(dissenting) — The majority goes to great length in stating the rules of law relating to the rights of abutting landowners and, as such, that they have no right to maintain structures in the city streets for private use. I cannot see any materiality or need for this discussion in resolving the issues raised in this appeal.
The plaintiffs concede the city has the power to regulate private use of streets which they abut. There is no room for argument that the city, should it be so disposed, has the power to require the removal of the structures erected and maintained by the plaintiffs in the streets in question. However, the city has not seen fit to pursue such a course but has, instead, permitted the plaintiffs to continue their encroachments by the granting of licenses in the regulation of such use.
The issue raised is thus in sharp focus. Is the fee charged reasonably related to the cost of the regulation of such use, or does it constitute a rental charge for such use for revenue purposes? The city cannot rent the use of its streets in*565consistent with the use for which they have been dedicated, in the absence of enabling legislation. See 10 McQuillin, Municipal Corporations § 30.73, p. 707 (3d ed.), and authorities cited.
The authority for the Board of Public Works to adopt a schedule for the issuance of permits in regulating the use of the city streets of Seattle stems from section 13 of ordinance No. 90047, which provides:
The Board of Public Works of the City of Seattle is hereby authorized and directed to prepare and adopt a schedule of fees applicable to all such permits heretofore or hereafter issued commensurate with the cost of administration, inspection and policing involved in the issuance and continuance of such permits and the use thereby granted, ... . (Italics mine.)
Pursuant to this language of the ordinance the Board of Public Works adopted a fee schedule (set forth in the majority opinion) purportedly commensurate with the cost of administration, inspection and policing in the issuance and continuance of such permits and the use thereby granted.
The sole issue raised by the city’s assignments of error is its disagreement with the trial court’s determination that fees in categories 7 and 12 of the fee schedule, as applied to plaintiffs, were not reasonably related to the cost of administration, inspection and policing as required under said ordinance, and therefore were not justified as regulations under the police power.
Where a fee or tax is imposed for regulation, the expense of issuing the license and of supervising or regulating the occupation or privilege is generally the controlling factor in determining its reasonableness. 53 C.J.S. Licenses § 19 (d). Determination of such expense constituted a factual issue before the trial court. After considering all the evidence and the testimony introduced, the trial court made the following findings of fact:
XI. The City of Seattle issues between 5,000 and 6,000 street permits and renewal permits each year under the ordinances involved in this action at an average cost of *566less than $20.00 per permit. The City of Seattle has elected to classify various types of permits and charges less than the actual cost involved for many of those categories. With respect to classifications 7 and 12 in said fee schedule the City of Seattle has elected to relate the fees charged these plaintiffs to the total area involved irrespective of the actual costs involved in connection with the issuance and continuance of plaintiffs’ permits.
XII. As applied to the plaintiffs in this action, the permit fees greatly exceed the cost of administration, inspection and policing in connection with the issuance and continuance of plaintiffs’ permits. Approximately one to two hours of time of City employees was required to make an annual inspection of the plaintiffs’ properties and re-issue the permits each year. The cost to the City of Seattle of renewing the permits each year is only a nominal cost and there is no reasonable relationship between the costs incurred and the fees charged either plaintiff. The fee schedule adopted by the City of Seattle in practice as it applies to the plaintiffs does not carry out the principle of establishing fees to pay the cost of regulation and inspection in accordance with the standards set forth in the ordinances, but instead the fees charged plaintiffs were fixed on the basis of various other considerations such as deterring construction of permanent improvements in street easements. The fee schedule is also designed to make up a deficit in the cost of issuing certain categories of permits by charging fees in cases of the type involved in this action larger than necessary to defray expenses of regulation. Thus, as applied to these plaintiffs the permit fees are actually revenue raising charges. (Italics mine.)
These findings, in my opinion, are amply supported by the record and determinative of the correctness of the trial court’s conclusion that the fees charged the plaintiffs for the street use permits, for the years in question, bore no reasonable relationship to the cost of administration, inspection and policing involved in the issuance and continuance of such permits and the use thereby granted, constituting revenue measures under the guise of the police power and therefore were invalid. Vinup v. Seattle, 11 Wn.2d 630, 120 P.2d 464 (1941); Great Northern Ry. v. State, 300 U.S. 154, 81 L.Ed 573, 57 Sup. Ct. 397, rehearing *567denied, 300 U.S. 686, 81 L.Ed. 888, 57 Sup. Ct. 504, followed in Northern Pac. Ry. v. State, 184 Wash. 710, 52 P.2d 1279 (1935) and Chicago, M. St.P. & Pac. R.R. v. State, 184 Wash. 710, 52 P.2d 1279 (1935); Seattle v. Proctor, 183 Wash. 293, 48 P.2d 238 (1935). See, also, 53 C.J.S. Licenses § 19(a) notes 83, 84; and § 19(d) notes 10 and 11; 33 Am. Jur. Licenses § 41, note 1.
The city argues that the Board of Public Works in fixing the amount of the fees was entitled to consider potential costs which would inhere in removal of the structures and which otherwise would result from interference with city purposes, and reflect such costs in the fees charged. Such costs relate to maintenance and construction and could not be properly considered in computation of the fee. Appropriate indemnity deposits or bonds, which the city is authorized to require under the ordinance, supra, afford the city adequate protection against such contingencies.
The judgment of the trial court should be affirmed.
Rosellini, C. J., concurs with Hunter, J.