State v. Walters

• Decision Date: 13 May 1930
• Docket Number: 22119.
• Citation: 156 Wash. 664,287 P. 874
• Parties: STATE ex rel. MOSES v. WALTERS, City Treasurer.
• Court: Washington Supreme Court

287 P. 874

156 Wash. 664

STATE ex rel. MOSES v. WALTERS, City Treasurer.

No. 22119.

Supreme Court of Washington, En Banc.

May 13, 1930

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

Mandamus by the State, on the relation of H. W. Moses, against A. S Walters, as City Treasurer of Tacoma. Judgment of dismissal and relator appeals.

Reversed and remanded, with directions.

BEALS TOLMAN, and FRENCH, JJ., dissenting.

Preston, Thorgrimson & Turner, of Seattle, for appellant.

E. K. Murray, Leo Teats, and Bartlett Rummell, all of Tacoma, for respondent.

PARKER J.

The relator, Moses, sought in the superior court for Pierce county a writ of mandate to compel the defendant, Walters, as city treasurer of the city of Tacoma, to pay from certain local improvement district funds in his hands the principal of certain bonds of the district held by the relator. The defendant demurred to the relator's petition for the writ, on the ground that it does not state facts constituting a cause for relief as prayed for. The demurrer was by the superior court sustained. The relator elected to stand upon his petition and not plead further. Final judgment of dismissal was thereupon rendered against him, from which he has appealed to this court.

The controlling facts, as we view this case, may be summarized from the allegations of appellant's petition for the writ, as follows: In December, 1910, the city duly established local improvement district No. 347, within the city, for the construction of a local improvement therein, to be paid for by special assessments against the properties benefited thereby. In due course, on December 14, 1910, the city duly issued bonds of the district, serially numbered from 1 to 1260, inclusive, each identical with all the others except as to serial number and except as to bond No. 1 which was for the principal sum of $80.33, all of the other bonds being for the principal sum of $100 each. Appellant is the owner and holder of bonds numbered 750 to 790, inclusive. Some other unknown person or persons own and hold bonds numbered 791 to 817, inclusive. Appellant is the owner and holder of bonds numbered 818 to 886, inclusive. A copy of bond numbered 750, which, as has been noticed, is identical with all the other $100 bonds, except as to number, is attached to appellant's petition and made a part thereof, which, so far as need be here noticed, reads as follows:

'The City of Tacoma, a municipal corporation of the State of Washington, hereby promises to pay to W. J. Murphy or bearer One Hundred Dollars lawful money of the United States with interest thereon at the rate of seven per cent. per annum payable annually out of the fund established by ordinance No. 4016 of said City and known as Local Improvement Fund District No. 347 of Tacoma, and not otherwise, both principal and interest payable at the office of the Treasurer of said City.

' A coupon is hereto attached for each installment of interest to accrue hereon and said interest shall be paid only on presentation and surrender of such coupon to the City Treasurer but in case this bond is called for payment before its maturity each and every coupon representing interest not accrued at the time this bond is payable under such call shall be void. This Bond is payable on or before the 14th day of December, 1920, and is subject to call by the City Treasurer of said City whenever there shall be sufficient money in said local improvement fund to pay the same and all unpaid Bonds of the series of which this Bond is one which are prior to this Bond in numerical order over and above sufficient for the payment of interest on all unpaid Bonds of said series.

' The City Council of said City as the agent of said Local Improvement District No. 347 established by said Ordinance No. 4016 has caused this Bond to be issued in the name of said City as the Bond of said Local Improvement District. * * *

'This Bond is one of a series of 1260 Bonds aggregating in all the principal sum of One hundred twenty-five thousand nine hundred eighty and 33-100 Dollars issued for said Local Improvement District. * * *'

We italicize certain portions of these quotations to be particularly noticed. There is printed upon each bond a copy of section 9 of the statute under which they were issued, hereinafter quoted. Bonds numbered 1 to 749 have been paid in full, so that the bonds next in order for payment, as funds are available therefor, are bonds numbered 750 and upwards, held by appellant and others. The interest represented by the interest coupons of all the outstanding bonds has been paid; that is, all interest has been paid up to December 14, 1920, the stated date of final maturity of all the bonds, there being no coupons representing any interest to be paid after that date. There is now in the local improvement fund of the district, in the hands of respondent as city treasurer, the sum of $9,137.59, available for payment of the principal upon the outstanding bonds; or available for payment upon interest claimed by respondents as having accrued upon the principal of the outstanding bonds since December 14, 1920, if such interest is payable in preference to the principal of the outstanding bonds in order of their serial numbers. There is also a large amount of property within the district as to which the assessments have not been paid, and the city now holds title thereto by virtue of foreclosure of the assessments thereon. The assets of the district, consisting of the cash on hand and such property so held by the city, are not of sufficient value to secure the payment in full of all the outstanding bonds. Appellant's prayer for relief, as was his demand upon respondent as city treasurer, is, in substance, that respondent as treasurer, by writ of mandate, be required to apply the $9,137.59 cash funds of the district in his hands to the payment of the principal of the outstanding bonds in order of their number; that is, in payment of bonds numbered 750 to 790, inclusive, held by appellant; in payment of bonds numbered 791 to 817, inclusive, held by others; and in payment of bonds numbered 818 and upwards, held by appellant, in so far as payment of that sum so applied will pay appellant's bonds last mentioned.

The statute under which the bonds in question were issued by the city, being chapter 124, pp. 234-239, Laws of 1899, §§ 9515-9525, Rem. Comp. Stat., in so far as necessary to be here noticed, reads as follows:

'Section 1. * * * the proper authorities of such city may, in their discretion, provide for the payment of the cost and expense of such improvement by bonds of the district, which shall include the property liable to assessment for the payment of the cost and expense of such improvement. * * *

'Sec. 2. Such bond shall be issued * * *, and by their terms shall be made payable on or before a date not to exceed ten years from and after the date of the issue of such bonds, * * * and shall bear such interest as may be provided in such ordinance, not exceeding eight per centum per annum, which interest shall be payable annually, or semi-annually, as may be provided by ordinance, and each bond shall have attached thereto interest coupons for each interest payment. Such bonds shall be in such denominations as shall be provided in the ordinance ordering their issue and shall be numbered from one upwards, consecutively, * * * and shall refer to the improvement to pay for which the same shall be issued and to the ordinance ordering the same, each bond shall provide that the principal sum therein named, and the interest thereon, shall be payable out of the local improvement fund created for the payment of the cost and expense of such improvement, and not otherwise. * * *

'Sec. 4. * * * the ordinance levying such assessment shall declare that the sum charged thereby against each of such lots and parcels of land may be paid in equal annual installments; the number of which installments shall be equal to the number of years which the bonds issued to pay for the improvement may run, with interest upon the whole sum so charged at a rate fixed by said ordinance, and each year thereafter one of such installments together with the interest due thereon and on all installments thereafter to become due shall be collected. * * *

'Sec 7. The city treasurer shall pay the interest on the bonds authorized to be issued by this act out of the respective local improvement funds from which they are payable. Whenever there shall be sufficient money in any local improvement fund against which bonds have been issued under the provisions of this act, over and above sufficient for the payment of interest on all unpaid bonds,...