Twichell v. City of Seattle

• Decision Date: 05 March 1919
• Docket Number: 15247.
• Citation: 179 P. 127,106 Wash. 32
• Court: Washington Supreme Court
• Parties: TWICHELL et al. v. CITY OF SEATTLE et al.

179 P. 127

106 Wash. 32

TWICHELL et al. v. CITY OF SEATTLE et al.

No. 15247.

Supreme Court of Washington, En Banc.

March 5, 1919

Appeal from Superior Court, King County; Walter M. French, Judge.

Action by F. A. Twichell, as a taxpayer, against the City of Seattle, a municipal corporation of the first class, and the Puget Sound Traction, Light & Power Company, a corporation wherein Charles E. Horton, as a taxpayer, intervened. From judgment dismissing the complaints of plaintiff and the intervener, they appeal. Affirmed.

Chadwick C.J., and Mackintosh, J., dissenting.

Piles & Halverstadt, of Seattle, for appellant Twichell.

Donworth & Todd, of Seattle, for appellant Horton.

Walter F. Meier, Thomas J. L. Kennedy, Robt. H Evans, Jas. B. Howe, Hugh A. Tait, and John H Powell, all of Seattle, for respondents.

MITCHELL, J.

This action was instituted by appellant F. A. Twichell, as a taxpayer, to restrain the respondents, the city of Seattle and Puget Sound Traction, Light & Power Company, a corporation, from entering into a contract whereby $15,000,000 of utility bonds, payable from the revenues of the entire system, as provided for by ordinances of the city are to be delivered to the traction company by the city in payment for the street railway system of the traction company in the city, which system the city is seeking to acquire as an addition and betterment to, and extension of, the city's existing street railway system. He seeks further to enjoin the city from contracting for the purchase of electric energy for the operation of the street railway system, and also to enjoin the granting by the city of trackage rights to the Pacific Northwest Traction Company and the Puget Sound Electric Railway Company, called, respectively, the Everett and Tacoma interurbans, which have been operating their cars over the street railway tracks of the traction company within the limits of the city of Seattle; all things thus sought to be restrained being within and pursuant to the terms of an agreement between respondents.

To consummate its entire plan the city passed four ordinances. The first one, No. 39,025, specifies and adopts the system or plan of additions, betterments, and extensions of the city's existing street railway system, provides for the acquisition of and payment for the street railway lines, property, and equipment of the traction company, and issuing bonds in payment therefor, and creates a special fund to pay the principal and interest of such bonds. This ordinance sets out a form to be substantially followed for the bonds and coupous. The second ordinance, No. 39,069, is the purchase contract ordinance. It provides for the making of the contract of purchase and sale between respondents, whereby the traction company sells to the city its entire street car system and property in the city for the sum of $15,000,000, payable in the utility bonds provided by ordinance No. 39,025, and sets out in haec verba a copy of the proposed contract. This ordinance also provides for a contract whereby the city agrees to purchase electric power from the traction company for the operation of the city's street railways and pay for the same for a term of years. The third ordinance, No. 39,070, provides for the making of an agreement with the company for the operation of interurban cars and trains of the Puget Sound Electric Railway (Tacoma Interurban) over certain of the tracks of the street car system to be acquired, among other things, in protection of the traction company's existing contract with the interurban railway company. And the fourth ordinance, No. 39,071, is similar to No. 39,070, only it relates to the Pacific Northwest Traction Company, known as the Everett Interurban.

By his amended complaint appellant Twichell, after alleging the contract for the purchase and sale of the property of the traction company for the sum of $15,000,000, payable in utility bonds, pleads by number, title, and date of passage and approval, each of the four ordinances hereinbefore referred to, and then sets out with particularity much of the substance and effect of the ordinances and the plan and intentions of the respondents in support of the averment that the proposed bond issue, according to the manner and form outlined in the ordinances, is contrary to the power of the city under its charter and the laws of the state, threatening indebtedness of the city in excess of the amount permitted by the Constitution of the state, and that the city intends to, and unless restrained will, issue and deliver said bonds to the traction company. He demands that the city be enjoined from issuing and delivering the bonds, and that respondents be enjoined from completing the contract for the sale and purchase of the street car system and property.

