McCarthy v. City of Kelso

• Decision Date: 27 March 1924
• Docket Number: 18380.
• Citation: 223 P. 151,129 Wash. 121
• Parties: McCARTHY v. CITY OF KELSO et al.
• Court: Washington Supreme Court

223 P. 151

129 Wash. 121

McCARTHY v. CITY OF KELSO et al.

No. 18380.

Supreme Court of Washington, En Banc.

March 27, 1924

Appeal from Superior Court, Cowlitz County; Kirby, Judge.

Action by Charles D. McCarthy against the City of Kelso and others. From an order denying an injunction, plaintiff appeals. Affirmed.

Parker J., Main, C.J., and Fullerton and Bridges, JJ., dissenting.

Chas D. McCarthy, of Kelso, and M. F. Gose, of Olympia, for appellant.

Fisk &amp McCarthy, of Kelso, for respondents.

PEMBERTON J.

Appellant instituted this action against respondents asking that respondents be enjoined from issuing certain warrants and creating a certain indebtedness for the construction of a water filtration plant for the city of Kelso. The trial court entered an order denying the injunction, from which this appeal is taken. The state board of health has directed the discontinuance of the use of the water now available for the city because of its impurities, and it is agreed that there is no other method whereby wholesome water can be supplied.

The Constitution (article 8, § 6) provides 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 per centum 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 not in cases requiring such assent shall the total indebtedness at any time exceed five per centum on the value of the taxable property therein, to be ascertained by the last assessment for state and county purposes previous to the incurring of such indebtedness, except that in incorporated cities the assessment shall be taken from the last assessment for city purposes: Provided, that no part of the indebtedness allowed in this section shall be incurred for any purpose other than strictly county, city, town, school district, or other municipal purposes: Provided, further, that any city or town, with such assent, may be allowed to become indebted to a larger amount, but not exceeding five per centum additional for supplying such city or town with water, artificial light, and sewers, when the works for supplying such water, light, and sewers shall be owned and controlled by the municipality.'

It is the contention of appellant that if the respondents are permitted to issue warrants in the amount of $25,000 for the construction of a municipal water plant the indebtedness will exceed the limitation under the above provision of the Constitution, and that an injunction should issue against the city. It is the contention of the city that it is required to preserve the purity and healthfulness of the water supply (section 2543, Rem. Comp. Stat.); that there is an emergency wherein the very existence of the city is involved, and the constitutional limitation upon municipal indebtedness has no application.

We have held that an indebtedness for the impounding of stock, the maintenance of jails and quarantine is necessary for the preservation of property and the safety of the inhabitants and therefore not within the constitutional limitation. Gladwin v. Ames, 30 Wash. 608, 71 P. 189; Pilling v. Everett, 67 Wash. 109, 120 P. 873; Patterson v. Edmonds, 72 Wash. 88, 129 P. 895. We have said:

'That an efficient fire department is an essential for the protection, and therefore for the existence, of a municipality of the first class does not need argument to demonstrate.' State ex rel. Taro v. Everett, 101 Wash. 561, 172 P. 752, L. R. A. 1918E, 411.

Having held that the constitutional limitation does not apply to an indebtedness for the maintenance of a jail, a quarantine, a fire department, and impounding stock because such indebtedness is necessary for the preservation of property and the safety of the inhabitants, we see no reason why the constitutional limitation should prevent the city from incurring an indebtedness for the construction of a water filtration plant for the preservation of the health and lives...