Transit cites Patillo v. State, 120 Tex. Cr. R. 568, 47 S.W.2d 847; City of Philadelphia v. Philadelphia Transportation Co., 345 Pa. 244, 26 A.2d 909; Levy v. New Orleans Northeastern R. Co., La.App., 20 So.2d 559; State v. York Utilities Co., 142 Me. 40, 45 A.2d 634; Akron Transportation Co. v. Glander, 155 Ohio, 471, 99 N.E.2d 493, 497; Utah Rapid Transit Co. v. Ogden City, 89 Utah, 546, 58 P.2d 1; Woodward v. City of Seattle, 140 Wash. 83, 248 P. 73. The Patillo case was a prosecution for violation of a statute imposing a fine: "If any passenger upon a train or street car or interurban car provided with separate coaches or compartments as above provided shall ride in any coach or compartment not designated for his race after having been forbidden to do so by the conductor in charge of the train."
An ultra vires act is one performed without any authority to act on the subject. Woodward v. Seattle, 140 Wn. 83, 87, 248 P. 73 (1926). Here there is no plausible claim that the City did not have authority, through its building department, to issue building permits.
Municipal ordinances enacted in the exercise of the municipalities' police power are presumed to be valid enactments. See Lenci v. Seattle, 63 Wn.2d 664, 388 P.2d 926 (1964); Woodward v. Seattle, 140 Wn. 83, 248 P. 73 (1926); Wood v. Seattle, 23 Wn. 1, 62 P. 135 (1900). When the public is invited to use property, privately or publicly owned, a city of the first class may enact regulations governing the public use thereof which relates to public safety or health.
In the first place, the city has no authority to use police department premises for operating a proprietary enterprise. Such activity would be ultra vires and the city would not be liable for the torts of its agents committed in connection therewith under the rule stated in Woodward v. Seattle, 140 Wn. 83, 248 P. 73 (1926), in which we held that passengers injured on a municipal bus could not recover from the city because at that time the city had no legal authority to engage in that type of business. In that case, we quoted with approval from State ex rel. Hill v. Port of Seattle, 104 Wn. 634, 177 P. 671, 180 P. 137 (1919):
We have held to the contrary and stated that a school district or "other public organization" was not responsible for torts arising from ultra vires activities. Juntila v. Everett School Dist. No. 24 (1934), 178 Wn. 637, 35 P.2d 78. See, also, Woodward v. Seattle (1926), 140 Wn. 83, 248 P. 73, which gives emphasis to a former holding that a municipal corporation has only such implied powers as are indispensable to its declared objects and purposes. [2] We are further satisfied that no cause of action has been stated, because the negligence charged is failure to supervise, and the events which resulted in the injuries to the plaintiff could not have been anticipated as arising from that breach of duty.
No authority is offered for this proposition. Wiley v. Aberdeen is directly contrary, as is Woodward v. Seattle, 140 Wn. 83, 248 P. 73, wherein we held that a city is not liable for injuries resulting from an ultra vires act, that is, for an act performed outside the scope of its statutory authority. The plaintiff cites Sigurdson v. Seattle, 48 Wn.2d 155, 292 P.2d 214, as controlling the issue presented here.
Since there was no showing of benefit to private property, and the evidence discloses that the works progress administration constructed the drain and that the city immediately assumed the maintenance of the completed project, both the Federal administration and the municipal authorities, by their acts and conduct, established the project to be solely for a public purpose. If any private benefit resulted, it was incidental to the primary purpose. Appellant cites Woodward v. Seattle, 140 Wn. 83, 248 P. 73 (1926). In that case, it was held that the action of the municipality was ultra vires.
Here, the act of the city in furnishing its inhabitants with medicine instead of water (which is the only beverage which the legislature has empowered it to furnish) is ultravires and the ordinance purporting to authorize such action is void. See Woodward v. Seattle, 140 Wn. 83, 248 P. 73, where this same municipal utilities statute was construed and the legislative grant of power to operate electric and "other railways" was held not to include the operation of motor busses by the city. The majority opinion states that the ordinance is not in conflict "with general laws" under Art. XI, ยง 11, of the state constitution delegating to municipalities a portion of the state's police power concerning matters of health.
In fact our court has adopted the following definition found in 25 R.C.L., 1120, now found in 44 American Jurisprudence, 215, as to what constitutes a railroad: `Generically the word "railroad" includes all roads upon which the carriages or cars have wheels adapted to run, and which in operation do run upon metallic rails. The term includes tramways used in mining; it includes railroads in which the propelling power is steam, electricity, the horse or mule, and even those upon which push cars are propelled by men.' State v. Boston Maine Rd. Co., 123 Me. 48, 55, 121 A. 541, 545. See, also, O'Malley v. Riley County, 86 Kan. 752, 121 P. 1108, Ann. Cas., 1913C, 576; Woodward v. City of Seattle, 140 Wn. 83, 248 P. 73." In the last cited case the question involved was whether a city having statutory authority to operate a street railway system was thereby empowered to operate a motorbus service incidental to the operation of such street railway.
" State v. Boston and Maine Railroad Co., 123 Me. 48, 55, 121 A. 541, 545. See also O'Malley v. Riley County, 86 Kan. 752, 121 P. 1108; Ann. Cas. 1913, C. 576; Woodward v. City of Seattle, 140 Wn. 83, 248 P. 73. In this last case the question was whether a city given authority by statute to operate a street railway system had power to run a motor bus service as incidental to the operation of such street railway.