City of Tacoma v. Taxpayers of Tacoma

Citation262 P.2d 214,43 Wn.2d 468
Decision Date14 October 1953
Docket NumberNo. 32411,32411
CourtUnited States State Supreme Court of Washington
PartiesCITY OF TACOMA, v. TAXPAYERS OF TACOMA et al.

Clarence M. Boyle, Dean Barline, E. K. Murray, Special Counsel, Tacoma, for appellant.

Copeland and Tollefson, Tacoma, Don Eastvold, Atty. Gen., Lee Olwell, Sp. Asst. Atty. Gen., Harold A. Pebbles, Sp. Asst. Atty. Gen., William E. Hicks, Sp. Asst. Atty. Gen., for respondents.

DONWORTH, Justice.

This action was instituted by the city of Tacoma against the taxpayers of Tacoma and the directors of game and fisheries of the state of Washington, under the provisions of RCW 7.24.010 et seq. [cf. Rem.Rev.Stat. (Supp.) § 784-1 et seq.], relating to declaratory judgments, and RCW 7.24.150 et seq. [cf. Rem.Rev.Stat. (Supp.) § 5616-11 et seq.], providing for testing and determining the validity of a proposed bond issue.

The purpose of the suit was to determine plaintiff's right to issue and sell certain utility bonds to finance the construction of two power dams on the Cowlitz river in Lewis county, Washington, as provided by its ordinance No. 14386, and particularly to determine whether chapter 9, Laws of 1949 [cf. RCW 75.20.100 et seq.] or §§ 46 and 49, chapter 112, Laws of 1949 [cf. RCW 75.20.050 and 75.20.100] or any other law of the state of Washington is a bar to such construction and to the issuance and sale of the bonds.

Pursuant to the provisions of RCW 7.24.150, the superior court for Pierce county appointed certain citizens and taxpayers to represent all taxpayers of the city of Tacoma as defendants in the suit. The defendant taxpayers demurred to the complaint. The directors of game and fisheries filed an amended answer and cross-complaint, denying the material allegations of the complaint and by way of affirmative defense and cross-complaint alleged that the contemplated dam construction was illegal under state law. The directors prayed that ordinance No. 14386 of the city of Tacoma be adjudged unlawful and that plaintiff be perpetually enjoined from constructing the dams. Plaintiff demurred to the amended answer and cross-complaint.

By stipulation of the parties and order of the superior court for Pierce county the venue of the case was transferred to the superior court of Thurston county. That court heard arguments and sustained the taxpayers' demurrer to the complaint on the ground that it failed to state a cause of action and stated in its order of dismissal that this ruling substantially disposed of the entire matter and made it unnecessary to consider plaintiff's demurrer to the cross-complaint. Upon plaintiff's election to stand on its complaint the court dismissed the action with prejudice.

Plaintiff has appealed from the judgment of dismissal. Defendant directors have cross-appealed from the court's refusal to enter an order overruling plaintiff's demurrer to their amended cross-complaint and its refusal to enter findings of fact, conclusions of law and judgment against plaintiff.

For purposes of this appeal the city of Tacoma will be referred to as appellant; the taxpayers of Tacoma will be referred to as respondents and the directors of game and fisheries as cross-appellants.

The facts alleged in appellant's complaint which are necessary to an understanding of this controversy are these:

On August 6, 1948, appellant filed with the Federal Power Commission its declaration of intention to construct two power dams on the Cowlitz river in the state of Washington, pursuant to § 23(b) of the Federal Power Act, 16 U.S.C.A. § 817.

Thereafter, on December 28, 1948, it filed with the power commission an application for a Federal license to construct these dams (Project No. 2016). The smaller dam, as proposed, is to be located at mile 52 on the Cowlitz river, about a mile southeast of the town of Mayfield. It is to be approximately 185 feet in height above tailwater, have a storage capacity of approximately 127,000 acre feet and have a powerhouse with an installed capacity of 120,000 kilowatts in three units.

The larger dam, as proposed, is to be constructed at mile 65 on the same river, approximately two and one-half miles east of the town of Mossyrock. This dam is to be approximately 325 feet above tailwater, have a storage reservoir with a capacity of approximately 1,375,000 acre feet and a powerhouse with an installed capacity of 225,000 kilowatts in three units. Provisions were made for expansion of the kilowatt output on each plant if necessary.

