State ex rel. Collier v. Yelle

• Decision Date: 30 June 1941
• Docket Number: 28352.
• Citation: 9 Wn.2d 317,115 P.2d 373
• Court: Washington Supreme Court
• Parties: STATE ex rel. COLLIER, City Treasurer, v. YELLE, State Auditor.

115 P.2d 373

9 Wn.2d 317

STATE ex rel. COLLIER, City Treasurer, v. YELLE, State Auditor.

No. 28352.

Supreme Court of Washington, En Banc.

June 30, 1941

Original mandamus proceeding by the State on the relation of Herbert L. Collier, as treasurer of the city of Seattle, against Cliff Yelle, auditor of the state of Washington.

Writ denied.

MILLARD J., dissenting.

A. C Van Soelen and J. Ambler Newton, both of Seattle, for relator.

Smith Troy and W. A. Toner, both of Olympia, for respondent.

BEALS Justice.

Herbert L. Collier, as treasurer of the city of Seattle, relator herein, filed in this court his verified petition asking for a writ of mandamus directed to Cliff Yelle, as auditor of the state of Washington, respondent in this proceeding, praying that a writ of mandamus issue out of this court, directing respondent to honor a voucher, dated February 14, 1941, drawn by relator as treasurer of the city of Seattle, directed to respondent as state auditor, requiring respondent to deliver to relator $75,685.50, that amount being five per cent of the aggregate of monthly credits to the city of Seattle in the motor vehicle fund for the present biennium, to February 1 1941.

An alternative writ of mandamus was issued, and a date fixed for a hearing thereon Before the court sitting En Banc. At the time appointed, the respondent appeared, by the attorney general and his assistant, and orally argued that the writ should not issue. A typewritten brief was also filed. The matter was again set for hearing Before the court En Banc, further briefs were filed, in which questions suggested by the court were discussed, and the matter was reargued. Respondent does not contend that the statements contained in relator's petition for the writ are not true. In effect, a demurrer to the petition for the writ was interposed, and we so consider the issue presented. The matter was submitted upon the question of the validity of the portion of chapter 181, Laws of 1939, hereinafter referred to.

Relator drew the voucher above referred to, pursuant to Laws of 1939, chapter 181, § 4, Rem.Rev.Stat.Supp. § 6600-3a, an act relating to public highways, establishing the motor vehicle fund as a permanent fund, providing for the distribution of funds accruing to the motor vehicle fund, making appropriations therefrom, etc. The pertinent portions of § 4 of the act referred to read as follows:

'Funds credited to the incorporated cities and towns of the State of Washington as set forth in sub-section (a) of section 3 above shall be subject to deduction and distribution as follows:

'(a) One and one-half per cent (1 1/2%) of such sums shall be deducted monthly as such sums are credited and set aside for the use of the Director of Highways for the supervision of the work and expenditures of such incorporated cities and towns on the city and town streets thereof; '(b) The balance remaining to the credit of incorporated cities and towns after such deduction shall be credited in the motor vehicle fund to each of the several incorporated cities and towns in the direct proportion that the population of each thereof shall bear to the population of all incorporated cities and towns in the state, such credit to be made monthly as such funds accrue. * * * Provided further, That in the case of Aurora Avenue in the City of Seattle designated by the Director of Highways as a city street forming a part of the route of a primary state highway, and for the construction and improvement of which the said city has issued bonds and such bonds are outstanding and are delinquent and unpaid, and with respect thereto there are outstanding and unpaid warrants, which are payable from a local improvement district or condemnation award fund, there shall be set aside and paid in the manner and for the purposes hereinafter provided an amount equal to five per cent (5%) of the monthly payment or allocation to the City of Seattle from the motor vehicle fund, or the amount that may be placed to the credit of the City of Seattle in the motor vehicle fund for city street purposes, said payment to be disposed of as follows: The City Treasurer shall monthly determine the amount equal to five per cent (5%) of the monthly credit to the City of Seattle in the motor vehicle fund which shall become available for the purposes of this sub-section, and shall compute the percentage that the monthly payment bears to the aggregate original assessments against all the real estate of the said Aurora improvement district to which the payment is to apply as herein provided, and from said monthly payment the City Treasurer shall first pay to every person who has paid any assessment or any installment thereof, of said district, the same percentage of the assessment payment, and shall credit and deduct from the amount of any unpaid assessment, or installment thereof, of said district, the same percentage of the unpaid assessment, or installment thereof. All computations, payments, credits and deductions herein provided for shall be made on the assessment levy, or installment, without including any interest for delinquency. Such five per cent (5%), shall be paid by the State Auditor to the City Treasurer on proper vouchers therefor.'

