing of the petition, interveners were allowed by the court to intervene and to file an additional petition for a writ of mandate.

The pertinent portions of the petitions for the writ are as follows: That the Washington toll bridge authority, composed of the governor, state auditor, director of public service, director of highways, and director of finance, business and budget, acting under the authority of Laws of 1937 chapter 173, p. 654 (Rem. Rev. Stat., Vol. 7A, §§ 6524-1 to 6524-21 [P.C. §§ 2697-501 to 2697-521]), by resolution adopted a plan for the financing, construction, and operation of a toll bridge over Lake Washington, together with approaches and appurtenances thereto, subject to the approval of, and in conjunction with, the public works administration of the United States.

It was further alleged that, in order to determine the necessity, advantage, and practicability of establishing and constructing the toll bridge and to obtain information and data for the consideration of the authority with respect to the toll bridge and approaches, the authority authorized the director of highways to make reasonable examination and investigation, including location tests and preliminary bridge and approach plans; that the authority, by resolution dated October 14, 1938, adopted a plan for the route and character of the toll bridge.

It was further stated in the petitions that L.V. Murrow, director of highways, in compliance with the adopted plan and resolution of the authority, employed interveners to make test borings; one was made at the west foundation of an overhead crossing to be constructed as part of the bridge approach four hundred fifty feet west of Rainier avenue, another was made in connection with the tunnel approach to the bridge at a point west of Yakima avenue, and a third boring was made in connection with the construction of an overhead crossing as part of the approaches appurtenant to the bridge crossing Mercer slough; and that the state auditor refused to audit and approve the vouchers, and to issue warrants for the work.

In his return, the state auditor admitted his refusal to audit and approve the vouchers, and to issue warrants in payment thereof. He gave as his reason that the work performed at the stated locations was so far removed from the projected bridge, both in physical distance and intrinsic characteristics, as to form no part of the bridge structures proper or approaches thereto within the meaning of Laws of 1937, chapter 173. Respondent does not question the fact that the services have been performed by interveners, or the power of the toll bridge authority to construct toll bridges.

The description of the project consists of a concrete pontoon bridge in Lake Washington from the vicinity south of Leschi, in the city of Seattle, to the northwestern part of Mercer Island.

To the west of such pontoon structure, there is provided an incline transition fixed span leading to the vicinity of the intersection of Thirty-fifth avenue south and Day street, in the city of Seattle, at an established grade. Here the land to the west arises abruptly comprising a high hill, and there is here provided a twin bore tunnel extending from its east portal at a point west of Thirty-fifth avenue south, a distance of 1,446 feet to its west portal at a point just west of Yakima avenue. The route then proceeds westerly crossing over Twenty-seventh avenue south by means of a reinforced concrete structure with connecting road approaches provided. At Twenty-fourth avenue south, there is provided a reinforced concrete structure for carrying pedestrian traffic over this route and thence this route proceeds crossing under Twenty-third avenue south, for which crossing an overhead reinforced concrete structure is provided, from whence the route proceeds crossing over Twentieth avenue south, Rainier avenue, and Poplar place, by means of a reinforced concrete structure, to the intersection of Corwin place and Seventeenth avenue south, at which point approach connections are made at the west end of the approach project with Rainier avenue, which has been designated by the director of highways as forming a part of the route of a primary state highway (primary state highway No. 2) through the city of Seattle.

To the east of such pontoon structure, there is provided an incline transition fixed span leading to an established grade elevation on Mercer Island, such fixed incline span crossing over Navy Yard boulevard. The route easterly then crosses over Mercer street by means of a reinforced concrete structure and proceeds to cross under Mercer Island boulevard and Summit avenue, for each of which crossings, reinforced concrete overhead structures are provided. The route then crosses over Thompson avenue and other local roads, thence over two local roads, each such crossings being accomplished by means of a reinforced concrete structure. From here, the route crosses under One-hundredth avenue southeast, for which crossing an overhead reinforced concrete structure is provided, from whence it proceeds to and across the east channel between Mercer Island and the east shore of Lake Washington by means of a fixed span bridge, thence to and across Mercer slough on a reinforced concrete causeway structure crossing over an existing county road, and thence, by means of a reinforced concrete structure, crossing over and making connections by lateral approaches with secondary state highway No. 2-A, in King county.

