Hughes v. McVay

• Decision Date: 08 December 1920
• Docket Number: 16111.
• Citation: 194 P. 565,113 Wash. 333
• Court: Washington Supreme Court
• Parties: HUGHES et ux. v. McVAY et al., County Com'rs.

194 P. 565

113 Wash. 333

HUGHES et ux. v. McVAY et al., County Com'rs.

No. 16111.

Supreme Court of Washington, En Banc.

December 8, 1920

Appeal from Superior Court, Spokane County.

Action by T. B. Hughes and Winnifred Hughes, husband and wife against William McVay and others, County Commissioners of Spokane County. From a judgment dismissing the action after the sustaining of a demurrer to the complaint, plaintiffs appeal. Affirmed.

Bridges and Mackintosh, JJ., dissenting.

Mulligan & Bardsley, of Spokane, for appellants.

Joseph B. Lindsley and Fred J. Cunningham, both of Spokane, for respondents.

MITCHELL J.

This action was instituted against William McVay and others, as county commissioners of Spokane county, to prevent the building and maintenance of a house of detention upon property in the vicinity of the residence of the plaintiffs in the city of Spokane. The appeal is based upon the alleged error of the court in sustaining a demurrer to the complaint and in entering a judgment dismissing the action on plaintiffs' refusal to further plead.

The complaint shows that on September 19, 1919, the county commissioners passed a resolution which, among other things recited that the existing detention rooms were inadequate and could not be made sufficient by alterations or repairs, and that a new site was necessary, and provided that the county should purchase block 11, Abernathy's addition to Spokane, as convenient and desirable for such home, for the sum of $7,500, to be paid for part cash and the balance on January 2, 1920, to be raised by the levy of a tax and paid out of the current expense fund. The complaint further shows a resolution passed at a regular session of the board on November 14, 1919, wherein, among other things, after reciting that the county had already acquired the real property (describing it) for a detention home, it was resolved that the board take steps on or before March 20, 1920, to erect and equip the detention home, and that in due time county bonds be issued and sold to pay the cost of constructing and equipping it.

Paragraph VIII of the complaint alleges:

'That the property described as block 11 of Abernathy's addition to Spokane Falls lies south and east of the property owned by the plaintiffs, which property of the plaintiffs has been constructed, maintained, and used as a home, having relied upon this section being a strictly residential district; that their home faces the east, and the county commissioners are threatening to erect a detention home upon the property attempted to be purchased by them, which structure will face the west; that said structure is to be used as a jail for juvenile delinquents, will have barred windows and be inclosed by a high fence, which will be a damage to the plaintiffs, in that it will depreciate the value of their property from 33 1/3 to 50 per cent.; that it will be a hindrance and obstruction, and will essentially interfere with the enjoyment of their property for the purposes for which it was purchased, maintained, and used; that it will render all property in the immediate vicinity less desirable and will cause adjoining property to depreciate in a like amount.'

Further, the complaint alleges that the commissioners in passing the two resolutions acted without notice and without authority of law; that they threaten to carry out the unlawful purpose; that the plaintiffs have no adequate remedy at law; that plaintiffs had no actual notice of the acts of the commissioners until afterwards; and that plaintiffs bring the action on behalf of themselves and all other property owners similarly situated.

There is no allegation that the commissioners acted fraudulently or dishonestly in selecting the site, nor that the property selected is not reasonably worth $7,500. There appears to be some complication or confusion in the allegations of the complaint, which seems to embrace more than one cause of action without separately stating them. But it is correctly contended that, tested by a general demurrer, the complaint is good if upon its face it states any cause of action. The cause is presented in this court by the appellants upon two propositions: (1) That the respondents in attempting to purchase the site for the detention home acted without power and authority because of the violation of sections 9208, 9209, and 9210, Rem. & Bal. Code; and (2) that the structure attempted to be provided for would be a nuisance.

