Eidemiller v. City of Tacoma

• Court: Washington Supreme Court
• Writing for the Court: DUNBAR, J.
• Citation: Eidemiller v. City of Tacoma, 14 Wash. 376, 44 P. 877 (Wash. 1896)
• Decision Date: 08 April 1896
• Parties: EIDEMILLER v. CITY OF TACOMA ET AL.

44 P. 877

14 Wash. 376

EIDEMILLER v. CITY OF TACOMA ET AL.

Supreme Court of Washington

April 8, 1896

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Action by Fred Eidemiller against the city of Tacoma, F. T. Olds treasurer, E. V. Benham, comptroller, W. H. Harris president, of the city council, and S. J. Smith, city clerk to compel such city treasurer to pay a certain warrant issued by the city, and held by plaintiff. From a judgment for defendants, plaintiff appeals. Reversed.

Murray & Christian, Alfred E. Buell, and Crowley, Sullivan & Grosscup, for appellant.

James Wickersham and Stacy W. Gibbs, for respondents.

DUNBAR J.

Appellant brought this action to compel the city treasurer of the city of Tacoma to pay a certain warrant for the sum of $303.67. Said warrant was made and delivered by the city of Tacoma on September 29, 1893; was presented for payment on September 30, 1893; and the treasurer of said city then and there indorsed upon said warrant, "Not paid for want of funds." It is conceded in this case that there are sufficient funds in the treasury to pay the warrant in controversy if it is legal to pay it out of the revenues raised by the city for the present fiscal year; the contention of the appellant being that this warrant should be paid in the order of its issuance, regardless of the revenue that is raised in any particular year, while the contention of the respondents is that the revenues now available to the city can be applied only to the payment of debts incurred during the year, or for the expenses necessary to the running of the city during the fiscal year.

On July 28, 1880, Ordinance No. 29 was passed by the city of Tacoma, a city of the first class, which ordinance provides, among other things, that the treasurer shall redeem warrants in the order of their number and date. On March 23, 1888, Ordinance No. 194 was approved, providing, among other things, that all revenue accruing to the city of Tacoma, except the tax levy for a "road property tax," a "poll tax," and money arising from street improvement assessments, or other improvement assessments, or special tax levied for a special purpose, shall be collected and credited to the general fund. On November 2, 1895, subsequent to the issuance of this warrant, the city of Tacoma passed an ordinance (No. 1029) providing for a levy of 11 mills upon the dollar upon all the taxable property of the city, for the purpose of raising sufficient revenue to carry on the different departments of the municipal government of the city for the fiscal year beginning on July 1, 1895, and ending on June 30, 1896, and proportioning the funds to be raised from such assessment to the interest fund, to the salary fund, and to the general expense fund. On February 15, 1896, Ordinance No. 1051 was passed, providing for the disbursement of the money raised by means of the assessment above mentioned, and under the provisions of which ordinance the fund raised by the assessment would be absorbed to the exclusion of claims against the general fund; and it is conceded that, if the tax is diverted and appropriated as contemplated by Ordinances 1029 and 1051, the payment of this warrant will be postponed for an indefinite period, while other and subsequent warrants, drawn under the provisions of Ordinance 1051, will be paid. It is claimed by the appellant that, at the time of the issuance of this warrant, Ordinances Nos. 29 and 194 were in effect; that the warrant was issued under the provisions of those ordinances; and that he has the right to have his warrant paid in the order of its number and date. The respondents' contention is twofold: First, that, by subsequent enactments, the provisions of Ordinances Nos. 29 and 194 have been repealed; and, second, that the law providing that a treasurer shall redeem warrants in the order of their number and date should be construed to mean that such warrants should be redeemed in the order of their number and date in the issuance of each particular year. It is also claimed by the respondents that, under the provisions of the act of the legislature of 1893 (Laws 1893, p. 167, § 2), the right of the appellant is modified. This provision, however, in regard to cities, we do not think is any broader than the provision in regard to county assessments. In any event, it would have to be brought into operation by enactments by the city government, so that the question recurs on the proposition as to whether or not Ordinances Nos. 29 and 194 have been repealed by subsequent enactments of the city. Construing the enactments by the city as we would enactments by the legislature of the state, we find nothing that convinces us that it was the intention of the ordinances cited by the respondents to change the general system of payment of warrants as directed in Ordinance No. 29.

We do not think there is anything in respondents' contention that, under the provisions of the charter, salaries are to be paid monthly. This means nothing more than that warrants shall be issued monthly. It does not, in our judgment, contemplate that salaries shall especially be paid in cash. It is the usual custom of the different departments of the government to issue warrants for the payment of salaries, and there is nothing in the charter that would indicate that these particular warrants were to be preferred.

Outside of these contentions, and on the general principles involved in the case, this case falls squarely within the rule announced by this court in Mason v. Purdy, 11 Wash. 591, 40 P. 130, where the court, in an exhaustive opinion, held that section 63 of the revenue act of 1893, declaring that county taxes shall be based upon the estimated county expenses for the ensuing year, cannot be construed as restricting the funds arising from the annual tax levy in any given year to the payment of such obligations only as may be incurred during the fiscal year following such levy. That case was decided upon well-prepared briefs, which, while not probably so elaborate as the respondents' brief in this case, presented all the points here involved; and it was there held that, under our system of laws, which permits the carrying of an indebtedness, the object of the law in providing for the ascertainment of the expenses of the fiscal year was not for the purpose of confining the payment of the money, raised under the assessment provided for, to bills contracted in that year alone, but was for the purpose of eliciting information which would prevent the extension of the debt beyond the constitutional or legal limit, still allowing payments to be made upon prior warrants, but assuring the redemption of as many warrants in value as claims were engendered against the county during the year. The effect of section 5 of article 7 of the constitution was discussed, and the court said: "For these and other reasons, it is our opinion that the contention of the appellants that the object of the tax levied by the board of county commissioners, within the meaning of this constitutional provision, was the payment of all the county expenses for the ensuing fiscal year, and not the payment of the different classes of county expenses as therein provided for and segregated, cannot be sustained. It follows from what we have said that, under the constitution, the legislature was at liberty to provide for the levy of taxes by the board of county commissioners for the payment of obligations already incurred by the county, as well as those thereafter to be incurred. The only remaining question is to decide whether or not it has done so." And the court, after referring to the circumstances existing in the several counties of the state, which were presumed to have been within the knowledge of the legislature at the time it enacted the law in question, concludes: "That these customs existed had been decided by the courts, which not only recognized the practice, but in numerous cases held that it was rightful. In doing so, they held that the warrants were entitled to payment in the order of their issue, out of any moneys in the funds upon which they were drawn, and that they had practically the same force as judgments; so that proceedings in mandamus were the proper means by which to secure their payment. *** It thus appears that it had been the universal custom among counties, recognized and upheld by every department of the government, to carry their indebtedness in the shape of these warrants, and to provide for their payment, in accordance with their date of issue, out of any moneys in the hands of the treasurer belonging to the fund upon which they were drawn, without reference to the tax levy from which such fund had been derived." In fact, the question was so exhaustively argued that it seems almost impossible to discuss the questions raised by this brief without an unnecessary repetition of the argument used by the court in the case above cited. The doctrine there announced was followed in State v. Hopkins, 12 Wash. 602, 41 P. 906, and again in State v. Hopkins (decided Feb. 21, 1896) 44 P. 134.

In addition to the universal custom, which had prevailed almost...