Throughout the bridge and approach project, where grade crossing separation structures are provided lateral connections for local traffic access to the adopted location and route are provided.

The approximate cost of the entire project will be $8,432,000; $3,750,000 will be the cost of the two bridges, and the remainder will be expended in the construction of arterial approaches. The whole undertaking will be financed by an appropriation from the Federal emergency administration of public works of the United States and the issuance and sale of bonds. Tolls will be collected only from those who travel over the bridges.

The only proposition presented is whether the tunnel and other structures situated a considerable distance from the bridge are approaches within the purview of the toll bridge authority act.

[1, 2] That act, Laws of 1937, chapter 173, p. 654 (Rem. Rev. Stat., Vol. 7-A, §§ 6524-1 to 6524-21), vests the authority with the definite powers and broad discretion in the construction of toll bridges and their approaches, and is comprehensive in scope.

The act, in defining the powers and duties of the authority, states:

§ 6524-3 [P.C. § 2697-503]. "The Washington Toll Bridge Authority is empowered, in accordance with the provisions of this act, to provide for the establishing and constructing of tollbridges upon any public highways of this state together withapproaches thereto wherever the same is considered necessary oradvantageous and practicable for crossing any stream, body of water, gulch, navigable water, swamp or other topographical formation whether the same is within this state or constitutes a boundary between this state and an adjoining state or country.The necessity or advantage and practicability of any such tollbridge shall be determined by the Washington Toll BridgeAuthority and the feasibility of financing any toll bridge in the manner provided by this act shall be a primary consideration and determined according to the best judgment of the Washington Toll Bridge Authority. For the purpose of obtaining information for the consideration of the authority upon the construction of any toll bridge or any other matters pertaining thereto it shall be the duty of any cognizant officer or employee of the state upon the request of the authority to make reasonable examination, investigation, survey or reconnaissance for the determination of material facts pertaining thereto and report the same to the authority. The cost of any such examination, investigation, survey or reconnaissance shall be borne by the department or office conducting the same from the funds provided for such department or office for its usual functions." (Italics ours.) Laws of 1937, p. 656, § 3.

§ 6524-4 [P.C. § 2697-505]. "In the event that the Washington Toll Bridge Authority should determine that any toll bridge should be constructed under its authority it shall authorize and direct the director of highways to construct such toll bridge. In the event the director of highways is authorized and directed to construct such toll bridge all cost thereof including right of way, survey and engineering shall be paid out of any funds available for payment of the cost of such toll bridge under this act." Laws of 1937, p. 657, § 4.

As indicative of the discretion lodged in the authority, § 6524-11 [P.C. § 2697-512] provides:

"Before the director of highways shall proceed with any action to secure right of way or with construction of any toll bridge under the provisions of this act the Washington Toll Bridge Authority shall have first passed a resolution that public interest and necessity require the acquisition of right of way for and the construction of such toll bridge. Such resolution shall be conclusive evidence (a) of the public necessity of such construction; (b) that such property is necessary therefor and, (c) that such proposed construction is planned or located in a manner which will be most compatible with the greatest public good and the least private injury . . ." Laws of 1937, p. 662, § 11.

In addition, it is provided by Laws of 1937, chapter 173, p. 672, § 17, as follows:

"The Washington Toll Bridge Authority, the officials thereof and all state officials are empowered to do such acts and make such agreements not inconsistent with law as may be necessary or desirable in connection with the duties and powers conferred upon them respectively by law regarding the construction, maintenance, operation and insurance of such toll bridges . . ."

There is no question of bad faith in this action; thus, it remains only to consider whether the authority abused its discretion in the determination of the meaning and extent of the approaches.

