Robb v. City of Tacoma

• Decision Date: 19 December 1933
• Docket Number: 24848.
• Citation: 28 P.2d 327,175 Wash. 580
• Parties: ROBB v. CITY OF TACOMA et al.
• Court: Washington Supreme Court

28 P.2d 327

175 Wash. 580

ROBB v. CITY OF TACOMA et al.

No. 24848.

Supreme Court of Washington, En Banc.

December 19, 1933

Appeal from Superior Court, Pierce County; E. D. Hodge, Judge.

Action by K. Robb against the City of Tacoma and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

W. W Mount, John E. Gallagher, and Bartlett Rummell, all of Tacoma, for appellants.

Leo Teats and Ralph Teats, both of Tacoma, for respondent.

Rex S Roudebush, S. F. McAnally, and George O. Swasey, all of Tacoma, and Geo. M. Ferris and Burcham & Blair, all of Spokane, amici curiae.

STEINERT Justice.

This action was brought by a taxpayer of the city of Tacoma to test the validity of a proposed sewer bond issue. A demurrer to the complaint having been overruled, the defendants filed an answer admitting all the allegations of the complaint save one which presented only a question of law; the answer also contained an affirmative defense, to which a demurrer was interposed and sustained. Upon refusal of the defendants to plead further, judgment was entered enjoining the city and its officials from proceeding with the issuance and sale of the bonds. The defendants have appealed from the judgment.

The facts upon which respondent's case rests, as shown by the complaint, are these: On August 11, 1933, the city council of Tacoma passed an ordinance providing for the submission to the qualified voters of the city, at a special municipal election, of a proposition for creating an indebtedness in the amount of $3,000,000 and the issuance and sale of general negotiable bonds of the city for the purpose of providing funds for the construction of storm and sanitary trunk sewer improvements, the ordinance further providing for the levy and collection of taxes to pay the principal and interest of such bonds.

Pursuant to the passage of the ordinance, the election was held on September 26, 1933. Thereafter, the election board made a canvass of the returns and found that of the total number of 16,945 persons voting at the election 13,617 had voted in favor of the issuance of the bonds, and that 3,248 had voted against it. The board further found that on the question whether the council should be authorized to levy taxes in excess of 15 mills to pay the principal and interest charges on the proposed bond issue 11,676 persons had voted in the affirmative and 4,732 had voted in the negative. The indebtedness sought to be incurred by the issuance of these bonds exceeds 1 1/2 per cent. of the taxable property in the city of Tacoma, and the tax proposed to be levied for the purpose of paying the principal and interest of the bonds exceeds the 15-mill limit allowed by law for municipal purposes.

On November 8, 1932, there was held in Tacoma a general election, at which a total number of 45,617 persons voted. The number of votes cast at the bond election held September 26, 1933, was less than 50 per cent. of the number of votes cast at the general election held November 8, 1932.

On August 29, 1933, an election was held in Tacoma for the purpose of electing delegates to the convention to be held in Olympia. Wash, on October 3, 1933, for the purpose of ratifying or rejecting the proposed Twenty-First Amendment to the Constitution of the United States. At that election 26,107 votes were cast in Tacoma. The number of votes cast at the bond election held September 26, 1933, was in excess of 50 per cent. of the total number of votes cast at the election held August 29, 1933. It is alleged in the complaint that the election held August 29, 1933, was not a general election, but that the election board of Pierce county had nevertheless certified that it was.

Pursuant to the bond election held September 26, 1933, the city council, on October 11, 1933, passed an ordinance ratifying and confirming the loan of $3,000,000, authorizing the issuance and sale of bonds therefor, and providing for the levy and collection of taxes to meet the payment of principal and interest of such bonds. Under the authority thus conferred, the city council proposed to issue and sell the bonds. As already stated, a demurrer to the complaint was overruled.

The answer admitted all of the allegations of the complaint except the one to the effect that the election held August 29, 1933, with reference to the federal amendment, was not a general election; that allegation was denied.

The affirmative defense contained the following allegations: That the sanitary sewer facilities of the city of Tacoma were wholly inadequate and were detrimental to the public health; that for some time past United States and state health officers had protested against the existing sanitary and trunk sewer conditions in Tacoma, and had ordered the installation of adequate sewer facilities; that the city council had attempted to comply with such demands by working out plans and means for financing such project; that the city was constantly confronted with damage claims alleged to have been caused by inadequate sewer facilities; that due and legal notice had been given of the bond election held September 26, 1933, and that such notice had been supplemented by editorial and advertising publicity; that over three-fifths of those voting on the proposition at the bond election had voted in the affirmative; that the election held August 29, 1933, relative to the federal amendment, was a general election; that the number of votes cast at the bond election was in excess of 50 per cent. of the number of votes cast at the election held August 29, 1933; that the sewer bonds were to be sold to the federal government, and that the city would thereby receive a grant of 30 per cent. of the cost of labor and material in accordance with the government's plan to aid and encourage public work projects; and that the particular project would provide direct employment for a great many men and thus relieve the conditions of want and starvation then existing among a large number of families in the city of Tacoma. The court sustained a demurrer to the affirmative defense.

There are three questions involved in this appeal. The first question concerns the constitutionality of Rem. Rev. Stat. § 5646-1. Article 8, § 6, of the state Constitution, which it is contended the statute offends, reads 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, nor 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.'

Rem. Rev. Stat. § 5646-1, which it is alleged offends the above portion of the Constitution, reads as follows:

'No general obligation bonds of any county, city, town, port district, or metropolitan park district upon which a vote of the people is required under existing laws shall be issued, nor shall they become a lien upon the taxable property within such municipality or district unless, in addition to all other requirements provided by law in the matter of the issuance of general obligation bonds by such municipality or district, the total vote cast upon such proposition shall exceed fifty per cent of the total number of voters voting in such municipality or district at the general county or state election next preceding such bond election.'

It will be noted that the statute contains a provision, the effect of which may require a greater number of votes, in order to create a municipal indebtedness, than is required by the Constitution. The Constitution requires only a three-fifths majority of those voting at a bond election in order to validate a bond issue. The statute requires, in addition, that the total number of votes cast at such bond election be in excess of 50 per cent. of the total number of votes cast at the next preceding 'general county or state election.'

The present case well illustrates the difference between the requirements of the Constitution and those of the statute. Under the provisions of the Constitution alone, the present bonds would be authorized, because the number of votes cast in the affirmative, at the bond election, was far in excess of the necessary three-fifths majority. But, under the added provision of the statute, if the general election of 1932 fixed the total number of votes necessary to be cast at the bond election, then the bonds were never authorized at all.

The appellants contend, first, that the statute is, in any event, unconstitutional, and that the bond election was in no way affected by the number of votes cast at any preceding general election.

In passing upon the constitutionality of a legislative enactment, several things must always be kept in mind. Courts do not sit to review or revise ...