City of Tacoma v. Taxpayers of Tacoma

• Decision Date: 07 February 1957
• Docket Number: No. 33706,33706
• Citation: 49 Wn.2d 781,307 P.2d 567
• Parties: The CITY OF TACOMA, a municipal corporation, Appellant, v. The TAXPAYERS OF TACOMA, Washington, and Robert Schoettler, as Director of Fisheries, and John A. Biggs, as Director of Game, of the State of Washington, and the State of Washington, a Sovereign State, Respondents and Cross-Appellants.
• Court: Washington Supreme Court

Page 781

49 Wn.2d 781

307 P.2d 567

The CITY OF TACOMA, a municipal corporation, Appellant, v. The TAXPAYERS OF TACOMA, Washington, and Robert Schoettler,

as Director of Fisheries, and John A. Biggs, as Director of

Game, of the State of Washington, and the State of

Washington, a Sovereign State, Respondents and Cross-Appellants.

No. 33706.

Supreme Court of Washington, En Banc.

Feb. 7, 1957.

As Clarified on Denial of Rehearing April 30, 1957.

E. K. Murray, Special Counsel, Marshall McCormick, Frank L. Bannon, Robert R. Hamilton, James F. Henriot, Tacoma, for appellant.

Don Eastvold, Atty. Gen., Joseph T. Mijich, E. P. Donnelly, Seattle, for respondents and cross-appellants.

Lynch & Lynch, Olympia, for respondent.

Frank P. Hayes, Olympia, A. C. Van Soelen, Glen E. Wilson, Seattle, amicus curiae.

WEAVER, 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, pursuant to the declaratory judgment act, RCW 7.24.010 et seq., and RCW 7.24.150 et seq., to test and determine plaintiff's right to issue and sell certain utility revenue bonds to finance the construction of two power dams on the Cowlitz river in Lewis county.

The action was commenced in Pierce county; later, by stipulation and order of court, it was transferred to Thurston county.

The case was here on a prior appeal. City of Tacoma v. Taxpayers, 1953, 43 Wash.2d 468, 262 P.2d 214. This court reversed the judgment of dismissal entered by the trial court after sustaining defendant taxpayers' demurrer to the original complaint. (We refer to that decision for an understanding of the material facts involved on the first appeal.)

The case was remanded to the superior court for further proceedings in accordance with the views therein expressed.

Preliminary to a discussion of the merits of this case, we point out that the city of Tacoma was granted a license by the Federal Power Commission, after hearings held in 1951, to construct the two dams on the Cowlitz river. The state of Washington, represented by the attorney general; the directors of game and fisheries, cross-appellants; and Washington State Sportsmen's Council, Inc. (not a party to the present case), were given notice of the hearings and appeared before the Federal Power Commission and actively participated in that proceeding. The parties petitioned the court of appeals for the ninth circuit to review the decision of the Federal Power Commission, In the Matter of the City of Tacoma, Washington, Project No. 2016; the commission's decision was affirmed. State of Washington Department of Game v. Federal Power Commission, 9 Cir., 1953, 207 F.2d 391, certiorari denied 1954, 347 U.S. 936, 98 L.Ed. 1087, 74 S.Ct. 626.

The proceedings in the superior court, between October 14, 1953, the date the remittitur of this court was filed, and March 6, 1956, the date of the final judgment from which the present appeal and cross-appeal are taken, are set forth in the lengthy transcript on appeal. It would unduly extend this opinion to give a resume of the various pleadings, motions, and orders.

After our former opinion, the trial court entered an order overruling taxpayers' demurrer to the complaint. The taxpayers of Tacoma filed an answer and cross-complaint, denying that the Federal license had any legal force or effect, and affirmatively alleged that the city had exceeded its authority under the state statutes. The city's demurrer was sustained to the cross-complaint.

April 29, 1954, the directors of game and fisheries filed a second amended answer and cross-complaint that, in substance, was similar to prior pleading, except they alleged, for the first time, that the Cowlitz river is nonnavigable at the dam sites.

April 29, 1954, the city of Tacoma filed a petition praying that attorneys' fees as costs be fixed and determined, and that the city's liability for further legal services be terminated in accordance with the provisions of the declaratory judgment act. The petition stated that nothing further remained to be done by the taxpayers of Tacoma, except to establish the allegations of the complaint (if denied) and enter judgment. The prayer requested that the taxpayers be denied costs for attorneys' fees in connection with their cross-complaint.