The project proposed by the authority is of greater magnitude than any of its kind ever contemplated by the state of Washington or any of its political subdivisions. In considering the question presented, we must view the project as a whole and ascertain the purpose sought to be accomplished. The structure will be an integral part of a great arterial highway leading from the metropolis of this state to the eastern agricultural, mining, and lumber sections. From the east will come hay, grain, lumber, fruit, vegetables, and many other products of the inland empire. From the city of Seattle, manufactured products and supplies of innumerable kinds will be transported across the bridge to the east. Our ever-increasing number of tourists will travel both ways.

It must be borne in mind that the bridge will be a toll bridge, and in order to attract and divert the great highway commerce over the bridge, it is essential that the channels of travel be made readily accessible to the bridge users. It is not only proper, but also very necessary, to extend the arterial bridge approaches to encourage the flow of traffic to and over the bridge. The authority evidently had this situation in mind when it planned the bridge and its arterial approaches so as to route the traffic to and over the bridge from each direction.

The general rule defining the meaning of approaches is concisely stated in 11 C.J.S. 984, § 1, as follows:

"An ``approach' has been defined as an access or a way, passage, or avenue by which a place may be approached, from an engineering standpoint the ``approaches' to a bridge comprise the necessary traffic arteries and adjustment thereof, to develop its maximum traffic capacity, and it has been judicially declared that the approaches to a bridge comprise the traffic arteries leading to the ends of the bridge proper and such adjustment of the alignments and grades of such arteries in the immediate vicinity of such ends as is necessary to afford the maximum convenience of access and render available to the public the entire capacity of the bridge proper. However, what would be regarded as approaches would depend largely upon the demands of the traveling public and upon what would be reasonable under the circumstances and local situation in each case, and the determination of the question of how much of the embankment constitutes the approach, so as to be a part of the bridge, is generally a question for the jury. The question, it has been said, is more one of fact than of law."

9 C.J. 460, § 52, has the following to say concerning the definition of bridge approaches:

"The difficult point is the determination of what constitutes an approach as distinguished from the highway generally, which point, in the absence of definite expression, must be determined by a consideration of what is reasonable under the circumstances of the particular case, and not on any arbitrary rules relative to the distance from the bridge structure."

In considering the meaning of the term "approaches," we are mindful of the extent of the project and the results sought to be obtained by the authority.

Cases from other courts have been cited bearing upon the question before us; and while many definitions of approaches may be found in which that term has a very limited meaning, they are not helpful in considering modern bridge projects designed to care for the ever-increasing volume of traffic present upon our highways.

Some courts are committed to the rule that the determination of what constitutes an approach to a bridge is a question of law; others consider it a question of fact.

Having in mind the different situations facing the builders of bridges, and the varying demands of traffic, this court adopted the rule that the determination of what constitutes an approach is a question of fact as well as of law. Rumsey v. Department ofLabor Industries, 192 Wash. 538, 74 P.2d 214.

"The courts quite generally hold that, if an approach is essential, to enable persons to reach the main structure, and thereby pass over the stream, and that without it the main structure would have been incomplete and useless as a bridge, such an approach may be found a part of the bridge." Shope v.Des Moines, 188 Iowa 1141, 177 N.W. 79.

What would be regarded as approaches would depend largely upon the demands of the traveling public and upon what would be reasonable under the circumstances and the local situation in each case. State v. Illinois Central R. Co., 246 Ill. 188,92 N.E. 814.

In the case of In re New York, 174 N.Y. 26, 66 N.E. 584, it appeared that city authorities, in preparing to build a bridge with suitable approaches, sought to condemn land upon which to place approaches. It further appeared that the so-called approaches consisted of streets extending a considerable distance from the end of the bridge incline. The court, in passing upon that question, stated:

"While it is true that the statute as well as the petition and other papers in the proceedings refer to the ``bridge and approaches,' it is clearly shown by the plans and maps on file that the term ``approaches' is applied not only to the physical structures immediately connected with the roadway of the bridge, but to those contiguous and converging streets and avenues through and over which the public are to gain access to the bridge. This use of the term ``approaches,' as applied to the physical conditions of the locus in quo, is no less accurate than the narrower definition contended for by the appellants would be, as applied to a mere taking of lands for bridge approaches without any widening or changing of adjacent streets."

