Spear v. City of Bremerton

• Citation: 90 Wash. 507,156 P. 825
• Decision Date: 04 April 1916
• Docket Number: 13318.
• Parties: SPEAR et al. v. CITY OF BREMERTON (KITSAP HOTEL INV. CO. et al., Interveners.
• Court: Washington Supreme Court

156 P. 825

90 Wash. 507

SPEAR et al. v. CITY OF BREMERTON (KITSAP HOTEL INV. CO. et al., Interveners.

No. 13318.

Supreme Court of Washington

April 4, 1916

Department 1. Appeal from Superior Court, Kitsap County; King Dykeman Judge.

Action by Jesse E. Spear and George E. Pruden against the City of Bremerton, a municipal corporation of the third class, in which the Kitsap Hotel Investment Company and others intervened. From a judgment for defendant, plaintiffs appeal. Remanded, with directions.

A. C. Durham, of Bremerton, and Robinson &amp Robinson, of Seattle, for appellants.

Marion Garland, of Bremerton, and Bryan & Colvin, of Seattle, for respondent.

CHADWICK J.

This is an action by citizens and taxpayers of the city of Bremerton to restrain the issuance of bonds for the purchase of the Bremerton Water Company's plant. The right of the city to purchase, under certain reservations in the franchise, was established in the case of City of Bremerton v. Bremerton Water & Power Co., 153 P. 372. This action is maintained upon the theory that the city is proceeding without power and for that reason the issue should be restrained. A brief résumé of the facts is necessary to a complete understanding of the issues, and the conclusions we have drawn therefrom.

On March 14, 1902, the predecessors of the Garrison-Fisher Company obtained a franchise to construct and maintain a waterworks system in the city of Charleston. On the 7th day of April, 1902, a like franchise was obtained from the city of Bremerton. Since that time, the Garrison-Fisher Company has maintained a water system which supplies the cities of Charleston, Bremerton, the Navy Yard, and outlying territory in the vicinity of the two towns; the proportion of use being, approximately, Bremerton 40 per cent., Charleston 20 per cent., and the Navy Yard and outlying suburbs 40 per cent. The supply of water comes from head works which are west of Charleston. The main pipe line runs east through Charleston, and into the city of Bremerton. The Navy Yard takes its supply at the yard limits. The government owns and maintains its own distributing system. The city of Bremerton proposes to take over the whole plant, and, in turn, supply the two municipalities and the other customers of the present company as a business enterprise. The trial judge sustained the city in all its contentions. We shall notice the several assignments of error in their order:

1. We hold that the city has a right to purchase a water system theretofore established (Rem. & Bal. Code, § 8005), subject to such qualifications as are hereinafter noticed, 'and to dispose of any excess or surplus of any such supply to any person within or without the city.' Having this power, it is unnecessary to discuss the question of res judicata which is based upon the case of Bremerton v. Bremerton Water &amp Power Co., supra. The power to purchase generally, and the price to be paid were the only questions involved in the former case. The exercise of the power was not involved, and not passed upon. Neither were these appellants bound to intervene or otherwise assert their rights as taxpayers in that case under the authority of Stallcup v. Tacoma, 13 Wash. 141, 42 P. 541, 52 Am. St. Rep. 25. They were not bound to speak until it became evident that the city had fixed the purchase price, and was proceeding to put a charge upon their property to pay it. In other words, the city was not bound to proceed if the price was not satisfactory. Until it did the taxpayer had no interest.

2. It is next contended that the city cannot own a system for the purpose of distributing water outside of its corporate limits, or to another municipality. The case of Farwell v. Seattle, 43 Wash. 141, 86 P. 217, 10 Ann. Cas. 130, is relied on to sustain the doctrine that the powers of a municipality cannot be extended beyond the terms or necessary implications of the statute. The power of a city to purchase a waterworks is given by section 8005 of Rem. & Bal. Code. It reads:

'Any incorporated city or twon within the state be, and is hereby, authorized to construct, condemn and purchase, purchase, acquire, add to, maintain, conduct and operate waterworks, within or without its limits, for the purpose of furnishing such city or town and the inhabitants thereof, and any other persons, with an ample supply of water for all uses and purposes, public and private, including water power and other power derived therefrom, with full power to regulate and control the use, distribution and price thereof.'

It is insisted that the power to supply is limited to the actual inhabitants of the city ' and any other persons'; that, under the rule of ejusdem generis, as declared in Farwell v. Seattle, supra, the word 'persons' means persons within and not without the city. The Farwell Case was decided under the act of 1890 (Ballinger's Ann. Codes & St. § 739). Since then we have the act of 1909 (Rem. & Bal. Code, § 8005), the act of 1911 (Laws 1911, p. 512, c. 111, § 6), and the act of 1915 (Laws 1915, p. 659, c. 184, § 16).

It seems to have been the purpose of the Legislature to make it plain that the surplus of a municipally owned plant could be sold to those outside of a city by the act of 1911; but for some reason this act was repealed (Laws 1915, p. 318, c. 112), and the act of 1915, just referred to, was thereafter passed. Section 16 of the late act gives the right in terms 'to dispose of any excess of any such supply to any person within or without such city.' The power to sell without such city implies that a sale may be made to those other than the inhabitants thereof. The power to sell implies the power to distribute, and we have no hesitation in holding that the city may sell its surplus to the Navy Yard, and to those living within the unincorporated territory in the vicinity of the corporate limits. The act of 1915 is attacked upon grounds which, in view of our construction of the other acts, are not necessary to be discussed.

The next question, whether the city of Bremerton can purchase and maintain a distributing system in the city of Charleston, or acquire the franchise heretofore owned by the Bremerton Water Company (Garrison-Fisher Company,) is of more consequence. We are of the opinion that it cannot. The power is not within the terms of the several acts to which reference has been had, and it is certainly not within the necessary implications of any of them. The purpose of the law is plain. It is to give a city the power to acquire, by purchase or otherwise, a water system for the benefit of its own inhabitants, and the power, pending a use by its inhabitants, to dispose of any surplus. The power to sell the excess is incidental to the main purpose; that is to say, a city can develop a plant, or purchase an existing plant, and, whichever its method may be, it can reasonably anticipate the future and develop or purchase more than enough to supply its present needs. The statute does not authorize, even by the remotest implication, one city to take over a distributing system in another city. To supply water to the inhabitants of a city is a municipal function. It is to be controlled by the city using it, and not by the city selling it, and notwithstanding it is said that the city of Charleston, through its council, has indorsed this proceeding, and waives its reserved right under the franchise in favor of Bremerton, and notwithstanding the power of Bremerton to sell its surplus to the city of Charleston, it cannot invade, or take away, the power and the duty of the council of Charleston to deal with its own inhabitants directly, and not through the instrumentality of another, in the exercise of every function committed to it by the Legislature.

There is another reason why it cannot be so. The city of Bremerton it its corporate...