Union High School Dist. No. 1, Skagit County v. Taxpayers of Union High School Dist. No. 1 of Skagit County

• Decision Date: 13 September 1946
• Docket Number: 30001.
• Citation: 26 Wn.2d 1,172 P.2d 591
• Parties: UNION HIGH SCHOOL DIST. NO. 1, SKAGIT COUNTY v. TAXPAYERS OF UNION HIGH SCHOOL DIST. NO. 1 OF SKAGIT COUNTY (WAKEFIELD, Intervener).
• Court: Washington Supreme Court

172 P.2d 591

26 Wn.2d 1

UNION HIGH SCHOOL DIST. NO. 1, SKAGIT COUNTY v. TAXPAYERS OF UNION HIGH SCHOOL DIST. NO. 1 OF SKAGIT COUNTY (WAKEFIELD, Intervener).

No. 30001.

Supreme Court of Washington, En Banc.

September 13, 1946

Action by the Union High School District No. 1, Skagit County Washington, against the Taxpayers of Union High School District No. 1, of Skagit County, Washington, to test and determine the authority of the district to issue certain general obligation bonds, wherein R. P. Wakefield, a taxpayer of the district, upon leave of court filed complaint in intervention, in resistance of the relief sought by the plaintiff. From judgment declaring that the bonds sought to be issued by the plaintiff would be invalid, plaintiff appeals.

Judgment affirmed.

MALLERY Justice, dissenting.

Appeal from Superior Court, Skagit County; W. L Brickey, judge.

Preston, Thorgrimson, Horowitz & Turner, of Seattle, and Norman Booth, of Mount Vernon, for appellant.

Richard F. Schacht, of Mount Vernon, and Weter, Roberts & Shefelman, and James Gay, all of Seattle, for respondent.

A. C. Van Soelen and John A. Homer, both of Seattle, George M. Ferris, Corp. Counsel, of Spokane, James W. Bryan, Jr., Corp. Counsel, of Bremerton, Harry L. Olson, City Atty., of Yakima, A. D. Gillies, Corp. Counsel, of Aberdeen, Ray D. Kendall, City Atty., of Wenatchee, Howard Carothers, Corp. Counsel, of Tacoma, Leslie R. Cooper, City Atty., of Everett, Joseph T. Pemberton, City Atty., of Bellingham, Judd D. Kimball, City Atty., of Walla Walla, Thomas L. O'Leary, City Atty., of Olympia, and William C. Bates, City Atty., of Vancouver, amici curiae.

STEINERT Justice.

The plaintiff, a high school district, instituted in the superior court for Skagit county an action to test and determine the authority of the district to issue certain general obligation bonds. Upon the filing of the complaint, the court entered an order naming and appointing Walter W. Blade, a resident taxpayer in the district, as the representative of all the taxpayers therein and as the person upon whom service of summons in the action should be made. The named representative taxpayer appeared through an attorney appointed by the court to defend the action and demurred to plaintiff's complaint. Subsequently, R. P. Wakefield, another taxpayer of the district, upon leave of court filed his complaint in intervention, in resistance of the relief sought by the plaintiff, and at the same time also demurred to plaintiff's pleading. Plaintiff in turn demurred to the complaint in intervention. After argument, the court sustained the demurrers interposed by the defendant Blade and the intervener Wakfield, respectively, and overruled the demurrer of the plaintiff. Upon stipulation of all the parties, plaintiff waived its right to plead further and the court entered judgment declaring that the bonds sought to be issued by the plaintiff would be invalid because, at the election held for that purpose, the proposition did not receive the requisite number of votes. Plaintiff appealed.

The facts, as stated in the complaint, are undisputed and are as follows: Pursuant to a resolution adopted by the directors of the school district, a proposition to issue bonds for the purpose of providing certain new buildings and equipment was submitted to the voters at a special school district election held November 17, 1945. At that election 1,664 votes favored the proposition and 94 votes were opposed.

At the general state election last preceding the school bond election, approximately 4,720 votes were cast by voters residing within the school district, while at the last preceding school district election of directors, held subsequent to the general state election, only 627 votes were cast. Thus, the total number of persons voting at the special school district election held November 17, 1945, constituted more than 40 per cent of the voters in the school district who voted at the last preceding annual election of school district directors, but was less than 40 per cent of the voters in the school district who voted at the last preceding general state election.