On the same date, the taxpayers of Tacoma Answered. They said they had done all that was expected of them; that they had filed an answer and cross-complaint, because it was the only further step they could take; and that they should be allowed costs and attorneys' fees.

April 29, 1954, the superior court entered an order absolving the taxpayers from any further defense or prosecution of the action. Subsequently, the superior court fixed the amount of attorneys' fees to be paid by the city to the taxpayers.

June 24, 1955, the directors of game and fisheries filed a motion for a temporary restraining order and injunction, pendente lite, to enjoin further development and construction of the Cowlitz project and the sale of the proposed bond issue. The affidavit of an assistant attorney general, filed in support of this motion, alleges that a large portion of certain state highways would be inundated and must, of necessity, be condemned; and that

'Ordinance No. 14386 authorizes the condemnation of the state game hatchery, known as the Mossyrock Hatchery, located on the Cowlitz River. This hatchery is located on Government Lots 4, 7, 8, and 9, Section 11, Township 12 North, Range 2 East Williamette Meridian, in Lewis County, Washington. The state also has a water right there. The reservoir created by the Mayfield Dam will inundate and overflow the entire hatchery. This hatchery site has been segregated from the public domain and already appropriated to a public use.

'The City of Tacoma, being a limited arm of the state government, cannot condemn property such as this already dedicated to a public use. State v. Superior Court, 1916, 91 Wash. 454, 157 P. 1097. Therefore, the ordinance authorizing such condemnation is invalid and the City is proceeding contrary to the laws of the State of Washington. Affiant alleges that no agreement between the City of Tacoma and state authorities has been reached, and that legislative action will be necessary before Tacoma can build the project. There has been no such legislative action as yet.

'On June 21, 1955, the City of Tacoma awarded bids for the purchase of Tacoma city Light revenue bonds, totalling $15,000,000, to pay for the construction of part of the Mayfield Dam. Affiant is informed and believes that the City will deliver said bonds to the purchasers in the immediate future; on June 22, 1955, the City of Tacoma awarded the contracts for the construction of the Mayfield Dam, and the City intends to authorize the commencement of said construction in the immediate future.

'Affiant is informed and believes that if the threatened acts of the plaintiff in delivering the bonds and commencing construction of the Mayfield Dam are not enjoined pending the outcome of this action, irreparable injury will result to the State of Washington in that part or all of the fish runs in the Cowlitz River will be destroyed for which adequate damages cannot be ascertained. Also, if invalid bonds are permitted to be on the market, the public will suffer and it is the responsibility of the State of Washington to prevent this.'

On the filing of this motion and affidavit, the superior court, ex parte, issued a temporary restraining order and order to show cause. It enjoined the city from directly or indirectly developing, constructing, or contracting for the construction of the two dams; from delivering or permitting the sale of any bonds for the payment of costs of the Cowlitz project; and ordering the respective parties to appear at a hearing on the matter on August 8, 1955.

June 28, 1955, the city of Tacoma, appellant, filed a motion to quash and dissolve the temporary restraining order. It was supported by affidavits that stated in substance: (a) that the action had been pending for more than two years; (b) that during this time the directors of game and fisheries had known that the city contemplated calling for bids on contracts and the sale of bonds; (c) that for the past year this action had awaited the ruling of the superior court upon the city's demurrer to the directors' second amended cross-complaint; (d) that the protection of fish in the Cowlitz river was a matter for presentation before the Federal Power Commission; (e) that all matters proper for determination herein had been decided by the supreme court of this state upon the first appeal. City of Tacoma v. Taxpayers, supra; (f) that the judgment in the case, entitled State of Washington Department of Game v. Federal Power Commission, supra, was res judicata as to all other matters pleaded by the directors of game and fisheries in their second amended answer and cross-complaint; (g) and, that the continuation of the temporary restraining order would result in irreparable damage to the city of Tacoma. A hearing on the motion to quash was set for June 30, 1955. July 7, 1955, the court modified the temporary restraining order to read:

'* * * Plaintiff [appellant] and its officers and agents be and they are hereby restrained and enjoined from doing any act or thing in any manner interfering with the bed or waters of the Cowlitz River in connection with its Mayfield and Mossyrock Dam Projects, or in any way injurious to the fish runs or fish resources of said river, * * *'

July 27, 1955, the city filed an amended complaint. July 29, 1955, the directors of game and fisheries moved to substitute the sovereign state of Washington as a defendant in this action. The affidavit, in support in this motion, alleged:

'The proposed project will affect lands, structures, waters, and fish, the ownership and jurisdiction over which is in the State of Washington and not in the...