To the amended complaint the city answered with appropriate denials, and by affirmative answer and defense alleged that it already owns and operates a municipal street railway system, and intends to acquire the system of the traction company to be operated in connection therewith; that, in order to adopt a plan for the acquisition of additions, and to acquire and operate the system of the traction company as an addition, betterment, and extension of its present street railway system, it passed the ordinances referred to in the amended complaint, which ordinances are made a part of the city's answer by appropriate reference and by setting them out in extenso, attached as Exhibits A, B, C, and D. The answer of the traction company to the amended complaint is to the same general effect as the answer of the city. To each of the affirmative answers and defenses appellant Twichell demurred on the ground that the same, as it appears upon the face thereof, does not constitute a defense to the cause of action set out in the amended complaint.

After the filing of the answers, intervening appellant, Charles E. Horton, as a taxpayer, filed a complaint in intervention in the action. Other than the allegation that none of the provisions or plans of either of the four ordinances involved was ever submitted to the voters, and that the three ordinances other than the bond ordinance are drawn more positively and completely into the controversy, if possible, the complaint in intervention, while exhibiting more detail and particularity, may be taken, for the purposes of this case as we view it, similar to the amended complaint of Twichell. To the complaint in intervention each respondent filed a general demurrer. The trial court sustained the demurrers of respondents to the complaint in intervention, and overruled the demurrers to the affirmative answers and defenses of respondents to the amended complaint of Twichell. Appellant and intervening appellant each electing to stand upon the issues as made, the trial court entered a judgment of dismissal, from which this appeal is prosecuted by both complainants.

The principal contentions in the case center upon Ordinances No. 39,025 and No. 39,069. Section 8005, Rem. Code, authorizes any incorporated city or town within the state, among other things, to construct, condemn, and purchase, acquire, add to, maintain, operate, or lease cable, electric, and other railways within the limits of such city or town for the transportation of freight and passengers, and to fix, alter, regulate, and control fares and rates to be charged thereon. Section 8006 of the Code provides that whenever the city council shall deem it advisable that the city shall purchase, acquire, or construct any public utility mentioned in section 8005, it shall provide therefor by ordinance specifying the system or plan proposed and the estimated cost thereof, and submit the same to the qualified voters, except in certain cases where no submission shall be necessary, as follows:

'(1) When the work proposed is an addition to, or betterment of, or extension of, or an increased water supply for, existing waterworks, or an addition, betterment or extension of an existing system or plant of any other public utility mentioned in section 8005 hereof, for which no general indebtedness is to be incurred by such city or town; * * * or

'(2) Where in any charter of any city or town in the state of Washington heretofore or hereafter adopted by a vote of the people, an article or provision has been adopted authorizing the city council or other corporate authorities of such city to provide by ordinance for acquiring, opening or operating any of said public untilities, for which no general indebtedness is to be incurred by such city or town.'

The city of Seattle has a charter, article 4, section 18, subdivision 15(a) of which confers upon the city council the right, by ordinance, to exercise certain powers, similar to those granted by section 8005 of the Code. Section 8008 of the Code provides:

'* * * whenever the common council or other corporate authorities of any such city or town shall be authorized to exercise any of the powers conferred by section 8005 hereof without submitting any proposition as provided in subdivision first and second of section 8006 hereof, the common council or other corporate authorities shall have power to create a special fund or funds for the sole purpose of defraying the cost of such public utility or addition, betterment or extension thereto, into which special fund or funds the common council or other corporate authorities of such city or town may obligate and bind the city or town to set aside and pay a fixed proportion of the gross revenues of such public utility, or any fixed amount out of and not exceeding a fixed proportion of such revenues, or a fixed amount without regard to any fixed proportion, and to issue and sell bonds or warrants bearing interest not exceeding six per centum

...