Respondent auditor resists the issuance of the writ, contending that the portion of § 4 (herein referred to as the proviso) providing for the appropriation of certain motor vehicle funds to the payment of Aurora avenue assessments is unconstitutional as in violation of the following sections of the state constitution:

Article II, § 28, subsection 10: 'The legislature is prohibited from enacting any private or special laws in the following cases:--

* * *

* * *

'10. Releasing or extinguishing, in whole or in part, the indebtedness, liability, or other obligation of any person or corporation to this state, or to any municipal corporation therein.'

Article VIII, § 5: 'The credit of the state shall not, in any manner, be given or loaned to or in aid of any individual, association, company, or corporation.'

Article XI, § 12: 'The legislature shall have no power to impose taxes upon counties, cities, towns, or other municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes, but may by general laws vest in the corporate authorities thereof the power to assess and collect taxes for such purposes.'

The fourteenth amendment to the constitution, amending certain sections of article VII thereof, reads in part as follows: 'All taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax and shall be levied and collected for public purposes only.'

Respondent also contends that the title to chapter 181, Laws of 1939, is not broad enough to include the proviso above quoted from § 4 of the act, and that§ 27 of the act, appropriating from the motor vehicle fund $5,500,000 for the purposes of the act, does not warrant in law the payment of the voucher drawn by relator as city treasurer, above referred to. It is also contended that the voucher submitted was incorrect in form and insufficient in substance.

Section 27 of the act above referred to reads as follows: 'For cities and towns, including cooperation with the Federal or state government or any agency thereof authorized by law, and for all other proper street purposes, including location, right of way, engineering, improvement, construction, reconstruction and maintenance of city streets, for payment of interest and principal of bonds issued for street purposes, as by law provided, there is hereby appropriated from the motor vehicle fund for the reimbursement of cities and towns for the biennium ending March 31, 1941, the sum of five million five hundred thousand dollars ($5,500,000), or so much thereof as shall become available.'

It may well be contended that § 27, supra, appropriating moneys from the motor vehicle fund for cities and towns, does not make any provision for the purpose referred to in the proviso above quoted from § 4 of the act, § 27 containing no reference to any such matter as the repayment to individuals of amounts paid on account of the assessments for the improvement of Aurora avenue, referred to in the proviso. For the reasons hereinafter stated, we find it unnecessary to decide whether or not the appropriation is sufficient. We are of the opinion that the title of the act is sufficient to cover the subject matter of the proviso.

The assessments for the improvement of Aurora avenue, referred to in the proviso, were regularly levied, pursuant to law. The assessments by way of condemnation for the improvement of Aurora avenue amounted to $666,776.75; the assessments for paving for that portion of Aurora avenue south of the George Washington Memorial bridge amounted to $82,400.77; and the assessments for paving north of the bridge amounted to $95,639.37. The assessment roll in connection with the condemnation proceeding was presented to the superior court, and after a lengthy hearing, the court ordered a blanket reduction of fifty per cent for the benefit of all property in the assessment district. From the order confirming the assessment roll as reduced, many property owners appealed to this court, with the result that the order of confirmation was affirmed. In re Aurora Avenue, Seattle, 180 Wash. 523, 41 P.2d 143, 147, 96 A.L.R. 1374. Many questions were presented and discussed at length in the opinion. Summing up the situation, we said:

'We are satisned that the assessments made in this proceeding were neither arbitrary nor capricious. On the contrary, we think the commissioners exercised sound judgment and acted on a fundamentally correct basis in creating the...