Tabb v. Funk

• Court: Washington Supreme Court
• Writing for the Court: BLAKE, J.
• Citation: Tabb v. Funk, 170 Wash. 545, 17 P.2d 18 (Wash. 1932)
• Decision Date: 20 December 1932
• Docket Number: 24329.
• Parties: TABB v. FUNK et al.

17 P.2d 18

170 Wash. 545

TABB v. FUNK et al.

No. 24329.

Supreme Court of Washington

December 20, 1932

Department 1.

Appeal from Superior Court, Spokane County; Chas. H. Leary, Judge.

Action by H. F. Tabb, individually and as Treasurer of the City of Spokane, against Leonard Funk and others, as City Commissioners and constituting the City Council of the City of Spokane, and others. Judgment of dismissal, and plaintiff appeals.

Affirmed.

J. M Geraghty and Alex M. Winston, both of Spokane, for appellant.

Graves Kizer & Graves, of Spokane, for respondents.

BLAKE J.

This is an action to enjoin the issuance by the defendants, as city commissioners and officers of the city of Spokane, of $400,000 general obligation bonds. From a judgment dismissing the action and adjudicating the validity of the bonds plaintiff appeals.

In 1907, by a vote of the electorate, the city was authorized to issue general obligation bonds for the purpose of repairing and building bridges. The bonds issued pursuant to that authority fall due January 1, 1933. The proposed bonds here in question are designed for the purpose of refunding the bonds of 1907. These proposed bonds, however, do not have the sanction of the electorate. The authority for them rests solely in Ordinance No. C 5165, passed by the city council October 17, 1932.

The validity of these bonds is attacked on two grounds: (1) That the tax, provided for in the ordinance to retire them, will necessitate an annual levy of taxes by the city (when added to the amount necessary for other purposes) in excess of 15 mills, in violation of initiative measure No. 64; (2) that they will carry the city's indebtedness beyond the limit fixed by section 6, article 8, of the Constitution.

1. Initiative measure No. 64, so far as it affects the question raised, provides: 'Except as hereinafter provided, the aggregate of all tax levies upon real and personal property by the state, county, school district and city or town, shall not in any year exceed forty mills on the dollar of assessed valuation, which assessed valuation shall be fifty per cent. of the true and fair value of any such property in money, and the levy by the state shall not exceed five mills, the levy by any county shall not exceed ten mills, including the levy for the county school fund, the levy by or for any school district shall not exceed ten mills, and the levy by any city or town shall not exceed fifteen mills; * * * Provided further, That the limitations imposed by this section shall not prevent the levy of additional taxes to pay interest or principal on bonds issued by or thru the agency of the state, or any county, city, town or school district, nor the levy of additional taxes to pay interest on, or toward the reduction at the rate provided by statute, of the principal of county, city, town or school district warrants outstanding at the time of taking effect of this act. * * *'

It is contended that the words 'outstanding at the time of the taking effect of this act,' at the end of the proviso, relate back to the first clause of the proviso and limit the power to make the additional levy only as to such bonds as were outstanding at the time the act took effect.

We do not think the act is subject to such construction, either grammatically or legally. Had it been the intention to limit the additional levy to outstanding bonds as well as warrants, it could have been expressed in half the words by inserting the words 'and warrants' after the word 'bonds.' The proviso consists of two clauses, dealing with different subjects and separated by the disjunctive 'nor.' In 2 Lewis' Sutherland, Statutory Constitution (2d Ed.) § 420, it is said: 'Relative and qualifying words and phrases, grammatically and legally, where no contrary intention appears, refer to the last antecedent.'

We do not see how the power to make the additional levy for bonds could have been more clearly distinguished from the power to make it for warrants than by the language used, unless, perhaps, the words 'provided further' had been substituted for the word 'nor.'

Furthermore, provisos are always strictly construed. They derive nothing by implication. Sackman v. Thomas, 24 Wash. 660, 64 P. 819, 824; Tsutakawa v. Kummamoto, 53 Wash. 231, 101 P. 869, 102 P. 766. In the former case it is said: 'A proviso carves special exceptions only out of the enacting clause, and those who set up any such exception must establish it as being within the words, as well as within the reason, thereof.'

The contention here made is neither within the words nor the reason of the proviso.

2. It is further contended that this bond issue will carry the city beyond the limit of indebtedness fixed by section 6, article 8, of the Constitution, the pertinent provisions of which are 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...