Griffin v. City of Tacoma

• Decision Date: 01 June 1908
• Parties: GRIFFIN v. CITY OF TACOMA et al.
• Court: Washington Supreme Court

95 P. 1107

49 Wash. 524

GRIFFIN v. CITY OF TACOMA et al.

Supreme Court of Washington

June 1, 1908

Appeal from Superior Court, Pierce County; M. L. Clifford, Judge.

Action by F. L. Griffin against the city of Tacoma and another to enjoin the construction of a pipe line. Judgment of dismissal, and plaintiff appeals. Affirmed.

Rudkin and Fullerton, JJ., dissenting in part.

Leo &amp Cass, for appellant.

C. M Riddell, J. W. Quick, C. E. Dunkleberger, F. R. Baker, Frank Latcham, and T. L. Stiles, for respondent city of Tacoma.

Titlow & Huffer, for respondent Savage.

HADLEY C.J.

This action was brought by the plaintiff, as a resident citizen and taxpayer of the city of Tacoma, to enjoin that city and its codefendant Savage from proceeding with the construction of a main pipe line and other adjuncts to connect certain springs, known as 'Maplewood Springs,' with the water system of Tacoma as now operated. In the month of March 1908, the city council of Tacoma duly passed an ordinance numbered 3264, authorizing such construction, and provided that the commissioner of public works in calling for bids should state that the contractor for any part of the work should agree to accept payment in cash by warrants drawn upon and payable out of the Maplewood extension fund, as created and established by ordinance. The same ordinance also created such special fund by setting aside from the gross revenues all proceeds derived from the waterworks system now belonging to, or which may hereafter belong to, the city at least 50 per cent. thereof, exclusive of revenue for water used by the city for municipal purposes, and provided that all moneys so set aside and placed in such special fund shall be applied solely to payment for the aforesaid construction and to other expenses necessarily incidental to such construction. On the same day the city also passed Ordinance No. 3265, by the terms of which there is transferred from the general fund of the city to the said special fund the sum of $100,000. The transfer was made in the nature of a temporary loan from the general fund to the special fund, to be returned to the general fund under the provisions of Ordinance 3264, and also of Ordinance 3201. The latter ordinance expressly provides that, when any money is by ordinance transferred from one fund of the city to another, the sum so transferred shall be by the proper officers transferred back to the original fund whenever there is a sufficient amount in the fund to which the transfer was made to return the amount so transferred. The commissioner of public works advertised for bids, and the city let two contracts to the defendant Savage, under the terms of the ordinance as aforesaid. One contract was for the building of the main pipe line between Maplewood Springs and the city of Tacoma, in length from 8 1/2 to 9 miles, for the price of $119,387, and the other was for the construction of a force main in the city for such extension, for the price of $48,643. The contractor entered upon the prosecution of the work, and thereupon this suit was brought to enjoin its further continuance, as well as all further proceedings to accomplish the construction under said ordinances and contracts. The cause was tried by the court, and resulted in a judgment denying any injunctive relief and dismissing the action. The plaintiff has appealed.

Appellant's first contention is that the Maplewood Springs extension is an addition to the present water system of the city, and that Ordinance 3264 does not provide for submitting to the electors of the city for their ratification or rejection the question of making said addition. It must be determined whether the extension is in fact an addition to the present water system which calls for ratification by the electors. Under the terms of Ordinance No. 790, the electors of the city did hold an election in 1893 to determine, among other things, whether the city should purchase of the Tacoma Light & Water Company its waterworks and all sources of water supply then owned or operated by said company as part of its water system. The vote was in favor of such purchase, and the same was effected; the regularity of the proceedings being upheld by this court in Seymour v. Tacoma, 6 Wash. 138, 32 P. 1077. The company then owned the Maplewood Springs in connection with its water system, and they belonged to and were a part of the various sources of water supply which the company had provided for its system, although it had not previously actually drawn water from these particular springs. They were held as a reserve source of supply for future use. The springs were transferred by the company to the city as a part of its water system, and the city has ever since been the owner. Through the proceedings here attacked by appellant the city is now seeking to utilize this source of supply which it acquired and has for years owned and held as part of its source of supply to its water system. Appellant makes the point that, inasmuch as the Maplewood Springs were not specifically mentioned in Ordinance 790, the electors therefore did not authorize their purchase by the vote of 1893. We think it was not material that they should have been specially mentioned. The electors by their vote authorized the purchase of all sources of water supply either owned or operated by the company in connection with its water system. This covered the springs in question, and, when the city acquired them, they became a part of its authorized water system which it may now utilize. We do not think there has been any change of plan as contemplated by the statute of 1895. Section 3784, Pierce's Code (Ballinger's Ann. Codes & St. § 835). This statute has been called to our attention in a brief filed by the new city attorney of Tacoma, who assumed his official duties after this cause was submitted here. The attitude of the present city administration toward this controversy seems to differ from that of the administration which was in charge when the cause was first submitted here. The city cannot now, however, be heard to repudiate its former position if that position is sustainable in law, but we receive the suggestions of the present city attorney as presenting points which should be considered in the determination of the controversy. We believe that the above statute cited by him is inapplicable here, for the reason that this case does not present one of a change of plan, but the city is simply adhering to its original plan of utilizing the different sources of water supply which it purchased from the Tacoma Light & Water Company by authority of a vote of the people then taken, and no vote is now required to authorize the details of furthering that plan.

The appellant's next contention is that the transfer of money from one fund of the city to another as provided by Ordinance 3265 is prohibited by the city charter. The charter provision referred to is section 96, pp. 79, 80, Revised Charter and Ordinances of the City of Tacoma, and is as follows 'Immediately after the annual tax levy the city treasurer shall open and keep separate and distinct accounts with each special fund made necessary by law, and whenever any taxes shall be collected and paid into the treasury he shall credit each fund with its proportionate amount of such tax, and the same...