stating even though desired constitutional interpretation tended to serve good *600 public purpose and benefit, construction will not be adopted when contrary to clear language used by framers
How later courts described this case
- stating even though desired constitutional interpretation tended to serve good *600 public purpose and benefit, construction will not be adopted when contrary to clear language used by framers
- stating even though desired constitutional interpretation tended to serve good public purpose and benefit, construction will not be adopted when contrary to clear language used by framers
- state subsidy to private ferry operators
Written by the judges who cited it.
The opinion
Steinert, J.
(dissenting) — I disagree with the majority upon the fundamental theory of the prevailing opinion. The majority proceed upon the theory that, in this instance, the maintenance and operation by the appellant of its ferries was, and is, a private purpose ; and that, because of the inhibitions of Art. VIII, § 7 of the state constitution, moneys raised by public taxation could not be expended therefor. If the premise were correct, the conclusion would follow. But, in my opinion, the premise is unsound.
Historically, ferries have long been considered a public necessity and are so considered in this state. According to the majority opinion, “a public ferry is a part of a highway and necessarily subserves public interest and convenience.” Appellant’s ferries were devoted wholly to that purpose. The interests of Pierce county and its inhabitants are vitally affected by the operation of the ferries and the facilities afforded thereby. The county and the people would probably be the very first to protest against the discontinuance of the ferries. To make the case rest wholly upon a distinction between a ferry owned and operated solely by the county and one operated by common carrier, but largely for the benefit of the county and its inhabitants, is to make a distinction without just, reasonable or practicable basis. The people are not concerned with the
method
of operation, but they are vitally concerned with the
purposes
and
results
of the operation.
For reasons best known to itself, and very prob
*430
ably in order to escape the expense and difficulties attendant upon its own operation of the ferries, the county perfected the arrangement under which appellant is proceeding’. The method of operation was changed from one by the county to one by a common carrier, but the purposes remained exactly the same. For years, the arrangement has apparently been satisfactory to all concerned. It was only when the appellant sought to recover two recent monthly payments due it that it occurred to the county that a sum amounting to $299,000 had been paid out by it, over a period of eight years, for a totally private purpose.
What was an element of a contract is now held to be a subsidy. What was considered to be a facility for the promotion of the public interest is now regarded as a purely private utility. Upon these hard and fast technical distinctions, there is not only a complete overthrow of the very basis upon which all parties fairly and honestly proceeded, and the repudiation of a contract fully performed by one of the parties thereto, but in addition to that, a service, which in spirit and in truth has been devoted to public use, has now been placed in the category of a purely private business.
In my opinion, the appellant should recover the amount claimed by it, and the cross-complaint should be dismissed.
Millard, O. J., and G-eraghty, J., concur with Steinert, J. '