992486_Page_3

992486
Law Department
City of Seattle
William T. Scott, Corporation Counsel
Frank A. Steele
Assistant Corporation Counsel
Melvin G. Winstock
City Attorney

Seattle, Washington, May 28th, 1894.

Hon. J. P. Sweeney,
Chairman Railroad Committee, Board of Aldermen,
City of Seattle.

Dear sir, --
In the matter of the proposed amendment to ordinance
No. 262, as amended by ordinance No. 484, granting a franchise to the
Oregon and Transcontinental Railroad Company and the Columbia and
Puget Sound Railroad Company, I have to say, that after careful consideration
of the questions propounded to me I see no legal reason
why the proposed amendment to section one of said ordinance may not
be adopted so far as the rights of the city are concerned.

Looking at this question from the stand point of the city's
interests, after a careful examination of the report of the city
engineer as to the expense to which the city would be put with reference
to its streets if the present grade of said railroads were used,
it would certainly be to the interest of the city to allow the said
railroads to locate their tracks upon the street known as Railroad
Avenue, rather than to have them use the present right of way.

The question submitted to me is a mixed one of law and fact. I
have carefully examined the report of the city engineer, which I may
say is exhaustive and to the point, and I have also consulted authorities
bearing upon the proposition. Upon the question of fact it would
seem that the interests of the city would be conserved if the present
"Ram's Horn" right of way were abandoned so that all the railroads
which enter the city should do so as nearly as possible, parallel with
each other, thus making it more convenient to regulate and control
these roads in the interest of the public. The fact that the city
would be put to great expense by reason of the changing of the grades
of the different streets would be a consideration sufficient to move
the city council to adopt this amendment to the ordinance, if by so
doing the city would not suffer or be liable for any damages by reason
of the passage of such ordinance.

The supreme court, in the case of Hatch vs. Tacoma, Olympia, etc.
R. R. Co., 6 Washington, page 1, passed upon the question of injuries
to abutting property by reason of the granting of franchises for
railroads upon the streets of cities. It was urged in that case that
the city would be the party liable, and not the railroad company; but
the supreme court did not sustain this contention, but held that the
ordinance granting the privilege to use the street created no liability
upon the city and simply granted such rights as te city had power
to confer, and none other. This means that the city by virtue of the