City of Tacoma v. O'Brien

• Decision Date: 17 April 1975
• Docket Number: No. 43398,43398
• Citation: 85 Wn.2d 266,534 P.2d 114
• Parties: The CITY OF TACOMA et al., Petitioners, v. Robert S. O'BRIEN, State Treasurer, Respondent.
• Court: Washington Supreme Court

Page 266

85 Wn.2d 266

534 P.2d 114

The CITY OF TACOMA et al., Petitioners, v. Robert S. O'BRIEN, State Treasurer, Respondent.

No. 43398.

Supreme Court of Washington, En Banc.

April 17, 1975.

Robert R. Hamilton, City Atty., F. H. Chapin, Jr., Don L. Hogaboam, Tacoma, Kenneth R. Ahlf, Lacey, Don Herron, Prosecuting Atty., Mark L. Bubenik, Deputy Pros. Atty., Tacoma, for petitioners.

Slade Gorton, Atty. Gen., Joseph S. Montecucco, Asst. Atty. Gen., Olympia, for respondent.

Carney, Stephenson, Siqueland, Badley & Smith, Herman S. Siqueland, Milton C. Smith, Nicholas P. Scarpelli, Jr., Short, Gressman & Cable, Kenneth P. Short, Joseph D. Puckett, Seattel, for intervenors.

BRACHTENBACH, Associate Justice.

Petitioners, who cities, a county and an individual taxpayer, seek a writ of mandamus to prohibit the state treasurer from disbursing funds pursuant to Laws of 1974, 1st Ex.Sess., ch. 194. Various affected parties intervened. The writ shall issue.

The challenged legislation, set out in the appendix, was enacted for the purpose of relieving public works contractors, whose contracts were awarded prior to November 1, 1973, from financial hardship caused by the substantial increase Two procedural matters must be addressed at the outset, the first pertaining to mandamus. Article 4, section 4 of our state constitution gives to this court original jurisdiction in mandamus as to all state officers, but that jurisdiction is not exclusive. Whether this court will exercise original jurisdiction depends upon the nature of the interests involved. State ex rel. Malmo v. Case, 25 Wash.2d 118, 169 P.2d 623 (1946). Because this case concerns the constitutionality of a statute and involves issues relating to the expenditure of public funds, we consider the matter to be of sufficient public importance to warrant our exercise of original jurisdiction. Also, while it is true that mandamus is ordinarily used to compel a public officer to perform a duty required by law, this court has previously determined that the writ may also be used to prohibit the doing of an act. State ex rel. O'Connell v. Yelle, 51 Wash.2d 620, 320 P.2d 1086 (1958). Therefore, we conclude that the case is properly before this court.

in the cost of petroleum products. As relevant to this case, the act provides that where the cost of petroleum products needed for the performance of a public works contract increased by more than 20 percent over the price at the time of contracting, the contractor can either terminate the entire contract or delete that portion of the contract requiring such products. The contractor's authorization to terminate or delete is subject to the following qualification. If the contractor elects to terminate or delete, the state or municipality can nevertheless require completion of the contract if completion is in the public interest, but the state or municipality must then pay 80 percent of the increased petroleum costs. The act applies only to contracts awarded Prior to November 1, 1973. According to the stipulated facts in this action, more than 35 notices of termination or deletion have been received by the state. In nine instances the state determined that performance was in the public interest and agreed to pay 80 percent of the increased costs. It is with respect to these payments that petitioners seek mandamus.

Also raised is the issue of petitioners' standing to bring this action. Petitioners brought this action as taxpayers. It is well settled that taxpayers, in order to obtain standing to challenge the act of a public official, need allege no direct, special or pecuniary interest in the outcome of their action, there being only a condition precedent to such standing that the Attorney General first decline a request to institute the action. Reiter v. Wallgren, 28 Wash.2d 872, 184 P.2d 571 (1947); Fransen v. State Board of Natural Resources, 66 Wash.2d 672, 404 P.2d 432 (1965). That condition was met in this case, and we perceive no justifiable reason to apply a different standard where a county or municipality brings the action. In this case a question is raised as to the propriety of a rather substantial expenditure of public funds, and it should not matter whether that question is raised by a private citizen or a governmental entity.

Petitioners' principal contention is that disbursements made pursuant to the act would constitute gifts of public funds and would violate article 2, section 25, of the state constitution, which provides:

The legislature shall never grant any extra compensation to any public officer, agent, employee, servant, or contractor, after the services shall have been rendered, or the contract entered into, nor shall the compensation of any public officer be increased or diminished during his term of office. Nothing in this section shall be deemed to prevent increases in pensions after such pensions shall have been granted.

and article 8, section 5, which provides:

The credit of the state shall not, in any manner be given or loaned to, or in aid of, any individual, association, company or corporation.

The response to this constitutional challenge is based upon a statement in the introductory section of the act:

The legislature finds . . . that the increase in the price of petroleum products resulting from the world wide shortage of crude oil has created a condition which Laws of 1974, 1st Ex.Sess., ch. 194.

has rendered performance by contractors of many public works contracts economically impossible . . ..

It is argued that the legislature's finding of economic impossibility is conclusive and that economic impossibility excused the contractors from completing performance under the existing contracts. It follows from that premise that disbursements made pursuant to the challenged act would merely be consideration for new contractual obligations and, therefore, not violative of constitutional proscriptions against legislative gifts of public funds. This theory rests, of course, upon the validity of the legislature's 'finding' that performance of certain contracts had become economically impossible. Parenthetically we note that regarding the contracts in the record the state's 80 percent share of increased petroleum costs was only .0233 percent of the total contract prices. The theory fails because the legislature has no power to make such a judicial determination.

Legislatures must necessarily make inquiries and factual determinations as an incident to the process of making law, and courts ordinarily will not controvert or even question legislative findings of facts. For example, in State ex rel. Govan v. Clausen, 108 Wash. 133, 183 P. 115 (1919), where the legislature had appropriated funds for the payment of services and materials furnished to the state and stated in the act that payment had not been made, this court declined to undertake a separate judicial determination as to whether payment had in fact previously been made. Similarly, courts will not inquire into a legislative determination that salmon caught outside state boundaries are indistinguishable from those caught within territorial waters, Frach v. Schoettler, 46 Wash.2d 281, 280 P.2d 1038 (1955); that a particular use of natural gas is wasteful, Townsend v. State, 147 Ind. 624, 47 N.E. 19 (1897); that cattle are infested with the cattle fever tick, McSween v. State Live Stock Sanitary Bd. of Florida, 97 Fla. 750, 122 So. 239 (1929); or that certain public conditions exist, Block v While a court will not controvert legislative findings of fact, the legislature is precluded by the constitutional doctrine of separation of powers from making Judicial determinations. Courts have generally recognized the distinction between legislative and judicial determinations and have carefully preserved judicial functions from legislative encroachment. For example, in Washington State Highway Comm'n v. Pacific Northwest Bell Tel. Co., 59 Wash.2d 216, 222, 369 P.2d 605, 609 (1961), this court declared: 'The construction of the meaning and scope of a constitutional provision is exclusively a judicial function.' In Plummer v. Gaines, 70 Wash.2d 53, 58, 422 P.2d 17, 21 (1966), this court stated:

Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865 (1921).

(T)he legislature may not determine what constitutes a 'general election' within the purview of a constitutional provision, for such a determination involves an interpretive process or function which, in the final legal analysis, under our system of government, is reposed in the judicial branch.

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