In defining the power and right of a city council to determine the extent and nature of a bridge approach, the supreme court of Iowa stated as follows in Shope v. Des Moines, supra:

"The statute conferred the power to construct the bridge, and incident to that power was that of determining, in so far as there might be controversy, the extent and nature of the approach required. In other words, it was for the engineers, in preparing the plans and specifications, and ultimately for the city council, to determine what would be included in the bridge, and this must have been done in the orderly course of business, before directing its construction and providing for the payment of its cost by the issuance and sale of bonds and letting the contract on advertisement of bids."

The case presenting a situation analogous to that in the case at bar is State ex rel. Schaefer v. Zangerle, 43 Ohio App. 30,182 N.E. 644, where the following facts were present: Bonds were voted by the people for the purpose of paying the cost and expenses of erecting a bridge with the necessary approaches, the total amount of the bond issue being $7,000,000. The bridge structure was erected for approximately $800,000 less than was contemplated. The commissioners then decided to expend approximately $250,000 of the amount unexpended in the widening and improving of certain avenues and streets near the bridge for the purpose of diverting travel to the bridge.

The plaintiff in that case contended that the moneys were voted by the people to build the bridge and its approaches, and that the streets to be improved could not be considered as approaches. In passing upon the question, the court stated:

"The gist of the plaintiff's contention is to the effect that no part of the proceeds of the $7,000,000 bond issue can be used for any such purpose, as the contemplated improvements as now planned are not in fact approaches. The language used for the submission of the $7,000,000 bond issue is broader than the interpretation sought to be given it by the complaining taxpayer. It states ``. . . for the purpose of paying the cost and expenses of erecting a bridge with the necessary approaches thereto . . .'

"It must follow that, if the proposed expenditure complained of comes within the meaning of the phrase ``necessary approaches thereto,' the defendants would be authorized to proceed with such expenditures out of the proceeds of the $7,000,000 bond issue.

"We are indebted to counsel for furnishing this court considerable aid as to the definition of the term ``necessary approaches.' Webster's New International Dictionary defines an approach as ``a way, passage, or avenue by which a place or building can be approached; an access.'

"Mr. Wilbur Watson, member of the firm who are the consulting engineers on both the Lorain-Carnegie and Main Avenue bridges, offered a definition from an engineering standpoint as follows: ``The approaches to a bridge comprise the necessary traffic arteries and adjustment thereof, to develop its maximum traffic capacity.'"

It then cited In re New York, 174 N.Y. 26, 66 N.E. 584, andChicago v. Pittsburgh, Ft. W. C.R. Co., 247 Ill. 319,93 N.E. 307, 139 Am. St. 329, in support of its holding, and continued as follows:

"We are content to adopt the definition of approaches offered by counsel as follows: ``The approaches to a bridge comprise the traffic arteries leading to the ends of the bridge proper and such adjustment of the alignments and grades of said arteries in the immediate vicinity of such ends as is necessary to afford the maximum convenience of access and render available to the public the entire capacity of the bridge proper.'

"The language used in the submission of the $7,000,000 bond issue to the people of Cleveland, which contained the phrase ``of erecting a bridge with the necessary approaches thereto,' was not accidental. There was a definite purpose in the use of said language. A bridge without adequate approaches, such as to assure the fullest and most convenient use of such bridge, would be of little avail and would almost defeat the purpose of its erection. Those who are by law directed and empowered to carry out the will of the people, as set forth in the language used in the submission of bond issues, are under a mandatory duty not only to build the bridge, but also to build the necessary approaches thereto in order to afford the fullest use of the monumental structure now known as the Lorain-Carnegie bridge. A failure so to do on the part of the officers, whose duty it is to carry out the will of the people, would defeat in the main the principal purpose of the erection of the Lorain-Carnegie bridge, as it must be apparent that the bridge without the necessary approaches would be a useless structure. . . .

