Bremerton Municipal League v. City of Bremerton

• Decision Date: 17 April 1942
• Docket Number: 28567.
• Citation: 124 P.2d 798,13 Wn.2d 238
• Parties: BREMERTON MUNICIPAL LEAGUE et al. v. CITY OF BREMERTON (McKENZIE, et al., Intervenors).
• Court: Washington Supreme Court

124 P.2d 798

13 Wn.2d 238

BREMERTON MUNICIPAL LEAGUE et al. v. CITY OF BREMERTON (McKENZIE, et al., Intervenors).

No. 28567.

Supreme Court of Washington

April 17, 1942

Department 1.

Action by the Bremerton Municipal League and another against the City of Bremerton for a declaratory judgment validating a city ordinance authorizing the issuance of bonds for the purpose of acquiring the then existing electric light and power plant and system serving the city or in the alternative of constructing such a plant. Hector McKenzie and Public Utility District No. 1 of Kitsap County were granted leave to intervene. From a judgment validating the ordinance, the intervenors appeal.

Judgment reversed.

Appeal from Superior Court, Kitsap County; Roger J. Meakim, judge.

Helen Graham, of Bremerton, Houghton, Cluck & Coughlin, of Seattle and E. K. Murray, of Tacoma, for appellants.

J. W Bryan, Sr., of Bremerton, for respondents Bremerton Municipal League and J. W. Bryan.

J. W Bryan, Jr., of Bremerton, for respondent City of Bremerton.

MILLARD Justice.

The Bremerton Municipal League, a corporation of which J. W. Bryan is president, and J. W. Bryan as a taxpayer instituted this action against the city of Bremerton for the purpose of obtaining a declaratory judgment validating ordinance No. 893 of the city of Bremerton, enacted June 11, 1929. That ordinance authorized the issuance of bonds not to exceed $750,000 for the purpose of acquiring the then existing electric light and power plant and system serving the city of Bremerton or, in the alternative, of constructing an electric light and power plant which would be a substantial duplicate of the plant then serving the city. Hector McKenzie, a resident and taxpayer of Bremerton, and Public Utility District No. 1 of Kitsap county were granted leave to intervene. The position of defendant city was in harmony with the position of plaintiffs that the ordinance was valid. The intervenors challenged the validity of the ordinance on three grounds, of which we notice only one as it is determinative of the question of the validity of the ordinance. Trial of the cause to the court resulted in entry of a judgment that the ordinance is valid. The intervenors appealed from that judgment.

Briefly, the facts are as follows: The city of Bremerton has received electrical service from the Puget Sound Power & Light Company or its predecessors since 1902 under a franchise granted in that year and an extension made in 1931 of that franchise. The following provision is contained in the franchise: 'The said Company covenants and agrees that if the said Town of Bremerton so elects, it binds itself to sell the entire plant, equipment, rights, leases, real estate or other assets, at a price to be fixed by competent board of appraisers to the said Town of Bremerton. * * * This option of purchase, however, to be exercised only at the end of any five year period after the completion of the plant.'

The electors of the city of Bremerton adopted ordinance No. 893 June 11, 1929. Under date of July 2, 1929, the city notified the power company that it was ready to enter into negotiations for the purchase of the existing plant as then owned and operated by the power company. No further steps were taken toward the acquisition of the power company's properties until 1941, when a new notice was given by the city to the power company of the city's intention to exercise the option to purchase the power company's properties. An action was immediately commenced for specific performance of the option (City of Bremerton v. Puget Sound Power & Light Company) which suit was removed to, and is now pending in, the Federal court.