As to the first proposition: It is not contended, as we understand, that the commissioners have no power to build a detention home, but rather that, because in going about the enterprise, the board ignored the provisions of the three sections of the Code already referred to, and hence its action was and is without any legal effect. Section 9208, R. & B. Code, provides, among other things, that it shall be the duty of county commissioners on or before the first Monday in September of each year to make estimates of the amount required to meet the public expense for the ensuing year to be raised by taxation. It requires the estimates to be itemized 'showing under separate heads the amount required for each department, public office, public official, for each public improvement, for the maintenance of each public building,' etc. Section 9209, R. & B. Code, provides, among other things, that the estimates required in section 9208, together with a notice that the board will meet on the first Monday in October for the purpose of making tax levies, shall be published at least two consecutive weeks following the adoption of estimates. Section 9210, R. & B. Code, provides, among other things, that the county commissioners shall meet on the first Monday in October, when and where any taxpayer may appear and be heard in favor of or against any proposed tax levies, after which hearing the commissioners shall proceed to make, determine, and decide the amount of taxes to be levied. Upon citing these statutes, appellants call attention to the cases of Arnott v. Spokane, 6 Wash. 442, 33 P. 1063, Abstract Co. v. Anderson, 9 Wash. 349, 37 P. 471, Times Publishing Co. v. Everett, 9 Wash. 518, 37 P. 695, 43 Am. St. Rep. 865, Smith v. Lamping, 27 Wash. 624, 68 P. 195, Green v. Okanogan County, 60 Wash. 310, 111 P. 226, 114 P. 457, Bier v. Clements, 98 Wash. 310, 167 P. 903, Osborne, Tremper & Co. v. King County, 76 Wash. 277, 136 P. 138, and Northwestern Improvement Co. v. McNeil, 100 Wash. 22, 170 P. 338, in support of their claim that the contract for the purchase of the site for a detention home is illegal and void. It is plain the cases mentioned are not applicable here. They are cases which, generally speaking, cover contracts made in violation of the manner fixed by law, or where there was fraud and collusion, or where a public official undertook to bind the county without authority of law or the authorization of the county commissioners, or where the commissioners were attempting to provide something at the county's expense in addition to that which the law had specially provided for in the particular matter involved, or where no power whatever had been conferred by statute concerning the subject-matter in controversy. The three sections of the Code are revenue and taxation statutes. They are not designed to confer or limit the exercise of the power to make contracts. They, or any other law that we are aware of, contain no provision to the effect that contracts for those things the tax levy is made to provide for shall be illegal unless the subject-matter of the contract is included in the estimate, notice, and tax levy. As a matter of legislative history it is worthy of notice that a comprehensive act known as the budget system was passed by the Legislature of 1915 (chapter 49, Laws 1915; Rem. Code, §§ 9208-1 to 9208-24) which required the listing of such contracts in the published estimates for tax levies, wherein (section 21) is found a specific provision that all orders, authorizations, allowances, contracts, payments, or liabilities to pay, made or attempted to be made in violation of the act, shall be void. The act, however, was referred by petition to a popular vote and failed to pass at the general election November 7, 1916. See Session Laws 1919, p. 754, referendum measure No. 9. The powers and duties of county commissioners in making estimates and levying taxes are separate and distinct from those relating to the power and manner of making contracts. There can be no question of the power of the respondents in this case under the provisions of sections 3890 and 3822, Rem. Code, to provide for the detention home. Indeed, by the mandatory directions of section 1987-13, Rem. Code (as Spokane county contains more than 50,000 inhabitants) the county is required to provide and maintain at public expense a house of detention.

Upon this phase of the case apellants conclude by saying:

'They cannot possess the power to buy a whole city block without proceeding in the manner provided by law.'

That is, appellants are seeking to enjoin the purchase of the site on the theory that the revenue and taxation statutes require the listing of the consideration therefor as a prerequisite to the power to contract. The theory is manifestly erroneous. As to the failure to give the taxpayers notice, it is immaterial as to the making of the contract for the purchase of the site, as already seen, and besides the respondents did not find any necessity for a new detention home until September 19, some time after the first Monday; while as to the tax levy the statute itself provides that a hearing shall be had and the levy made on the first Monday in October. No special notice of it was required.

We think appellants' second proposition is also without merit. The...