State Sav. Bank v. Davis

• Decision Date: 26 April 1900
• Parties: STATE SAV. BANK v. DAVIS et al.
• Court: Washington Supreme Court

61 P. 43

22 Wash. 406

STATE SAV. BANK v. DAVIS et al.

Supreme Court of Washington

April 26, 1900

Appeal from superior court, Jefferson county.

Application for mandamus by the State Savings Bank against Simon Davis and others, as the board of commissioners of Jefferson county, to compel a tax levy. From a judgment awarding the writ, and from an order sustaining a demurrer to defendants' answer, they appeal. Affirmed.

W. W Felger and Burke, Shepard & McGilvra, for appellants.

Benton Embree, for respondent.

GORDON C.J.

The respondent is the owner and holder of certain warrants drawn upon the general fund of the county of Jefferson, and payable to the order of the Pauley Jail Manufacturing Company. Application was made by the respondent to the superior court for a writ of mandate compelling the appellants, the board of commissioners of Jefferson county, to levy the maximum rate of taxes for the indebtedness fund of the county based upon the assessed valuation of the taxable property of that county for the year 1898, and to compel such board, in making the levy, to take into consideration the amount of the indebtedness of the county and the interest accruing thereon. The application included also a prayer for general relief and was supported by affidavit. A preliminary motion to dismiss the proceeding was made and overruled, and a demurrer to the affirmative answer was sustained. The trial resulted in a judgment awarding the writ, from which judgment and the order sustaining the demurrer to the affirmative answer this appeal is taken.

The first error assigned is the ruling of the court which denied a motion to dismiss the proceeding. The motion was based upon the alleged insufficiency of the service of the affidavit and motion for the writ. The return on the sheriff shows that he served it 'upon within-named defendants William Bishop Sr., and W. A. Andrews, as members of the Jefferson county board of commissioners, by delivering a true copy thereof, with a copy of the affidavit, both certified by the plaintiff's attorney, to the above named, the said defendants, personally in Jefferson county.' It is contended that this return indicates but a single service on one of the defendants, and is therefore void for uncertainty. In support of the contention, appellants cite the case of Rape v. Heaton, 9 Wis. 328. In that case the return of the officer was as follows: 'I have served this writ on defendant Peter Rape and William Rape by leaving a certified copy with his family, in their residence.' The supreme court of Wisconsin very properly, as we think, held that this return showed but a single service, while in the present case the return shows that both the defendants were personally served.

2. The next assignment is that the court erred in sustaining the demurrer to the affirmative defense. This assignment goes to the merits of the controversy. The ground upon which plaintiff's warrants are assailed is that the indebtedness evidenced by them was attempted to be incurred in excess of the constitutional limit of indebtedness. It appears from the allegations of the affirmative answer that on August 16, 1890, the assessment for that year was equalized, and amounted to $4,642,553, and that the amount of valid outstanding indebtedness existing against the county on that date was $60,206.59. On the same day the board of commissioners made an order providing for the calling of a special election to be held on the 19th of September, 1890 in the several precincts of the county, whereby was submitted to the legal voters the question of funding 'the present indebtedness, and also incurring an additional indebtedness for the purpose of erecting public buildings for the use of said Jefferson county, said present indebtedness to be funded, and the money to meet said additional indebtedness to be raised by and upon the bonds of Jefferson county, Washington; each of said bonds to be of the denomination of $1,000, and the total amount of said bonds to be $225,000.' The authority for holding this election is found in an act approved March 21, 1890. Sess. Laws, pp. 37-40, inclusive. In section 5 of that act it is provided that the bonds may be sold by the county commissioners at not less than their par value, 'and the proceeds shall be applied only for the purpose for which said bonds were issued.' It appears that at the election so provided for the requisite three-fifths vote was given, and thereafter, in pursuance thereof, bonds of the county were issued to the amount of $225,000, and the sum realized from their sale aggregated the sum of $232,341.29. It thus appears that the amount of the bonds authorized and issued falls within the limit of indebtedness permitted by section 6, art. 8, State Const. It further appears that on or about October 1, 1890, the commissioners of the county, in anticipation of the sale of the bonds, awarded a contract for the building of a court house, and that the total cost thereof, including compensation to the architect and superintendent of construction, as well as all extras contemplated by the contract, amounted to the sum of $142,462.30; and that on December 2, 1890, the commissioners entered into a contract with respondent's assignor, viz. the Pauley Jail Building & Manufacturing Company, whereby that company agreed to provide and construct a jail in the court house which was then in course of erection, and the commissioners, on behalf of the county, agreed to pay therefor, as full compensation, $17,287. Respondent's warrants are a part of the warrants issued in payment for the jail, pursuant to that contract. It also appears that, between August 16th, being the date of the submission of the bonding proposition, and December 2, 1890, the date of awarding the contract for the jail, warrants of the county were issued (for other purposes than the building and erection of public buildings for the use of...