Tacoma Light & Water Co. v. City of Tacoma

• Decision Date: 25 November 1895
• Docket Number: 1,914.
• Citation: Tacoma Light & Water Co. v. City of Tacoma, 42 P. 533, 13 Wash. 115 (Wash. 1895)
• Court: Washington Supreme Court
• Parties: TACOMA LIGHT & WATER CO. v. CITY OF TACOMA.

42 P. 533

13 Wash. 115

TACOMA LIGHT & WATER CO. v. CITY OF TACOMA.

No. 1,914.

Supreme Court of Washington

November 25, 1895

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by the Tacoma Light & Water Company against the city of Tacoma. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Parsons, Corell & Parsons and Crowley, Sullivan &amp Grosscup, for appellant.

J. A Shackleford, J. S. Whitehouse, and A. R. Titlow, for respondent.

SCOTT J.

This was an action brought to recover possession of a certain quantity of water pipe which the respondent claimed to have purchased from appellant. The controversy arose out of the sale by the appellant to the respondent of its water and electric light plant, situate in said city. There seems to be no disagreement as to the facts which we deem material to a determination of the cause, and but a single question of law is presented for our consideration, and that is whether the proposition as embraced in the ordinance submitting it to the voters of said city must govern, independent of all other matters, or whether the same can be modified and construed in connection with the proposition theretofore submitted by appellant to respondent, and by the action of appellant and the city council and certain other officers of the respondent subsequent to the passing of the ordinance and the adoption of the proposition to purchase by the voters of the city. The proposition to purchase as submitted by the ordinance specified the "waterworks and electric light plant, and all such sources of water supplies, riparian rights and rights of way, lands, lots, personal property an franchises as are now owned or operated by the Tacoma Light and Water Company, as part of such water and electric light plants excepting their distributing system in the town of Puyallup." The special election was held on the 11th day of April, 1893, under further provisions of this ordinance, and the proposition to purchase the property as submitted by the ordinance was carried.

It is conceded that no other ordinance than No. 790, the one above referred to, was passed by the city council relating to the matters in controversy, and the proposition contained therein was the only one ever voted upon or ratified by the electors of said city. Prior to the passage of this ordinance, and leading up to the submission of the matter to the electors of the city, it is conceded that appellant, in dealing and negotiating with the officers of the respondent, and in finally offering its plant for sale, accompanied such offer with, and submitted the same upon, a written schedule, in which the property in controversy was not mentioned. It also appears that the ordinance, as prepared by the city attorney and originally proposed, limited the property in terms to that specified in said schedule, but that it was amended before its final passage to describe the property as above specified. Said ordinance is published in full in Seymour v. City of Tacoma, 6 Wash. 138, 32 P. 1077. At the time the negotiations relating to the transfer of said plant were begun, the pipe in question had been purchased by appellant at Philadelphia, but had not been delivered at Tacoma. It had arrived, however, and was within the corporate limits of said city, at and prior to the time of the submission of the ordinance; and it is conceded that it had been purchased by appellant for the purpose of repairing and extending its system. Subsequent to the adoption by the electors of the proposition to purchase, a deed was executed by appellant to the respondent, which also purported to limit the property conveyed to that specified in the schedule submitted to the council prior to the passage of the ordinance. Upon the tender of the deed, some controversy arose between the city council and appellant over the property to which the city was entitled under the terms of the purchase, it being contended by the respondent that certain property which it was entitled to had been omitted from the schedule, and certain additions thereto were made after a conference between appellant and a committee appointed by the council; whereupon certain resolutions were passed by the council, one of which read as follows "Resolved, that the certified schedule of properties submitted by the city attorney, with his report and with amendments as made by report of special conference committee, contains the correct list of the properties of the Tacoma Light and Water Company proposed to be purchased in pursuance of Ordinance No. 790." The others approved the form of deed as amended, and provided for obtaining satisfaction of a mortgage on a part of the property, and directed certain officers of the city to take the bonds to New York, and there to accept delivery of the deed from appellant, and to deliver the bonds. This was done, as indicated by the following telegram, sent July 19, 1893, by said officers to respondent: "To John T. Lee, Acting Mayor, Tacoma, Washington: Deal for light and water plant closed today, as per telegram July 13th. City is authorized to take charge of the plant immediately as per schedule. Pay all bills as from July 1st; sign all receipts. [Signed] H. S. Huson, S. C. Slaughter." It is contended by appellant that this closed the transaction as far as it and the council were concerned; that the city had the deed to the property, and appellant had the money; and that everything was done except to deliver possession. But on August 2, 1893, the council passed the following resolution: "Be it resolved, that the committee on fire and water of the city council receive that portion of the personal property of the Tacoma Light & Water Co. which the company is willing to turn over to the city, receive it under protest, claiming that the city does not relinquish any right in receiving this fraction of the...