On March 8, 1949, the power commission made the following preliminary findings:

'(1) Construction and operation of the project proposed by the declarant would affect public lands or reservations of the United States.

'(2) Boats have nevigated the Cowlitz River to Toledo and during high water stages boats have navigated the river for some distance above Toledo.

'(3) The United States has improved the Cowlitz River by snagging, dredging and regulating works from its mouth to Toledo to obtain a minimum navigable depth of 2 1/2 feet.

'(4) The Cowlitz River from its point of junction with the Columbia River to at least Toledo is a navigable water of the United States and may be a navigable water of the United States for some distance upstream from Toledo.

'(5) Either or both of the proposed reservoirs would have sufficient usuable storage capacity to enable either or both of them to be operated in such a manner as to materially affect the water stage in the Cowlitz River at Toledo or below, which section of the river we have found to be a navigable water of the United States, and thus the construction of either or both of the proposed reservoirs would materially affect the navigable capacity of the Cowlitz River.

'(6) The interests of interstate or foreign commerce would be affected by the construction and operation of either or both of the reservoirs proposed by the declarant.'

These findings were followed by an order requiring appellant to secure a license under the provisions of the Federal Power Act before commencing construction of either of the proposed dams.

The power commission thereafter conducted extended hearings on appellant's application for a Federal license at which hearings the departments of fisheries and of game of the state of Washington participated as interveners, along with other interested groups.

Under date of November 28, 1951, the power commission issued its opinion (No. 221) and order issuing the license to appellant. The order recited sixty-six findings of fact and then stated:

'The Commission orders:

'(A) This license is issued to the City of Tacoma, Washington, under Section 4(e) of the Act [16 U.S.C.A. § 797(e)] for a period of 50 years, effective as of the first day of the month in which the accepted liense is filed with the Commission by the Licensee, for the construction, operation and maintenance ov Project No. 2016 upon the Cowlitz River, a stream over which Congress has jurisdiction, and upon lands of the United States, subject to the terms and conditions of the Act which is incorporated by reference as a part of this license, and subject to such rules and regulations as the Commission has issued or prescribed under the provisions of the Act.

'(B) This license is also subject to the terms and conditions set forth in Form L-6 entitled 'Terms and Conditions of License for Unconstructed Major Project Affecting Navigable Waters and Lands of the United States', which terms and conditions are attached hereto and made a part hereof and subject to the following special conditions set forth herein as additional articles:

[Here follow Articles 28 to 35, inclusive.]

'(C) The exhibits specified in paragraph (63) above are approved as part of this license.

'(D) This order shall become final 30 days from the date of its issuance unless application for rehearing shall be filed within the 30-day period provided by Section 313 (a) of the Act [16 U.S.C.A. § 825l(a)].

'(E) This license shall be accepted and returned to the Commission within 60 days from date of issuance of this order.'

Appellant by authority of its city council formally accepted all the provisions, terms and conditions of this license on December 28, 1951.

On December 26, 1951, the departments of fisheries and of game and the Washington State Sportsmen's Council, Inc., filed an application for rehearing. This application was denied by the power commission on January 22, 1952, in an order stating in part:

'The Interveners appear to be under the impression that the Commission failed to consider the proposed Cowlitz Project in relation to the Columbia Basin as a whole. As shown by the numerous specific findings in the opinion and order issued November 28, 1951, the Commission considered and analyzed the evidence as related specifically to the Cowlitz Project alone and as related to the comprehensive development of the entire Columbia River Basin. It was only after the Commission had examined all the plans in evidence relating to the comprehensive development of the Pacific Northwest Region that it reached the conclusion that the Cowlitz Project was best adapted to a comprehensive plan for developing the Columbia River watershed for the use and benefit of interstate commerce and the other beneficial public uses.'

On January 9, 1952, appellant's city council duly enacted ordinance No. 14386 (which became effective January 20, 1952) in which it adopted the plan and system therein described and designated as the Cowlitz Power Development as an addition to, and an extension of, its existing facilities for the generation and distribution of electric energy. This ordinance authorized the construction of the Mossyrock and Mayfield dams and, to provide the necessary additional funds, authorized the issuance and sale of utility revenue bonds, from time to time, not exceeding the total principal amount of $146,000,000. There was included in the ordinance the following:

'The...

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