"The question as to what are necessary approaches is a question of fact. The evidence presented to this court consists of the testimony of Mr. Wilbur Watson, famous engineer, plus certain maps and blueprints. No other evidence was offered on the subject of what are necessary approaches. Therefore the evidence is conclusive that the improvements which the commissioners regard as necessary approaches, and of which the plaintiff is complaining, are in fact necessary approaches.

"We conclude, therefore, that the defendants are not only empowered to proceed with the improvements sought to be enjoined, but also that they are under a mandatory duty to proceed with the same, as a failure to construct the necessary approaches would result in a woeful waste of public funds which were expended in the erection of the bridge proper. The court is of the opinion that this duty should be exercised with all reasonable promptness, to the best interests of a unified Cleveland."

It was a manifest intention of the legislature to give to the authority all those powers necessary to cope with the intricate questions incident to our modern and complex problems of transportation, and to vest in the authority a wide discretion in the exercise of those powers.

The court will not concern itself with the exercise of the discretion delegated to an administrative agency unless it appears that the agency has acted in bad faith or abused its discretion.

In In re Yesler Way, 94 Wash. 427, 162 P. 536, this court stated:

"If the proper legislative body of the city had power to order such improvement as is here contemplated, under the statutes relied upon, the questions of the location, route and termini are legislative questions purely with which courts have no concern.

"The legislative body, by proper proceedings, declared the public necessity for the improvement. That, in a proper case, when the power so to do is clearly conferred, its action in so doing is final and not a reviewable question has been so often and consistently held by this court that it needs no citation."

In defining arbitrary or capricious action, Judge Fullerton, speaking for the court in Sweitzer v. Industrial Ins.Commission, 116 Wash. 398, 199 P. 724, in deciding whether the industrial commission acted arbitrarily or capriciously, said:

"There is no evidence in the record justifying its conclusion that the commissioners in refusing to reopen the respondent's case acted either arbitrarily or capriciously. On the contrary, the evidence shows that they exercised the utmost good faith in their consideration of the case. They not only heard the respondent himself with respect to his ailments, but they caused him to be examined by their own medical examiners as well as by physicians not connected with the department, who are acknowledged experts on diseases and injuries of the character of which he complained, and based their action upon the results of these inquiries. The most that can be said of their action, even from the respondent's point of view, is that they erred in judgment. But this is not arbitrary or capricious action. These terms, when used in this connection, must mean wilful and unreasoning action, action without consideration and in disregard of the facts and circumstances of the case."

A hard and fast rule cannot be applied in ascertaining what is or is not an abuse of discretion. Each case must be determined upon its own merits, taking into consideration all of the facts and circumstances present. State ex rel. Cowles v. Schively,63 Wash. 103, 114 P. 901; State ex rel. Farmer v. Austin,186 Wash. 577, 59 P.2d 379; State ex rel. Linden v. Bunge,192 Wash. 245, 73 P.2d 516.

Respondent has called our attention to the case of Rumsey v.Department of Labor Industries, supra, in which we determined that a certain structure was not an approach to a bridge.

That case was decided upon the peculiar facts presented by the evidence, and had to do only with the classification of workmen engaged upon highway work. In that case, we stated:

"Appellant also argues that the construction constitutes an approach to the Nisqually bridge, and is therefore part of that structure. As to this latter contention, the question of when a roadway or viaduct constitutes an approach to a bridge is one of fact as well as of law, and the determination of this question must in each instance be based upon the peculiar facts as disclosed by the record. Chicago v. Pittsburgh etc. Co.,247 Ill. 319, 93 N.E. 307, 139 Am. St. 329; Norwalk v. Podmore,86 Conn. 658, 86 A. 582; Coffin v. Laskau, 89 Conn. 325,94 A. 370, L.R.A. 1915E, 959."

We conclude that the determination of what constituted approaches was a question to be determined by the authority, acting within the discretion given it by the legislature; and, considering the extent of the project and the definite results sought to be accomplished, the authority did not abuse its discretion.

The writ will issue.

MAIN, MILLARD, and GERAGHTY, JJ., concur.