During the latter part of 1929, or early in 1930, the city treasurer showed a copy of ordinance No. 893 to various Seattle investment houses in an attempt to obtain quotations on bonds which might be issued to purchase the power plant. No further information was given to the investment houses. The quotations of only about 50 cents on the dollar received by the city treasurer were attributed to the condition of the bond market. This witness testified, however, that water revenue bonds of the city were sold during the same period. It appears that no additional effort to sell bonds which might be issued under the ordinance was ever made. In 1931 the electors of the city of Bremerton voted a renewal of the franchise of the power company for ten years. In 1932 the city commission entered into a contract for the purchase of electric energy from the power company. In 1935 the city employed a consulting engineer to make a study respecting the feasibility of acquisition by the city of all electrical properties operated by the power company in Kitsap county. This engineer made his report on that investigation in October 1935 and received for his services $250 out of a 'light plant appraisal fund' to which money had been appropriated by the city in 1933. In January 1941, which was more than eleven years after the adoption of ordinance No. 893, the city commenced the action, to which reference is made above, against the power company, which action is now pending in Federal court. Subsequently this action was instituted to validate the ordinance. Respondent plaintiffs pleaded and respondent defendant answered that after careful consideration it seemed highly probable that he amount of $750,000 voted June 11, 1929, would be insufficient to purchase the existing light and power system 'and that it will be necessary for the City of Bremerton to at once undertake the construction of a new plant and system in substantial duplication of the existing plant.'

From the foregoing it is clear that the city intends the construction of an electric system duplicating the electrical properties of the power company now existing and not in duplication of the system as it existed in 1929 when ordinance No. 893 was passed.

Great changes have occurred since 1929 in the city of Bremerton in regard to extension of corporate limits and increase in population and industry. These changes, together with the increased population in areas contiguous to the city, have resulted in proportionately greater increase in the number of users of electric energy and basic changes by way of replacements, extensions, etc., in the character of the system required to serve those patrons.

Conceding, arguendo, that ordinance No. 893 is not void for indefiniteness, counsel for appellants contend that the ordinance was rendered void by reason of lapse of unreasonable time and changed circumstances. The ordinance in the case at bar may be classified as an administrative ordinance which, upon approval by the voters of Bremerton, conferred upon the city commissioners of that city authority to acquire and operate electric properties. The ordinance was adopted for the purpose of authorizing certain acts which were to be performed at once or within a reasonable time in absence of any provision in the ordinance to the contrary. That is, as counsel for appellants argue, time is a factor of the utmost importance, especially when the situation with reference to which the extent of the authority originally was defined is constantly changing.

An apt authority is Barber Asphalt Paving Co. v. Kansas City Hydraulic Press Brick Co., 170 Mo.App. 503, 156 S.W. 749, 751. In that case the plaintiff sought recovery on special tax bills for paving a Kansas City, Missouri, street with asphalt. One of the defenses, which the trial court refused to consider, was that the ordinance which authorized the work was enacted July 30, 1900, while the contract under which the work was performed was not let until May 26, 1902, and that by reason of the long and unreasonable delay in letting the contract and causing the work to be done, the power to make the contract ceased and the tax bills were therefore null and void. On appeal the judgment was reversed on two grounds. The appellate court held that the defense should have been considered since the delay, unexplained, was unreasonable and if unreasonable would deprive the city of power to proceed under the ordinance. In the course of the opinion the court said:

'It is held that, where the original ordinance prescribes the time in which the work must be done, the authorities must proceed in the usual course of such matters and within the limits thus prescribed, and they cannot abandon an improvement and then, after the lapse of a long period of time, resume jurisdiction at the place where it was left off. [City of] Marshall v. Wisdom, 127 Mo.App. 640, 106 S.W. 1078.

'It is also well settled that proceedings had under an ordinance which specifies no time in which the work is to be done are not invalid merely because no time is specified in the ordinance. But it is further held that, where the original ordinance specifies no time, a reasonable time is implied.

Ayers v. Schmohl, 86 Mo.App. 349; Heman v. Gilliam, 171 Mo. 258, loc. cit. 269, 271, 71 S.W. 163. So that, if the ordinance specifies no time, this does not mean that there is no limit upon the time when the work is to begin or in which it is to be finished. All the authorities hold that the time limits provided in the original ordinance must be observed and the work done within those limits or the tax bills will be void. If, therefore, the original ordinance gives a reasonable time for the work to be done, this reasonable limit must be observed just the same as a specified limit would have to be observed had it been imposed. In the case at bar there was a delay of one year, 9 months, and 23 days Before the letting of the contract under which the work was done. This length of time, unexplained, is not a reasonable time. If the contract can be delayed thus long without...