The trial court held that such proposed bonds would be invalid, because the special election therefor had not fulfilled the requirements of chapter 253, Laws of 1945, Rem.Supp.1945, § 11238--le, which reads, in part, as follows:

' Provided, further, That any municipal corporation otherwise authorized by law to issue general obligation bonds for capital purposes may, at an election duly held after giving notice thereof as required by law, authorize the issuance of general obligation bonds for capital purposes only, which shall not include the replacement of equipment, and provide for the payment of the principal and interest of such bonds by annual levies in excess of the tax limitation contained herein: Provided, That such election shall not be held oftener than once a year, and that the proposition to issue such bonds and to exceed said tax limitation shall receive the affirmative vote of a three-fifths majority of those voting on the proposition and that the total number of persons voting at such election shall constituted not less than forty per cent (40%) of the voters in said municipal corporation who voted at the last preceding general state election.' (Concluding italics ours.)

The language which we have italicized, appearing at the end of the foregoing quotation from the statute, differs from the language found in the 40 mill tax limit amendment (Amendment, 17, Art. VII, § 2, Washington constitution, approved November, 1944), in that the latter uses the term 'last preceding general election.' In other words, the legislative act inserts the word 'state' between the words 'general' and 'election'.

The pertinent part of the seventeenth amendment is as follows:

'Except as hereinafter provided and notwithstanding any other provision of this constitution, the aggregate of all tax levies upon real and personal property by the state and all taxing districts now existing or hereafter created, shall not in any year exceed forty mills on the dollar of assessed valuation * * *. Such aggregate limitation or any specific limitation imposed by law in conformity therewith may be exceeded only

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'(b) by any taxing district otherwise authorized by law to issue general obligation bonds for capital purposes, for the sole purpose of making the required payments of principal and interest on general obligation bonds issued solely for capital purposes, other than the replacement of equipment, when authorized so to do by a majority of at least three-fifths of the electors thereof voting on the proposition to issue such bonds and to pay the principal and interest thereon by an annual tax levy in excess of the limitation herein provided during the term of such bonds, submitted not oftener than twice in any calendar year, at an election held in the manner provided by law for bond elections in such taxing district, at which election the total number of persons voting on the proposition shall constitute not less than forty per centum of the total number of votes cast in such taxing district at the last preceding general election.' (Italics ours.)

The crucial question here to be decided is whether the legislative act is unconstitutional, as imposing limitations upon the issuance of bonds for capital purposes by local taxing districts in addition to those set out in the seventeenth amendment. If the act is not repugnant to the constitution in the respect noted, then indubitably the election at which the school bonds were voted was not sufficient to authorize the bonds and the judgment of the trial court would necessarily have to be affirmed.

For the purposes of this case, we will assume, as contended by appellant, that the regular annual election at which appellant's school directors were chosen constituted a 'general election.' See State ex rel. Griffin v. Superior Court, 70 Wash. 545, 127 P. 120.

It is an elementary principle of constitutional law, universally accepted, that where the validity of a statute is assailed, there is a presumption of the constitutionality of the legislative enactment unless its repugnancy to the constitution clearly appears or is made to appear beyond a reasonable doubt. 11 Am.Jur. 776, Constitutional Law, § 128. This court has upheld that principle many times. In Robb v. City of Tacoma, 175 Wash. 580, 28 P.2d 327, 330, 91 A.L.R. 1010, we said:

'In passing upon the constitutionality of a legislative enactment, several things must always be kept in mind. Courts do not sit to review or revise legislative action, but rather to enforce the legislative will when acting within its constitutional limits. A legislative act carries with it the presumption of its constitutionality and will not be declared void unless its invalidity appears beyond a reasonable doubt. If the act is fairly and reasonably open to more than one construction, that construction will be adopted which will harmonize the statute with the Constitution and avoid a conflict therewith.'

In State v. Hanlen, 193 Wash. 494, 76 P.2d 316, 317, it is declared:

'It is presumed that the statute in question is constitutional, and the burden rests upon appellant [the attacking party] to establish clearly its invalidity.'

In State ex rel. Todd v. Yelle, 7 Wash.2d 443, 110 P.2d 162, 167, appears this statement:

'Since we are considering whether or not an act of a state legislature violates a state constitution, it is elementary and both parties to this controversy through their respective counsel admit, that the questioned act must be upheld unless some express or fairly implied limitation upon the legislature's power to enact it is found in ...