Fox v. City of Seattle

• Citation: 43 Wash. 74,86 P. 379
• Court: Washington Supreme Court
• Decision Date: 17 July 1906
• Parties: FOX v. CITY OF SEATTLE.

86 P. 379

43 Wash. 74

FOX v. CITY OF SEATTLE.

Supreme Court of Washington

July 17, 1906

Appeal from Superior Court, King County; J. A. Stratton, Judge.

Action by Robert B. Fox to enjoin the city of Seattle from issuing certain municipal bonds. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

John H Powell, for appellant.

Scott Calhoun and F. R. Conway, for respondent.

DUNBAR J.

This action was brought by the plaintiff to enjoin the defendant from issuing $1,100,000 of municipal bonds, $600,000 to provide funds for extensions to the municipal lighting plant of the city, and $500,000 to provide funds for the purchase of property for park purposes. The defendant city claims to be authorized to issue said bonds by virtue of an authority conferred upon it by the electors of the city at the last general election in the month of March last, at which election the proposition of the issuance of these bonds for the above purposes was submitted to a vote of the people. It is conceded that the city has a right to issue the bonds in question, provided the proposition received the requisite vote at that election; so that the sufficiency of the vote cast in favor of the bonds is the only question for discussion here. The lower court sustained a demurrer to both causes of action, and the plaintiff elected to stand upon his complaint. The court thereupon rendered final judgment for the defendant. From such judgment this appeal is taken.

It is alleged in the complaint, and is conceded that each of the propositions submitted received the assent of three-fifths of the voters voting upon that proposition and that neither of the propositions received the assent of three-fifths of all the voters voting at the general election. So that the question presented is, in order to legalize the issuance of the bonds, was it necessary that three-fifths of all the votes cast at said election should be cast in favor of said issuance, or was three-fifths of the votes of the voters voting upon the particular proposition submitted sufficient? This question depends upon certain provisions of the Constitution and of the charter of the city of Seattle. Article 8, § 6, of the state Constitution provides, among other things, as follows: 'No county city, town, school district, or other municipal corporation, shall for any purpose become indebted in any manner to an amount exceeding one and one-half percentum of the taxable property in such county, city, town, school district, or other municipal corporation, without the assent of three-fifths of the voters therein voting at an election to be held for that purpose.' And section 26 of article 4 of the charter of the city of Seattle provides as follows: 'When loans shall be created exceeding one and a half percentum of the taxable property in the city, and bonds therefor issued by the city under this charter, the city council in authorizing and providing for the same shall direct the times and manner of payment and rates of interest, but no such bonds shall be issued except as provided by law, nor unless the proposition for creating such indebtedness shall have been previously submitted to the electors of the city at a regular, general or special election, of which thirty days' notice shall have been published in the city official newspaper, and such proposition shall have then received the assent of three-fifths of the voters voting at such election.' It will thus be seen that the Constitution provides for the assent of three-fifths of the voters therein voting at an election to be held for that purpose, and that the charter provides for the assent of three-fifths of the voters voting at such election. It is the earnest contention of the appellant that the only construction that can be given to such charter provision is that the proposition must receive three-fifths of all the votes cast at such election, whether cast upon the bond proposition, or for the election of mayor, or any other proposition which is submitted to the voters at such general election; and that, inasmuch as three-fifths of all the votes cast at the general election on all propositions were not cast in favor of the bond proposition, such proposition was lost; and many cases are cited in support of this contention. It is conceded, however, that under the constitutional provision which prohibits the incurring of the indebtedness in question without the assent of three-fifths of the voters therein voting at an election to be held for that purpose, the language of the Constitution is satisfied if three-fifths of the voters voting at a special election assent to the issuance of the bonds, although a less number than three-fifths of the qualified electors of the city assent thereto. So that we will not further notice this proposition, but will determine whether or not the charter provision which, if the appellant's contention is correct, places a still further limitation upon the right of the city than does the Constitution, is satisfied by an affirmative vote of three-fifths of the voters voting upon such proposition at a general election.

Of course, if the vote were taken at a special election called only for the purpose of voting upon such bonds, this question could not arise, and a three-fifths vote would unquestionably be sufficient to warrant the issuance of the bonds. Courts are, and of right ought to be, reluctant to defeat the fair expression of the popular will manifested by the voters at an election, the express and only object of which is to ascertain the popular will, and such expression will be upheld and made effective unless the law which defeats it is so plain and unequivocal that it is susceptible of but one construction, in which case the court is powerless to do otherwise than give legal effect to its provisions. We do not think, however, that such a case is presented by the provisions of the city charter above set forth especially when construed with reference to the constitutional provisions relating to the same subject. And courts will, if possible, consistently with the proper canons of construction, construe the provisions of the charter to be in harmony with the Constitution, rather than in opposition to or in any way limiting its provisions. It seems to us that there is no real difficulty in reconciling the charter with the constitutional provisions, when we take into consideration the probable...